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Clarrie Smith v.
State of Western Australia & Ors;
Ben Ward & Ors v.
State of Western Australia
and CRA Exploration Pty Ltd
Federal Court of Australia (Carr J)
9 May 1996, Perth
Aboriginal and Torres Strait Islanders - Native Title - Native Title Act 1993 (Cth) - notice of proposed future act - right to negotiate -Inquiry into whether proposed act attracts the expedited procedure - role of the National Native Title Tribunal - onus of proof - whether proposed activity would directly interfere with community life - whether proposed activity would interfere with sites of significance - Whether Aboriginal Heritage Act 1972 provides adequate protection of sites - whether the proposed activity constitutes a major disturbance to land
Words and Phrases - 'directly interfere with community life' - 'major disturbance to land'
Native Title Act 1993 (Cth) ss. 29, 237
Aboriginal Heritage Act 1972 (WA)
This case involved three appeals from determinations of the National Native Title Tribunal (NNTT) that the proposed grant of exploration licences attracted the expedited procedure. The State of Western Australia, in accordance with s. 29 of the Native Title Act 1993 (Cth) (the NTA) issued notices of its intention to issue exploration licences. The notices carried a statement that it considered that the issuing of the exploration licences was an 'act attracting the expedited procedure'. In response to the notice native title claims were brought by the appellants which were accepted by the NNTT. The appellants opposed the statements that the expedited procedure applies. Section 237 of the NTA provides that:
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 the 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.
The NNTT heard the objections and held in each case that the expedited procedure did apply to the notices. The appellants appealed those decisions on the basis that the NNTT had misinterpreted and misapplied s. 237 in a number of respects.
Held:
(1). There is no burden of proof or evidentiary burden on any party in an inquiry before the Tribunal as to whether the expedited procedure applies. McDonald v. Director-General of Social Security [1984] FCA 57; (1984) 1 FCR 354 applied. This approach had been correctly adopted by the NNTT.
(2) Subsection 237(a) is not limited to matters which cause physical interference with the life of the community. As a matter of ordinary language, the spiritual part of life falls quite readily into what is encompassed by 'community life'. The NNTT made an error of law in defining subs. 237(a) as meaning a physical interference with community life.
(3) The NNTT had not made an error of law in adopting the view that a 'major disturbance to land' referred to in subs. 237(c) was to be assessed by the standards of the broader community and not the standards of the native title holders.
(4) The NNTT had not made an error of law in concluding that the Aboriginal Heritage Act 1972 (WA) provided adequate protection for sites of significance to the native title holders.
Carr J
These are three appeals brought under s. 169(1) of the Native Title Act 1993 (Cth) ('the Act') from determinations by the National Native Title Tribunal ('the Tribunal'), made under s. 32(4) of the Act, that the grant of certain exploration licences by the first respondent under the Mining Act 1978 (W.A.) attracted what the Act describes as 'the expedited procedure'. The appeals were heard together. As will be seen, there are numerous issues common to all three matters.
No. WAG 6007 of 1995 ['Smith']
The Application by CRA Exploration Pty Ltd for an Exploration Licence
On 19 September 1994 the second respondent CRA Exploration Pty Ltd ('the grantee party') applied to the Minister for Mines of the State of Western Australia for the grant of an exploration licence over an area of approximately 176.4 square kilometres on pastoral leasehold land and reserves south-west of Newman in the Shire of Meekatharra.
On 12 July 1995 the first respondent, the State of Western Australia ('the Government party'), gave notice under s. 29 of the Act of its intention to grant the exploration licence to the grantee party. In that notice the Government party, acting pursuant to s. 29(4) of the Act, included a statement ('the Statement') that it considered that the grant of the exploration licence was an 'act attracting the expedited procedure', a term defined in s. 237 of the Act. On 28 August 1995 the Registrar of the National Native Title Tribunal accepted an application on behalf of the Nganawongka people for a determination of native title over land which included the above land. On 30 August 1995 the appellants, on behalf of the Nganawongka people objected, under s. 32(3) of the Act to the inclusion of the Statement in the Government party's notice. On 9 November 1995 the National Native Title Tribunal, constituted by the Honourable C J Sumner, a member of the Tribunal, heard that objection. On 11 December 1995 the Tribunal published its determination (and its reasons for the determination) that the grant of the exploration licence to the grantee party was an act which attracted the expedited procedure. On 14 December 1995 the appellants appealed to this Court, on questions of law, from that determination.
The Other Applications for Exploration Licences
Rather than setting out the factual circumstances of the other applications, all of which followed a similar pattern to the above application, it is convenient to provide that information in tabular form as follows:
The Two Further Applications Which Are the Subject of Appeal No. WAG 6007 of 1995
Applicant for Exploration Licences (2): BHP Exploration Pty Ltd
Date of application: 16 September 1994
Area: Approximately 392 square kilometres
Land tenure: Pastoral lease and reserves
Location: 25 kilometres east of Egerton Mining Locality in the
Shire of Meekatharra
Date upon which Government party gave Notice: 26 June 1995
Applicant for Native Title Determination: The Nganawongka People
Date such application accepted: 28 August 1995
Date of appellants' objection: 30 August 1995
Date of Tribunal hearing: 9 November 1995
Date Appeal filed: 14 December 1995
Applicant for Exploration Licences (2): Asian Mining Ltd and Sorna Pty Ltd
Date of application: On or about 29 September 1994
Area: Approximately 350 square kilometres
Land tenure: Pastoral lease and reserves
Location: 86 kilometres south of Newman in the Shire of Meekatharra
Date upon which Government party gave Notice: 26 June 1995
Applicant for Native Title Determination: The Nganawongka People
Date such application accepted: 28 August 1995
Date of appellants' objection: 30 August 1995
Date of Tribunal hearing: 9 November 1995
Date of Tribunal's Determination: 11 December 1995
Date Appeal filed: 14 December 1995
No.WAG 6006 of 1995 ['Ward I']
Applicant for Exploration Licence: Australian United Gold NL
Date of application: On or about 21 December 1993
Area: Approximately 67.2 square kilometres
Land tenure: Vacant Crown land and reserves
Location: Barnett Point in the Shire of Wyndham-East Kimberley
Applicant for Native Title Determination: Applicant for Native Title Determination:
Applicant for Native Title Determination: The Miriuwung-Gajerrong People
Date such application accepted: 26 May 1995
Date upon which Government party gave Notice: 30 May 1995
Applicant for Native Title Determination: The Miriuwung-Gajerrong People
Date such application accepted: 26 May 1995
Date upon which Government party gave Notice: 30 May 1995
Date of appellants' objection: 21 August 1995
Date of Tribunal hearing: 9 November 1995
Date of Tribunal's Determination: 11 December 1995
Date Appeal filed: 14 December 1995 No. WAG 6002 of 1996 ['Ward II']
Applicant for Exploration Licence: CRA Exploration Pty Ltd
Date of application: On or about 18 April 1995
Area: Approximately 98 square kilometres
Land tenure: Pastoral lease and reserves
Location: 4 kms East of Kununurra in the Shire of Wyndham- East
Kimberley
Applicant for Native Title Determination: The Miriuwung-Gajerrong People
Date such application accepted: 18 August 1995
Date upon which Government party gave notice: 18 October 1995
Date of appellants' objection: 14 December 1995
Date of Tribunal hearing: 13 February 1995
Date of Tribunal's Determination: 29 February 1996
Date Appeal filed: 5 March 1996
Subdivision B (which is entitled 'Right to negotiate') of Division 3 of Part 2 of the Act applies to certain 'permissible future acts', a term defined by s. 235 of the Act. The proposed grant of an exploration licence falls within that definition because it is an act (other than the making, amendment or repeal of legislation) which could be done in relation to the land or waters concerned if the relevant native title holders instead held ordinary title to that land or the land adjoining or surrounding the waters. Section 26(2) provides that the creation of a right to mine, whether by the grant of a mining lease or otherwise is, subject to s. 26(3) one of the permissible future acts to which Subdivision B applies. Section 253 defines the verb 'mine' as including to explore or prospect for things that may be mined. Accordingly, an exploration licence amounts to the creation of a right to mine for the purposes of the Act. The exclusions provided for in s. 26(3) do not apply to these matters.
Section 29 requires the Government party to give notice of its intention to do the permissible future act. Section 29(4) permits the Government party to include in such notice a statement that it considers the act is an act attracting the expedited procedure. (As indicated above, I shall refer to that statement as 'the Statement').
The Government party must give that notice to various persons including any registered native title claimant in relation to any of the land or waters that will be affected by the permissible future act. Such a claimant is described in the relevant provisions as being included within the expression 'native title party', see s. 29(2). The expression is extended by s. 30 to include any person who becomes a registered native title claimant within two months of the giving of notice by the Government party. The appellants in these proceedings are thus native title parties.
Section 32(2) provides that if the native title parties do not lodge an objection with the arbitral body in accordance with s. 32(3) the Government party may do the act (in this case, grant each exploration licence to the various other respondents).
Section 32(3) provides that the native title parties may, within two months of being given notice by the Government party, lodge an objection with the arbitral body against the inclusion of the Statement. In each of these matters the arbitral body is the Tribunal, constituted by Mr Sumner.
Section 32(4) provides that if the native title parties object against the inclusion of the statement, the arbitral body must determine whether the act is an act attracting the expedited procedure. If the arbitral body determines that it is, the Government party may do the act. Section 32(5) provides that if the arbitral body determines that the act is not an act attracting the expedited procedure, the arbitral body must request the Government party and the grantee parties to negotiate in good faith with the native title parties with a view to obtaining their agreement to doing the act, whether subject to conditions or not, and must offer to mediate among 'the negotiation parties' to assist in obtaining their agreement. The term 'negotiation party' is defined by s. 253 as meaning a Government party, a grantee party or a native title party. There are provisions relating to such negotiations and for the making of a determination by the arbitral body if the negotiation parties cannot reach agreement. From the above it may be seen that, on the assumption that the Government party complies with the Tribunal's request, a successful objection to the inclusion of the Statement confers on the objector what is described, perhaps somewhat loosely, as a 'right to negotiate' (compare s. 31(1) which applies where no Statement is included in the notice). Section 35 provides that if agreement is not reached between the parties concerned within four months (in matters of the type with which these appeals are concerned) from the giving of the notice under s. 29, then any party may apply to the Tribunal for a determination whether the permissible future act may or may not be done or may be done subject to compliance with conditions. It appears that 'the right to negotiate' is regarded by objectors as a valuable one.
Section 75 describes, by means of a short table, applications that may be made to the Registrar under Division 2 of Part 3 of the Act. Although the applications are referred to as being made 'to the Registrar' it was common ground that in the present matters this meant 'to the Tribunal'. An objection to an act attracting the expedited procedure is treated as an application to the Tribunal. The portions of that table which are relevant to the present matters read as follows:
Kind of application - Objection to inclusion in an expedited procedure application
Application -
objecting against the inclusion of a statement that an act is an
act attracting the expedited procedure
Application under subsection 32(3)
Person who may make application - A native title party
Section 139 obliges the Tribunal to hold an inquiry into '... an application covered by section 75 (which in each of those sections is described as a 'right to negotiate application')'. Section 139, and the sections following it, govern the procedure to be followed by the Tribunal.
Section 162 requires the Tribunal, after holding an inquiry in relation to a right to negotiate application, to make a determination about the matters covered by the inquiry. Section 162(2) requires the Tribunal to state in the determination any findings of fact upon which it is based. Section 165 provides that a determination of the Tribunal, other than a determination in relation to a right to negotiate application, is not binding or conclusive. Section 169(1) of the Act provides that a party to an inquiry relating to a right to negotiate application may appeal to the Federal Court, on a question of law, from any decision or determination of the Tribunal in that proceeding. Section 169(5) declares that the Court has jurisdiction to hear and determine appeals instituted in accordance with the section. Section 169(6) provides that the Court must hear and determine the appeal and may make such order as it thinks appropriate by reason of its decision. Examples of such orders are set out in s. 169(7).
These appeals turn on the proper construction of s. 237 of the Act, which provides as follows:
Act attracting the expedited procedure
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. I should mention some preliminary matters. The Tribunal's inquiries and these appeals were conducted on the basis that: ' although it was yet to be established that there were any holders of native title, the objectors were to be regarded as such; ' the relevant future act was not simply the grant of each exploration licence but included the activities which were authorised by the licence, notwithstanding the distinction drawn in s. 237(c).
No. WAG 6007/1995 ['Smith']
The Tribunal generally accepted the evidence of Mr Clarrie Smith. Mr Smith was the driving force behind the establishment of the only relevant Aboriginal community. That community is at a place called Yulga Jinna. The exploration licence applied for by CRA Exploration Pty Ltd is some 78 kms north-east of Yulga Jinna. BHP Exploration Pty Ltd's applications are in respect of land some 35 kms south-west of Yulga Jinna. The land which is the subject of the exploration licences applied for by Asian Mining NL and Sorna Pty Ltd is 140 kms north-east of Yulga Jinna. On the question of interference with community life the Tribunal held that given the size of the respective exploration areas sought and their remoteness from Yulga Jinna, it was not:
'... convinced that the activity is likely to interfere with community life of the native title holders. Although there may be hunting and gathering by members of the community in the area from time to time it is unlikely that flora and fauna will be interfered with significantly so as to impact on community life.'
The Tribunal, approving and following an earlier determination by a differently constituted Tribunal, ruled that 'interference' in s. 237(a) meant physical interference, a subject to which I return below.
On the matter of interference with sites of particular significance, the Tribunal generally accepted Mr Smith's evidence and found there to be two such sites in respect of two of the areas and three sites in respect of the third area. The Tribunal conducted a careful examination of the Aboriginal Heritage Act 1972 (W.A.) and the manner in which it was administered. It had regard to the fact that recently there had been what it described as a significant change in the procedures adopted by the Department of Mines and Energy. This was the fact that since early November 1995 a document entitled 'Guidelines for Aboriginal Consultation by Mineral and Petroleum Explorers' has been sent with the grant of all exploration titles. The Tribunal noted Mr Smith's evidence that he was prepared to talk to 'the Mining Company' in order to avoid interference with sites. It also made the assumption that the grantee parties would comply with the Aboriginal Heritage Act. It noted that CRA Exploration Pty Ltd and BHP Exploration Pty Ltd indicated their respective willingness to consult with Mr Smith in relation to the sites of particular significance. It assumed that Asian Mining NL and Sorna Pty Ltd would consult. The appellants criticised this assumption on the basis that these latter two companies did not participate in the proceedings. In passing, I do not consider that criticism to be valid. In my view the Tribunal was entitled to assume that those concerned would comply with the provisions of the Aboriginal Heritage Act. To do that it was necessary, on the evidence found by the Tribunal, for those parties to consult with Mr Smith. Mr Smith indicated his willingness to consult and in those circumstances I consider that the Tribunal was entitled to make the assumption which it did in respect of Asian Mining NL and Sorna Pty Ltd.
The Tribunal held that the activities permitted by the exploration licences were unlikely to create major disturbance to land 'by the standards of the broader community, given the size and topography of the area, and the conditions which have been imposed on the licence'.
No. WAG 6006/1995 ('Ward I')
In Ward I the Tribunal adopted a similar approach to that which it took in Smith. In Ward I the Tribunal largely accepted the evidence of Mr Dodger Carlton. The Tribunal found that no-one lived permanently on the subject land which was a considerable distance from any community. For similar reasons as referred to above, it found that there was unlikely to be any interference with community life and in particular with hunting and gathering. The Tribunal found that there were sites of particular significance but that, for similar reasons again as referred to above, there was unlikely to be any interference with them. Its reasoning and conclusion on the question of major disturbance were also similar to those in Smith.
No. WAG 6002/1996 ('Ward II')
In Ward II the Tribunal accepted affidavit evidence from the appellants to the effect that there were four relevant Aboriginal communities. None was situated on the ground within the proposed exploration licence. Three were within 1.5 kms of that ground and the fourth was about 10-12 kms away. The Tribunal also accepted the appellants' evidence of their hunting and gathering activities which included the gathering of wood for didgeridoos and singing sticks. In addition, the Tribunal accepted evidence that there were sites of particular significance (within the meaning of s. 237(b) of the Act) on the area concerned. For reasons which were substantially similar to its reasoning in Smith and Ward I the Tribunal came to the conclusion that there was unlikely to be any interference of any of the three types referred to in s. 237 by the grant of the exploration licence and the activities which the licence would authorise.
The grounds of appeal in Ward I and Smith were identical. In Ward II the same grounds were relied upon together with five grounds, said to be additional. Not all of those grounds were really additional; there was a considerable degree of overlapping. As a matter of convenience, I propose to deal with the individual grounds common to all three appeals in five groups. I will then turn to the 'additional' grounds in the third appeal.
I. Burden of Proof [Grounds (a), (b) and (h) in all three appeals]
The appellants complain that the Tribunal erred in law with respect to the following matters:
'(a) in determining that the objector needed to show by evidence that s. 237 of the Act does not apply; (b) in determining that the onus is on the native title party to show that interference is likely as opposed to a finding that s. 237 requires the grantee party to displace the burden of proving that acts will not interfere or disturb; and (h) in determining that the expedited procedure applies, unless evidence proves that the grant of the exploration licence is likely to result in the consequences specified in s. 237 of the Act, when the section provides that an act attracts the expedited procedure only if it does not result in the consequences specified in the section.'
The appellants, on more than one occasion during oral submissions and in their written submissions, accepted that they had 'an evidential burden' to bring forward relevant evidence at a hearing before the Tribunal. They submitted that it was wrong for the Tribunal, as an administrative body conducting an inquiry, to decide that there was a burden of proof on the native title party. Reliance was placed on McDonald v. Director-General of Social Security [1984] FCA 57; (1984) 1 FCR 354. The appellants pointed to the similarities between the statutory provisions applying to the Administrative Appeals Tribunal in that case and ss. 108 and 109 of the Act in these matters, which deal with the 'Function of the Tribunal' and 'Tribunal's way of Operating'. I think it is worthwhile setting out the relevant passages from Woodward J's judgment in McDonald, which have been cited with approval in so many cases:
'The first point to be made is that the onus (or burden) of proof is a common law concept, developed with some difficulty over many years, to provide answers to certain practical problems of litigation between parties in a court of law. One of the chief difficulties of the concept has been the necessity to distinguish between its so-called 'legal' and 'evidential' aspects. The concept is concerned with matters such as the order of presentation of evidence and the decision a court should give when it is left in a state of uncertainty by the evidence on a particular issue. The use outside courts of law of the legal rules governing this part of the law of evidence should be approached with great caution. This is particularly true of an administrative tribunal which, by its statute 'is not bound by the rules of evidence but may inform itself n any matter in such manner as it thinks appropriate' (AAT Act s. 33(1)(c)). Such a tribunal will still have to determine practical problems such as the sequence of receiving evidence and what to do if it is unable to reach a clear conclusion on an issue, but it is more likely to find the answer to such questions in the statutes under which it is operating, or in considerations of natural justice or common sense, than in the technical rules relating to onus of proof developed by the courts. However these may be of assistance in some cases where the legislation is silent. Whether the principles adopted by such a tribunal, arising from these various considerations, are appropriately dealt with under the heading 'onus of proof', becomes a matter of choosing labels. It would probably be more convenient to avoid using that expression in cases such as the present.' (at pp. 356-357)
. . .
'In my view, the answer is the same when the AAT seeks to put itself in the position of the Director-General. It must act on the material which is before it but, as I have already pointed out, it is not bound by rules of evidence and may inform itself on any matter in such manner as it thinks appropriate. It is true that facts may be peculiarly within the knowledge of a party to an issue, and a failure by that party to produce evidence as to those facts may lead to an unfavourable inference being drawn -but it is not helpful to categorise this common-sense approach to evidence as an example of an evidential onus of proof. The same may be said of a case where a good deal of evidence pointing in one direction is before the Tribunal, and any intelligent observer could see that unless contrary material comes to light that is the way the decision is likely to go. Putting such cases to one side there can be no evidential onus of proof in proceedings before the AAT unless the relevant legislation provides for it, and in the present case the Social Security Act 1947 (Cth) does not.' (at p. 358)
The respondents did not take issue with the principles of administrative law reflected in the above passages. In fact, Mr G.R. Donaldson, counsel for the first respondent, expressly relied on them.
It may be that the appellants, by making the concession to which I have referred above, conceded too much. On the other hand it seems more likely that the concession referred to practicality rather than law. The 'common sense approach to evidence' is not the same as applying an evidential onus of proof. In administrative matters such as these, any party (not just the native title party) has what might be termed an evidentiary choice. They might choose not to lead any evidence on a particular issue. But that does not necessarily mean that they must fail on that issue i.e. that they have an evidential onus of proof. The Tribunal might (subject to observing the requirements of procedural fairness) make its own inquiries and satisfy itself that the particular issue should be decided in favour of the party electing not to put evidence before it. Alternatively, part of an opposing party's evidence whether in cross-examination or otherwise, may satisfy the Tribunal on the point. That party has, in colloquial terms, taken its chances and won. However, as Woodward J observed in the last of the passages set out above, where facts are peculiarly within the knowledge of a party to an issue, its failure to produce evidence as to those facts may lead to an unfavourable inference being drawn when the administrative tribunal applies its common sense approach to evidence. Again, if this happens, it will not be because of the application of any evidential onus of proof, but by the application of the common sense approach to evidence.
The appellants' complaint was that the Tribunal had placed on them a burden of proving direct interference with community life, interference with sites of particular significance or major disturbance to land or waters (being the three respective matters in s. 237 of the Act). Section 237, as the appellants correctly point out, provides that a future act is an act attracting the expedited procedure if it does not directly interfere with community life, and does not interfere with areas or sites of particular significance and does not involve major disturbance to any land or waters. The appellants contended that the respondents had the burden of proving such non-interference, to the satisfaction of the Tribunal. In response to a question from me, Mr M.T. Ritter, counsel for the appellants, suggested that the Tribunal should decide such factual matters on the balance of probabilities but, in deference to the importance of the matters, at the same time should apply the principles outlined in Briginshaw v. Briginshaw [1938] HCA 34; (1938) 60 CLR 336. The first respondent contended that the Tribunal had in fact followed the common sense approach. The second respondent contended that the native title party carried what it termed 'the burden of persuasion' and that the Tribunal was correct in applying that test. Alternatively, so the second respondent submitted, the Tribunal arrived at its determination lawfully because it satisfied itself on the three matters referred to in s. 237, on the basis of the evidentiary material before it.
In my opinion no burden of proof, nor for that matter any evidential burden of a legal nature, lies on any party to proceedings before the Tribunal inquiring into the matters referred to in s. 237. I rely upon the principles discussed in McDonald in reaching this conclusion. Natural justice or procedural fairness (as it is more commonly known) does not require any such onus to be placed on one party rather than another. Not all the relevant facts will be in the possession of a particular party in every case. The Act is silent on the question of onus of proof (compare s. 14ZZK of the Taxation Administration Act 1953 (Cth)). I do not consider that there is any implied imposition of any such onus, in particular by the fact that s. 75 treats an objection as an application. I see that as an administrative matter. There has to be some mechanism provided for the registration and processing of the native title party's objection. Accordingly, it seems to me that the Tribunal should adopt the common-sense approach to evidence referred to above.
I now proceed to examine whether the Tribunal erred in law, as the appellants contend, by shouldering the native title party with a burden of proof rather than adopting the common sense approach to evidence in the manner explained and qualified by Woodward J in McDonald.
Smith was treated by the parties to these appeals as being the lead or main matter. It would appear to have been so treated also by the Tribunal. In that matter the Tribunal referred to an earlier determination of the Honourable Mr Paul Seaman QC, Deputy President of the Tribunal, in the matter of Irruntyju-Papulankutja Community/Broadmeadows made on 6 October 1995 (NNTT WO95/7). The Tribunal summarised Mr Seaman's conclusions on the law in the following terms:
(1) The Act treats the objectors as applicants and they have to satisfy the Tribunal by evidentiary material that s. 237 does not apply to the Act (p. 5).
(2) The Act with which the section is concerned in this case is the grant of the exploration licences and the expression 'does not' in each subsection must be read as meaning 'is not likely to'. The grant of a licence cannot cause the interferences 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 likely 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 (p. 6).
(3) The objectors must show that it is likely that lawful activities by or on behalf of the grantee party closely connected with the exercise of the rights given by the exploration licence will result in physical interference with the life of the community (s. 237(a)), will interfere with areas or sites of particular significance in accordance with the traditions of the native title party (s. 237(b)), or will cause physical disturbance to the land which constitutes a major disturbance by the standard of the broader community (s. 237(c)) (p. 6).'
The Tribunal then turned to more recent determinations by Mr Seaman in the matters of Thomas/Sons of Gwalia and Ors and Thomas/Savanna Minerals Resources NL (NNTT WO95/17 and NNTT WO95/2, 24 November 1995). In those matters Mr Seaman heard additional evidence, produced by the Government party, on the operation of the Aboriginal Heritage Act. That evidence concerned guidelines, warnings to grantee parties and the response by the (State) Aboriginal Affairs Department to inquiries. The learned Deputy President concluded in those circumstances that it was unlikely that the respective grantee parties would fail to consult with the native title party and the Waljen People about the location of their exploration activities or that they and those acting on their behalf would interfere with areas or sites of particular significance in accordance with the traditions of the Waljen People. In its reasons in Smith (at p. 6) the Tribunal said:
'The effect of Mr Seaman's decision in that matter is that the Aboriginal Heritage Act 1972 will generally be effective in ensuring that there is not likely to be interference with areas or sites of particular significance to an objector. Unless there are new facts relating to the effectiveness of the Aboriginal Heritage Act 1972, or different facts relating to the nature of the relevant land and the number and significance of areas or sites on it, the findings of Mr Seaman would be of general application in these matters.'
The Tribunal directed, by consent, that the transcript of evidence from two witnesses in those matters (Mr L C Ranford and Mr P J Randolph who gave evidence, among other things, about the practical application of the Aboriginal Heritage Act, particularly in the context of exploration licences) be received into evidence in the three matters in Smith. The Tribunal acknowledged that it was not bound to follow Mr Seaman's views on the issues of law enumerated above, but said that unless there were exceptional circumstances it intended to adopt Mr Seaman's views on such questions. The Tribunal then turned to consider the question of burden of proof. It expressly referred to McDonald's case and certain other authorities and (at pp. 8-9) made the following observations which in my view are of such critical importance that they warrant setting out in full as follows:
'In my view this material (a reference to McDonald and the other authorities to which the Tribunal had been referred) establishes that an administrative body exercising quasi inquisitorial powers is not bound by the strict rules of evidence on burden of proof which apply in adversarial proceedings in ordinary courts unless there is a clear statutory warrant to do so. I accept this view and its application to this Tribunal in this Inquiry. While it could be argued that the general rules have been overridden by virtue of s. 75 and ss. 147 and 148 I consider that there would need to be a more express provision to do so. As with most Tribunals s. 109 says that the Tribunal 'is not bound by technicalities, legal forms or rules of evidence' and in my view this includes rules relating to the burden of proof. But the Tribunal must make its decision on evidence whoever produces it or however it is obtained. 'Obviously parties should produce all the evidence readily available to them, including their own and other evidence able to be secured by summons or otherwise. This is in keeping with what the Courts sometimes describe as the 'evidential onus or responsibility of a party to lead evidence or as much evidence as is reasonably practical on the issues that party wishes to argue and promote in the case' (Einfeld J. Bennett and Anor v. Everitt and Anor (1988) EOC 92-244 at p. 77,272).'
Another way of looking at this matter is to examine at what point the jurisdiction of the Tribunal is invoked, i.e. when does the Tribunal's arbitral role begin ...Does the arbitral process begin when the s. 29(4) notice is given by the Government party or does it begin when an objection is lodged? I think it clear that the process from an arbitral point of view begins with the lodging of the objection. The objection having been lodged there then must be evidence produced by the parties, or obtained of its own volition, which enables the Tribunal to make a decision on the matters set out in s. 237. Of necessity much of this evidence will come from the objector. I note that in Irruntyju-Papulankutja/ Broadmeadows when Mr Seaman dealt with this topic he referred to the objectors having 'to satisfy the Tribunal by evidential material that s. 237 does not apply to the act.' (p. 5). I do not think he was referring to a burden of proof in the strict legal adversarial sense but referring to the need for the objector to show by evidence however it comes before the Tribunal, that s. 237 does not apply. I adopt Mr Seaman's views.'
I think it is fair to say that the approach which the Tribunal took in determining the three Smith matters was also adopted by the Tribunal in the Ward I and Ward II determinations.
In my opinion, subject to a possible qualification in respect of the reference to '... the need for the objector to show by evidence, however it comes before the Tribunal, that s. 237 does not apply,' the above passages from the Tribunal's reasons correctly state the law. The possible qualification arises out of what the Tribunal meant by '... the need for the objector to show by evidence...'. If (which I do not think is the case) the Tribunal meant there was an evidentiary onus on the objector, then in my view that would not be a correct statement of the law. But I think it is reasonably clear that by the use of the words '... however it comes before the Tribunal ...' the Tribunal was applying 'the common sense approach' referred to in McDonald.
There remain earlier, somewhat troubling, references to '... the objectors have to satisfy the Tribunal by evidentiary material ...', and 'The objectors must show that it is likely that ...'. Is this a case where the Tribunal has correctly identified the legal approach i.e. there is no onus of proof, but has not in fact applied that approach to the matter?
In Wu Shan Liang v. Minister for Immigration and Ethnic Affairs [1995] FCA 1327; (1995) 130 ALR 367 at p 378 the Full Court of this Court, in an entirely different context, made the following observation in relation to a delegate's decision:
'The expression 'real chance of persecution' is used in the reasons ... The delegate was thus aware of the test she had to apply. Her reasons are entitled to a beneficial construction. We should not take the view that she did not apply the correct test unless this appears clearly from what she has written.'
In similar vein, Sackville J in Subramaniam Muralidharan v. Minister for Immigration and Ethnic Affairs (Full Court, unreported 22 March 1996, Judgment No. 182 of 1996) said:
'In some cases it may be quite clear that, despite a reference to Chan and other relevant authorities, the Tribunal has misunderstood or mis-applied the correct principles. In others the position will be much less clear. If the scrutiny of the Tribunal's reasons is carried too far, it may give rise to an issue as to whether the Courts are 'unduly interfer(ing) with administrative decisions'.' (A reference to the transcript of proceedings of the application for special leave to appeal in Wu Shan Liang).
In my view a similar approach should be taken when assessing the Tribunal's decision in these matters.
I have scrutinised the Tribunal's reasons for its determination in Smith. That scrutiny has led me to the conclusion that the Tribunal did not impose even an evidentiary burden of proof on the appellants.
In Smith, the Tribunal referred to what might be termed evidentiary deficiencies at pp. 13(.7), 21(.6), 22(.5), 23(.8), 24(.7), 26(.1) and 27(.10). In none of those instances is there any indication that the Tribunal reached its conclusions on the basis of applying even an evidentiary burden on the native title party. I do not need to deal with each individual passage from the reasons, but there was one particular attack mounted by the appellants on the following passage:
'If evidence were produced that showed that it was common place for Ministers to give s. 18 consents (a reference to the Minister's discretion under s.18 of the Aboriginal Heritage Act to consent to the use land for a purpose which would be likely to damage or alter an Aboriginal site) to facilitate exploration activity then I think this could be taken account of in determining whether the Act was effective so that it would not be likely that there would be interference with an area or site of particular significance.'
The appellants complained that the Tribunal overlooked the fact that there was evidence to the effect that 90% of applications under s. 18 resulted in ministerial consent and that 20-30% of s. 18 applications related to mining activities. Earlier in its reasons, the Tribunal referred to the fact that in the past four years approximately 35% of applications under s. 18 related to mining activity. However, the evidence to which the appellants point does not show that it was commonplace for ministers to give s. 18 consents to facilitate exploration activity. The fact that 20-30% of applications under s. 18 related to mining activities and the further fact that 90% of s. 18 applications are successful does not mean that it is commonplace for ministers to give s. 18 consents to facilitate exploration activity. For example the successful applications might all relate to residential developments.
In Ward I, one passage of the Tribunal's reasons was singled out for particular criticism over and above the criticism which had already been mounted in respect of the Smith applications, already considered. The passage reads as follows:
'While I accept Mr Carlton's concerns are genuine, I cannot find that this (a reference to contamination of fresh water and erosion of gullies by the sinking of sample holes or drill holes) is likely to happen in the absence of further evidence of an expert nature or based on past experience.'
Mr Ritter said that this amounted to error because the Tribunal was an administrative body which can conduct its own inquiry or research. That may well be so, but it is under no obligation to do so. In my opinion, this passage simply indicates that the Tribunal was applying a common sense approach to the evidentiary matters. It was not placing any burden of proof on the native title party. I did not find any other passages in the reasons in Ward I which suggested that it might have done so.
I have also scrutinised the Tribunal's reasons in Ward II. There are references to sufficiency of evidence at pp. 5(.5), 6(.6), 13, 14, 15, 17, 18, 19, 20, 22-23 and 24. At the start of its reasons, the Tribunal set out (in terms identical to those used in Ward I) its view to the effect that evidence must be produced which shows that the grant of the exploration licence and lawful activities conducted under it are likely to result in one or other of the three types of interferences referred to in s. 237 of the Act. Given the terms of s. 237, and in particular the words which I have emphasised above, this is not the most helpful way of summarising the position. If neither party produced any evidence the Tribunal might decide to initiate its own inquiries (observing the requirements of procedural fairness) to decide whether there was likely to be interference. In the absence of any such inquiries and in the absence of any evidence from the parties, the Tribunal may have a practical (and possibly a legal) difficulty in deciding whether to make an inference unfavourable to one or other party on the questions whether there will be any interference of the three types referred to in s .237, and that accordingly the expedited procedure applies. But that is not what happened in these matters. Nowhere in any of the passages to which I have referred above is there any indication that the Tribunal has imposed any burden of proof upon the appellants. When those passages are considered individually and when the whole of the reasons are assessed, my conclusion is that the Tribunal applied the common sense approach described in McDonald.
I do not consider that any of these three grounds of appeal has been made out. I have already dealt with the question of burden of proof. There remains the question whether the Tribunal determined that the expedited procedure applied 'unless evidence proves that the grant of the exploration licence is likely to result in the consequences specified in s. 237 of the Act'. The Tribunal expressly (see for example pp. 5-6 in the Smith matter) held that the expression 'does not' in each subsection of s. 237 must be read as meaning 'is not likely to'. In my view this was the proper approach in law. Section 237 uses the present tense in respect of activities which are to take place in the future and some accommodation of that circumstance is required in applying the language of the section. Mr Ritter contended that the section requires the grantee party 'to displace the burden of proving that acts will not interfere or disturb'. The Tribunal, so it was submitted, asked the wrong question. The right question, so the appellants contended, was whether, on the balance of probabilities (bearing in mind the seriousness of the matter) there will not or at least would not be interference of one or other of the three categories. Mr Donaldson, for the Government party, did not seriously contend otherwise. He submitted that there was no great difference between 'will not' and 'is not likely to' and 'does not'. I agree. When the Tribunal was assessing what was likely to happen in each of these matters it was, at the same time, assessing what was likely not to happen. Each assessment amounts to one and the same thing. I have already referred to what I consider to be the unfortunate language used in paragraph numbered 3 of Mr Sumner's summary of Mr Seaman's conclusions on the relevant law. Despite the language employed, I am quite satisfied that the Tribunal in each matter assessed the evidence before it in accordance with what the law required. The Tribunal was required to make a predictive assessment of whether the grant of the exploration licences and the exercise of rights conferred by those licences would or would not be likely to result in interference of any of the three relevant types. In my opinion it did not fall into the legal errors claimed by the appellants.
II. Whether the direct interference with community life referred to in s. 237(a) is confined to physical interference? ((Ground (i) in Smith and Ward I and Ground (e) in Ward II)
In each of these three matters the Tribunal held that the direct interference with community life referred to in s. 237(a) had to be 'physical' interference with the life of the community. It did so by adopting Mr Seaman's views in the Irruntyju-Papulankutja/Broadmeadows determination. The reasoning for this conclusion appears to have been that:
' there is no mention of Aboriginal traditions in either s. 237(a) or (c);
' the main objects of the Act include establishing ways in which future dealings in native title may proceed and to set standards for those dealings; and
' that s. 237 is 'a provision designed to balance the competition between certain activities of governments (including the grant of mining leases and mineral exploration tenements) and the interests of native title holders' (a direct quotation from Mr Seaman's determination).
Even so, it is clear that Mr Sumner treated the expression 'community life' in a wide sense as including activities such as hunting, gathering and collecting of bush food and bush medicine. The respondents had no quarrel with that approach and, in my view, it was the correct one.
However, in my respectful opinion, there is no justification for requiring a direct interference with community life also to be a physical interference. Section 237(a), in stating the first requirement of an act attracting the expedited procedure, requires that the act does not directly interfere with the community life of the native title holders. It does not say that such direct interference has to be of a physical type. 'Community life' might include all sorts of spiritual and the like activities which might be directly interfered with without any physical interference. For example, the very thought of intensive exploration activities, perhaps involving vehicles, bulldozers and other heavy equipment and the setting up of seismic lines on hunting grounds ten kilometres away, could upset an Aboriginal community and directly interfere with its community life without any physical interference with that life. Members of that community might well be very distressed by the thought of such activities. The spiritual part of life falls quite readily, as a matter of ordinary language, into what is encompassed by 'community life'.
The first respondent contended that community life does not include spiritual or non-physical aspects because this was dealt with in s. 237(b). I disagree. The draftsperson of s. 237 does not appear to have been concerned about the possibility of an overlap between the subsections. For example, an act involving a major disturbance to land (subsection (c)) might easily fall within either or both of the first two subsections.
In my view, the Tribunal erred when it defined the interference referred to in s. 237(a) as being confined to physical interference.
Mr Ritter referred me to evidence of direct interference with the community life of the native title holders which he submitted was erroneously disregarded. He did so for two purposes. The first was to support a conclusion of unreasonableness of the Wednesbury type (Associated Provincial Picture Houses Ltd v. Wednesbury Corporation [1947] EWCA Civ 1; (1948) 1 KB 223). I put that to one side for the moment. The second was to demonstrate that there was evidence of direct, though not necessarily physical, interference with community life. The passages to which Mr Ritter referred me were at pp. 13, 14 and 25 in Smith, 4, 5, 6, 11 and 12 in Ward I and 4, 6, 7 and 8 in Ward II.
In Smith the Tribunal based its finding on non-interference with community life essentially on the factual finding that it was unlikely that flora and fauna would be interfered with significantly (see p. 25). This was potential interference of a physical nature and it was consistent with the Tribunal's view that there had to be a direct physical interference with community life for it to concentrate on that aspect. However, at p. 13 the Tribunal had referred to another type of potential interference with community life, stemming from Aboriginal traditions:
'Mr Smith has an obligation to look after the country because he has been through the law. Mr Smith feels a special responsibility for the land in accordance with Aboriginal traditions and certain activity, including mining exploration on the land, of which he is unaware, causes hurt and concern to him and his community. The land means a lot, especially to the elders, and feelings are hurt if people go behind their back. 'If I vandalise a church what would you think.' 'If someone dug up your mother's grave, how would you feel' were expressions used at the meeting. The feeling of hurt occurs even up to 30-40 kms away and is felt by such activities as drilling or cutting down medicine trees. The community felt that drilling next to water holes for bores may drain the streams although there was no specific evidence to this effect. According to traditional mythology the shooting of a water snake could cause a spring to go dry. According to Aboriginal tradition punishment is important if people from outside the area cut trees or wood, go to a pool in someone else's country or come on to country to caves or hills without permission. There is a traditional connection to certain hills which were used as means of communicating by signals.'
Consistent with its concern only for direct physical interference, the Tribunal did not deal with these matters. I was not referred to any evidence in Ward I of this type other than evidence concerning sites which the Tribunal found to be of particular significance and unlikely to be interfered with. In this matter the concerns were with hunting and gathering. The Tribunal found as a fact that, given the size of the area and the nature of exploration activity, any diminution of animals or plants was unlikely to interfere with community life.
In Ward II there was evidence of non-physical effects. At p. 8 there appears the following passage:
'12. According to the traditional law and custom of the Miriuwung-Gajerrong People, other people who wish to gain access to areas which are not their proper country have to ask permission or have to be invited. To come onto country without permission breaks the law of the Miriuwung-Gajerrong People and if people did something like that in the old days they might have been killed. The people who have the law for the country feel sorry if others, including mining companies, come onto country without permission. The people who have the law for the country can also get into trouble because they are not looking after the law and country properly. They might get sung by someone who thinks they are not looking after their law and country and they can get sick and die from that.'
The Tribunal came to its conclusion on the unlikelihood of interference with community life on the same basis as in the other two matters. It did not consider the potential non-physical impact on community life of the sort referred to above.
I accept Mr Ritter's submission that s. 223 of the Act (which defines the expressions 'native title' and 'native title rights and interests') gives some indication of the breadth of community life with respect to land. For example, there is express reference to traditional laws and traditional customs which may have a connection with the land.
The first respondent relied heavily upon the protection provided by s. 237(b). However, the operation of that subsection is expressly limited to areas or sites of particular significance. The subject matter of s. 237(a) is direct interference with community life. That interference might flow from activities unrelated to areas or sites of particular significance.
Mr Stevenson submitted that this would mean that s. 237(a) would be used in almost every case to exclude the expedited procedure. But it must be remembered that the Tribunal's decision will be based on the evidence before it. If there is no evidence to support either a physical or a non-physical direct interference with community life and some evidence to suggest the contrary, then the common sense approach would suggest that there will be a finding of no interference falling within s. 237(a). If Mr Stevenson is correct, then this will be simply the result of the way in which the section is drawn combined with the evidence which is put before the Tribunal.
I uphold this ground of appeal insofar as it is based on an error of law by the Tribunal in defining interference with community life as meaning a physical interference with community life. To the extent that the appellants say that the Tribunal's decision in relation to direct physical interference with community life was unreasonable in the Wednesbury sense, I reject that contention. The conclusion was, in my opinion, well within the bounds of reasonable decision-making.
III. Whether in assessing the matter of major disturbance referred to in s. 237(c) the standards of the broader community should be taken into consideration [Ground (g) in Smith and Ward I and Ground (l) in Ward II]
In each of the three matters the Tribunal adopted the view that the major disturbance referred to in s. 237(c) must be a major disturbance 'by the standards of the broader community'. At p. 12 of its decision in Smith, it is clear that in doing so the Tribunal rejected the objectors' submission that the matter of major disturbance is to be considered from the point of view of the native title parties. In Smith at p. 26 it said:
'There is nothing which has been drawn to my attention that would support the contention that the activity permitted by s. 66 of the Mining Act is likely to create major disturbance to land: by the standards of the broader community', given the size and topography of the area, and the conditions which have been imposed on the licence.'
In Ward I it said:
'Given the activities which are generally permitted by an exploration licence (s .66) and the quite stringent special conditions which have been imposed in this case, I conclude that there is not likely to be major disturbance to the land by the standards of the general community.'
In Ward II (at p. 24) there are the following conclusions:
'The Tribunal has found in other matters that the activities generally permitted by an exploration licence with the conditions imposed are not such as to cause major disturbance by the standards of the ordinary community. That is, mineral exploration is limited in its purpose and of low impact density in its disturbance to land, particularly given the wide area of land over which the grants operate.
Although in this case there are Aboriginal communities in closer proximity to the exploration licence than in other matters, I do not think the evidence leads to the conclusion that there is likely to be major disturbance to land.'
On reading that portion of the Tribunal's reasons in Smith where it rejects the objectors submission, it is possible to imply that the Tribunal included the native title parties as part (as, of course, they are) of the broader community whose standards provided the relevant measure. In Ward I the Tribunal used the expression 'broader community' interchangeably with 'the general community'. However, in Ward II, in the passage set out immediately above, there is reference to the standards 'of the ordinary community'. I think it is clear that the Tribunal was applying the same test in each matter. I think also that it is proper to infer that the Tribunal was distinguishing between major disturbance by the standards of native title parties and what would be regarded as major disturbance by a broader community which may or may not have been defined by their exclusion. In any event, given the relatively small number of native title parties, inclusion of their views in ascertaining the standards of such a broader community might not have any practical significance. It might do so, but the appellants did not raise this matter and these appeals proceeded as if the two sets of standards were different, with the application of the native title parties' standards being regarded as resulting in a more expansive definition of what is major disturbance.
The appellants submitted that the 'land or waters concerned' referred to in s. 237(c) were those over which the native title parties held native title. As it was their land, the subsection should be construed to mean major disturbance by their standards. There was no reason, so it was put, why the standards of the broader community would be intended to be the relevant criteria. Such a construction, so it was submitted, involves the insertion of words into the subsection, together with a significant amendment and reading down of the subsection when there is no warrant to do so. The appellants contended that if there were any ambiguity in the subsection then it ought to have been construed beneficially to the native title parties, particularly in the context of interference to their lands.
The first respondent submitted that the term 'major disturbance' should be interpreted in the same way as if it appeared in any other statute (for example in environmental legislation), that is, by using conventional legal reasoning. Such an interpretation was said to be clear from the construction of the section and from the legislative intent underlying the expedited procedure in the Act. As a matter of construction, the first respondent pointed to the fact that there was express reference in subsections (a) and (b) to the community life of the native title holders and to areas or sites of particular significance in accordance with their traditions (respectively) while subsection (c) refers simply to major disturbance. The difference in expression, so it was submitted, was of significance. The second respondent made similar submissions.
Although the question is a difficult one, I accept the respondents' submissions.
Matters of the community life of the native title holders (which I have held to include their spiritual life) and sites of particular significance in accordance with their traditions are dealt with by the first two subsections. Subsection (c) does not refer to the standards of the native title holders and that is in marked contrast to the preceding subsections. I think that Parliament intended to leave to the Tribunal the assessment, as a matter of fact in each case, whether an act involved major disturbance to land or waters by giving the ordinary English meaning which the Australian community as a whole (rather than the meaning which would be applied by the native title holders only) would give to those words in relation to any land or waters. That is how the Tribunal made its assessment.
In my opinion the Tribunal did not err in the manner alleged and this ground has not been made out.
IV. The effectiveness of protection of the objector's land [Grounds (c), (e) and (f) in Smith and Ward I and Grounds (d), (f) and (h) in Ward II]
Under this heading I have grouped the following matters in respect of which the appellants complain that the Tribunal erred in law:
'(c) in drawing an inference that the grantee party will follow 'Guidelines for Aboriginal Consultation by Mineral and Petroleum Explorers' when there was no evidence from which such an inference could be drawn and, where there was direct evidence in contradiction to the inference (the words in italics did not appear in the relevant ground of appeal in the third matter); (e) in determining that a relevant consideration to be applied is the likelihood or not of a grantee party consulting with the native title party, when s. 237 requires that there be no interference or disturbance; (f) in determining that the Aboriginal Heritage Act 1972 W.A. will generally be effective in ensuring no interference or disturbance with areas of sites of particular significance.'
In oral submissions, Mr Ritter qualified the appellants' 'no evidence' submission by saying that there was no direct evidence in contradiction to the inference. As a result of that qualification all that was left was evidence that some persons, other than the grantee parties in these matters, had in the past not consulted with the native title parties. In the context of appeals on questions of law, I do not consider it appropriate for me to consider those particular factual matters. There remains the first part of the appellants' 'no evidence' submission.
Although each of the respondents, in their written submissions, contended that a submission of 'no evidence' did not involve a question of law, in oral argument they accepted that it did.
In my view, the first ground referred to above has not been made out. In Smith the Tribunal had before it a letter dated 14 September 1995 from CRA Exploration Pty Ltd that it would conform with the then current edition of the 'Guidelines for Minerals Exploration in the Areas of Aboriginal Interest in Western Australia' ('the Guidelines'), that it was aware of its obligations under the Aboriginal Heritage Act and would comply with the provisions of that Act. Furthermore there was a similar statement in evidence from BHP Exploration Pty Ltd. The Tribunal directed that the evidence in Smith be received as evidence in both Ward I and Ward II.
The Guidelines were in evidence in each of the matters. In each there was evidence that the Guidelines would be sent with each grant of an exploration licence. I was not taken to any evidence to suggest that any of the grantee parties would not follow the Guidelines.
In my view, it cannot be said that there was no evidence from which the Tribunal could draw the inference that the grantee parties would follow the Guidelines.
In the next ground of appeal the appellants contend that the Tribunal erred in law in determining that the likelihood or not of a grantee party consulting with the native title party was a relevant consideration. In the appellants' written and oral submissions this ground was subsumed into the matter of the effectiveness of the Aboriginal Heritage Act and related matters, to which I now turn.
It was common ground that the Tribunal decided that the Aboriginal Heritage Act will generally be effective in ensuring no interference or disturbance with areas or sites of particular significance. The Tribunal did that by inferring that the grantee parties would obey the law, including that statute. To do so, the Tribunal considered that it would be necessary for the grantee party to consult the native title party. Accordingly it found as a fact that such consultation was likely to happen.
The appellants submitted that the Tribunal had erred in law in its approach. It was said that '... the Native Title Tribunal erred in its legal conclusion that those constraints established by the Aboriginal Heritage Act were such that there will not or cannot legally be interference with sites by the grant in question.' That is not how the Tribunal expressed its conclusion. In Smith (at p. 21) the Tribunal having reviewed evidence of:
' the fact that the exploration licensee's attention was specifically drawn to the Aboriginal Heritage Act in the Schedule of Endorsements on the grant of an exploration licence;
' the various provisions of that Act and the Mining Act 1978 (W.A.);
' the distribution of the Guidelines; and
' the administration of the Aboriginal Heritage Act and the Mining Act .
concluded with a finding of fact to the effect that it was not likely that there would be such interference.
In Ward I the Tribunal reached a similar conclusion, in part by reference to its conclusions in Smith. In Ward II the Tribunal considered additional evidence in the form of a report known as the Senior Report on the Aboriginal Heritage Act commissioned by the State of Western Australia. The Tribunal's conclusions were expressed as follows:
'The Aboriginal Heritage Act is likely to be effective in this case in ensuring that there is unlikely to be interference with sites of particular significance in accordance with the traditions of the native title parties on the basis that the grantee party acts lawfully. The grantee party has indicated that it is aware of its obligations and will consult with the native title party to ensure that there is not interference with sites. They are now aware of my findings relating to Dreaming tracks and that another site Manbarram/Mt Cecil is in the vicinity, if not actually on the exploration licence, and I am confident that the grantee party will include this site in its consultations.'
Mr Ritter submitted that the Tribunal could not be satisfied that there would
be no interference falling with
s. 237(b), unless the Aboriginal
Heritage Act prohibited the holder of an exploration licence from
interfering with sites of particular significance. He instanced two situations
in which the Aboriginal Heritage Act would not be effective to that end.
The first was that the relevant State Minister could grant a consent to
interfere with a site
under s. 18 of the Aboriginal Heritage Act. The
second was that an exploration licence may be transferred after twelve months
and a transferee might not be issued with the
Guidelines, nor fixed with
sufficient notice of a particular site to preclude reliance upon the defence
contained in s. 62 of the Aboriginal Heritage Act. Mr Ritter went
further and submitted that in those circumstances there was no need to review
the factual matters such as the manner
in which the Act was administered and
the extent to which its provisions were obeyed as a matter of practice. Only if
the statutory
provisions legally prohibited interference with particular sites,
so it was submitted, would there be justification in reviewing
such factual
aspects.
Mr Ritter submitted that the Tribunal's conclusions on the effectiveness of the Aboriginal Heritage Act were unreasonable in a Wednesbury sense. Assuming, but without deciding, that such a submission raises a question of law (which the first respondent disputed and the second respondent conceded), I do not consider that this complaint is made out. The Tribunal reviewed the legal and factual matters to which I have referred immediately above, including the Ministerial discretion under s. 18 and how often it had been exercised, and the extent to which the s. 62 defence might remain available. The Tribunal then assessed the legislative and regulatory regime overall as being effective to the extent that it would not be likely that there would be interference with an area or site of particular significance. In my opinion the conclusion was very far removed indeed from one which could be characterised as unreasonable in the Wednesbury sense.
There was also a submission that there was no evidence that the Aboriginal Heritage Act and the related matters would ensure that there was no interference with the sites of particular significance. I reject that submission. First, there was the evidence to which I have referred above including the Guidelines, the assessment that the grantee parties will act lawfully, that to do so they will need to consult the native title parties, that the grantee parties who took part in the proceedings confirmed in writing and orally that they would so consult, and the manner in which the legislation was administered.
In oral argument, Mr Ritter acknowledged that ground (f) of the appeals was based on the complaint of Wednesbury unreasonableness and that in the Tribunal's determinations the '... s. 18 matters ... really received inadequate treatment as a matter of law or as a matter of fact'. I have already dealt with the unreasonableness submission. There can be no doubt that the Tribunal considered the provisions of s. 18, and how that section was applied in practice - see, for example, pages 19-21 in Smith. It is only necessary to read those pages to dismiss the suggestion, as I do, that the 's. 18 matters' received inadequate treatment. They were assessed as part of the process which led the Tribunal to its ultimate factual conclusion. In my opinion, the appellants have not established any error of law on the Tribunal's part. As part of this submission it was said that the Tribunal had erroneously determined the legal effect of the Guidelines. I do not consider that this submission was made out. It is clear from the Tribunal's reasons that it understood that the Guidelines were only guidelines and not legally binding. They were to encourage compliance with the Aboriginal Heritage Act (see p. 20 in Smith). The Tribunal's factual assessment was that the Guidelines would be significant (together with the other matters referred to above) in making it unlikely that there would be interference with areas or sites of particular significance. The real complaint is about the Tribunal's ultimate factual conclusion.
In the end, the appellants' complaints boil down to an attack on the weight of the evidence. For example, paragraph 41 of the appellants' outline of submissions reads:
'It is submitted the evidence was lacking to support the conclusions made.'
That submission and the complaints which immediately followed it about the series of assumptions made by the NNTT together with references to what are said to be deficiencies in the Aboriginal Heritage Act, do not, in my view raise questions of law as required by s. 169(1) of the Act. What the appellants seek to do is to bring into question the weight which the Tribunal accorded to such matters as the Guidelines and their likely practical effect, the expressions of intent to comply with the Aboriginal Heritage Act, and the likelihood that people whose attention is drawn to a particular law will abide by it, on the one hand, and various other aspects (including the Senior Report in Ward II) on the other hand. To do this would be to usurp the function which Parliament has entrusted to the Tribunal. It was for the Tribunal, without being bound by technicalities, legal forms or rules of evidence (see s. 109(3)), to conduct its inquiry and decide on the matters put before it. One of the factual inquiries it had to make was into the legal and practical effectiveness or otherwise of the Aboriginal Heritage Act. It is apparent from the Tribunal's reasons that it regarded that matter as being of basic importance in determining whether there was likely to be any interference with areas or sites of particular significance.
V. Construction of Section 237 Consistently with Objects and Preamble of the Act [Ground (j) in Smith and Ward I and ground (n) in Ward II).
The final ground of appeal, common to all three appeals, was that the Tribunal erred in law with respect to the following matter:
'(j) in failing to construe s. 237 of the Act, consistently with:
(a) the expedited procedure being exceptional to the normal negotiation procedure under s.31 of the Act; and (b) the objects of and preamble to the Act.'
This ground, in my view, amounts to no more than a basis upon which to supplement or support the grounds of appeal relating to matters of onus of proof and construction of s. 237(a) and (c). I have already dealt with those matters but, in deference to the arguments advanced by the parties, I will venture a few observations.
It is true that the heading to s. 31(1) reads 'Normal negotiation procedure' while the sub-heading to s. 32(1) reads 'Expedited procedure'. I do not regard the difference between these sub-headings as being at all helpful. The introductory words to s. 31(1) themselves qualify what the sub-heading suggests is normal negotiation procedure by the phrase 'Except where the notice includes a statement that the Government party considers the Act attracts the expedited procedure ...'. However, there is much in the preamble to the Act which is consistent with a construction beneficial to the native title parties. I do not consider that, in dealing with submissions concerning onus of proof, the Tribunal could be criticised as failing to construe s. 237 in a manner sympathetic to the objects of and preamble to the Act. It should also be remembered that in the second reading speech there was specific reference to the expedited procedure in the following terms:
'Provision is made for expedited processes where a particular grant would not involve major disturbance to land or interference with the life of Aboriginal communities.'
Parliament has, in my opinion, provided for two sets of circumstances. One is where there is no interference of any of the three types referred to in s. 237, in which case the expedited procedure applies. The other is where there may be such interference, in which case the right to negotiate procedure must be embarked upon followed by, if necessary, a determination. There are insufficient indications in the Act to suggest that one procedure is normal and the other exceptional. They are simply different procedures to be applied depending upon the factual circumstances.
I propose to treat the five additional grounds relied upon in this matter and not, in terms, relied upon in the other two appeals by grouping them into two categories.
A. Burden of Proof
Under this heading the appellants claim that the Tribunal erred in law with respect to the following matters:
'(i) in requiring the native title party to establish by evidence the widespread non-compliance with the Aboriginal Heritage Act; '(j) in requiring a standard of evidence that leads to a general conclusion that grantee parties are not likely to act lawfully, when s. 277(b) of the Act requires a finding that the acts carried out pursuant to an exploration licence will not interfere with areas or sites of particular significance.'
In oral and written submissions it emerged that these two grounds fell within the grounds relating to the matter of onus of proof in the other two appeals, with one additional matter.
The additional matter was a complaint that the Tribunal's finding in Ward II took into account the intentions of the individual grantee whereas in Smith, for example, the Tribunal decided that the intentions of the individual grantee were irrelevant. In my view, it is apparent that the Tribunal was distinguishing between the intentions of the parties concerning the mineral exploration activities which it intended to conduct under the exploration licence, on the one hand, and the intention of the parties to consult the native title parties or to observe the Aboriginal Heritage Act on the other hand. The Tribunal based its reliance upon such expressed intentions largely on its conclusion that the grantee parties would act lawfully (i.e. not contravene the Aboriginal Heritage Act). To avoid interfering with sites, and thus breaking the law, they would need to consult the native title parties. In my opinion this was not an error of law. It was a conclusion which the Tribunal was quite entitled to reach. I have not overlooked the problem which might arise if the native title holders were to feel under a spiritual restraint not to inform the grantee parties about the location of the sites. This problem is recognised and reasonably well-known. Where it exists, it, (the existence and nature of the problem), can be the subject of evidence before the Tribunal. In these three matters the difficulty of disclosure of certain matters arose only in Smith (see p. 13(.1)). It was resolved because, as the Tribunal noted (at p. 25(.9)), Mr Smith said that he was prepared to talk to the mining company in order that they avoid interference with the sites. In my opinion this additional matter does not raise any question of law or error of law.
B. Effectiveness of the Protection of the Objectors' Land
The appellants complain that the Tribunal erred in law with respect to the following matters:
'(g) in relying upon assurances from the grantee party, when the grantee party called no evidence and the exploration licence is capable of being transferred; (k) in determining that the Ministerial discretion to permit interference with sites pursuant to Aboriginal Heritage Act section 18, is not a relevant consideration in determining whether the activities conducted under the exploration licence will not interfere with sites of particular significance; (m) in failing to consider the evidence that the regulatory scheme relied upon by the Government party, namely the Mining Act, fails to address the interests of the native title holders in the same way as it addresses the concerns of freehold and leaseholders.'
It emerged in written and oral submissions that ground (g) above was subsumed within ground (f) in the other two appeals. That matter has been dealt with above.
The appellants criticise the Tribunal's reliance in Ward II on the fact that the Senior Report recommended a continuation of the situation where there is a Ministerial discretion in s. 18 of the Aboriginal Heritage Act to resolve conflicts between development proposals and site protection. The Tribunal's legal error, so it was put, was failure to recognise that the continuance of a ministerial discretion means that the Aboriginal Heritage Act does not 'ensure sites of significance are not interfered with'. Once again, the appellants have inaccurately described the factual conclusion reached by the Tribunal. The Tribunal concluded, after taking into account the matter of the Ministerial, discretion, that interference with areas or sites of particular significance was not likely. It assessed the future in terms of probability rather than in absolute terms. Its decision in that regard was really no different to its decision in the other two matters.
In their submissions, the appellants contended that the Tribunal acted erroneously in the Ward II matter in not taking into account what was said to be the limited regard which the Mining Act has for the community life and sites of native title parties, as it had done in Smith. In my opinion, there are two answers to this contention. First, the Tribunal (at p. 11 in Ward II) specifically referred to previous matters which it had determined and even specified certain page numbers in those determinations. After the first such reference the Tribunal added 'There is no need to repeat them here'. When one goes to one of those matters (WO95/19 at pp.9-13) it is clear that the Tribunal recognised that various provisions of the Mining Act failed to protect the interests of the native title holders in the same way as those of freehold and leaseholders. I refer in particular to pages 10(.5) and 11(.6). At page 11 in Ward II there is also an incorporation, by express reference to Smith, of statements concerning the limited extent to which the Mining Act could be relied upon. In my view this ground of complaint, assuming but without deciding that it raises a question of law, is not made out.
The only ground of appeal which I have upheld is that the Tribunal erred in law in interpreting the reference to direct interference in s. 237(a) as meaning physical interference with the community life of the native title holders. I was only referred to evidence of possible non-physical interference with community life in the matters of Smith and Ward II. I was not referred to such evidence in Ward I, although there may well have been some evidence of that type.
However, I consider that all three cases should be remitted to the Tribunal for the limited purpose of considering whether in each case there is likely to be direct interference with the community life of the native title holders although not necessarily physical in its character or nature. I propose to do this in relation to Smith and Ward II due to the passages from those determinations which I have set out earlier in these reasons. An additional reason (which applies to Ward I as well) is that the Tribunal may otherwise have seen fit, of its own motion, to institute further inquiries into the question of any non-physical direct interference with the community life in any of the cases, if it had shared my view of what I consider to be the law. In my opinion, the remitter should be limited to that issue in each case. I have considered the inclusive provisions of s. 169(7). I do not consider that it would be appropriate in these matters to give any directions to the Tribunal about whether it should hear further evidence or otherwise. I think that, in these matters, s. 109 of the Act should be left to do its work untrammelled by directions from the Court.
However, the parties asked me not to make orders until I had published my reasons. Accordingly I will hear counsel on the question of the Court's formal orders.
On 31 May 1996 Carr J delivered the orders. He ordered in respect of each of the matters that:
(1) The appeal be allowed in respect of the grounds of appeal which related to the question of whether the direct interference with community life referred to in subs. 237(a) if the Native Title Act (Cth) is confined to physical interference:;
(2) The appeals otherwise be dismissed;
(3) The matters the subject of the successful grounds of appeal be remitted to the National Native Title Tribunal for determination;
(4) The National Native Title Tribunal determine whether further evidence is to be heard; and
(5) There be no order for costs.
See [1996] FCA 1452; (1996) 136 ALR 557. l
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URL: http://www.austlii.edu.au/au/journals/AUIndigLawRpr/1996/81.html