Western Australia/David Daniel & Ors (Ngarluma and Yindjibarndi)/Valerie Holborow & Ors (Yaburara and Mardudhunera)/Wilfred Hicks & Ors (Wong-goo-tt-oo)

[2003] NNTTA 4

NATIONAL NATIVE TITLE TRIBUNAL

Western Australia/David Daniel & Ors (Ngarluma and Yindjibarndi)/Valerie Holborow & Ors (Yaburara and Mardudhunera)/Wilfred Hicks & Ors (Wong-goo-tt-oo), [2003] NNTTA 4 (21 January 2003)

Application Nos:      WF02/17, WF02/18 & WF02/27

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

- and -

IN THE MATTER of Future Act Determination Applications

The State of Western Australia   (Government party/Applicant)

- and -

David Daniel & Ors on behalf of the Ngarluma and Yindjibarndi People

- and -

Valerie Holborow & Ors on behalf of the Yaburara and Mardudhunera People

- and -

Wilfred Hicks & Ors on behalf of the Wong-goo-tt-oo People         (native title parties)

DECISION TO TAKE NO FURTHER ACTION ON FUTURE ACT DETERMINATION APPLICATIONS

DECISION ON PROCEDURAL ISSUES

Tribunal:  Hon C J Sumner, Deputy President
Place:  Perth
Date:  21 January 2003

Catchwords:    Native title – future act – application for compulsory acquisition of native title rights and interests – future act determination applications – application for stay of substantive proceedings – application that Member be disqualified – public notice of inquiry – public submissions received – evidentiary status of public submissions – s 31(1)(b) agreement reached – Tribunal must not make a determination – future act determination applications taken to be withdrawn.

Legislation:Native Title Act 1993 (Cth) ss 24MD(2), 25-44, 29, 30, 31(1)(b), 35, 36, 37, 41A(1)(a), 66B, 109(3), 123, 124, 125 & 126, 146

Land Administration Act 1997 (WA) s 155

Cases: Ebner v Official Trustee (2000) 176 ALR 644

Livesey v New South Wales Bar Association (1983) 151 CLR 288

Western Australia v Thomas (1996) 133 FLR 124

Western Australia v Ward (2002) 191 ALR 1

Western Australia/David Daniel & Ors (Ngarluma and Yindjibarndi People), Valerie Holborow & Ors (Yaburara and Mardudhunera People) Wilfred Hicks & Ors (Wong-goo-tt-oo People), NNTT WF02/17 & WF02/18, Hon C J Sumner, 12 November 2002

Yallourn Energy Pty Ltd/Wallace Murray Bull & Ors/Victoria, NNTT VF99/1, Hon C J Sumner, 2 September 1999

Hearing Dates:  6 & 8 November 2002, 3-5 December 2002 and 9, 10, 11 and 13 December 2002

Counsel for the

Government party:             Mr George Tannin SC and Mr Stephen Wright, Crown Solicitor’s Office

Solicitor for the

Government party:             Mr P A Panegyres, Crown Solicitor

Counsel for the

Ngarluma/Yindjibarndi

native title party:                 Ms Carolyn Tan, Dwyer Durack

Solicitor for the

Ngarluma/Yindjibarndi

native title party                  Ms Helen Lawrence, Pilbara Native Title Service

Solicitor for the

Yaburara/Mardudhunera

native title party:                 Mr Paul Williams, Williams & Co

Counsel for the

Wong-goo-tt-oo native

title party:  Mr Ian Viner QC

Solicitor for the

Wong-goo-tt-oo native

title party  Mr Grantham Kitto, Kitto & Kitto

REASONS FOR DECISIONS

Introduction

1. The State of Western Australia (‘the Government party’) proposes, pursuant to the Land Administration Act 1997 (WA), to take (compulsorily acquire) any native title rights and interests in certain land situated in the Shire of Roebourne (‘the proposal’) for the purposes of establishing the Burrup and Maitland Industrial Estates. The land is in the vicinity of the towns of Dampier and Karratha and comprises part of the land on the Burrup Peninsula, and adjacent land on Intercourse Island, West Mid Intercourse Island and part of West Intercourse Island.

2. The Government party gave notice of its intention to compulsorily acquire native title rights and interests in accordance with s 29 of the Act on 9 February 2000, which was designated ‘the notification day’. The notice related to the following areas on the Burrup Peninsula for the proposed Burrup Industrial Estate:

• Withnell East;

• Conzinc South;

• Burrup West;

• King Bay – Hearson Cove; and

• Industrial South (total area of approximately 1199 hectares)

The notice also related to the following areas, part of the proposed Maitland Industrial Estate:

• South-west Burrup;

• West Intercourse Island;

• West Mid-Intercourse Island; and

• Intercourse Island.  (a total area of approximately 1219 hectares)

The notice also related to an area of land on the mainland to the south-west of Burrup Peninsula part of the proposed Maitland Industrial Estate (‘mainland Maitland’) (approximately 2115 hectares).  A further notice was issued on 17 April 2002 in relation to additional land in the King Bay – Hearson Cove area with a total area of approximately 25.85 hectares.

1. On 23 July 2002 the Government party, pursuant to s 35 of the Act, made two future act determination applications to the Tribunal (one for the Burrup Industrial Estate (WF02/17) and one for South-west Burrup and the Intercourse Islands part of the Maitland Industrial Estate (WF02/18)) which are being dealt with together. The total area covered by the applications is 2,418 hectares. The mainland Maitland area is not the subject of a s 35 application. A further section 35 application was lodged on 21 October 2002 in relation to the additional land (WF02/27).

2. Following the taking (compulsory acquisition) of any native title rights and interests it is intended that the land would then form the Burrup Industrial Estate and part of the Maitland Industrial Estate with freehold titles to be transferred to the Western Australian Land Authority (‘Landcorp’) for the purposes of granting leases or transferring freehold titles to persons (‘proponents’) for industrial purposes.

3. The proposal comprises future acts covered by s 26(1)(c)(iii) of the Native Title Act 1993 (Cth) (‘the Act’/‘NTA’) which cannot validly be done unless the right to negotiate provisions of the Act are complied with. The substantive provisions which are applicable to this matter are in Part 2, Division 3, Subdivision P (ss 25-44) of the Act. The ‘act’ is the compulsory acquisition of native title under Parts 9 and 10 of the Land Administration Act 1997 (WA). Native title will be extinguished upon compulsory acquisition (s 24MD(2) NTA; s 155 Land Administration Act 1997 (WA))

4. The Government party has identified five industrial projects proposed for the Burrup Industrial Estate:

• ammonia and urea plants proposed by Burrup Fertilisers Pty Ltd;

• ammonia and urea plants proposed by Dampier Nitrogen Pty Ltd (formerly Plenty River Corporation Ltd);

• a methanol plant proposed by Methanex Australia Pty Ltd;

• a methanol and di-methyl ether plant proposed by Japan DME Ltd (all to be located on the King Bay – Hearson Cove area); and

• a methanol plant proposed by Australian Methanol Company Pty Ltd (a wholly owned subsidiary of GTL Resources Pty Ltd) (to be located on the Withnell East area).

1. It was common ground that none of the above proponents were a grantee party within s 29(2)(c) of the Act as they had not requested or applied for the future act to be done. The negotiation parties and parties to the proceedings are the Government party and three native title parties.

2. The native title parties: At the time the first s 29 notice was given the following persons were registered native title claimants over all of the area of the proposed compulsory acquisition and native title parties in relation to the matter (s 29(2)(b)(i)):

·	WC99/14	David Daniel, Daisy Moses, David Walker, Roger Barker, Jill Churnside, Trevor Solomon and Les Hicks on behalf of the Ngarluma People and Bruce Monadee, Woodley King, Kenny Jerrold, Mary Walker, Bruce Woodley, Michelle Adams, Jimmy Horace, Linda Ryder and Judy Albert on behalf of the Indjibarndi people which was accepted for registration on 14 July 1999 (‘the Ngarluma/Yindjibarndi native title party’);
·	WC96/89	Valerie Holborow, Kevin Kelvin Cosmos and Patricia Cooper on behalf of the Yaburara and Mardudhunera Native Title claim group which was accepted for registration on 1 August 1996 (‘the Yaburara/Mardudhunera native title party’); and,
·	WC98/40	Betty Dale, Tim Douglas, Wilfred Hicks, Ernie Ramirez, Dallas Hicks and Cane Hicks on behalf of the Wong-goo-tt-oo Native Title claim group which was accepted for registration on 10 July 1998 (‘the Wong-goo-tt-oo native title party’).

1. No other persons had made native title determination applications by 9 May 2000 (3 months from the notification day) and there were therefore no other persons who had become native title parties by 9 June 2000 (4 months from the notification day) (s 30(1)(a)). In relation to the notice issued for the land the subject of WF02/27, there were no other persons who had become native title parties by 17 August 2002 (4 months from the notification day). Since the time of the notices, certain registered native title claimants have been removed as applicants. Amongst others, both David Walker (WC99/14) and Patricia Cooper (WC96/89) were removed as applicants from their respective claims pursuant to s 66B of the Act with Ms Cooper replaced by Mr Robert Boona, while others are now deceased and are no longer applicants.

2. In relation to WF02/17 & 18, the Tribunal decided on 29 October 2002 that the Government party had fulfilled its obligation under s 31(1)(b) of the Act to negotiate in good faith with the native title parties with a view to obtaining their agreement to the doing of the future acts. To assist parties, a summary of reasons was provided on 30 October 2002, with full reasons published on 12 November 2002 (Western Australia/David Daniel & Ors (Ngarluma and Yindjibarndi People), Valerie Holborow & Ors (Yaburara and Mardudhunera People) Wilfred Hicks & Ors (Wong-goo-tt-oo People), NNTT WF02/17 & WF02/18, Hon C J Sumner, 12 November 2002).The matter of good faith negotiations was raised in the application relating to the additional land, WF02/27, but a decision on the issue has not yet been made.  That decision will no longer be necessary.

3. The substantive hearing in relation to WF02/17 and WF02/18 commenced in Perth on 6 and 8 November 2002, with the hearing resuming on country from 3 to 5 December 2002 with the Tribunal and parties visiting the Burrup Peninsula, mainland Maitland and West Intercourse Island and taking evidence from witnesses at various locations.  The hearing concluded in Perth the following week with evidence heard on 9, 10 & 11 December 2002 and closing submissions made on 13 December 2002.

4. Evidence was heard from Government, Wong-goo-tt-oo and Ngarluma Yindjibarndi witnesses, with a large number of exhibits tendered by the parties.  The Tribunal had numerous documents before it which outlined the history of planning and development on the Burrup Peninsula and for the Maitland Estate, as well as the archaeological and ethnographic surveys undertaken over areas of the Burrup Peninsula and West Intercourse Island.  Evidence was also received in relation to the economic significance of the act and the public interest in the act being done, including the potential effect on the rock art (petroglyphs) on the Burrup Peninsula and West Intercourse Island. 

5. Agreements made: Relevantly s 37 of the Act says that the arbitral body (the Tribunal) must not make a determination if an agreement of the kind mentioned in paragraph 31(1)(b) has been made. A copy of the agreement must be given to the Tribunal (s 41A(1)(a).

6. At the commencement of the hearing an agreement in the form of a s 31(1)(b) agreement had been signed by the Government party and the Ngarluma/Yindjibarndi and Yaburara/Mardudhunera native title parties but not by the Wong-goo-tt-oo native title party. The agreement comprises a ‘Burrup and Maitland Industrial Estates Agreement’ and a subsequent ‘Burrup and Maitland Industrial Estates Agreement, Implementation Deed’ dated 1 November 2002 which amends and incorporates the earlier Agreement (referred to collectively as ‘the Implementation Deed’). The Implementation Deeds signed by the Ngarluma/Yindjibarndi and Yaburara/Mardudhunera were previously provided to the Tribunal and were tendered as evidence in the inquiry by the Ngarluma/Yindjibarndi native title party. They are comprehensive agreements that constitute a final settlement of issues (including compensation) relating to the compulsory acquisition proposal and includes the mainland Maitland land. The major features of the Implementation Deed are as follows:

• Transfer to an Approved Body Corporate of freehold title to the Burrup Non-Industrial Land to include:

• $450,000 per annum for five years for the management of the non-industrial land;

• $5.5 million within the five year period for the construction of the non-industrial land buildings (defined as office and facilities for management and a visitors and cultural centre);

• $2.5 million within the five year period for construction of the non-industrial land infrastructure (defined as roads, tracks, trails, services and other infrastructure); and

• expenditure of $50,000 by the State for a cadastral survey of the non-industrial land

• Payments to include upfront payments of $2 million from the Government party at satisfaction date (the earlier of the final Determination Date or the execution of the Deed by the Premier, Landcorp and each of the native title parties), and $1.5 million from the State at the acquisition date.  There were also lump sum payments from various proponents with provision for ongoing annual payments.

• Management Plan:  The Government party is to expend $500,000 for the preparation of a draft management plan, which plan will have regard to the following matters:

• preservation and promotion of the Aboriginal cultural and heritage values of the Burrup non-industrial land;

• preservation and promotion of the natural and environmental values of the Burrup non-industrial land, including Indigenous flora and fauna;

• preservation and promotion of the archaeological values of the non-industrial land;

• provision of public recreational facilities and facilitation of recreational activities on the Burrup Non-industrial land;

• regulation of public access;

• use of non-industrial land by the body corporate and its members in accordance with traditional laws and customs and for the protection and promotion of above values;

• employment, training and commercial opportunities for the body corporate and its members in relation to the non-industrial land;

• provision and construction of buildings and infrastructure;

• provision of fencing;

• creation of tracks, roads, walking and cycling trails;

• provision of firebreaks;

• erection of signage;

• construction of public conveniences and other public facilities;

• weed and feral animal control;

• restriction or prohibition of access for protection of culturally significant sites or for safety, cultural or conservation purposes;

• intended term of management, and review of the plan;

• identification of management strategies;

• joint management roles of the body corporate and CALM; and

• other matters as agreed.

• Establishment of an Advisory Committee whose functions include:

• to review information provided in relation to the draft management plan; and

• provide views to and assist the consultant in preparing the draft plan.

• 5% of lots in the Karratha subdivision are to be transferred subject to withdrawal of the objection to the compulsory acquisition of native title rights and interests over the area of them.

• Provisions for an Aboriginal Employment and Enterprise including the Government party providing $200,000 per annum for three years for the appointment of an employment service provider.  The service providers to conduct a skills audit, an analysis of needs and opportunities for employment, and assist available persons and Aboriginal contractors to achieve employment and enterprise outcomes.  The Government party to pay $75,000 per annum for two years to the body corporate to support students in meeting eduction ambitions.

• Establishment of Approved Body Corporate:  The Government party is to provide funding of up to $150,000 for the engagement of a consultant to establish and incorporate the approved body corporate, and $100,000 per annum for four years for operation of the corporation.

• Heritage Protection:  The Government party is to advise proponents in writing of obligations under the Aboriginal Heritage Act 1972, or provide copies of surveys performed after September 2001 in possession of the Government party, or refer the proponent to Heritage Policies (defined as policies of the Department of Indigenous Affairs in respect of Aboriginal heritage or policies and procedures agreed between the parties to the agreement).  The Government party will comply with Heritage Policies if planning development in the Karratha land or if intending to conduct ground disturbing works in the industrial estate or the Karratha Land.

• Other features of the Implementation Deed are:

• it is not dependent on a determination that native title exists;

• if native title is determined to exist then an Indigenous Land Use Agreement (ILUA) will be entered into to effect the transfer of freehold title to the Approved Body Corporate;

• if it is not possible to effect the transfer of freehold title by means of an ILUA where there has been no unreasonable act or omission by the Government party then the Government party must pay $3.4 million to the parties;

• if failure to transfer freehold within a specified time results from an unreasonable act or omission by the Government party then the Government party must pay $10 million to the parties; and

• it is not dependent on a Tribunal determination that the future acts may be done but if no such determination is made the Government party may terminate the Deed.

1. On 16 January 2003, the Tribunal received advice from the Government party that the Wong-goo-tt-oo registered native title claimants had signed the Implementation Deed and that accordingly an agreement for the purposes of section 31(1)(b) of the Act had been made with all the native title parties. The Government party (Deputy Premier, the Hon Eric Ripper) released a media statement that the agreement signed with the Wong-goo-tt-oo native title party is as per the Implementation Deed but also provides measures to protect rock art on the industrial estates including the prohibition on ground disturbing activities in certain areas; conducting a comprehensive heritage survey over those parts of the industrial estates that have not yet been surveyed; the recording and cataloguing of any rock art that is to be disturbed; an expert committee to assess the effects of industrial emissions on rock art; and the potential for a further committee to be established to consider whether an approach should be made to the Commonwealth Government to nominate some or all of the Dampier Archipelago and the Burrup non-industrial land to the World Heritage List. On 17 January 2003, a copy of the Implementation Deed signed by the Wong-goo-tt-oo was lodged with the Tribunal as required by section 41A of the Act.

2. The Tribunal is satisfied that the Implementation Deed is an agreement of the kind mentioned in s 31(1)(b) of the Act between the negotiation parties. Pursuant to s 37 of the Act, this means that the Tribunal must not make a determination and the applications are also taken to be withdrawn (s 35(3) of the Act). The following is provided by way of background to procedural issues arising in the course of the inquiry.

Stay application

1. At a Listing Hearing on 30 October 2002, Counsel for the Wong-goo-tt-oo native title party advised that instructions had been received to appeal the decision on good faith and sought a stay of the further hearing of the substantive matter until that appeal had been dealt with.  Mr Viner QC submitted that as good faith negotiations were a jurisdictional issue they should as a matter of law be dealt with before the substantive hearing and it would be both a waste of the Tribunal's time as well as a waste of the time of all the parties to proceed with the substantive matter when it may be found that the Tribunal had no jurisdiction to enter upon that substantive hearing.  Mr Wright, Counsel for the Government party opposed the stay application and referred to the previous consideration of the issue by the Tribunal in the matter Yallourn Energy Pty Ltd/Wallace Murray Bull & Ors/Victoria, NNTT VF99/1, Hon C J Sumner, 2 September 1999.  The Government party submitted that the Tribunal should proceed with an inquiry to meet the statutory timeframe (s 36 NTA) unless there can be shown very clear reasons why it is in the public interest not to do so, there is no such public interest in this case and there is no reason why the inquiry should not proceed in the ordinary course.  On 6 November 2002, I delivered my decision that consistent with the Tribunal's previous decisions and practice no stay is justified.  The principles are set out in the Yallourn Energy matter (at 12-14) and the cases cited therein.

1. On 21 November 2002, the Wong-goo-tt-oo native title party sought a motion in the Federal Court to stay the substantive proceedings pending the hearing of the appeal (which was also lodged on 21 November 2002).  The matter was heard before French J on 22 November 2002 who decided on that day to refuse the motion for a stay (Hicks v Western Australia [2000] FCA 1490). Accordingly, the substantive inquiry proceeded as per the established timetable.

Disqualification of Member

1. At the Listing Hearing on 30 October 2002, Mr Viner QC, for the Wong-goo-tt-oo native title party submitted that I should disqualify myself from hearing the substantive issue on the basis that I had had regard to confidential and without prejudice material in considering whether the Government party had negotiated in good faith.  This issue arises because the Tribunal, in order to determine the issue of whether the Government party has negotiated in good faith with the native title parties (s 31(1)(b) NTA) is entitled to have regard to confidential and without prejudice documents and discussions (including those arising during a Tribunal mediation under s 31(3)) (good faith decision at [33]).

2. The parties provided written submissions in relation to the issue, with the Wong-goo-tt-oo native title party submitting that the issue was one of procedural fairness, which is equally applicable to administrative as judicial functions.  The fact that the Tribunal will have access to confidential and without prejudice material produced by the Government party in the good faith hearing means that there will be an apprehension of bias on the part of the Member and a failure to accord natural justice to the Wong-goo-tt-oo native title party.  No accusation of actual bias was made.  The fact that this evidence may not be formally before the Tribunal in the substantive hearing is beside the point as it must be presumed that it will be in the Member’s mind.  There would be a reasonable apprehension by a fair minded lay observer that justice was neither being done nor seen to be done between the parties, the Wong-goo-tt-oo native title party submitted.

3. The Government party provided a number of contentions in response which I accept. In particular I do not think there is anything in the Act which suggests that a different Member should decide the two issues. The Wong-goo-tt-oo native title party’s contentions would seem to be of general application as they did not seek to identify any specific area of the negotiations or anything in the reasons for the good faith decision which might indicate that they would be prejudiced in the substantive application. If the Wong-goo-tt-oo native title party’s submissions have substance they would appear to be applicable in all cases where there had been a challenge to jurisdiction based on failure to negotiate in good faith. The appointment provisions of the Act (ss 123, 124 and 126 of the Act) deal with the appointment of a Member or Members to an inquiry. The only provision which gives power to the President to reconstitute the Tribunal is if a Member is unavailable (s 125). Section 36(2) of the Act provides that the Tribunal must not make a determination if a negotiation party (usually the native title party) satisfies the Tribunal that the Government party did not negotiate in good faith. This sub-section was inserted in the Act by the 1998 amendments and gives statutory recognition to the decision made by the Federal Court in Walley & Ors v Western Australia (1996) 67 FCR 366 that s 31(1)(b) imposes a duty on the Government party to negotiate in good faith, which must be established to have occurred before the Tribunal can make a determination. Had Parliament intended there to be separate Members for the two stages of the inquiry, it could have provided for it when this amendment, which specifically recognises the possibility of good faith hearings, was made. There was also nothing in the Walley decision which suggested that different Members would be required.  The need to allocate a new Member would also make the Tribunal’s task of attempting to make a determination within six months of the application more difficult (ss 36(1), 36(3)).  A somewhat artificial situation would also be created in that hearings relating to the good faith issue are public hearings and reasons are published.  These often contain details of the negotiations.  Would the new Member be precluded from access to material which is otherwise available to any member of the public?

4. The Government party also provided detailed contentions on the principles relating to apprehended bias through pre-judgement.  No contentions of actual bias was made by the native title party, so the issue is to be determined by reference to whether there would be a reasonable apprehension that a Member conducting the substantive hearing would be biased (Ebner v Official Trustee (2000) 176 ALR 644). The Wong-goo-tt-oo native title party have not provided any basis from the circumstances of this case to support such a finding. For instance, they have not pointed to any findings of fact or decisions about the credibility of witnesses made in the good faith decision which could be seen to be prejudicial in the substantive proceedings (Livesey v New South Wales Bar Association (1983) 151 CLR 288)

5. I accept the Government party’s submission that the two issues are separate and distinct and that a Tribunal Member is capable of ensuring that no regard is had to the ‘without prejudice’ material.  As a matter of procedure I ruled that evidence tendered in the good faith hearing would not be evidence in the substantive hearing unless a party sought to adduce it.  This does not mean that the Tribunal cannot where appropriate refer to or adopt findings in the good faith decision (s 146 NTA).  On 6 November 2002, I delivered my decision that I would not disqualify myself.

Public notice of inquiry

1. On 4 November 2002, and following the request of the Wong-goo-tt-oo native title party, I decided that the Tribunal would publish a public notice in certain newspapers calling for submissions in relation to this inquiry.  A draft notice was sent to parties on 4 November 2002, and submissions were received from the Government party and the Yaburara/Mardudhunera native title party.  The Tribunal disagreed with the Government Party's submission that the insertion of the advertisement and the calling for submissions is beyond the power of the Tribunal. However, it agreed with the Government Party's submission, which was supported by the Yaburara/Mardudhunera native title party, that the scope of the call for submissions should be limited to two of the criteria in s 39 of the Act, namely, the economic or other significance and public interest in the doing of the act.  Submissions were not invited in relation to the other matters in s 39 relating to native title rights and interests on the grounds that the native title claimants are parties to the inquiry.

2. The public notice appeared in ‘The West Australian’ on 9 November 2002, ‘The Weekend Australian’ of 9 & 10 November 2002 and ‘The Sunday Times’ on 10 November 2002.  Written submissions were invited by 21 November 2002, which were to outline the person’s interest in the inquiry and contain a statement relating to the economic or other significance and public interest in the doing of the act which it believed the Tribunal should take into account.  The notice indicated that the Tribunal would decide whether the matters contained in the submissions were relevant to the inquiry, and invited any persons wishing to apply to give oral evidence to provide a statement of the evidence to be given.  It pointed out that the inquiry was not into the effect of the proposal on the environment generally.

3. The Tribunal does not regard the call for public submissions made in this case as a precedent for all future matters of this kind.  It accepts that in general it will be sufficient to rely on the parties to the inquiry to produce evidence (Western Australia v Thomas (Waljen) (1996) 133 FLR 124 at 162). In this case the request was made by one of the parties and it was apparent that the proposed future development of the Burrup Peninsula had become an issue of major public debate about which there were important and conflicting views, particularly about the public interest in the proposal proceeding.

4. An issue arose about the evidentiary status of the public submissions.  The Government party submitted that they should only be taken into account as evidence of the opinions held by their authors but not as proof of their contents unless the contents were verified on oath and the Government party given an opportunity to seek leave to cross-examine the authors.  As a general proposition I reject this submission.  All public submissions were admitted into evidence for whatever purpose the Tribunal considered appropriate.  That is, I was not prepared to pre-judge the evidentiary status of the public submissions.  The Tribunal is not bound by the rules of evidence (s 109(3)) and has a preference for, as far as practicable, making a determination based upon written statements and documentary evidence (Procedures under the Right to Negotiate Scheme – para 5.10.8).  This inevitably means that the Tribunal will receive documentary evidence which it will rely on as evidence of the facts stated therein.  Indeed in this matter, the Government party provided a substantial number of documents where the contents were not verified on oath by their authors.  I can see no reason for the same general procedure not to apply to the public submissions.  Comments made in the good faith decision (at [26] to [28]) are apposite (esp [28]).

   ‘[28]     Given ss 109(1) and 109(3) of the Act and that the Tribunal is an administrative body which as far as possible is required to carry out its functions in a non-adversarial way my general approach to the receipt of evidence is, unless it clearly has no relevance, to admit the evidence and allow the parties to comment on its relevance and the weight to be given to it (if any).  Parliament has said that the Tribunal should be able to discriminate between evidence which is unreliable without resorting to an unduly technical approach to its receipt.  Different approaches may be adopted by the Tribunal to making findings depending on the importance of the facts to the decision.  It may choose not to act on hearsay evidence where there is a direct contest about its veracity from an opposing party or even serious concerns about it arising generally from the circumstances or other evidence.  Parliament has said that the Tribunal is capable of making these judgements using its experience.  It is also to adopt a commonsense approach to evidence as explained in McDonald v Director-General of Security (1984) 1 FCR 354 (cited in Ward v Western Australia (1996) 136 ALR 557 at 567).’

5. The Tribunal will usually receive documentary evidence but the relevance and weight to be given to it will depend on the circumstances.  When assessing evidence the Tribunal must be mindful of how critical it is to its decision (taking account of the broad discretion which it has in considering the factors in s 39 of the Act).  The Tribunal should exercise care in accepting evidence vital to a decision solely on the basis of a document where the issue is in dispute.  In those circumstances procedural fairness would usually require the evidence to be verified on oath and subjected to cross-examination.  In this case for instance the Tribunal would not have unquestioningly accepted the contents of Mr Bednarik’s Paper (The survival of the Murujuga (Burrup) Petroglyphs, Rock Art Research 2002, Volume 19, Number 1, pp 29-40,) on the effect of pollution on the Burrup rock art as this was disputed by the Government party, which called evidence to refute his conclusions.  On the other hand some of the content of other submissions (eg. Dr Patricia Vinnicombe’s Paper (Petroglyphs of the Dampier Archipelago: Background to the Development and Descriptive Analysis”, Rock Art Research 2002, Volume 19, Number 1, pp 3-27) were verified by other documents or by oral evidence.  A number of the submissions were in identical form and reflect the ‘Save the Dampier Rock art Petition’ included in Public Submission 22.  I agree with the Government party that it is only appropriate to give weight to these submissions as expressions of opinion.

6. A total of 72 submissions were received by the Tribunal from a range of individuals and organisations, including members of the public, international experts in the field of petroglyphs, conservation organisations and peak industry bodies.  I note from the breadth of submissions received that the protection of the rock art on the Burrup Peninsula is a matter of international, national and local importance. Of the 72 submissions received, no one sought to provide oral evidence.  Even though some were not received within the time specified I have accepted them.  They came from a wide cross section of people both from within Australia and overseas.  Many were from academics with expertise in archaeology and rock art.  They can be broadly divided into three categories:  Category 1 – letters from individuals expressing personal opinions, some of which were in a common form;  Category 2 – letters from individuals and/or organisations with more substantive submissions or professional opinions; and  Category 3 – substantive submissions containing relevant issues of fact and copies of articles written.

7. There were two submissions (one from the WA Chamber of Commerce & Industry) pointing out the economic significance of the proposal.

8. All of the submissions were considered, although I did not accept the opinions and facts asserted in all of them.   As agreement has been reached between the parties it is no longer appropriate for me to set out my findings on the various issues, but I wish to acknowledge and thank those persons who made submissions.  They have been useful, in particular, in identifying issues of concern to the public.  They were also useful to the parties who could have called any of the authors of the public submissions to give oral evidence.  Only the Government party availed itself of this opportunity by calling an officer (Mr William Sashegyi) from the WA Chamber of Commerce & Industry.

Decision

1. Section 37 provides that the Tribunal must not make a future act determination if an agreement of the kind mentioned in section 31(1)(b) of the Act has been made and the applications are also taken to have been withdrawn (s 35(3)). The Tribunal was advised of such an agreement on 16 January 2003 which agreement was lodged with the Tribunal on 17 January 2003. Accordingly, no further action is required by the Tribunal and the proceedings are concluded.

Hon C J Sumner
Deputy President
21 January 2003