Western Australia v Smith
[2000] NNTTA 239
•23 June 2000
NATIONAL NATIVE TITLE TRIBUNAL
Western Australia/Derrick Smith & Others on behalf of the Gnaala Karla Boodja People/South Coast Metals Pty Ltd, [2000] NNTTA 239 (23 June 2000)
Application No: WO99/511
IN THE MATTER of the Native Title Act 1993 (Cth)
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IN THE MATTER an inquiry in to an objection to inclusion in an expedited procedure
State of Western Australia (Government Party)
-and-
Derrick Smith & Others on behalf of the
Gnaala Karla Boodja People (Native Title Party)
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South Coast Metals Pty Ltd (Grantee Party)
REASONS FOR A DETERMINATION
Tribunal: Hon E M Franklyn QC
Place: Perth
Date: 23 June 2000
Catchwords: Native Title – Future Act – Acts attracting expedited procedure – construction and interpretation of s 237 – words 'is not likely to’ require a predictive assessment of likely consequences of future act – ‘interfere directly with the carrying on of the community or social activities’ refers to direct interference with physical ability to enjoy native title rights – ‘major disturbance’ to be accorded its ordinary English meaning – whether remedial action is relevant to concept of ‘major disturbance’ – whether evidence of grantee’s intention is relevant to predictive assessment – observations on meaning of ‘areas or sites of particular significance’ – observation on meaning and effect of second limb of s 237(c) – standard of proof of ‘likelihood’ – whether ‘balance of probabilities’ or ‘real chance’
Legislation: Native Title Act 1993 (Cth)
Mining Act 1978 W.A.
Cases:Re Irruntyju-Papalankutja Community v State of WA/Broad Meadow
NNTT WO95/7 Hon P. Seaman QC 6 October 1995
Dann v State of Western Australia (1997) 144 ALR 1
Ward v State of Western Australia (1996) 136 ALR 557
Cheinmora v Striker Resources and Dann v State of Western Australia (1996) 142 ALR 21
State of Western Australia v Ward (2000) 170 ALR 159
Re Warden Calder; Ex-parte Cable Sands (WA) P/L (1998) 20 WAR 343
Re Warden French; Ex-parte Serpentine-Jarrahdale Ratepayers and Residents Association (1994) 11 WAR 315
State of Western Australia v Bropho (unreported Federal Court 18 November 1996)
Tillmanns Butcheries Pty Ltd v Australian Meat Industry Employees Union (1979) 27 ALR 367
Transport Ministry v Simmonds (1973) 1 NZLR 359
Jungarrayi and Ors v Olney and Anor (1992) 105 ALR 527
BACKGROUND:
On 10th November 1999, in response to a notice under s 29 of the Native Title Act 1993 (‘the Act’) given on or about the 9th July 1999 that the State proposed to grant Exploration Licence 70/2106 to the Grantee, which notice included a statement that the State considered the grant to be an act attracting the expedited procedure, Derrick Smith, a registered Native Title Claimant on behalf of Gnaala Karla Boodja People (WC98/58), lodged an objection against the inclusion in such notice of that statement. The grounds of objection are:
‘The proposed act is likely to involve, as a minimum, sampling and drilling on the land and waters concerned, and is also likely to result in other types of major disturbance to that area. This activity is highly likely to damage sites of particular significance to native title holders, which directly interferes with the community life of the native title holders.’
The proposed tenement comprises 31.48km2 of land situated some 17km south west of the town of Collie.
Pursuant to the Tribunal’s directions, each party had lodged with the Tribunal and served on the other parties a Statement of Contentions, copies of the documents on which it proposed to rely, and submissions as to the meaning and legal effect of s 237 of the Act. Also pursuant to directions and as the witness evidence on which they respectively proposed to rely, the Objector produced a brief outline of evidence to be given orally by Joseph Adrian Northover, one of the registered Native Title Claimants to the subject land, and the Grantee an Affidavit containing the evidence of Ian Robert Mulholland, a Geologist and the Exploration Manager for Anaconda Nickel Ltd (Anaconda) responsible for the exploration activities of the Grantee, a wholly owned subsidiary. The correctness and validity of the various exhibits to that affidavit were not challenged. To the extent that written submissions and contentions as lodged with the Tribunal were not addressed by the evidence led or given in cross examination or re-examination or, if raising a point or question of law were not argued or advanced in oral submissions, the Tribunal treats them as abandoned.
The documents produced by the State and admitted into evidence, the validity and correctness of which were not challenged, reveal that there are no aboriginal sites registered with the Aboriginal Affairs Department within the proposed tenement boundaries and no aboriginal communities within the vicinity of the objection. The State’s Statement of Contentions assert, without challenge, there to be no aboriginal community situated on the land the subject of the proposed tenement (‘the tenement). It also asserts without challenge that the land the subject of the proposed tenement comprises freehold land, State Forest numbers 25 and 26, roads and a tramway. The mining tenement documents produced make clear that the proposed grant does not include any private land referred to in s 29(2) of the Mining Act 1978 (W.A.) ‘except that below 30 metres from the natural surface’ of the freehold land within the tenement boundaries. The said s 29(2) provides that, except with the consent in writing of the owner and the occupier of the private land, a mining tenement shall not be granted in respect of private land which has certain features identified in the sub-section ‘unless the mining tenement is granted only in respect of that part of the private land which is not less than 30 metres below the lowest part of the natural surface of that private land.’ Grantee’s Counsel confirmed the application for the grant excluded the top 30 metres of any private land. No point has been taken in respect of the difference in wording between the condition (which omits reference to ‘the lowest point’ of the natural surface) and the sub-section and, in my opinion, having regard to the evidence, the difference has no relevance to the objection, although in the absence of the private land owners consent, there may be an issue as to land which is not 30 metres below the lowest point of the natural surface. Also excluded by the operation of the Mining Act is that portion of prospecting licence 70/1266 which is within the boundaries of the proposed tenement. As the map, exhibit ‘IRM3’ to the Affidavit of Ian Robert Mulholland makes clear, that prospecting licence is almost entirely inside the boundaries of the tenement, there being only a thin strip along and outside its eastern boundary.
The Objector’s application was heard on 10th April 2000, all parties being represented by Counsel.
THE OBJECTOR’S EVIDENCE:
Mr Joseph Adrian Northover, an Aboriginal Police Liaison Officer, resident and stationed at Brunswick Junction, gave evidence on oath for the Objector and, by leave, was cross examined by Mr S. Wright, Counsel for the State, and re-examined by Objector’s Counsel, Mr M. Rynne. I found Mr Northover to be an honest, straightforward and helpful witness. His testimony was to the following effect. In addition to being a member of the registered claimant group, he is Chairman of the Gnaala Boodja Land Council and personally has a traditional aboriginal connection with the land the subject of the tenement the surrounding land, it all being part of what he variously referred to as ‘the Collie area’ and the ‘Wellington area’. It is an area substantially less than, but within the area of, the Gnaala Karla Boodja Claim (WC98/58). He was referred to and accepted as correct a map ‘IRM 6’ annexed to the Affidavit of Ian Robert Mulholland which, inter alia, outlines the boundaries of the tenement and shows it to be wholly situate in the Wellington Dam catchment area and to the south east of the Wellington Dam. The approximate upper half of the tenement is heavily crisscrossed with vehicle tracks, the lower half also containing many vehicle tracks but to a lesser extent. The northern portion of the tenement contains pine forest which extends beyond it to the west and north. A comparison of the map ‘IRM 6’ with map ‘IRM 3’ reveals the bottom portion of the tenement to be largely freehold land and there to be also within it a strip of freehold land on its western side about halfway along the western boundary and a thin strip along its eastern boundary towards its southern end. The approximate lower half of the tenement is part of a disease risk area extending east and west beyond its boundaries (see ‘IRM 6’ legend, DRA = Disease Risk Area). The only areas of the tenement that are not State Forest are freehold. Map ‘IRM 6’ shows the land to the west, north and east of the tenement also to be heavily crisscrossed with vehicle tracks and to contain numerous roads. The land to which Mr Northover claims connection includes the land shown on the map ‘IRM 6’ to and beyond its extremities to the west, east and north and, to the south, as is indicated in the following description. He spoke only for what he referred to as ‘the Collie area’ in respect of which the people in that area had formed their own Council (the Gnaala Boodja Council). That area he described as the land lying approximately between the towns of Williams to the north-east of Collie, then south to Darkan, then south-west to Boyup Brook, north-west to Donnybrook then north to Roelands (near Bunbury). He had earlier mentioned that his land extended to Australind which is on the coast in close proximity to Roelands. The boundaries of the area would be completed by an imaginary line (not necessarily straight) from Australind to Williams. He said that Collie is the centre of the area. Collie lies off the map ‘IRM 6’ to the north-east of the tenement.
Mr Northover testified that he and others camp and hunt on the tenement and the lands surrounding it, generally to the west, north and east. They hunt for kangaroo and emus. He spoke of a corroboree area used for ‘corroboree and telling young boys’ which, he thought, without being certain, would be west of the western boundary of the tenement. The Collie area is significant to him because of the Collie River. The map ‘IRM 6’ shows the Collie River to the north-west of the tenement and to run into the Wellington Dam. Although not shown on the map it is the fact that on that branch it extends west to the coast at Australind, that another branch joins the waters of the Wellington Dam at its northern extremity extending south and east to the south of Collie (the Southern branch) and that it also extends on a separate course to the north and north-east of Collie. There is a Dreaming of a hairy faced snake which has a silver beard and is known as the Ngarngungudditj Walgu. This snake, he said, came from the north of Collie and travelled through the land north of Collie making resting places on the way. The tenor of his evidence is that it followed the Collie river as it then was. It travelled to Eaton where it turned, pushing the estuary out at Australind and thereby creating it. It then returned and rests at Collie where it is sleeping. His evidence suggests, in ambiguous terms, that on its return journey or sometime it passed through the tenement. He knows of two resting places but could not say where they were as the map contained no contour lines, but was not prepared to say they were on the tenement. He indicated that there are other places of importance, mentioning one, called Gibraltor Rock, as a very important place but identifying its location as well to the east of the tenement and in the vicinity of Rose Track. That track appears on map ‘IRM 6’ to the east of the Bibulmun Track. He also spoke of a black goanna that ran through the area generally which other Noongars could kill and eat but which he could not as it was his brother. It however lived ‘a bit more out east’. When hunting he and the other hunters travel through the tenement. They have old camping grounds there where they camp. They have camping areas right throughout the bush, inside and outside the tenement, and use them when they go hunting. The local Noongars have an agreement with the Department of Conservation and Land Management (CALM) whereby they are permitted to shoot in State Forests in the Wellington Catchment area. The map ‘IRM 6’ shows all of the tenement, save for freehold land, to be subject to CALM Tenure and or CALM management. They hunt and kill kangaroos. The kangaroo is his totem and when he dies and is buried in Collie his spirit will live where his totem is in the areas where he has wandered and hunted during his life. Aboriginal people from outside the Collie area can only come into the area if they are given permission to do so by the people from the area and comply with certain rules. There are ‘quite a few’ Aboriginal people in Collie that walk through the area and hunt and camp, but only a handful of people who have the traditions and physical association of the witness with the area. He is the only one left in Collie who speaks the language and knows the law. Particular families associated with the area are the Kellys, the Kahns, some Ugles, the Harts, the Cockies, the last of whom ‘of the old people’ is Mrs Vinney Cockie aged 100 or 103 who now lives in Katanning as there is no one in the Collie area to care for her. There would be approximately 300 Noongars living in Collie, men, women and children, a lot of whom would use the area for particular (but unstated) purposes. The witness knows those that hunt in the area as he has records of the gun licences. A lot of non-aboriginal people also use the area for recreational purposes. They use the Bibulmun Track (to the east) and other land, including the tenement. He spoke of the traditional way in which kangaroos must be treated when hunted and when killed in a hunt, adding (ambiguously as to whether he was referring to all or only some of those traditional ways), that ‘a lot of Noongars don’t do it no more because they reckon its silly old way’. When he goes hunting 6 or 7 people go with him and hunt in the traditional way he described. They go to the camps. He has bush camps. He has billy cans hung in trees and nets to put his meat in hanging in hollow trees or in the bushes. When he goes hunting he does not take those things with him from the town. Having killed his meat he cuts it up and gets his billy can and nets from the tree and lights a fire. This saves taking things out all the time. ‘… everywhere you go through there you’ve got your bush camp. …all over this way east, not so far this way but west this side here of the dam, the water, north. Right through the bushes here I got bush camps where I go and get a billy can. I put them there and that’s where I drink and eat’. It was not clear to what he was referring by the words ‘not so far this way’.
He was not aware of the location of the freehold land within the tenement and could only speak generally of the area. He made no mention of the Prospecting Licence 70/1266 or of any activities on it. [Section 48 of the Mining Act 1978 (WA) sets out the rights conferred by such a licence. They include the right to enter and re-enter the land with employees, vehicles, machinery, to prospect for minerals, to dig holes trenches and pits, sink bores and tunnels, remove material and to take water, subject however to the consent of the Minister (s 24)]. He is of the view that if gridline drilling is done on the tenement it would more or less stop access ‘to what they are doing’ and worse, would upset the balance of ‘your borrunga, your totem, your spirit, the waterway, and the Ngarngungudditj Walgu’. He asked where would the latter rest when it came through the area. There was, however, no evidence to suggest that it had rested on the tenement. He also expressed concern as to a clearing which his hunting group had come across, in what, from the map ‘IRM 6’, he thought was the tenement, when tracking a kangaroo wounded when hunting at Kelly road, north of the tenement. This clearing was of the nature of a ‘wirnot’, that is, it is something that is ‘not right’, having bush growing all around it but itself being quite clear. He said however that ‘they’ did not think much of it until his father died and his grandmother pointed out that there were graves ‘out there somewhere’. He thought the clearing might be a grave. In cross examination he said it might be a grave or a corroboree ground but he did not know for sure. When hunting they would hunt around that area but not go through it. He expressed the opinion that if there were exploration by way of drilling within the tenement he would not be going there to hunt as there would be no kangaroos because of the disturbance, his borrunga would be gone and his spirit and his totem would leave the area. He gave no evidence of any experience with or knowledge of drilling processes. He said that there used to be white cockatoos in the area, the feathers of which were used for corroboree purposes and that when he took young boys out for a corroboree ‘long time ago’ he looked for but could not find cockatoos. Nor could he find ‘Jubuks’ which follow the watercourse, adding ‘that’s what has happened so far’. It is his opinion that mining and exploration will clear the area of kangaroos. As I understood his evidence a ‘jubuk’ is a type of potato used for food.
In cross examination Mr Northover explained that the Gnaala Boodja Council was formed to represent families living in Collie who traditionally lived there and in other places within the Collie area and that 5 people from the Collie area were on the Gnaala Karla Boodja Council, each representing a particular area within the Collie area for their respective interests in the claim. The families who represented the tenement area were himself, the Cockies, the Kellys, the Kahns, the Michaels and the Harts. A new family from Pingelly had made Collie their home and he had given them permission to shoot but always in company from somebody from Collie. The land was not their land. The families he had named as belonging to the area would number 30 to 50 people. Sometimes he would go shooting on his own. It is a Noongar custom to go bush on one’s own. When hunting he shoots kangaroo and emu and also seeks emu eggs. When hunting, they stick mainly to the main roads but go off on to the small roads and into the bush as it is illegal to shoot from a road. Before going hunting they telephone CALM to ascertain if there are workers in the area. They hunt in the bush but not always in the same part of the bush but travel around. If they go to a place and find no kangaroos ‘like, if somebody has already been through there, we go somewhere else. We go east of Collie then to another bush area’. They do not hunt out an area. The main area in which they hunt is through the Wellington Dam because of the bush. The pine plantation is not much good, but is a good place to rest in summer as it is cool, but they do hunt through the pine plantation in the tenement. It was not suggested that that is the only part of the pine plantation in which they hunted. They mainly use the Mungalup Road (which runs from the west into and through the tenement in a north-east direction and then beyond it further north-east) and branch off from it onto the lesser roads into ‘those little areas’. He did not identify such areas. When they camp in the Wellington Dam catchment area they come in from the north of the tenement and follow the river. They set up camp north of the tenement and go hunting through the area. Alternatively they would camp by Wight Road (which runs from the Dam south to the west of the tenement and joins Mungalup Road (see map ‘IRM 6’)), and use it to gain access to smaller roads and hunt from there. They also use the tracks shown on map ‘IRM 6’ to the east of the tenement off Mungalup Road to gain access to hunting areas. They stick mainly to the roads as it is a disease risk area and CALM has stipulated they cannot go far into the bush unless they walk. They also travel and hunt in the area of Mission Track (to the east of the tenement) and down to and south of Boyup Brook Road (which travels approximately east-west south of the tenement) and to Boyup Brook (south-east of the tenement). To the west of the tenement they use all of the tracks to go hunting but have to be careful when near Mungalup town site and farms in the area. They also hunt in the area north of Collie (not on the map ‘IRM 6’) and to the north of the tenement area and to the north of the Wellington Dam (not on ‘IRM 6”). He goes to Collie from Brunswick Junction most weekends and tries to go hunting at least once a month. He is entitled to hunt in the Brunswick Junction area which he considers part of his area although it is not part of the Objector’s claim area, but does not do so as he has little to do with the Noongars there because of Noongar social differences (later referred to by objector’s Counsel as the ‘social hierarchy’). Those he hunts with all live in Collie. They go hunting on occasions without him. Generally with them, he hunts about once a month. When a kangaroo is killed it is hung in a tree to bleed and the hunters sit about and yarn. When the kill has bled and the meat has set it is cut up and again hung in the tree. They have wire and billy cans in the trees and cook meat for their use at the camp. That’s why they hunt not far from where they will cook their meat and that way they only take a limited number of things with them hunting. The meat not eaten on the hunt is taken back to Collie for the old people and families. In hunting they usually stay out a full day. If not working they might stay out longer. On such occasions they take tarpaulins for shelter. Tourists visit, walk and drive through the area, and the tracks are also used by log trucks. The witness has no concern with tourists walking through the area or driving along the tracks but is not keen on log trucks doing so. They see ‘quite a bit of’ tourists. As a Police Officer he gets called out to look for them if they are overdue. It was my impression from the evidence that in using the word ‘area’ in this context the witness was including the tenement. He was concerned about disturbances of the water spirit in areas where it had been drinking water from water holes but could not say if there were any water holes within or in the vicinity of the tenement. A Corroboree area was identified as being away from the tenement.
In re-examination Mr Northover said he had seen people on the Bibulmun Track and also in the tenement. He testified that he is a volunteer SES member which trains once a year throughout the whole area. To the east of the tenement there is the ‘Wellington Mills camp site’ which is used as a recreation camp for school children and also for SES exercises of search and rescue. It has about 12 beds. The search area extends throughout other areas. They often come across tourists and others in the area both to the east and the west of and in the tenement. People go through the tenement because ‘Wellington Mills’ is famous for its wildlife. They also go through there to get to the dam. There are tracks in the area where people are encouraged to go. There is hilly country with views. He said that additionally to hunting he would go camping in the area on his own, as did others from Collie. Although this evidence was linked to an earlier question referring to families ‘associated with the tenement area’, in its context it appeared to relate to the area generally and not specifically to the tenement.
There was accepted into evidence on behalf of the Objector an extract (pages 99 to 113) from a publication issued by the Australian Mineral and Energy Environment Foundation entitled ‘Environmental Management in the Australian Minerals and Energy Industries’. My attention was directed by Objector’s Counsel to an assessment, in tabular form at page 100 of the potential impact of listed exploration activities on land. The only reference I could find in the chapter to the table appears in the opening paragraph of page 99 as follows:
‘Impacts of exploration activities form a continuum from zero through minimal to significant (see Table 5.1), but as most exploration does not result in mining or petroleum production the effects are usually short term. The important issues are the extent and intensity of the impacts and the degree to which they can be remediated. Even if the exploration does not result in the discovery of an ore deposit or an oil and gas field, attention to minimising the impact will be rewarded in the industry’s acceptance by the community and continued support for exploration elsewhere.’
In my view the table and chapter is concerned with the need to prevent exploration impact on the environment if possible, and if not possible, with the minimisation of that impact. Their content does not lead to the conclusion that the various levels of impact set out in the table necessarily follow from any of the listed activities but rather that such activities have the potential to have impacts of those levels.
THE GRANTEE’S EVIDENCE:
I turn now to the Affidavit of Ian Robert Mulholland sworn 7th March 2000. He deposed that he is responsible for the planning, budgeting and coordination of all exploration activities undertaken by Anaconda, that the Grantee is a wholly owned subsidiary of Anaconda and that, if and when the exploration licence is granted, he will be responsible for all of its exploration activities. The affidavit annexes eight exhibits marked ‘IRM 1’ to ‘IRM 8’ respectively. He draws attention to the endorsements on the licence and the conditions which are to apply if the tenement is granted. The proposed endorsements draw the Grantee’s attention to the provisions of the following Acts and their respective regulations:
the Aboriginal Heritage Act, 1972
the Country Area Water Supply Act, 1947
the Land Drainage Act, 1925
the Rights in Water and Irrigation Act, 1914
the Waters and Rivers Commission Act, 1995
the Waterway Conservation Act, 1976
the Conservation and Land Management Act, 1984
the Bush Fires Act, 1954
the Wildlife Conservation Act, 1950; and
Clause 9(20)(c) of the Alumina Refinery Agreement Act, 1961.
The conditions which will attach to the grant if made are set out between pages 5 and 7 of Mr Mulholland’s Affidavit as well as in exhibit ‘IRM 1’ and in the papers produced by the State and admitted into evidence. They are as follows:
‘9.The Conditions proposed by the Department of Minerals and Energy include the following:
1.All surface holes drilled for the purpose of exploration are to be capped, filled or otherwise made safe after completion.
2.All costeans and other disturbances to the surface of the land made as a result of exploration, including drill pads, grid lines and access tracks, being backfilled and rehabilitated to the satisfaction of the District Mining Engineer. Backfilling and rehabilitation being required no later than 6 months after excavation unless otherwise approved in writing by the District Mining Engineer.
3.All waste materials, rubbish, plastic, sample bags, abandoned equipment and temporary buildings being removed from the mining tenement prior to or at the termination of exploration program.
4.Unless the written approval of the District Mining Engineer is first obtained, the use of scrapers, graders, backhoes or other mechanised equipment for surface disturbance or the excavation of costeans is prohibited. Following approval, all topsoil being removed ahead of mining operations and separately stockpiled for replacement after backfilling and/or completion of operations.
5.No activity being carried out that will alter, interfere or pollute any drain, watercourse, excavation, swamp, marsh, stream, bore, well, spring, lake or lagoon.
6.A licence being obtained from the Water and Rivers Commission (W&RC) prior to the construction of any bore or well.
7.The rights of ingress to and egress from any mining operation being at all reasonable times preserved to the authorised officers of W&RC for inspection purposes.
8.A licence being obtained from the W&RC prior to the construction of a dam or diversion of any stream flow from a watercourse.
9.No activity being undertaken that will interfere with the drainage within the area.
10.Riverine vegetation not being disturbed or removed.
11.No activity being carried out that will adversely affect groundwater or surface water quality or quantity.
12.All hydrocarbon storage being referred to the W&RC for approval. Fuel storage areas require appropriate bunding and stormwater disposal on-site incorporation the removal of sediments and hydrocarbons.
13.Tailings dams, disposal areas and dumps being sited so as to pose no threat to water course stability or to groundwater and surface water quality, and being constructed so as to be stable on decommissioning.
Consent to mine on State Forest No’s. 25 and 26 given subject to:
14.Prior to any disturbance to vegetation the licensee preparing a detailed program for each phase of proposed exploration for written approval of the State Mining Engineer in agreement with the Regional Manager, Department of Conservation and Land Management (CALM). This program to include:
(i)maps and/or aerial photographs showing all proposed routes, construction and upgrading of tracks, camps drill sites and any other disturbances.
(ii)Proposals which may disturb any declared rare or geographically restricted flora and fauna; and
(iii)Techniques, prescriptions and target dates for the rehabilitation of all proposed disturbances.
15.The licensee, at his expense, rehabilitating all areas cleared, explored or otherwise disturbed during the term of the licence to the satisfaction of the State Mining Engineer in agreement with the District Manager, CALM. Such rehabilitation as is appropriate and may include:
(i)stockpiling and return of topsoil;
(ii)backfilling all holes, trenches and costeans;
(iii)ripping;
(iv)contouring to the original landform;
(v)revegetation with seeds and/or plants
(vi)capping and/or backfilling of all drill holes.
16.Prior to the cessation of exploration/prospecting activity the licensee notifying the District Mining Engineer and Regional/District Manager CALM and arranging an inspection as required.
17.The licensee informing the District Manager, CALM of the whereabouts of the operations and the licence areas by providing a works program or weekly advice of work location.
18.Access to and from and the movement of vehicles within State Forest and Timber Reserves being restricted to road and tracks approved under the program or otherwise agreed by the District Manager CALM.
19.The Licensee complying with the instructions of the Executive Director or his nominee in respect of the forests disease Phytophthora cinnamomi (or ‘Jarrah Dieback’), the prevention and spread of that disease and general forest hygiene.
20.Entry into a Forest Disease Risk Area (D.R.A.) will only be undertaken by the licensee once a permit for vehicle access has been issued.
21.The licensee washing down and cleaning all rigs, vehicles, tools and other equipment to the standard required by the District Manager, CALM, prior to and on each occasion any such equipment, rig, vehicle or tool is brought onto or taken from the licence area. All sampling equipment to be cleaned between samples to the standard required by the District Manager, CALM.
22.The licensee taking all reasonable precautions not to unnecessarily destroy or damage vegetation on the licence area.
23.No firearms being used or taken onto the licence area.
24.The licensee not establishing any camp, base works or area, fuelling depot or similar establishment on the licence area unless the site and access has received prior approval of the District Manager, CALM.
Mr Mulholland points out that the map ‘IRM 6’ was prepared by CALM, is dated February 2000 and shows, inter alia, the Graticular Block Area of the proposed tenement, the boundaries of State Forest Reserves 25 and 26, the boundaries of the Wellington Dam catchment, and the plantation and disease risk areas, portions of each of which fall within the proposed tenement as I have earlier described.
It is his evidence, in summary, that the proposed exploration is primarily directed to establishing whether the tenement contains ultramafic rock. The geological map annexed to his Affidavit marked ‘IRM 7’, published by Geological Survey of Western Australia, shows a small area of ultramafic rock (marked purple) within the proposed tenement well towards the southernmost boundary. I note that on a comparison of its marked location on ‘IRM 7’ with the map ‘IRM 6’, that small area would seem to be on freehold land. The exploration licence is sought to enable investigation to determine whether the proposed tenement in fact contains such rock and, if so, whether it is sufficiently weathered and enriched to constitute an economically mineable deposit of nickel laterite. If the exploration licence is granted, the Grantee will undertake either or both aeromagnetic and ground magnetic surveys. An aeromagnetic survey will indicate potential ultramafic rock and is carried out by an aircraft using a magnetometer. Such a survey creates no ground disturbance. A ground magnetic survey involves traversing the relevant area on foot using a hand held magnetometer which records variations of the earth’s magnetic field at ground level and the magnetic field at points as the area is traversed. Usually, if aeromagnetic survey data is acquired, a ground magnetic survey is needed only to verify that the plot prepared from the aeromagnetic survey data correctly aligns with existing plans of the proposed tenement. Usually such a ground survey involves the preparation of grid lines established by driving 1.2 m stakes a depth of approximately 50cm into the ground at spacings of 100 m by 200 m over the area of interest. It does not involve clearing or other disturbance to vegetation and, in the deponent’s opinion, which was not challenged, has a negligible, if any, effect on the environment. The grid later serves as a reference for further exploration. If the survey data supports the existence of ultramafic rock the Grantee would undertake reconnaissance exploration drilling to test its existence and nickel laterite content. Any such program would need to comply with the conditions attached to the proposed grant. The intention in such case is to undertake reconnaissance drilling by drill rig on 2 or 3 roads or tracks running east to west over the tenement, the drill holes to be spaced 100 m to 200 m apart. If it be found impractical to restrict drilling to roads and tracks, lines may have to be cleared to enable access by the rig. Such lines initially would be spaced 400 m to 800 m apart. No reconnaissance exploration would be undertaken in any heavily wooded area. In lightly wooded areas, trees over 3 m would not be disturbed. The said conditions of grant require approval from the District Mining Engineer for the use of mechanical equipment before any lines can be cleared and the witness sets out some of the information that must be provided when seeking such approval. As lines are cleared the Grantee would undertaken inspections to assess the relevant area for the presence of known and endangered flora species and possible aboriginal archaeological heritage sites and, if any site is identified, its position will be recorded, marked and avoided. The actual drilling will involve holes of 13 cm diameter to depths of up to 50 m below ground surface at near regular intervals of 100 m to 200 m suspected of containing ultramafic rock. Samples would be taken and assayed. Depending on the assessment of the reconnaissance exploration drilling, ‘in-fill’ exploration drilling may be found warranted. This would involve similar drilling and sampling but in greater density, usually 50 m by 50 m. If the decision is taken to ‘in-fill’ drill, various surveys of the tenement will be undertaken including botanical, aboriginal heritage ethnographic, and aboriginal heritage archaeological, by independent consultants. It is the policy of Anaconda and the Grantee to comply with all relevant legislation and all conditions imposed on the grant, to minimise disturbance to the land (he giving some examples of steps to be taken at that end), to rehabilitating drill sites as soon as drilling is complete (indicating how this would be done) and to remove rubbish daily. Mr Mulholland annexes to his affidavit as ‘IRM 8’ the relevant portion of Anaconda’s written exploration policy which is also the Grantee’s policy. It requires compliance with all relevant legislation and conditions of grant, minimisation of land disturbances, rehabilitation of sites, daily removal of rubbish and indicates methods of effecting such minimisation and rehabilitation. It is a condition of the continued employment of employees that they comply with the requirements of that document. He points out that although the grant of the licence would authorise the excavation, extraction and removal of up to 1000 tonnes of earth, soil, rock, stone, fluids or mineral bearing material over the term of the licence, in exploring for ultramafic rock sufficiently enriched in nickel, there is no necessity for excavation, other than by drilling as aforesaid. As a hypothetical example based on the likely density of the ground material in the area of the proposed tenement he calculates that 1000 tonnes of that material would equate 500 cu m which represents a volume of 10 m x 10 m x 5 m or 22.3 m x 22.3 m x 1 meter. On his calculations, if an excavation of 1 m depth is assumed, 1000 tonnes represents approximately 0.000016 of the Graticular Block Area of the tenement of 31 km2.
Mr Mulholland made himself available for cross examination and was cross examined by leave on an issue subsequently abandoned. There was no challenge to any of his evidence given by affidavit. In re-examination he stated that the exploration works could be restricted to week days without any difficulty, although it is more usual to conduct the same as a continuous unit.
THE LEGAL BACKGROUND:
Section 237 as it was prior to the coming into effect of the Native Title Amendment Act 97 of 1998 (‘the old section’) provided:
‘237. A 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’.
As amended it now provides:
‘237. A future act is an act attracting the expedited procedure if:
(a)the act is not likely to interfere directly with the carrying on of the community or social activities of the persons who are the holders (disregarding any trust created under Division 6 of Part 2) of native title in relation to the land or waters concerned; and
(b)the act is not likely to interfere with areas or sites of particular significance, in accordance with their traditions, to the persons who are the holders (disregarding any trust created under Division 6 of Part 2) of the native title in relation to the land or waters concerned; and
(c)the act is not likely to involve major disturbance to any land or waters concerned or create rights whose exercise is likely to involve major disturbance to any land or waters concerned’.
From the time of its first expedited procedure inquiry (Irruntyju-Papulankutja Community/State of Western Australia/Broadmeadows Pty Ltd/NNTT WO95/7: Hon P. Seaman QC 6/10/1995) until the decision of the Full Court of the Federal Court in Dann v The State of Western Australia (1997) 144 ALR 1, delivered May 1997 (Wilcox Tamberlin and Nicholson JJ) (Dann: Full Court) the Tribunal had construed the words ‘the act does not’ in the old section as equivalent to and meaning ‘is not likely’. That construction was adopted and approved by Carr J in Ward v The State of Western Australia (1996) 136 ALR 557 at 571, His Honour holding that the expression ‘does not’ in each sub-section of s 237, as a matter of law, must be read as meaning ‘is not likely to’. He went on to hold at 572 that ‘The tribunal was required to make a predictive assessment of whether the grant of the exploration licences and the exercise of the rights conferred by those licences would or would not be likely to result in interference of any of the three relevant types’. Also in Ward at 578 His Honour overturned the Tribunal’s interpretation of s 237(a) that the direct interference with community life there referred to was limited to physical interference with the life of the community, holding that ‘community life' might include all sorts of spiritual and like activities which might be directly interfered with without physical interference. His Honour confirmed that finding as to the meaning of ‘community life’ in Cheinmora v Striker 142 ALR 21 (heard jointly and reported with Dann v State of Western Australia and others (1996) 142 ALR 21, (Dann 1) holding also in that case that the predictive assessment should be based on the proposition that interference or major disturbance may be ‘likely’ even though the Tribunal be not satisfied on the balance of probabilities that it will occur. He went on to say that a ‘real chance’ that interference or major disturbance will occur was in his opinion inconsistent with the statutory requirement that it ‘does not’ occur.
The decision of Carr J in Dann 1 was the subject of appeal to the Full Court of the Federal Court (Dann: Full Court supra). Relevantly for present purposes the Full Court found that His Honour and the Tribunal erred in construing the words ‘the act does not’ as meaning ‘the act is not likely to’ and held that the old s 237 directed attention to what the future act ‘does’, that is to say its legal effect, and that it should not be read as requiring the Tribunal to make predictive assessments as to the likely consequences of the future act. The Full Court also found that His Honour erred in finding that the Tribunal's predictive assessment should be based on the proposition that the interference or major disturbance referred to in s 237 may be likely though the Tribunal is not satisfied on the balance of probabilities that it would occur, holding that the standard of proof to determine what the future act ‘does’ was that of the balance of probabilities.
That background of judicial interpretation of the old s 237 is useful in determining the reasons for and legislative intent of the amendments effected by the Amendment Act. Section 237 as amended has not yet been the subject of judicial interpretation and the decisions appropriate to the interpretation of the old s 237(a), (b) and (c) are, in certain important aspects, no longer appropriate. The Tribunal is no longer concerned with the Full Court decision in Dann insofar as it dealt with the meaning and effect of the words ‘does not’ in paragraphs (a), (b) and (c), those words having been replaced by the words ‘is not likely’. Nor is it concerned with the conclusion of Carr J in Ward that direct interference with ‘community life’ is not limited to physical interference as s237(a) has been amended by deleting the words ‘does not directly interfere with the community life of …’ and replacing them with the words ‘is not likely to interfere directly with the carrying on of the community or social activities of …’. Paragraph 20.39 of the Native Title Amendment Bill 1997 Explanatory Memorandum deals expressly with those matters. It says:
‘When an act attracts the expedited procedure:
20.39 Existing section 237 sets out the circumstances when an act attracts the expedited procedure. If native title parties object to the expedited procedure for a particular future act, the arbitral body must determine whether the act meets the requirements set out in section 237. Some changes are being made to section 237 as set out below (these were proposed in the 1996 amendments).
· The first change addresses a Federal Court decision (Ward v Western Australia (1996) 136 ALR 557) and provides that an act will only attract the expedited procedure in section 32 if it is not likely to (rather than ‘does not’) interfere directly with the physical aspects of community life. If there is evidence that the act will interfere with native title claimants’ physical ability to enjoy their native title rights, for example placing an impediment to hunting, fishing or gathering or the ability to conduct religious ceremonies, the expedited procedure will not apply. [Schedule 1, item 42]
· The other changes confirm that, because it is not possible for the arbitral body to know the actual effect of a future act in deciding whether it attracts the expedited procedure, the arbitral body must undertake a predictive assessment, and look at what is likely to occur. [Schedule 1, items 43 and 44]’
There has been some dispute before me as to how the section should be interpreted. In my opinion the words of the section themselves, whilst leaving open the requisite degree of ‘likelihood’, provide its meaning, which is confirmed by the Explanatory Memorandum. In my view the Explanatory Memorandum is properly available for use in the interpretation of s 237 as it is capable of assisting in interpreting and indeed confirming its meaning, specifically in regard to what is required to be done in ascertaining whether the future act is ‘not likely’ to have any of the consequences specified in s 237(a), (b) or (c). It makes clear that the Tribunal must undertake a predictive assessment and look at what ‘is likely to occur’. In my opinion the use of the Explanatory Memorandum is authorised by s 15AB(1), (2)(e) and (3) of the Acts Interpretation Act 1901 (Cwth), by the purposive approach to the interpretation of statutes and pursuant to the ‘mischief rule’ of interpretation. The first ‘mischief’ it seeks to remedy is the effect of the Full Court’s rejection of Carr J’s interpretation of ‘does not’ as meaning ‘not likely to’ and his consequent conclusion that a determination whether or not the act was ‘not likely to’ requires a predictive assessment of whether the grant of a licence and the exercise of the rights conferred by it would or would not be likely to result in relevant interference or disturbance. It also seeks to remedy the conclusion of Carr J in Ward that the direct interference referred to in s 237(a) is not limited to physical interference, the Explanatory Memorandum making clear that s 237(a) is concerned with and limited to interference with the physical aspects of the carrying on of community or social activities of the Native Title holders. This is consistent with the finding of the majority of the Full Court of the Federal Court in W.A. v Ward & Others (2000) 170 ALR 159 that the common law only recognises native title rights and interests which involve physical use and enjoyment of the land.
THE PARTIES CONTENTIONS AND SUBMISSIONS:
The State and the Grantee contend that the predictive approach applies to the assessment necessary for the purposes of s 237(a), (b) and (c). Mr Rynne for the Native Title Party conceded only that the predictive approach applied to the interpretation of the s 237 (a), (b) and the first, but not the second, limb of para (c). He also contended, contrary to the contentions of the State and the Grantee, that the activities referred to in (a) need not be physical. As I understand his submission it is that s 237 (a) encompasses concern by an Aboriginal community as to some exploration activity on the proposed tenement which concern causes the community to engage in some activity which need not be physical and which itself interferes with the ordinary life, and so the community or social life of the community. I do not accept that submission. It ignores the use of the word ‘directly’ appearing in paragraph (a) and is difficult to reconcile with the words ‘carrying on of the community or social activities’. It is also inconsistent with the purpose and intent of the section as confirmed by the Explanatory Memorandum. Furthermore, there is no evidence of any such concern or activity. Mr Rynne further submitted that the words ‘is not likely to’ in the section should be construed as ‘a likelihood of whatever degree’, but that in any event the evidence led to the conclusion that the interference referred to in s 237 (a) and (b) was more likely than not. It is the contention of both the State and the Grantee that the said words should be applied in the sense of ‘balance of probabilities’, i.e. more likely than not, and that the ordinary meaning of the words and the need to make a predictive assessment require regard to be had to the Grantee’s intentions. The Native Title party’s written and oral submissions in respect of paragraphs (a) and (b) and the first limb of (c) accept the relevance of the Grantee’s intentions and the regulatory regime imposed by conditions endorsed on the proposed licence or by statute on the exercise of the rights created by such licence.
In respect of s 237 (a) Mr Rynne referred to Mr Northover’s evidence as to the use of the tenement for hunting and camping by those members of the claim group whom he represented as being a community or social activity within the meaning of para (a) and to his evidence that the Grantee’s activities would drive the wildlife away, thus depriving him of the ability to hunt there. There was no evidence of any other community or social activity carried on on the tenement. He also relied upon Mr Northover’s evidence that, sometime in the past, white cockatoos, the feathers of which were used for corroboree purposes, had departed from the area and not returned, as supporting the possible effect of drilling activity on the land on wildlife and the objector’s community and social activities. With respect there is no evidence as to what caused the cockatoos to depart the area or the jubuks no longer to be found. One inference is that it could be the degree of activity in the area by workmen, hunters, tourists, vehicles, SES exercises or the activities, if any, on the freehold land and that the subject of the Prospecting Licence. Nor is there any evidence of Mr Northover having any experience or understanding of the effects of the drilling or other activities of which Mr Mulholland gave evidence on the environment or wildlife in the vicinity. In my view it does not follow from the evidence or as a matter of common knowledge that the wildlife the subject of the hunting would necessarily leave the tenement or its vicinity because of that activity.
In respect of s 237(b) Mr Rynne asserted that the tenement was of particular significance to Mr Northover because of the stories surrounding the hairy faced snake. As to that, the evidence does not lead to the conclusion that any part of the tenement has relevant ‘particular significance’ i.e. a special or more than ordinary significance to Mr Northover or the Objectors generally (Dann 1, at 34-35). The evidence was that the Collie area generally has significance because of the travels of the hairy faced snake but the witness did not attribute or give evidence to support a ‘particular significance’ in respect of the tenement in relation to those travels or otherwise. The tenement is also of general significance to him in common with the whole Collie area because of its connection with his totem. In my opinion, that also does not lead to a conclusion of relevant ‘particular significance’. Mr Rynne also asserted the tenement to be of importance to Mr Northover in the activities of hunting and camping because of the ‘social hierarchy’ among members of the claim group. With respect, that assertion has no foundation on the evidence. The evidence of social hierarchy having bearing on Mr Northover’s activities related to the Brunswick Junction area in respect of which he testified he preferred not to hunt there because of social differences in accordance with aboriginal custom between himself and those that live there. It was his evidence that that area was outside the claim area. In my view, even were it in the claim area, it would not give rise to a relevant area or site within the meaning of para (b).
As to the first limb of s 237 (c) Mr Rynne conceded that the State has heavily conditioned the grant of the licence to ensure minimum interference with the biodiversity of the area but again pointed to the evidence of Mr Mulholland as to the proposed activities and submitted that what must be considered was the likely disturbance divorced from any remedial action. He further submitted that the views of the local aboriginal community should have particular weight in determining whether the exploration activities are likely to involve major disturbance in the eyes of the Australian community as a whole. In my opinion it does not follow that paragraph (c) must be construed so that no account is taken of any remedial action proposed or to be undertaken by the Grantee in respect of any disturbance involved in the exercise of the rights created by the future act. Paragraph (c) does not speak of major disturbance ‘caused’, but of major disturbance ‘involved’. In my opinion, depending on the nature, extent and duration of the proposed disturbance and the nature and timeliness of the relevant remedial work (which requires a consideration of the licence conditions and the regulating regime to which the exercise of the grantee’s rights is subject), it is a matter for the Tribunal to determine whether, in the eyes of the whole Australian Community including the Aboriginal community and taking into account the views of the Native Title holders as revealed by the evidence as to the disturbance and the remedial action, the future act, in all of the relevant circumstances, is likely to involve major disturbance. As to the second limb of s 237 (c) Mr Rynne drew attention to the ‘right’ conferred by s 67 of the Mining Act 1978 (WA) to apply for and, subject to certain provisions of that Act, be granted a Mining Lease which would confer substantial rights to mine pursuant to s 75 of that Act, thereby, in his submission, involving major disturbance. In my opinion the question whether the grant of an Exploration Licence confers or creates a right to the subsequent grant of a Mining Lease under s 67 has been answered in the negative by the decisions of the Full Court of the Supreme Court of Western Australia in Re Warden Calder; Ex-parte Cable Sands (WA) Pty Ltd (1998) 20 WAR 343 (a Court of 5 Judges) and Re Warden French; Ex-parte Serpentine-Jarrahdale Ratepayers and Residents Association (1994) 11 WAR 315 (a Court of 3 Judges), to which the State draws attention. In Re Warden French, Ipp J, (with whom Kennedy J agreed, Pidgeon J dissenting) said at 326 to 327:
‘The obligation of the Minister, under s 75(7) to grant an application for a Mining Lease made by the holder of the prospecting licence or an exploration licence, is expressed by that section to be ‘subject to this Act’. The Act qualifies that obligation by s 111A. Under s 111A the Minister may refuse an application for a mining tenement if he is satisfied on reasonable grounds that it is in the public interest that the land should not be disturbed or that the application should not be granted. In my opinion, the obligation of the Minister under s 75(7) is subject to his discretionary right of refusal under s 111A. Therefore, until the Minister – having applied his mind to s 111A – duly grants a mining lease, the applicant for such a mining lease has no title – whether conditional or otherwise – thereto’.
That decision was followed in Re Warden Calder (Pidgeon J dissenting), the above passage from the Judgement of Ipp J being quoted with approval by Steytler J with whose reasons Kennedy, White and Wheeler JJ agreed
The validity of that decision is not affected, in my opinion, by the amendments to s 237. Consequently it cannot be said that the grant of the exploration licence is likely to create a ‘right’ to a mining lease whose exercise is likely to involve major disturbance, as no ‘right’ to a mining lease can be created by the grant.
It is the State’s further contention that, in any event, the grant of a mining lease is a separate ‘future act’ for the purposes of the Native Title Act 1993 and subject to the future act provisions of that Act. I accept the validity of that submission. I find that s 67 of the Mining Act 1978 (WA) does not create a right, within the meaning of the second limb of s 237(c), to the grant of a mining lease.
Mr Rynne’s submission as to the second limb of paragraph (c) is that unlike the first limb, in construing it one does not have regard to how the exercise of the rights created by the future act are conditioned or regulated by other legislation nor how, if at all, it is intended by the Grantee that they or any of them shall be exercised, but rather only to the ‘bare rights’ created by ‘the act’, in this case, the grant of an exploration licence. The submission is that, unless so construed, the second limb adds nothing to the first limb and has no function. The question as I understand the submission, is simply, if all or any of the ‘rights’ (excluding conditions imposed and statutory and discretionary regulatory factors) created by the future act are exercised, is it likely that the exercise is likely to involve major disturbance? He does not however suggest that the words ‘the act’ as used in the first limb of paragraph (c) should have any meaning other than that established in Dann: Full Court (supra) to which I refer below.
Mr Rynne’s construction, whilst on its face arguably open on a reading of the second limb in isolation, causes great difficulty in construction. Firstly it ignores any conditions imposed on and the statutory regime which applies to the exercise of the rights created by the grant which reduce the ambit and so the extent of what Counsel refers to as ‘the bare right’. Secondly, at least in the circumstances of this case, it is inconsistent with the interpretation of the words ‘the act’ in paragraphs (a), (b) and (c) as determined in Dann: Full Court the correctness of which is not challenged. Each member of the Full Court accepted the conclusion of Lee J in Western Australia v Bropho (unreported, Federal Court, 18th November 1996) that the expression ‘the act does’ as used in the old s 237(a), (b) and (c) required the Tribunal to examine what the future act does according to the nature of the rights it creates but in the context of the terms and conditions and the statutory rights and obligations that arise on the grant and those that affect the exercise of the rights it creates. The judgement of Carr J in Ward was given on that same basis. In that case at 564 His Honour observed that the Tribunal enquiries and the appeals then before him were conducted on the basis that ‘the relevant future act was not simply the grant of each exploration licence but included the activities authorised by the licence notwithstanding the distinction drawn in s 237(c)’ (underlining added). The amendments to s 237, in my opinion, do nothing to lead to a conclusion other than that the nature and meaning of the words ‘the act’ as used in s 237(a), (b) and (c), at least in the case of a grant, is to be determined in the light of the rights which ‘the act’ creates and in the context of the terms and conditions of the statutory rights and obligations which arise on the grant and those that affect the exercise of the rights it creates.. Dann, Bropho and Ward, like the present case, were each concerned with the proposed grant of an exploration licence and the judgements should be understood in that light. But the definition of ‘future act’ (s 233 read with s 226(2)) encompasses many other and different kinds of future acts. In the case of an exploration licence, the second limb of s 237(c) appears to add nothing to the first limb and so to have no function. The point was not argued but the fact that paragraph (c) poses two questions may provide a meaning and function, in the appropriate case, for the second limb. The first question is whether the act is not likely to involve major disturbance?; the second, whether the act is not likely to create rights whose exercise is likely to involve major disturbance?. Consistently with Dann: Full Court, the first is concerned with the rights created by and at the time of the grant. The second suggests rights to come into existence (if at all) subsequent to the future act. It may be that, in the case of a future act of another kind in respect of which there is a right to negotiate (see sections 226(2), 233, 26(1A) and (1)(c)), the circumstances can provide a function for the second limb. However I take the matter no further. In the present case Counsel’s construction of the second limb would require the term ‘the act’ as used in paragraph (c) in respect of the second limb, to be construed differently to its construction for the purposes of paragraphs (a), (b) and the first limb of (c) and contrary to authority (Dann: Full Court). I do not accept that construction.
STANDARD OF PROOF AND PREDICTIVE ASSESSMENT:
I turn now to the Native Title Party’s submission that the standard of proof to be applied by the Tribunal in determining the application of s 237 is whether there is a likelihood, to any degree, that the act will have the consequences set out in either paragraph (a), (b) or (c) of the section. No authority was produced in support of the submission. Save to the extent discussed above in respect of the second limb of paragraph (c), it was not in contention that the ‘act’ is the grant and the rights it creates. The essential nature of the relevant future act does not change by virtue of the amendment to the section. The task of the Tribunal however has changed from that of examining what the future act ‘does’ to that of examining what it is or is not likely to do (in the respective contexts of paragraphs (a), (b) and (c)) according to the nature of the rights it creates. Tamberlin J (in Dann: Full Court at 13) expressed the opinion that ‘even if one were to take the predictive assessment approach, there is no justification for applying a ‘real chance’ test when making a finding as to what may be likely to occur’ and that ‘in order to determine whether a result is ‘likely’ there is no justification for a departure from the ordinary civil standard of balance of probability’. In my view those observations were obiter, His Honour being concerned with the Tribunal’s task under the old section and he having rejected both the interpretation of ‘does not’ as meaning ‘is not likely’ and the predictive approach found appropriate by Carr J. Wilcox J agreed with the reasons of Tamberlin J without comment as to those observations. Nicholson J at 22, without referring to them, queried whether Carr J had in fact adopted the ‘real chance’ test. He found the appropriate standard of proof under the old section to follow from the ‘precise wording of s 237’, that it was ‘necessary to ascertain what the future act ‘does’ ’, that the standard of proof was ‘whether it was more probable than not’ and that no other standard of proof of should be imported. As the word ‘does’ no longer appears in the section these comments have no present relevance.
In my opinion the amendments to s 237 have removed any compulsive authority as to the standard of proof in respect of s 237 determinations that Dann: Full Court (supra) had provided. The words ‘is not likely’ have a different meaning to the words ‘does not’ and the standard of proof for one is not necessarily the standard for the other. The words ‘is not likely’ import an element of speculation and so a degree of likelihood which will vary with the information available to the Tribunal. The finding to be made in respect of each of paragraphs (a), (b) and (c) is whether ‘the act’ is or is not likely to produce the specified consequence. It does not go to the issue whether or not it will or will not produce that consequence. On the other hand the words ‘does not’ denote a finding of fact as to the legal effect of the grant devoid of speculation. The finding is that the act either does or does not produce a specified consequence. The Tribunal’s findings, whatever they be, can only be made on the evidence.
Both the State and the Grantee contend that the determination of what is the likely relevant consequence of the grant of an exploration licence for the purposes of s 237 requires the Tribunal to take into account the present intentions of the Grantee as to the exercise of the rights created by the grant. A similar submission is made by the Native Title Party but limited to paragraphs (a), (b) and the first limb of (c) of s 237. The effect of the submission is that instead of having regard to what the future act (‘the grant’) is likely relevantly to do, the Tribunal should have regard to what the Grantees’ presently intended exercise of the rights created by the grant is relevantly likely to do. That however is not what the section says and is inconsistent with the meaning given to the words ‘the act’ in Dann: Full Court and as I have earlier herein held to be the meaning of those words. It is also inconsistent with the approach adopted by this Tribunal in the past when it construed the words ‘the act does not’, as used in the old section, to mean ‘the act is not likely to’. In Re Irruntyju-Papulankutja Deputy President the Hon P. Seaman said at 6:
‘The grant of a licence cannot cause the interference or disturbance to which the section refers without activity by a grantee party. Bearing in mind that the provision is concerned with an expedited procedure I am of the view that, absent exceptional circumstances, the effect which the grant is like to have is not to be judged by a consideration of the intentions and capacities of particular grantee parties but by the power of the government party to control the activities of a grantee party by existing legislation, conditions of grant and regulatory process and upon the basis that grantee parties will act lawfully’.
In my opinion, subject to the qualification I shortly make, that conclusion of the Honourable Deputy President correctly identifies the approach to be taken by the Tribunal. It allows for exceptional circumstances in which evidence of the Grantees’ intentions and capacities may be relevant but recognises that statements of present intention, no matter how genuine when made, do not necessarily reflect what, as exploration proceeds, will be the actual exercise of the rights created. As was said by Nicholson J in Dann: Full Court at 20 ‘[the] intentions of a present holder of a mining tenement will hold good only so long as the holder remains entitled to the tenement or maintains the intention’. However it cannot be fairly said, in my opinion, that evidence of intention can never be relevant to the predictive assessment. The fact that the Grantee in this case expresses his present intention as to the exercise of the rights gives rise to the likelihood that those rights will be exercised as a minimum to the intended extent but dependant on the results of the progressive exploration steps. Further there may well be cases where the overall evidence gives rise to the likelihood that the expressed intentions will in fact be carried out. The degree of likelihood in each case will vary with the circumstances as will the weight to be given to the evidence of intention. It is probable that in many, if not most cases, the weight given will be negligible, if any is given at all. That however does not mean that evidence of intention should always be ignored. Logically it is relevant to ‘likelihood’. For those reasons I am of the view that evidence of the Grantee’s intentions as to the exercise of the rights created by the grant is admissible but the weight (if any) to be given to that evidence will vary with the circumstances as the Tribunal finds them to be.
In the present case the fact that the Grantee, a wholly owned subsidiary of a well experienced mining company has applied for the tenement and the evidence of Mr Mulholland leads to an inferential finding of the possibility and so the likelihood to some degree of the discovery of the relevant economically viable mineralisation, the degree of likelihood however being impossible to assess at this stage as it is to be established, if at all, progressively in the manner and by the methods he describes. Consequently his evidence is not particularly helpful in determining the degree of relevant likely interference or disturbance.
In my opinion, in the absence of evidence to the contrary, it would be improper to assume that, in exercising the rights created by the grant, the Grantee would act in breach of the conditions imposed on the licence or in defiance of the various statutes and regulations which apply in respect of and would restrict the exercise of such rights. Nor should it be assumed that those empowered by any such statute or regulation to exercise a discretion as to the manner or extent of the exercise of all or any such rights would not act properly within the boundaries of the discretion. The presumption of regularity must prevail in the absence of evidence to the contrary. It is of course not possible to assess how or the likelihood of how any such discretion will be exercised but that does not necessarily lead to a conclusion of likelihood of relevant interference or disturbance. In some cases, depending on the nature of the discretion, its exercise may prevent a finding of likely ‘direct interference’ within the meaning of s 237(a) in that the interference, at least arguably, flows from the discretionary decision and not directly from the ‘act’. That a discretion may exist and its nature and subject matter are matters to be taken into account and given such weight as the circumstances require, in determining ‘likelihood’.
The methods of exploration of which Mr Mulholland gave evidence, to the extent that the progressive steps make their respective use likely, are subject to the conditions, statutes and regulations endorsed on the proposed licence and, of course, to the restrictive and regulatory provisions of the Mining Act and its regulations. I do not set them out. Written submissions in respect of them have been filed. Having assessed, on the evidence (including a consideration of the nature of the grant and the various statutes and regulations which may affect the exercise of the rights created), the degree of likelihood of the interference and/or disturbance from the Grantee’s activities, the task of the Tribunal is then to determine whether that degree of interference and/or disturbance is not likely to interfere as specified in s 237 (a) or (b) or to involve major disturbance as specified in paragraph (c). This of course requires a consideration of the evidence relevant to the activities, areas, sites and major disturbances (if any) the subject of s 237.
The State and the Grantee contend that the appropriate standard of proof is that of the balance of probabilities. The State asserts this to be the ordinary and natural sense of the words ‘is not likely to’. The Grantee relies on the observations of Tamberlin J that the proper standard to be applied in determining whether a result ‘is likely’ is the ordinary civil standard of balance of probabilities. All parties seem to accept, as do I, that the determination of what is ‘not likely’ involves a consideration of what is ‘likely’. In Tillmanns Butcheries Pty Ltd v Australian Meat Industry Employees Union (1979) 27ALR367 Bowen CJ at 375 said:
‘The next question is whether the conduct was such that it would have or be likely to have the effect of causing substantial loss or damage.
The word ‘likely’ is one which has various shades of meaning. It may mean ‘probable’ in the sense of ‘more probable than not’ – ‘more than a 50 per cent chance’. It may mean ‘material risk’ as seen by a reasonable man ‘such as might happen’. It may mean ‘some possibility’ – more than a remote or bare chance. Or, it may mean that the conduct engaged in is inherently of such a character that it would ordinarily cause the effect specified.’
Deane J in the same case at 380 to 381 said:
‘The word ‘likely’ can, in some contexts, mean ‘probably’ in the sense in which that word is commonly used by lawyers and laymen, that is to say, more likely than not or more than a 50 per cent chance (‘an odds-on chance’: per Lord Hodson, Czarnikow Ltd v Koufos [1969] 1 AC 350 at 410 and see, as to the meaning of the word ‘probable’, Eggleston, Evidence, Proof and Probability, 1978, p 10ff). It can also, in an appropriate context, refer to a real or not remote chance or possibility, regardless of whether it is less or more than 50 per cent. When used with the latter meaning in a phrase which is descriptive of conduct, the word is equivalent to ‘prone’, ‘with a propensity’ or ‘liable’. When so used, it is sometimes equated with the concept of foreseeability in the law of negligence (see, for example, Overseas Tankship (UK) Ltd v Miller Steamship Co Pty Ltd (Wagon Mound No 2) [1967] ALR 97; [1967] 1 AC 617 at 634-5; Callaghan v Wm C Lynch Pty Ltd (1962) 79 WN (NSW) 830 at 835)’.
and further at 381 said:
‘In Australian Telecommunications Commission v Krieg Enterprises Pty Ltd (1976) 14 SASR 303 at 308-13, Bray CJ, after an instructive consideration of relevant authorities, expressed the view that the ordinary and natural meaning of the word ‘likely’ is synonymous with the ordinary and natural meaning of the word ‘probable’ and both words mean that there is an odds-on chance of the thing happening. His Honour added that statutes containing the words have usually been construed that way, particularly so where the statute is a penal statute or is imposing an additional liability in tort. This view, if accepted, would lead to the conclusion that, prima facie, the word ‘likely’ in s 45D(1) (sic) means probably in the sense of more likely than not. While dictionary definitions and examples of judicial and lay usage can be adduced to offer strong support for that view, I am unable to accept that likely is synonymous with ‘more likely than not’ or that if there is a 49.9 per cent chance of an event occurring it would ordinarily be denied that it was likely (or ‘quite likely’) that the event would occur. Nor does it appear to me that there is a presumption that, in a legislative provision proscribing conduct that is likely to cause loss or damage to another, the legislative intent was that conduct which had a 49.9 per cent chance of causing such damage was to be outside the proscription’.
In Transport Ministry v Simmonds (1973) 1 NZLR 359 McMullin J at 363 said:
‘The Shorter Oxford English Dictionary gives one meaning of the word ‘likely’ as being ‘probable’, but it also gives as another ‘such as might well happen’. That ‘likely’ may mean something less than ‘probable’ is suggested by the fact that very often it is accompanied by the use of ‘very’, ‘most’ or ‘more’. In my view the meaning to be given to the word ‘likely’ where it is used in a statute or regulation will depend upon the statute or regulation and the context in which the word is used. An event which is likely may be an event which is probable but it may also be an event which, while not probable, could well happen. But it must be more than a bare possibility’.
In Jungarrayi and others v Olney and another (1992) 105 ALR 527 the Full Court of the Federal Court (Northrop, Hill and O’Loughlin JJ) considered the meaning of the expression ‘it is likely’ as used in s 50(2B) of the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) where the Commissioner had to determine whether ‘it is likely that’ he ‘will find the applicants are traditional aboriginal owners’ of land. After quoting a portion of the passage quoted above from Deane J in Tillmann Butcheries and referring to Sheen v Fields Pty Ltd (1984) 51 ALR 345 in which Gibbs CJ at 348 endorsed the view of Deane J that in an appropriate context the word likely can also refer to a real or not remote chance or possibility regardless of whether it is less or more than 50%, their Honours said at 537:
‘The remarks by Deane J in Tillmanns’ case seem more appropriate when one stands back and considers the aims and objects of the Act; it is directed to remedying, where possible, the hardships suffered by Aboriginals through the loss of their lands. If, in the performance of his functions as contained in s 50 of the Act, the Commissioner ascertains that there are traditional Aboriginal owners of particular land, the aim of the legislation is to set aside that land, in appropriate circumstances, through the establishment of a Land Trust for the benefit of the relevant Aboriginals: see ss 11 and 12 of the Act. This then is a strong example of beneficial legislation which should be construed liberally in favour of the person or class of persons for whose benefit the legislation was enacted. It being clear from the authorities that the word ‘likely’ is one that is capable of a number of different meanings, any consequential ambiguity should be resolved by a beneficial construction.
Speaking of s 50(1)(a) of the Act Gibbs CJ, with whose judgement Brennan, Deane and Dawson JJ agreed, said in R v Kearney; Ex parte Jurlama (1984) 158 CLR 426 at 433; 52 ALR 24 at 28: ‘If the section is ambiguous it should, in my opinion, be given a broad construction, so as to effectuate the beneficial purpose which it is intended to serve’.’
and at 538:
‘If a meaning is given to the word ‘likely’ so that it refers ‘to a real or not remote change or possibility, regardless of whether it is less or more than 50%’ (Tillmans’ case at 380), that construction will be an appropriate beneficial construction; it will also be a construction that would better promote the purpose or object underlying the Act: s 15AA of the Acts Interpretation Act 1901 (Cth)’
Section (3) of the Native Title Act (1993) (Cwth) identifies two of its main purposes as (a) to provide for the recognition and protection of Native Title and (b) to establish ways in which future dealings affecting Native Title may proceed and set standards for those dealings. The purpose and effect of s 237 is that future acts which fall within it become eligible for ‘fast track processing’ without any requirement to negotiate (ss 31 and 33) (Wilcox J in Dann: Full Court). If the Tribunal determines that the act attracts the expedited procedure, the native title party’s right to negotiate with a view to obtaining a s 31 agreement is lost. The ‘balance of probabilities’ standard of proof would deprive the Native Title Holders of their right to negotiate even though on the evidence there be, say, a 49%, or other substantial possibility or probability or likelihood less than 51%, that the act will interfere or involve major disturbance in a relevant way. In my opinion that result would be in conflict with the objects of the Act in that whilst recognising that there may be a substantial likelihood of such interference or major disturbance it would remove the right to negotiate. It would set a standard for future act dealings said to attract the expedited procedure which would not protect any likelihood of interference which, no matter how otherwise substantial, falls below the standard of balance of probabilities. Consequently it would not properly protect native title. The different meanings that can be given to the word ‘likely’ give rise to an ambiguity and consequently s 237 should be construed ‘so as to effectuate the beneficial purpose which it is intended to serve’. In my opinion the standard of proof which properly applies and which promotes the objects of the Act is that found appropriate in Tillmann (supra) and Jungarrayi (supra), the word ‘likely’ to be interpreted so that ‘it refers to a real or not remote chance or possibility, regardless of whether it is less or more than 50%’. I apply that standard in coming to my determination in this matter in respect of each of paragraphs (a), (b) and (c) of s 237.
FINDINGS OF FACT:
I make the following findings on the evidence.
Section 237(a):
The only community or social activities of the objectors carried out by them in the vicinity of the tenement are those of hunting and camping as described by Mr Northover. No specific evidence was given as to where on the tenement he and those with whom he hunts have their camp or camps. The hunting and camping are generally carried out in conjunction with one another as a joint activity and over the whole of the Collie area and so well beyond the vicinity of the tenement. The evidence reveals the hunting and camping to be a regular activity only to the extent of approximately once a month and generally for a day or a weekend. The tenement is but a small part of the whole area over which those activities are carried out and, on the evidence, not a preferred area. A substantial part of the tenement is covered by a pine plantation which ‘is not much good’ except for resting in the summer in the course of hunting. A further substantial part of it is freehold land and which is to the north of the tenement. The main hunting area is in the vicinity of the banks of the Wellington Dam. As Mr Northover explained, the hunters follow the river around and set up camp north of the tenement and then go hunting through different areas using the roads and tracks. They do not always hunt in the same area and find on occasions that there are no kangaroos in a particular area, including the tenement. It would appear that the kangaroos come and go to and from individual areas for whatever reason, probably including the other activities on and in the vicinity of the tenement. The hunting is carried out in an area extending beyond the boundaries of the map ‘IRM 6’ to the north, west and east of the tenement and south of the tenement beyond the Boyup Brook Road. It is carried out by shooting. The evidence identifies features and other activities in and about the vicinity of the tenement which could well explain why wildlife might leave the tenement and its near vicinity. I refer to the existence of numerous roads and tracks throughout it and beyond its boundaries; to the use of those roads and tracks by four wheel drive, tourist vehicles and logging trucks; to tourists and others who visit the area to feed the livestock and enjoy the views throughout the area; to the necessity for the hunters to check with CALM to ensure there are no workers in the area; to the probable activity of logging in the area, an inference drawn from the presence and movement of logging trucks; to the fact that the SES conduct training exercises throughout the area. Common sense suggests that kangaroos in the close vicinity of drilling operations might move away from the drilling and associated activity but, on the evidence, this would be only one (though an additional one) of a number of activities which individually or jointly at any time would be likely to cause them to leave the vicinity. There are not always kangaroos on the tenement or its vicinity when the hunts are conducted. There are numerous third party activities on it and elsewhere in the general region which could cause the kangaroos to move from place to place apart from any natural tendency to do so. The evidence accepts that it is an incident of hunting that kangaroos may not be in any particular area the subject of a hunt, in which case the hunters move on to continue their hunt. They camp where they hunt. It is the community or social activity of hunting and/or camping with which para (a) in this case is concerned. As Mr Northover said ‘we don’t always go to the one bush all the time we go around because if we go through here and there is no kangaroos like if somebody has already been through there, we go somewhere else. We go east of Collie then’. The evidence also gives rise to a strong inference that the choice of where to hunt is affected to some degree because of the disease risk area which lays over the approximate lower half of the tenement to the extent that it is not freehold land and which extends to the west and south of the tenement boundaries. As Mr Northover testified it is stipulated by CALM that they must stick mainly to the roads and cannot go too far off into the bush, that if they did so they must walk and that is why they walk in disease risk areas, leaving the cars somewhere safe. Mr Northover also spoke of finding marijuana crops when hunting in such areas his evidence however being somewhat ambiguous as to whether that applied to the tenement.
It is interference ‘directly’ with the objectors’ activities of hunting and/or camping, with which paragraph (a) is concerned. I have had regard to the evidence relating to those activities, to the limited area of the tenement in the light of the overall area in which they are carried out, to the periodic nature and generally short term of those occasions, to the activities of others conducted on and in the vicinity of the tenement which, it must be inferred, would interfere with the carrying on of the hunting and camping on the tenement in that they would disturb the wildlife and in the interests of safety, inhibit the use of firearms and, to the existence of the disease risk area and CALM restrictions. I also take into account the evidence of Mr Mulholland as to the purpose and nature of the proposed exploration work and the regulatory regime which would apply to that work as identified in the Mining Act and the conditions and statutes endorsed on the proposed licence. I find that the grant of the tenement and the exercise of the rights it creates is not likely to interfere directly with the community or social activities of the persons who are the native title holders in relation to the land or waters concerned.
Section 273(b):
There is no evidence to justify a finding that there is any area or site of particular significance in accordance with their traditions to the holders of native title on the tenement or in such close proximity as to be the subject of relevant interference. That the hairy faced snake of which Mr Northover gave evidence may have passed through the tenement, as it is said to have done in respect of large areas of the Collie area, gives the whole area including the tenement significance but, so far as the evidence discloses, no ‘particular significance’ in the sense of special or out of the ordinary significance in respect of any specific part or the whole of the area of the tenement. Mr Northover expressed evidence of concern as to waterholes, resting places, corroboree grounds and the ‘Wirnot’ area but did not identify any such as being on the tenement. One would expect an area of ‘particular significance’ to be known to the persons to whom it has that particular significance and the more so if those persons traditionally use the land for hunting and camping. On the evidence adduced I find that the grant of the tenement is not likely to interfere with areas or sites of particular significance in accordance with their traditions to the holders of native title in relation to the lands or waters concerned
Section 237(c)
For the reasons I have advanced in respect of my findings as to paragraphs (a) and (b) of s 237, and in particular because of the activities to which the tenement is already subjected, the nature of the conditions and regulatory regime which would apply to the exercise of the proposed licence if granted, the extensive area of the objectors’ hunting and camping activities compared with the relatively small tenement area and the nature of those activities and applying to the words ‘major disturbance’ the meaning found in Dann: Full Court (supra) I find that the grant of the licence is not likely to involve major disturbance to any land or waters concerned or create rights whose exercise is likely to involve major disturbance to any such lands or waters.
DETERMINATION:
The Tribunal determines that the grant of Exploration Licence 70/2106 is an act which attracts the expedited procedure.
Hon E.M. Franklyn Q.C.
Deputy President
23 June 2000
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