Watson on behalf of Nyikina & Mangala v Backreef Oil Pty Ltd
[2013] FCA 1432
•23 December 2013
FEDERAL COURT OF AUSTRALIA
Watson on behalf of Nyikina & Mangala v Backreef Oil Pty Ltd [2013] FCA 1432
Citation: Watson on behalf of Nyikina & Mangala v Backreef Oil Pty Ltd [2013] FCA 1432 Appeal from: Application for extension of time for leave to appeal: Backreef Oil Pty Ltd and Oil Basins Ltd/JW (name withheld) and Ors on behalf of Nyikina and Mangala/Western Australia [2013] NNTTA 9 Parties: JOHN WATSON AND OTHERS ON BEHALF OF NYIKINA & MANGALA v BACKREEF OIL PTY LTD (ACN 116 221 286) and OIL BASINS LTD (ACN 006 024 764) and STATE OF WESTERN AUSTRALIA File number(s): WAD 80 of 2013 Judge(s): SIOPIS J Date of judgment: 23 December 2013 Catchwords: NATIVE TITLE – future act – appeal under s 169 of the Native Title Act 1993 (Cth) – whether there should be an extension of time within which to appeal on a question of law – whether the Tribunal took into account relevant considerations – whether in making its determination the Tribunal was obliged to adopt the “precautionary principle” – whether the Tribunal had taken into account the strength of the native title party’s belief that if significant sites were damaged persons comprising the native title party would suffer serious harm. Legislation: Native Title Act 1993 (Cth) ss 38, 38(1), 38(1)(c), 39, 39(1)(a), 39(1)(b), 39(1)(c), 169, 169(1), 169(4), 169(4)(a)
Administrative Decisions (Judicial Review) Act 1977 (Cth) s 11Cases cited: Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344
Franks and Lester for the Plains Clan of the Wonnarua People v Native Title Tribunal [2011] FCA 1530
Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24
Minister for Immigration and Citizenship v SZJSS (2010) 243 CLR 164
Cheedy on behalf of the Yindjibarndi People v Western Australia [2010] FCA 690
Minister for Immigration and Citizenship v Li (2013) 297 ALR 225
Leatch v National Parks and Wildlife Service and Shoalhaven City Council (1993) 81 LGERA 270
Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321Date of hearing: 30 July 2013 Place: Perth Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 88 Counsel for the Applicant: Mr MT Ritter SC Solicitor for the Applicant: KRED Enterprises Pty Ltd Counsel for the First Respondent: Mr T Porter
Solicitor for the First Respondent: Ashurst Australia
Counsel for the Second Respondent: Mr P van Hattem SC
Solicitor for the Second Respondent: Hunt & Humphry
Counsel for the Third Respondent: Mr J O’Sullivan
Solicitor for the Third Respondent: State Solicitor’s Office
IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION
WAD 80 of 2013
BETWEEN: JOHN WATSON AND OTHERS ON BEHALF OF NYIKINA & MANGALA
ApplicantAND: BACKREEF OIL PTY LTD (ACN 116 221 286)
First RespondentOIL BASINS LTD (ACN 006 024 764)
Second RespondentSTATE OF WESTERN AUSTRALIA
Second Respondent
JUDGE:
SIOPIS J
DATE OF ORDER:
23 DECEMBER 2013
WHERE MADE:
PERTH
THE COURT ORDERS THAT:
1.The applicant’s application to extend time to appeal on the proposed questions of law set out in the proposed second supplementary notice of appeal dated 3 May 2013, is dismissed.
Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION
WAD 80 of 2013
BETWEEN: JOHN WATSON AND OTHERS ON BEHALF OF NYIKINA & MANGALA
ApplicantAND: BACKREEF OIL PTY LTD (ACN 116 221 286)
First RespondentOIL BASINS LTD (ACN 006 024 764)
Second RespondentSTATE OF WESTERN AUSTRALIA
Third Respondent
JUDGE:
SIOPIS J
DATE:
23 DECEMBER 2013
PLACE:
PERTH
REASONS FOR JUDGMENT
On 1 February 2013, the National Native Title Tribunal (the Tribunal) made a determination under s 38(1)(c) of the Native Title Act 1993 (Cth) (the NTA) that a future act may be done subject to certain conditions.
The future act in question was the grant of a petroleum exploration permit EP 5/07-8 to Backreef Oil Pty Ltd (Backreef) and Oil Basins Ltd (Oil Basins), the first and second respondents respectively. Oil Basins is a publicly listed company with interests in onshore and offshore petroleum exploration in Western Australia, and the operator of a project within production licence L6 to the east of the proposed permit area. Backreef is a private oil exploration company whose sole shareholder and director is Mr David Archibald.
The exploration permit area EP 5/07-8 is located within the Canning Basin in the north of Western Australia. The area of the petroleum exploration permit overlaps with part of the area the subject of a native title determination claim brought by Mr John Watson and other persons comprising the applicant on behalf of Nyikina and Mangala. The native title claim area exceeds the area of the permit area. Before the Tribunal, the applicant opposed the making of a determination that the future act be done.
The applicant has brought an application to extend the time within which to appeal against the determination made by the Tribunal, and if successful, to appeal against that determination.
THE APPLICATION FOR LEAVE TO APPEAL
Section 169(1) of the NTA provides that a party to an inquiry relating to a right to negotiate application before the Tribunal may appeal to the Federal Court on a question of law from any decision or determination of the Tribunal in that proceeding.
Section 169(4)(a) of the NTA provides that the appeal must be instituted within a period of 28 days starting on the day on which the Tribunal’s determination is given to the parties, or within such further time as the Court allows.
On 15 March 2013, the applicant filed an application to extend the time under s 169(4)(a) of the NTA for the filing of a notice of appeal. The application for an extension of time was supported by an affidavit of Ms Hayley Haas, affirmed on 14 March 2013. Ms Haas deposed that she is in-house legal counsel for KRED Enterprises Pty Ltd, and that on 15 February 2013, she had received instructions from the applicant to appeal against the Tribunal’s determination.
Ms Haas also deposed that she and Mr Robert Powrie, a legal practitioner based in Canberra, had cooperated in an attempt to file a notice of appeal in the Western Australian District Registry by eLodgment after hours on 28 February 2013. The attempt failed because the application exceeded the page limit for documents that could be filed in that way. When that attempt failed, Mr Powrie forwarded, by post, a notice of appeal to the Western Australia District Registry. Ms Haas was subsequently advised by an officer in the Western Australian District Registry that the notice of appeal had arrived in the registry on 5 March 2013.
On 5 March 2013, the Western Australia District Registry refused to accept the notice of appeal for filing because it was out of time, and advised Ms Haas to that effect. In the meanwhile, on 1 March 2013, Ms Haas had informed the second and third respondents that her client, the applicant, intended to appeal.
Ms Haas also referred, in her affidavit, to the fact that a corrigendum to the determination of the Tribunal had been published and provided to the parties on 7 February 2013. Ms Haas deposed that she was of the view that this event had the effect of extending the time for the filing of the appeal.
There was annexed to Ms Haas’s affidavit, a copy of the notice of appeal which the applicant had attempted to file by eLodgment and by post.
However, by the time of the hearing before this Court, the applicant had produced an amended draft notice of appeal which was referred to as the second supplementary notice of appeal. It was this draft notice of appeal which was current at the time of the hearing of the application.
The second supplementary notice of appeal formulated the following proposed questions of law:
1.Whether, in exercising its jurisdiction under s 38 of the Native Title Act (NTA), the NNTT acts in excess of our [sic] outside of its jurisdiction if it considers the criteria contained in s 39(1)(a) of the NTA individually and decides whether that criteria supports the conclusion that the future act must or must not be done, rather than simply considering together and weighing all relevant criteria, evidence and information, before making its determination.
2.If, in making a determination as to whether a future act may be done under s 38 of the NTA, the NNTT is required to take into account and give weight to, as a relevant consideration, the beliefs of members of the native title party, in accordance with the laws and customs, that people may come to harm if sites of cultural and/or traditional significance are damaged.
3.The NNTT is required, in making a determination under s 38 of the NTA, to take into account, as a relevant consideration, the intention of the grantee party. The appeal questions the content of this relevant consideration and in particular whether the NNTT is required to have regard, as part of the consideration, to:
(a)The length of time over which the grantee party will have rights if the future act is granted.
(b)Whether it is intended that a grantee party will dispose of their interest in the future act if granted.
(c)The evidence, or lack of evidence, of the intentions of a person or entity that is to acquire an interest in the future act, if it is granted.
(d)Whether any work proposals and/or stated intentions of the grantee party, including an intended “search area” provided to the authority that grants the future act, or to the NNTT, were binding.
4.Whether in making a determination as to whether a future act may be done under s 38 of the NTA, the NNTT is required:
(a)To take into account, as a relevant consideration, the impact and/or possible impact of a future act on sites and/or sites of particular significance to the native title party; and if so whether,
(b)the NNTT is, as part of that consideration, obliged to apply a precautionary principle,
(c)such that if there is a risk that sites and/or sites of particular significance might be effected [sic] by the grant of the future act,
(d)then that risk must be taken into account by the NNTT in deciding if the future act may be done,
(e)even if there is, from the evidence and information before the NNTT, an imprecision as to the location of a site and/or the reasons why the site is of particular significance.
5.Whether there was any evidence or information before the NNTT that could support its findings that:
(a)“the grant of the proposed permit is likely to result in economic benefits for local indigenous people” ([104]); or
(b)“the local Aboriginal people are likely to benefit from the grant of the proposed permit” ([104)].
I observe that, during the hearing, senior counsel for the applicant sought to reformulate the questions of law referred to above into propositions to the effect that the Tribunal had erred in one respect or another which was related to the question of law as formulated. This technique cannot be used in substitution for the requirement to formulate the questions of law upon which the appeal is founded. The precise formulation of the questions of law is important because it defines the scope of the power of the Court to inquire into the determination of the Tribunal.
The principles relevant to an application for an extension of time within which to bring a proceeding were usefully summarised, albeit in a different context, by Wilcox J in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344. His Honour observed (at 348-349) that:
1.Although the section does not, in terms, place any onus of proof upon an applicant for extension an application has to be made. Special circumstances need not be shown but the court will not grant the application unless positively satisfied that it is proper to do so. The “prescribed period” of twenty-eight days is not to be ignored (Ralkon Agricultural Co. Pty Ltd v Aboriginal Development Commission [1982] FCA 153; (1982) 43 ALR 535 at 550). Indeed, it is the prima facie rule that proceedings commenced outside that period will not be entertained (Lucic v Nolan (1982) 45 ALR 411 at 416). It is a pre-condition to the exercise of discretion in his favour that the applicant for extension show an “acceptable explanation of the delay” and that it is “fair and equitable in the circumstances” to extend time (Duff at 485; Chapman v Reilly (unreported, Federal Court of Australia, Neaves J, 9 December 1983) at 7).
2.Action taken by the applicant, other than by making an application for review under the Act, is relevant to the consideration of the question whether an acceptable explanation for the delay has been furnished. A distinction is to be made between the case of a person who, by non-curial means, has continued to make the decision-maker aware that he contests the finality of the decision (who has not “rested on his rights”: per Fisher J in Doyle v Chief of Staff (1982) 42 ALR 283 at 287) and a case where the decision‑maker was allowed to believe that the matter was finally concluded. Compare Doyle, Chapman, Ralkon and Douglas v Allen (1984) 1 FCR 287 with Lucic at 414-415 and Hickey v Australian Telecommunications Commission (1983) 47 ALR 517 at 519. The reasons for this distinction are not only the “need for finality in disputes” (see Lucic at 410) but also the “fading from memory” problem referred to in Wedesweiller v Cole (1983) 47 ALR 528.
3.Any prejudice to the respondent including any prejudice in defending the proceedings occasioned by the delay is a material factor militating against the grant of an extension: see Doyle at 287, Duff at 484-485, Hickey at 525-527 and Wedesweiller at 533-534.
4.However, the mere absence of prejudice is not enough to justify the grant of an extension: Douglas, Lucic at 416, Hickey at 523. In this context, public considerations often intrude (Lucic, Hickey). A delay which may result, if the application is successful, in the unsettling of other people (Ralkon at 550, Becerra at 12-13) or of established practices (Douglas) is likely to prove fatal to the application.
5.The merits of the substantial application are properly to be taken into account in considering whether an extension of time should be granted: Lucic at 417, Chapman at 6.
6.Considerations of fairness as between the applicants and the other persons otherwise in a like position are relevant to the manner of exercise of the court’s discretion: Wedesweiller at 534-535.
These comments were made in relation to s 11 of the Administrative Decisions (Judicial Review) Act 1977 (Cth). However, these observations have been held to be relevant to applications under s 169 of the NTA (Franks and Lester for the Plains Clan of the Wonnarua People v Native Title Tribunal [2011] FCA 1530 per Jagot J).
Ms Haas’s evidence demonstrated that Ms Haas’s and Mr Powrie’s attempts to file the applicant’s notice of appeal timeously were initially thwarted by the limitations of the eLodgment process of the Court, and their apparent ignorance of those limitations. The evidence also shows that they then immediately took steps to file the notice of appeal by post. In my view, the evidence discloses an adequate explanation for the delay. Further, the four day period of delay is, in the context of this case, not long.
The applicant’s evidence also shows that on 1 March 2013, the second and third respondents were made aware of the applicant’s intention to file a notice of appeal. The respondents did not contend that they were prejudiced by the delay. All of these factors point in favour of extending the time within which to appeal.
However, the merits of the proposed appeal are an important consideration in determining whether to extend the time under s 169(4) of the NTA. In this regard, the contentions advanced by the applicant should demonstrate sufficient prospects of success to warrant making an order for the extension of time. I turn to consider that question.
The first proposed question of law
The first proposed question of law formulated by the applicant calls for consideration of s 38(1) and s 39(1)(a) of the NTA.
Section 38(1) of the NTA provides:
(1)Except where section 37 applies, the arbitral body must make one of the following determinations:
(a)a determination that the act must not be done;
(b)a determination that the act may be done;
(c)a determination that the act may be done subject to conditions to be complied with by any of the parties.
Section 39(1) of the NTA provides the criteria which an arbitral body must take into account when making a determination under s 38. The subsection provides as follows:
(1)In making its determination, the arbitral body must take into account the following:
(a)the effect of the act on:
(i)the enjoyment by the native title parties of their registered native title rights and interests; and
(ii)the way of life, culture and traditions of any of those parties; and
(iii)the development of the social, cultural and economic structures of any of those parties; and
(iv)the freedom of access by any of those parties to the land or waters concerned and their freedom to carry out rites, ceremonies or other activities of cultural significance on the land or waters in accordance with their traditions; and
(v)any area or site, on the land or waters concerned, of particular significance to the native title parties in accordance with their traditions.
The reference in those sections of the NTA to the words “the act” is a reference to the future act.
Under the rubric of this first proposed question of law, the applicant sought to impugn the Tribunal’s determination on the basis that it failed to give effect to s 39(1) of the NTA. The applicant contended that s 39(1)(a) requires the Tribunal to make a determination based on an overall evaluation of the criteria the subsection identifies. The applicant went on to contend that the Tribunal had failed to carry out this task because, in the course of its determination, it had considered, and made findings, in relation to each of the criteria set out in s 39(1)(a)(i) to s 39(1)(a)(v) in isolation, rather than evaluating the criteria “cumulatively and collectively”.
By way of example, senior counsel for the applicant drew attention to [60] of the Tribunal’s reasons, which dealt with an aspect of the criterion referred to in s 39(1)(a)(i):
I find that, given the evidence available, conditions imposed can mitigate against any interference of these activities with the rights and activities of the native title party. Accordingly, I find that the effect of the grant on the enjoyment to these rights does not support the conclusion that the act must not be done.
The applicant’s complaint that the Tribunal did not weigh all the relevant criteria, evidence and information before making its determination, cannot be accepted.
The Tribunal, in a methodical manner, considered each of the criteria referred to in s 39(1)(a) by reference to the evidence and the submissions made by each party in relation to that criterion. In certain instances, of which [60] of its reasons is an example, the Tribunal made a finding as to whether the evidence and submissions in respect of that criterion supported a conclusion that the act must not be done.
An examination of its reasons shows that the Tribunal, having considered each of the criteria referred to in s 39(1)(a) individually, expressly engaged in a weighing process. This is particularly apparent from [126], where the Tribunal referred specifically to the evidence to which it had regard, when considering the criteria referred to in s 39(1)(a). Thus, for example, in [126], the Tribunal referred to the nature of the proposed activities of the grantee parties, the fact that there was an Aboriginal community living within the claim area, the existence of significant sites, both recorded and not recorded, in relation to the permit area, the risk of interference with significant sites if conditions were not imposed, that the grantee parties had given evidence that they were willing to abide by conditions and that there would be a need for consultation between the grantee parties and the native title party.
Further, the Tribunal at [146] of its reasons, again refers to the fact that in coming to its findings, it has weighed all the evidence.
The NTA does not prescribe any specific methodology or formula by which the Tribunal is to take into account the criteria set out in s 39(1)(a), or how it was required to express its findings in relation thereto. In my view, the manner in which the Tribunal proceeded, was entirely unexceptional.
Further, and, in any event, it is the case that in assessing a tribunal’s reasons, a court should eschew overzealous scrutiny with a keen eye for the perception of error (Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259). In this case, the applicant conceded that the Tribunal correctly identified its statutory task. A court will not lightly infer that a tribunal which has properly instructed itself as to how to proceed, did not follow its own instructions. In this case, a perusal of its reasons shows that the Tribunal both instructed itself correctly as to the proper approach and gave effect to that approach in a careful and methodical manner.
Accordingly, in my view, there is not sufficient merit in the applicant’s contentions founded upon this proposed question of law to warrant the grant of an extension of time to raise this question of law by way of an appeal under s 169 of the NTA.
The second proposed question of law
Under the rubric of the second proposed question of law, the applicant complained about the manner in which the Tribunal dealt with the evidence of a witness on behalf of the applicant, to whom the Tribunal referred, at his request, as “Dadaga”. Dadaga gave evidence by an affidavit affirmed on 5 December 2012. The evidence was not challenged. Dadaga’s evidence was to the effect that he believed that he and other persons could come to harm if they did not protect sites of cultural significance from interference.
In support of this complaint, senior counsel for the applicant drew particular attention to para 55 of Dadaga’s affidavit which was to the effect that Dadaga did not want the exploration to go ahead, and that he was concerned that the “people will damage my country and be dangerous to me and other people”.
In relation to this proposed question of law, the applicant sought to impugn the determination of the Tribunal on two grounds.
First, the applicant contended that that the strength of the native title party’s belief that harm would come to persons if sacred sites were damaged was a relevant consideration and the Tribunal erred in law because it failed to take into account that consideration. In support of this contention the applicant submitted that it was to be implied that this consideration was a relevant consideration in the sense referred to in Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 (Peko-Wallsend). This implication, said the applicant, arose as a necessary consequence of: the nature of the future act regime in determining what acts may be done on traditional lands; the specific contents of s 39(1)(a)(ii) and also s 39(1)(b) of the NTA, insofar as the NTA refers to the “opinions or wishes” of the native title party; and, the background to the passing of the NTA, as set out in the preamble to the NTA.
Secondly, the applicant contended that the Tribunal was “dismissive” of the evidence of the strength of the cultural beliefs and the level of harm that would be visited upon the person, who did not protect the lands and sites. The Tribunal, said the applicant, did not accord that evidence sufficient weight.
In my view, the applicant’s contentions founded upon this proposed question of law, cannot be accepted.
The first of the applicant’s contentions is based on the false premise that the Tribunal did not have regard to Dadaga’s evidence as to the strength of his belief that serious harm would come to him and others if he did not protect sites of significance to Nyikina and Mangala.
An examination of the Tribunal’s reasons shows that the Tribunal had regard to that evidence from Dadaga when considering the criteria under s 39(1)(a) and also when having regard to the consideration referred to in s 39(1)(b) of the NTA.
A clear example of the Tribunal having regard to this aspect of Dadaga’s evidence is to be found at [83] of the reasons in relation to its consideration of the criterion set out at s 39(1)(a)(v). This paragraph reads as follows:
Dadaga states there are sacred areas south-east of Derby, and that interference with them could cause the person responsible to get sick and die. Dadaga also states that if people disturb or drill near a certain area, it may result in death. In light of Dadaga’s evidence about the status of these areas and Dadaga’s concerns about disturbance, I am prepared to find that they are sites of particular significance to the native title party.
A further example of the Tribunal having regard to the evidence as to the strength of the cultural belief relied on by the applicant in relation to s 39(1)(a)(v), is to be found at [86] of the Tribunal’s reasons. At [86], the Tribunal stated:
The native title party did not make any specific contentions regarding the effect of the proposed permit on sites of particular significance on the land or waters concerned. However, Dadaga does state that damage to sacred sites, including by drilling, may have spiritual repercussions and could result in sickness or death. In his statement, Dr Palmer also states that interference with significant areas and places within Nyikina Mangala country could cause “enormous emotional, spiritual, and social loss” (Palmer Statement, paragraph 7). Nevertheless, the native title party has not made any specific submissions about the particular effect that the proposed permit or exploration program may have on relevant sites.
The Tribunal went on to find that it was not at all clear which, if any, of the sites referred to were within the search area of the permit area. The Tribunal also referred to the fact that the native title party had not made submissions about the particular effect that the proposed permit or exploration program may have on relevant sites, nor had it contested the government party’s contention that none of the sites referred to by Dadaga and Dr Kingsley Palmer (an anthropologist who gave evidence on behalf of the native title party) were in the search area.
Nevertheless, notwithstanding these circumstances, the Tribunal proceeded on the basis that it may subsequently transpire that sites of cultural significance may potentially be affected by the activities in the permit area and the Tribunal determined to impose conditions upon the grantee party to accommodate that contingency.
Also, s 39(1)(b) of the NTA requires the Tribunal to take into account:
(b)the interests, proposals, opinions or wishes of the native title parties in relation to the management, use or control of land or waters in relation to which there are registered native title rights and interests, of the native title parties, that will be affected by the act.
In considering this criterion, at [90] of its reasons, the Tribunal had regard to the contents of para 55 of Dadaga’s affidavit (in respect of which specific complaint was made by the applicant (see, [34] above)). The Tribunal, ultimately, at [93], did not accept that evidence in light of the evidence of the applicant’s previous conduct in relation to future act matters, which in the Tribunal’s view, undermined that aspect of Dadaga’s evidence.
It follows from these findings that, even if the applicant’s contention as to the content of the relevant consideration was correct, the applicant’s complaint that the Tribunal had failed to have regard to that consideration, would fail.
However, in respect of the applicant’s contention, I would observe that the NTA has expressly identified in s 39(1)(a)(i) that the impact of the future act on the way of life, culture and traditions of native title parties and upon areas of particular significance, is to be taken into account. Parliament has used language at the level of some generality in identifying what must be considered. In those circumstances, it is to be inferred that Parliament did not intend to isolate the strength of the cultural belief of the level of harm that would befall persons consequent upon an interference with sites of significance, as a specific mandatory consideration to be taken into account as a separate consideration. Rather, in my view, evidence of such a nature would properly be taken into account as part of the consideration of the general mandatory considerations referred to in s 39(1)(a) and s 39(1)(b) of the NTA.
As to the applicant’s complaint that insufficient weight was given to Dadaga’s evidence, this complaint does not give rise to a question of law. The Tribunal is entitled as part of its fact finding to determine the weight which it gives to evidence. Accordingly, absent manifest unreasonableness or serious irrationality, the weight given to particular considerations are questions of fact which are the exclusive domain of the Tribunal (Peko‑Wallsend at [15]; Minister for Immigration and Citizenship v SZJSS (2010) 243 CLR 164 at [35]; Cheedy on behalf of the Yindjibarndi People v Western Australia [2010] FCA 690).
In support of its argument in relation to this proposed question of law, the applicant referred to the case of Minister for Immigration and Citizenship v Li (2013) 297 ALR 225 (Li). More specifically, the applicant placed considerable reliance on the citation by the plurality (Hayne, Kiefel and Bell JJ) of observations by Mason J in Peko-Wallsend, to the effect that an administrative decision could be set aside on the grounds of unreasonableness where the decision-maker had “failed to give adequate weight to a relevant factor of great importance”.
The case of Li was concerned with the review of the exercise of a discretion on the grounds of unreasonableness. This case is not such a case.
It is apparent that the Tribunal did accord weight to Dadaga’s evidence, particularly in relation to the criterion in s 39(1)(a), when it determined that the future act be done subject to conditions aimed at protecting significant sites. (See, [44] above). In relation to Dadaga’s evidence at para 55 of his affidavit, the Tribunal placed greater weight on other evidence which undermined that part of Dadaga’s evidence. As mentioned, this is an exercise which falls squarely within the domain of a tribunal acting lawfully.
Accordingly, the applicant’s contentions in respect of an appeal founded on the second proposed question of law, in my view, lack sufficient merit as to justify the grant of an extension of time within which to appeal under s 169(1) of the NTA.
The third proposed question of law
The applicant formulated a third proposed question of law as to whether the intentions of a grantee party as to its future dealing with the proposed tenement is a relevant consideration which the Tribunal is obliged to take into account.
Under the rubric of this proposed question of law, the applicant contended that the Tribunal was obliged to take into account as part of that relevant consideration:
(a)The length and time over which the grantee party will have rights if the future act is granted.
(b)Whether it is intended that a grantee party will dispose of their interest in the future act if granted.
(c)The evidence, or lack of evidence, of the intentions of a person or entity that is to acquire an interest in the future act, if it is granted.
(d)Whether any work proposals and/or stated intention of the grantee party, including an intended “search area” provided to the authority that grants the future act, or to the NTT, were binding.
This issue arises because there was evidence before the Tribunal that Backreef had entered into an agreement to assign its interest in the permit to another company, Buru Energy Limited (Buru Energy).
The applicant contended that there was no evidence or other information before the Tribunal as to the intentions of Buru Energy in relation to the future exploration program, should the permit be granted and it acquired Backreef’s interest in the permit. The applicant said that in the absence of evidence from Buru Energy as to its exploration intentions, the Tribunal failed to have regard to a mandatory relevant consideration, and so erred in law.
The applicant’s contention is not accepted.
Section 39(1) of the NTA expressly requires the Tribunal to have regard to “the effect of the [future] act” on the matters referred to in s 39(1). Accordingly, in order to carry out that mandate, it will be necessary for the Tribunal to form a view as to the activities which will be undertaken by a grantee party pursuant to the grant of the proposed permit and the impact of those activities on the matters referred to in s 39(1). The Tribunal will have regard to those matters by reference to the evidence given, and submissions made, in respect of each of the matters before the Tribunal. Thus, the Tribunal will consider the evidence before it as to the nature of the activities to which the performance of the future act will give rise and the impact of those activities on the mandatory considerations in s 39(1). Any party to the determination is, of course, at liberty to provide evidence to the Tribunal in respect of these mandatory considerations.
It may be that the evidence before the Tribunal gives rise to an issue in relation to the intention of the grantee party in respect of its future dealings with the proposed tenement, which may be relevant to the Tribunal’s discharge of its duty to take into account the mandatory considerations in s 39(1) of the NTA. This will to some extent depend upon whether the evidence points to the fact that a potential future dealing is likely to affect the nature of the exploration activities which will be undertaken within the permit area.
In this case, Mr Kim McGrath of Oil Basins, a grantee party, gave evidence of the work program in respect of the exploration activities to be undertaken in the permit area for the initial six year life of the tenement. There was also evidence that Backreef intended to transfer its interest in the proposed tenement to Buru Energy. There was no evidence before the Tribunal, nor was there any submissions made to the Tribunal, that the work program outlined by Mr McGrath in his evidence in respect of the proposed permit would be any different by reason of the assignment by Backreef of its interest in the proposed permit to Buru Energy. Further, the native title party made no submission to the Tribunal that by reason of the potential assignment of Backreef’s interest, the evidence given by Mr McGrath as to the proposed work program could not be relied upon, as the basis upon which to assess the likely “effect of the [future] act” upon the mandatory matters in s 39(1) of the NTA. The Tribunal accepted the evidence of Mr McGrath and had regard to this evidence in assessing this question.
The Tribunal acted on the basis of the evidence and the submissions before it. The Tribunal did give consideration to the evidence that if the permit was granted, Backreef intended, at an early stage, to assign its interest in the proposed permit to Buru Energy. This is apparent from [124] of the Tribunal’s reasons where the Tribunal observed:
…I note there is evidence which indicates Buru Energy Limited has agreed to acquire Backreef’s interest in the proposed permit if granted. Unless a condition dealing with the assignment is imposed, there is a risk that the assignee might not be contractually bound to the native title party to comply with the Government party’s extra conditions.
That consideration led the Tribunal to impose a condition binding the assignee of the interest to the “Extra Conditions” which had been proposed by the government party.
Further, at the instance of the grantee parties, the Tribunal imposed on the grantee parties (which included Backreef), a number of conditions which protected the position of the native title party. Among these conditions, was a condition that any assignee of an interest in the permit, as a condition of taking the assignment, must deliver a deed to the native title party undertaking to be bound by the grantee parties’ conditions.
The language of the NTA does not require the Tribunal to have regard to a grantee party’s intention in relation to its future dealing with the proposed permit as an independent stand alone consideration. However, on the basis of the evidence before the Tribunal in this case, the fact that Backreef intended to assign its interest in the proposed permit, if granted, to Buru Energy was a relevant consideration for the Tribunal to take into account when considering the more general consideration of “the effect of the [future] act” on the matters referred to in s 39(1)(a) of the NTA.
However, that conclusion does not assist the applicant because it is apparent that the Tribunal took that consideration into account and made a determination which accommodated this consideration.
Accordingly, in my view, the applicant’s contention is not of sufficient merit to warrant the grant of an extension of time to appeal on this proposed question of law.
The fourth proposed question of law
The applicant’s fourth proposed question of law raised the question of whether in taking into account the mandatory relevant consideration in s 39(1)(a)(v) of the NTA, the Tribunal was obliged to apply what the applicant referred to as a “precautionary principle”.
The issue arose in the context of the Tribunal’s observations as to the imprecision of the evidence which was given by the native title party in relation to the location of the sites of significance in relation to the permit area. More specifically, the Tribunal observed that the evidence of Dadaga and Dr Palmer did not permit it to determine whether there were sites of significance within the permit area, or within that part of the permit area known as the “search area”, and, therefore, whether the sites were likely to be affected by the grant of the proposed tenement.
The applicant observed in submissions that the “precautionary principle” had been applied in the context of environmental law. In the case of Leatch v National Parks and Wildlife Service and Shoalhaven City Council (1993) 81 LGERA 270 at 281, Stein J described the “precautionary principle” as follows:
While there have been express references to what is called the “precautionary principle” since the 1970’s, international endorsement has occurred only in recent years. Indeed, the principle has been referred to in almost every recent international environmental agreement, including the 1992 Rio Declaration on Environment and Development [Principle 15], the 1992 UN Framework Convention on Climate Change [art 3(3)], the June 1990 London Amendments to the Montreal Protocol on Substances that Deplete the Ozone Layer [preamble, par 6] and the 1992 convention on Biological Diversity. This latter convention, which Australia has ratified, is of relevance to the present case. It formulates the precautionary principle in the following terms:
…where there is a threat of significant reduction or loss of biological diversity, lack of full scientific certainty should not be used as a reason for postponing measures to avoid or minimise such a threat.
…the precautionary principle has been incorporated in the Commonwealth Strategies on Endangered Species and Biological Diversity and, more generally, in the 1992 Intergovernmental Agreement on the Environment, as well as state legislation such as the Protection of the Environment Administration Act 1991 (NSW). In this statute the statement of the principle has taken the following form:
…if there are threats of serious or irreversible environmental damage, lack of full scientific certainty should not be used as a reason for postponing measures to prevent environmental degradation (s 6(2)(a)).
The applicant also mentioned that there was reference to the precautionary principle in the guidelines to the operation of the Aboriginal Heritage Act 1972 (WA), published by the Government of Western Australian under the title: Aboriginal Heritage Due Diligence Guidelines, 30 April 2013. The precautionary principle referred to in the guidelines is to the effect that in dealing with Aboriginal heritage sites, all aspects of potential risk to Aboriginal heritage were to be considered and appropriate steps are to be applied to avoid or minimise damage to Aboriginal sites.
Under the rubric of this proposed question of law, the applicant sought to impugn the findings of the Tribunal in relation to the prospect of the proposed exploration activity within the permit area interfering with sites of significance to the native title party.
The applicant contended that this precautionary principle required the Tribunal to adopt a cautious approach in assessing whether there was a risk that sites of particular significance were likely to be affected by the grant of a future act, even if the evidence before the Tribunal as to the location of the site, was imprecise. The Tribunal, said the applicant, had, in dealing with this question, failed to apply the precautionary principle.
The applicant also contended that, contrary to the precautionary principle, the Tribunal assessed s 39(1)(a)(v) on the basis of whether the proposed permit would affect sites or areas of particular significance. This, said the applicant, imposed too high a standard.
The applicant’s contentions are not accepted.
Contrary to the applicant’s contention, the Tribunal did adopt a cautious approach in dealing with the native title party’s evidence in relation to the location of the sites of significance. This is particularly evident at [86]-[89] of the Tribunal’s reasons. There the Tribunal recognises the deficiencies in the native title party’s evidence as to the location of the sites of significance. However, as mentioned at [44] above, the Tribunal proceeded on the basis that, notwithstanding the deficient state of the evidence, it may emerge that there are sites of significance within the permit area or within the search area. The Tribunal then went on to accommodate this contingency by the imposing of conditions including conditions requiring consultations between the grantee parties and the native title party in relation to any such sites.
Accordingly, the applicant’s contention that the Tribunal fell into error by failing to apply a “precautionary principle” and take a beneficial view of the native title party’s evidence in relation to s 39(1)(a)(v) of the NTA, is not accepted.
In any event, even though the Tribunal applied a cautious approach to the native title party’s evidence in relation to the location of sites of significance, it was not obliged to do so. The language of s 39 of the NTA imposes no obligation to adopt the “precautionary principle” referred to by the applicant.
Further, the precautionary principle, as applied in the environmental law, seeks to accommodate the scientific uncertainty that may exist as to the level of harm that particular actions will inflict upon ecosystem and environmental resources. However, the assessment of the potential for petroleum exploration activities to harm sites of significance is not attended with the scientific uncertainty which is the rationale for the application of a precautionary principle in environmental law. The application of current technology would enable the location of an identified site of significance to be precisely located on a map. Accordingly, evidence could have been adduced to that effect. The simple fact is that that evidence was not adduced. The circumstances that prevailed in this case, therefore, are distinguishable from the circumstances which underlie the application of the precautionary principle in an environmental case context.
In my view, the applicant’s contentions are not of sufficient merit to warrant an extension of time to appeal under s 169 of the NTA in respect of this proposed question of law.
The fifth proposed question of law
Under the rubic of this question of law, the applicant seeks to impugn the Tribunal’s finding at [104] of its reasons, that the grant of the proposed permit was likely to result in economic benefits for the local Aboriginal people.
This finding by the Tribunal was made in the course of considering the consideration set out in s 39(1)(c) of the NTA. This section requires the Tribunal to consider:
(c)the economic or other significance of the act to Australia, the State or Territory concerned, the area in which the land or waters concerned are located and Aboriginal peoples and Torres Strait Islanders who live in that area.
The applicant contended that there was no evidence before the Tribunal which permitted it to find that the grant of the permit was likely to result in economic benefits for the local Aboriginal people. The applicant complained that while the grantee party provided evidence of potential employment opportunities for local Aboriginal people, there are no assurances that employment would result. The evidence, said the applicant, was not a sufficient basis on which the Tribunal could make a finding of the likelihood of benefits to the local Aboriginal people, as required by s 39(1)(c).
The applicant’s contentions are not accepted. They seek to do no more than impugn the Tribunal’s fact finding.
It is not correct to say that there was no evidence before the Tribunal upon which to base the findings that it made. The Tribunal’s findings on this issue must be assessed by reference to the question which it was asked to address, namely, the economic significance to the local Aboriginal people of the future act. An element of projection and inference is inherent in that question. This was recognised by the Tribunal. Thus, the Tribunal referred to the contingency of the project leading to production, and also, to the fact that some of the economic benefits which may be available would depend upon the skill sets of the local Aboriginal people. Mr McGrath gave evidence, to which the Tribunal referred, that exploration activities would provide opportunities for members of the native title party to be employed as environmental and cultural rangers during field operations. He also gave evidence as to the prospects of future employment if the project led to production. The applicant did not challenge or contradict the evidence of Mr McGrath in this regard. Nor did it make submissions to the Tribunal of the kind made in this Court in relation to this proposed question of law.
Mr McGrath’s evidence provided a sufficient evidentiary basis upon which the Tribunal could base its findings. The case of Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 356, is authority for the proposition that, so long as there is some evidential basis for an inference to be drawn by an administrative decision-maker such as the Tribunal, even where that inference appears to have been drawn as a result of illogical reasoning, there will be no error of law. In this case, there was no illogical reasoning. The Tribunal had evidence as to future potential employment opportunities which, as it recognised, involved an element of uncertainty and inference. The findings made by the Tribunal were open to it on the evidence which was available to it and the submissions made before it.
In my view, the applicant’s contentions in relation to this proposed question of law, are not of sufficient merit to warrant the extension of time to appeal under s 169 of the NTA, in respect of this proposed question of law.
It follows that I would decline to extend the time within which to appeal on the proposed questions of law referred to in the proposed notice of appeal.
I certify that the preceding eighty‑eight (88) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Siopis. Associate:
Dated: 23 December 2013
14
2