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Court and Tribunal Decisions - Australia
Federal Court of Australia (Nicholson J)
6 December 2001
Native title — determinations of objections to expedited procedure — refusal of adjournment — refusal of further evidence — whether denial of procedural fairness — whether admission of further evidence would have influenced the outcome
In January and March 2000, WA issued notices under s 29 of the Native Title Act 1993 (Cth) that it proposed to grant the second respondent (the grantee) an exploration license. Each notice included a statement by the State that it considered that the grant of such licenses attracted the expedited procedure. The applicants lodged an objection to the assertion of the expedited procedure with the National Native Title Tribunal (NNTT) in respect of each notice.
The NNTT held a conference to try to resolve both objections in December 2000 but was unsuccessful, and the objections were listed for determination on 17 April 2001. A representative of the applicants attended the hearing and requested an adjournment on the grounds that the representative did not have proper instructions and the objectors wished to submit further evidence. This application was refused.
The applicants submitted a statement of further contention on 27 April 2001 including an affidavit of geologist Mr Davies. The NNTT refused to accept the late submission of further contention and affidavit.
On 9 May 2001, the NNTT determined both objections without inclusion of the applicant’s further contentions.
The applicants appealed the determinations on the grounds that: (a) the NNTT failed to afford procedural fairness to the applicants in refusing the adjournment, refusing to accept the additional affidavits, and making a determination on the papers; (b) the Tribunal erred in law in the reliance it placed on s 36 of the Native Title Act concerning the taking of all reasonable steps to make a determination as soon as practicable; and (c) in the second determination, the NNTT erred in law in that it did not determine whether there was a gazettal error in describing the boundaries of the site subject to the licence.
1. Although the failure to give proper consideration to the issue of whether an adjournment should be granted may amount to a denial of procedural fairness, this depends on the particular circumstances of the case, and the NNTT had not purported to give paramountcy to case management principles over considerations of justice but had acted in reliance on s 109 of the Native Title Act. Yim v Immigration Review Tribunal [1994] FCA 1570; (1994) 54 FCR 186 and Queensland v JL Holdings Ltd [1997] HCA 1; (1997) 189 CLR 146 referred to. [58]
2. The NNTT’s power to determine matters on the papers was not expressly qualified and if the NNTT was correct in not hearing evidence there was nothing preventing it deciding to determine the application on the papers without giving a further opportunity to make submissions. [55]
3. Even if further evidence had been admitted it could not have affected the NNTT’s decision. Smith (Gnaala Karla Booja People) v Western Australia [2001] FCA 19 considered. [79]
4. The reliance by the NNTT on s 36(1) and (3) amounted to an error in law but would not justify allowing the appeal unless denial of procedural fairness was made out. [74], [75], [81], [85]
5. The NNTT did not err in refusing to consider this additional matter unless there was no evidence that the gazetted boundaries are wrong. [88], [89]
1. The applicants appeal from determinations of the Hon E M Franklyn QC constituting the National Native Title Tribunal (‘the Tribunal’) given on 9 May 2001 at Perth in which the Tribunal dismissed expedited procedure objection applications WO 00/167 (‘the first determination) and WO 00/351 (‘the second determination’). The appeal is brought pursuant to s 169(1) of the Native Title Act 1993 (Cth) (‘the Act’). That subsection provides that a party to an inquiry relating to a right to negotiate applications before the Tribunal may appeal to the Federal Court ‘on a question of law’ from any decision or determination of the Tribunal in that proceeding.
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26. There are three grounds of appeal. The first is that in determining the objection applications the Tribunal failed to accord procedural fairness to the applicants. The second is that the Tribunal erred in law in the reliance which it placed on ss 36(1) and (3) of the Act. Thirdly, in respect of the objection application the subject of the second determination, it is maintained that the Tribunal also erred in law in deciding the application without determining whether the Aboriginal Heritage Act protected area no 6 on Lake Moore situated within tenement E59/977.
27. The second and third grounds of appeal relate to specific statutory provisions. The first ground of appeal requires an understanding of the statutory context within which the Tribunal was required to proceed in order to make the determinations. This is because ‘where the decision in question is one for which provision is made by statute, the application and content of the doctrine of natural justice or the duty to act fairly depends to a large extent on the construction of the statute’: Kioa v West [1985] HCA 81; (1985) 159 CLR 550 at 584 per Mason J.
28. The Grantee has filed a notice of contention containing three grounds corresponding to each of the appeal grounds. In relation to the first ground the contention is that if the Tribunal failed to accord procedural fairness a properly conducted hearing could not have produced different determinations so that any denial of procedural fairness did not deprive the applicants of the possibility of a successful outcome. In relation to the second ground the contention is that the Tribunal was obliged to determine the applicants expedited procedure objection applications as soon as practicable in any event having regard to certain matters. In relation to the third ground, it is contended that the Tribunal, acting reasonably, could not have held that the grant of E59/977 was ‘likely’ to have any of the consequences stated in pars (a), (b) or (c) of s 237 of the Act by reason of any misdescription of land declared a protected area under s 19 of the Aboriginal Heritage Act.
29. The starting point is s 237 of the Act which provides that 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 person 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.
30. Section 32 applies if a notice under s 29 of the Act includes a statement that the Government party considers the act is an act attracting the expedited procedure. It provides rights for lodgement of objection against the inclusion of a statement in the notice. In the case of a native title party, an objection may be lodged within four months after the notification day: s 32(3) of the Act. If one or more 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 it determines that it is, the Government party may do the act: s 32(4) of the Act. If it determines that it is not, subs 31(1) applies as if the notice did not include the statement: s 32(5) of the Act. Relevantly here the arbitral body is the Tribunal: see ss 27 and 253 of the Act.
31. An objection application pursuant to subs 32(3) of the Act, known as an expedited procedure objection application, may be made by a native title party to the Tribunal. Subject to compliance with the requirements of s 76 of the Act in respect of material and fees to accompany applications, the Tribunal ‘must accept the application’. Applications covered by s 75 of the Act are styled as right to negotiate applications.
32. The Tribunal is established in Pt 6 Div 1 of the Act. It has the functions in relation to applications, inquiries and determinations given to it by Pt 3 and Div 5. Section 75 is included in Pt 3. Section 109 sets out the Tribunal’s way of operating ...
33. Division 5 sets out provisions in relation to inquiries and determinations by the Tribunal. Section 139(b) provides that the Tribunal must hold an inquiry into a right to negotiate application covered by s 75. Section 140 authorises an inquiry to cover more than one matter, issue or application. Section 141(2) provides that the parties to an inquiry in relation to a right to negotiate application are the Government party, the native title parties and the grantee parties.
34. Section 142 addresses the opportunity to make submissions concerning evidence. ...
35. The limitations in the three qualifying provisions relate to the following matters. Firstly, s 151(2) provides that the Tribunal may (inter alia) in relation to a right to negotiate application, make a determination:
by considering, without holding a hearing, the documents or other material lodged with or provided to the Tribunal. However, the Tribunal must hold a hearing if it appears to the Tribunal that the issues for determination cannot be adequately determined in the absence of the parties.
36. Section 154 contains a provision that hearings are to be held in public except in special circumstances provided for and s 155 empowers the Tribunal to prohibit disclosure of evidence. Neither of these latter sections has any relevant qualifying effect in this present proceeding.
37. Section 143 provides for representation before the Tribunal and s 144 requires questions of law arising in an inquiry to be decided in accordance with the opinion of the member presiding.
38. Subject to s 37, the Tribunal, after holding an inquiry in relation to a right to negotiate application, must make a determination about the matters covered by the inquiry. Section 37 qualifies that only in the case of agreement or ministerial determination. In making its determination the Tribunal must state any findings of fact upon which it is based: s 163. It is also required to make its determinations in writing and to give a copy to each of the parties: s 164.
39. The powers of the Tribunal to take evidence are set out in s 156. These authorise it to take evidence on oath or affirmation; to summon a person to give evidence; and to control cross-examination or re-examination. These powers are extended by s 157 to enable the Tribunal to authorise another person to take the evidence.
40. Section 36 appears in Div 3 of Pt 2 of the Act which deals with future acts in native title. Section 35 provides that any negotiation party may apply to the arbitral body for a determination under s 38 if certain conditions as to time are met. Section 38, subject to s 37, provides that the arbitral body must either determine that the act must not be done or may be done or may be done subject to conditions to be complied with by any of the parties. Section 36(1) provides that, subject to s 37, the arbitral body must take all reasonable steps to make a determination in relation to the act as soon as practicable. There is provision in s 36(3) that if the arbitral body is the Tribunal and does not make the determination within the period of six months starting when the application is made, it must, as soon as is reasonably practicable after the end of the period, advise the Commonwealth Minister in writing of the reason for it not doing so and include in that advice an estimate of when a determination is likely to be made.
41. It is also said by counsel for the applicants to be relevant to the issue of considering the statutory context that consideration is given both to the Preamble to the Act and to the objects stated in it. The objects as set out in s 3 are:
The main objects of this Act are:
(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 to set standards for those dealings; and
(c) to establish a mechanism for determining claims to native title; and
(d) to provide for, or permit, the validation of past acts, and intermediate period acts, invalidated because of the existence of native title.
In relation to the Preamble, attention is directed to the statement that ‘in future, acts that affect native title should only able to be validly done if ... every reasonable effort has been made to secure the agreement of the native title holders through a special right to negotiate’.
42. This ground is particularised in six respects, some of which overlap. The contention for the applicants is that the failure to accord procedural fairness occurred because of the pleaded instances of conduct considered either individually or cumulatively. It is on the affidavits of Mr Davies and Ms Lawrence which reliance is placed for the facts said to establish the failure of the Tribunal to accord procedural fairness.
43. For the applicants, the relevant content of procedural fairness is accepted as derivative from the applicable statutory framework, the nature of the decision to be made, the subject matter being dealt with and the facts and circumstances of the case: Re Minister for Immigration & Multicultural Affairs; Ex parte Miah (2001) 179 ALR 238 per McHugh J at [129]; Re Minister for Immigration & Multicultural Affairs; Ex parte Aala [2000] HCA 57; (2000) 176 ALR 219 per Gaudron and Gummow JJ at [60]; McMullen v Commissioner for Superannuation (1985) 61 ALR 189 at 209. ...
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45. ... [I]t is said that factors relevant to determining the content of procedural fairness in the circumstances of this case start with the traditional religious relationships between Aborigines and their land: Edgar & Ors v State of Western Australia & Ors (2001) FCA 607 at [1]. Further, there is the consideration that litigation involving native title should acknowledge the novelty of the legal and factual issues at stake: North Ganalanja Aboriginal Corporation v Queensland [1996] HCA 2; (1996) 185 CLR 595 at 614 - 5 and emphasises the resolution of native title disputes by negotiation: North Ganalanja at 614, 632 and 657 and the Preamble to the Act. The submission is made that the obligation on the Tribunal to hold an inquiry into a right to negotiate carries with it the need to ensure that all relevant evidence and submissions are obtained or received. Failure to do so would undermine the purposes of the Act. It is emphasised also that the content of procedural fairness is not limited to the rights and discretions provided for in the Act: Miah per McHugh J at [126]. Additionally, reliance is placed on the requirements of the common law in relation to procedural fairness. While the statutory provisions provide the source of the relevant law, these provisions may be expanded by the implication of conditions supplied by the common law: Annetts v McCann [1990] HCA 57; (1990) 170 CLR 596 at 604. The question is whether a statute conferring a power to do something on a public official excludes by plain words of necessary intendment the common law rules of natural justice: Miah at 266–267 per McHugh J. It is submitted for the applicants this required the Tribunal to (a) give reasonable notice of an intended hearing; (b) allow an opportunity to be heard; (c) allow the applicants to prepare and present evidence; and (d) allow them to be represented and make submissions.
46. The case for the Grantee does not place in issue that the Tribunal was required by law to accord procedural fairness, or, dispute the content contended for on behalf of the applicants. The case made for the Grantee is that in all and each of the circumstances relied upon to establish a breach of procedural fairness, there was no such breach. Additionally, it is contended for the Grantee that if there was such a breach, it was not relevant to the result.
47. The first three particularisations of the procedural fairness ground related to the events of 17 April 2001. It is alleged firstly, the denial arose from the listing of the applications for hearing on that date with adequate knowledge by the Tribunal that the solicitors and staff of the applicants’ representative body were unavailable and after communications with the Grantee not conveyed to the Council before a decision to re-list was made. Secondly, it is pleaded the denial arose from the failure to adjourn the hearing on that date after an adjournment application by a locum solicitor on behalf of the Council. Thirdly, it is alleged the denial arose from the decision of the Tribunal on that date to determine the application ‘on the papers’ without giving the Council a reasonable opportunity to make submissions on the issue.
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50. At the hearing on 17 April 2001 (as recorded in the Tribunal Case Manager’s Notes) the following were the positions taken by the parties:
(a) the locum solicitor for the Council (M/s Ozich) said she was not in a position to do anything that day as she lacked instructions. She asked if a date for hearing was to be set because the Council wanted to submit further evidence.
(b) the Grantee’s representative (Mr Atkins) said he wanted the matter dealt with. He advised he had negotiated agreement covering three and a half of the eight tenements and wanted the remainder of the tenements granted. When he attended a Badimia Working Group Meeting it had been aborted.
(c) The Deputy President said the unavailability of counsel was an ongoing problem, the Tribunal taking last priority. He said on 2 March 2001 it had been suggested the matters be heard on the papers. [This is not recorded in the Tribunal Case Manager’s Notes of the listing hearing on that date]. He also said he could strike the matters out for failure to comply. He was not granting any more time. He directed Ms Ozich to advise the Council the matter would be dealt with on the papers. He added the parties continued to have the right to negotiate.
I accept the above evidence and do not find it necessary to making specific findings of fact beyond that.
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53. Returning to the first particularisation of the procedural fairness ground, it was the duty of the Tribunal to provide to the applicants a reasonable opportunity to be heard. Subject to consideration of the second particularisation. That opportunity was provided by the listing of the matter on 17 April 2001. The obligation on the Tribunal did not extend to listing the hearing at a date when particular counsel would be available.
54. The second particularisation refers to the refusal to adjourn after the application by the locum solicitor. That refusal occurred in circumstances where the applicants had been notified on 10 April 2001 of the listing on 17 April 2001. Although it was not until 9.30am on 17 April that M/s Lawrence received notification that the listing would not be rescheduled, she was not entitled to assume it would be until so notified. Furthermore, when notified of the position on 12 April 2001 M/s Lawrence adhered to a travel schedule which could not enable her to meet the listing time. The need for adjournment therefore arose from her actions in not being ready for a hearing of which she had received at least seven days notice. The opportunity of hearing offered on 17 April 2001 was, therefore, a reasonable opportunity. The reasonableness of the opportunity provided on 17 April 2001 is also to be assessed in the context of the requirement for the applicant parties to be ready for a hearing prior to the end of 2000 and subsequently to be ready for a hearing (postponed due to reasons beyond the Tribunal member’s control) on 23 March 2001. In those circumstances the Tribunal member was entitled to expect parties to be ready to proceed before him. Furthermore, the statutory provision of reasonable opportunity provided for in s 142 of the Act is expressly subject to the power to determine the objection on the papers provided for in s 151(2). The reasonable opportunity provided for in the former is excluded by the plain words of necessary intendment when s 151(2) is applied.
55. The third particular is whether there was a denial of procedural fairness in the Tribunal deciding to determine the applications on the papers without giving the Council a reasonable opportunity to make submissions on that issue. The power of the Tribunal to so determine arising as it does from s 151(2) of the Act is a power which arises in the Tribunal ‘without holding a hearing’. The patent intention of the power is that the Tribunal can decide to proceed on the papers if it is satisfied that the issues for determination can be adequately determined in the absence of the parties. There is no express qualification of this power. The power is not circumscribed by reference to the consent of parties. If the Tribunal was correct that it should not hear further evidence, there was no reason for it not to be satisfied that the determination could be adequately dealt with in the absence of the parties. The clear legislative intent behind the power is that in those circumstances the Tribunal should be able to act on the papers. The qualification of s 142 by the provisions of s 151(2) makes this apparent. Consideration of the objectives of the Act cannot lead to a contrary view. Therefore I do not consider that the exercise by the Tribunal of the power under s 151(2)(b) on 17 April 2001 constituted a denial of procedural fairness.
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59. It is submitted for the applicants that in deciding not to allow further evidence and submissions to be made on and after 7 May 2001, the Tribunal was unduly influenced by the supposed delay by the applicants representative body in filing affidavits and making submissions; the fact that the objection was first lodged almost a year earlier; and the erroneous construction of s 36 of the Act. It is further said that the Tribunal wrongly ignored the duty which it had to conduct an inquiry (see: CVT (1995) 136 ALR 703 at 722); the accommodation which it had given to the parties endeavouring to negotiate a settlement from September 2000 to April 2001; and that any delay in filing additional submissions and affidavits did not disentitle the applicants from an adjournment to allow other affidavits to be lodged. It is said that the short additional period of time which would have been required in comparison to the period over which the Tribunal had been prepared to allow negotiations to take place could not have inhibited the Tribunal performing its statutory duties.
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61. The hearing on 7 May 2001 occurred after the decision of the Tribunal member made on 17 April 2001 to make the determinations on the papers. That decision qualified the reasonable opportunity given to the applicants on 7 May 2001 to move for a variation of directions. That explains the decision of the Tribunal member not to receive further evidence. Furthermore, his refusal is also supportable by reference to the view he took of the effect of s 19 of the Aboriginal Heritage Act and the requirements of promptness reflected in s 109(1) of the Act. In my opinion, there cannot therefore be a denial of procedural fairness.
62. It is also contended for the applicants that there was other evidence which could have been adduced if procedural fairness had been accorded to them. That evidence is that which is now contained in the affidavits of M/s Fleet, Mr Robinson and Mr Bynder. Those affidavits, with respect to the land included in the exploration licences, attest to the spiritual and cultural significance of Lake Moore to the Badimia people; a ceremonial ground being located within the area of Lake Moore; the Kunturu site of significance on the western shore of Lake Moore; and the culturally significant stone pathway across Lake Moore. It is said that conducting the enquiries and making the determinations without allowing the applicants to present this evidence was procedurally and substantively unfair.
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64. The submissions for the Grantee point to the absence of any record of any submission by the applicants seeking to tender other affidavits in addition to the one sworn by Mr Davies on 27 April 2001. Further, it is submitted that even in this proceeding by way of appeal there is no evidence that the applicants originally intended to adduce the further affidavits which have now been filed. The further affidavits of M/s Fleet, Mr Robinson and Mr Bynder were sworn respectively on 19 June, 19 July and 20 July 2001. It is therefore submitted that the evidence in these further affidavits was not evidence which the applicants were in a position to adduce at the original hearing. To allow them to succeed on this ground would, it is said, in effect give them a de facto adjournment when they had ample opportunity to assemble the evidence prior to the hearing before the Tribunal.
65. The record in the Tribunal Case Manager’s notes is as consistent with the respondents’ position as with that of the applicants on the issue and so does not assist the latter. The weight of evidence favours the Grantee’s case and I find accordingly that it is not the case that at the hearing on 7 May 2001 it was intended to seek leave to file the affidavits of M/s Fleet, Mr Robinson and Mr Bynder. Accordingly no denial of procedural fairness could have arisen in that respect.
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68. Whether the grant of the relevant exploration licences would in each case have been an act attracting the expedited procedure depends upon the tests set out in pars (a), (b) and (c) of s 237 of the Act. As has been seen above, each of these tests depends upon whether the act of granting the licences would have been ‘likely’ to have certain consequences. It is said that this requires a predictive assessment approach and an assessment on the balance of probabilities.
69. It was the Native Title Amendment Act 1998 which substituted the words ‘is not likely to’ for the words ‘does not’ in pars (a), (b) and (c) of s 237 of the Act. ... I agree with French J in Smith on behalf of the Gnaala Karla Booja People v State of Western Australia [2001] FCA 19 at [23] that the effect of the amending act is that the Tribunal is required to assess whether, as a matter of fact, the proposed future act is likely to give rise to the interference or disturbance referred to in pars (a), (b) and (c) of s 237 so that a predictive assessment is involved being one not confined to a consideration of the legal rights conferred by the grant of the proposed tenement.
70. In Smith at [23], French J also held that consistently with the objects of the Act, the word ‘likely’ requires risk assessment by the Tribunal that will exclude from the expedited procedure any proposed act which would involve a real chance or risk of interference or major disturbance of the kind contemplated by s 237. He supported that view by reference to Tillmanns Butcheries Pty Ltd v Australian Meat Industry Employees’ Union [1979] FCA 85; (1979) 27 ALR 367 at 375 (Bowen CJ) and 380–381 (Deane J) and to Jungarrayi v Olney (1992) 105 ALR 527 at 537–538. He therefore did not accept that the term ‘likely’ was directed to a judgement on the balance of probabilities as to interference or major disturbance. ...
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72. In his judgment, French J set out the amendments to s 237 of the Act and the explanatory memorandum. I agree with the submission for the applicants that neither of these compel the conclusion that the word ‘likely’ in s 237 means more probable than not. Having examined the authorities relied upon by French J — namely Tillmanns Butcheries and Jungarrayi — I consider that the decision reached by him should be followed.
73. The consequence of this is that it is necessary to consider whether the Grantee has made out the second of its grounds of contention on the basis that the affidavit of Mr Davies and any additional affidavit evidence could not have led the Tribunal, acting reasonably, to have held that the grant of any of the exploration licences was ‘likely’ (in the sense of creating a real chance or risk) to have any of the consequences stated in pars (a), (b) or (c) of s 237 of the Act.
74. There is no evidence in any of the applicants’ further proposed evidence relevant to this matter. Consequently, the Tribunal could not reasonably have concluded that exploration activities would be ‘likely’ to interfere with the carrying on of the applicants’ community or social activity.
75. As far as ‘sites’ are concerned, it is accepted for the Grantee that, leaving aside the further affidavit of Bynder, the further evidence does show that the Kunturu site may be of particular significance to the applicants. However, it is submitted the Tribunal could not reasonably have concluded that exploration activities would be likely to interfere with any of these sites because all of them are subject to the protection of ss 16 and 17 of the Aboriginal Heritage Act 1972 and there is no evidence suggesting that it is likely this protection would be removed.
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81. The only evidence from a member of the applicants’ claim group as to their view of the disturbance is the affidavit of Mr Bynder. The only other evidence is a claim by anthropologists that in their view the very thought of exploration activities will cause distress to the applicants’ community but that is arguably insufficient to qualify under the paragraph. This evidence stands on the same footing as that in relation to s 237(b); that is, it is not evidence which arguably establishes a real chance or risk of a major disturbance to land or waters concerned or the creation of rights having that effect.
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85. In my opinion the reliance by the Tribunal on the ss 36(1) and (3) was in error in its terms but would not justify remitting the matter unless the procedural fairness ground was made out. The reason why it would not justify remittal is that expedition was appropriate in the circumstances for the reasons submitted on behalf of the Grantee including particularly the provisions in s 109 of the Act.
86. As previously referred to this objection application applies only to the second determination.
87. It is submitted for the applicants that the Tribunal was in error in saying that it was not required to determine whether there was a gazettal error. It is said this is because, if exploration rights were granted over an area which was supposed to be protected but which, due to administrative error, was not protected, it could not be said there was no real chance of interference with a site of particular significance, in the terms of s 237(b) of the Act: Smith v State of Western Australia (2001) FCA 19.
88. For the Grantee it is submitted there is no evidence that the gazetted boundaries of the site were incorrect compared to the actual location of the site. Furthermore, it is said that the site would have been protected by ss 16 and 17 of the Aboriginal Heritage Act wherever it was located, whether or not within the gazetted area.
89. In my opinion the submissions for the Grantee are correct.
90. For these reasons I consider that the appeals should be dismissed.
Counsel for the Applicants:
Mr M Ritter
Solicitor for the Applicants:
Mr D Ritter
Counsel for the first Respondent:
No appearance
Counsel for the second Respondent:
Mr C L Zelestis QC with Mr J Thompson
Solicitor for the second Respondent:
Talbot & Olivier
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