Editors --- "The State Of Western Australia V Ward For And On Behalf Of the Miriuwung Gajerrong Peoples - Case Summary" [1997] AUIndigLawRpr 26; (1997) 2(2) Australian Indigenous Law Reporter 251

The State Of Western Australia v Ward For And On Behalf Of the Miriuwung Gajerrong Peoples

Federal Court of Australia (Lee J)

18 November 1996, Perth

Native Title Act -- expedited procedure -- exploration licence -- sites of significance -- right to negotiate --determinations under s. 38.

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In February 1996, the National Native Title Tribunal (`NNTT') determined that a proposed grant of an exploration licence under the Mining Act 1978 (WA) did not attract the expedited procedure under the Native Title Act 1993 (Cth) (`NTA') because the native title parties had demonstrated "real concerns about the likelihood" of interference with sites of significance. The State appealed.

Held:

The appeal was dismissed. Only if no issue has been seriously raised is it appropriate for the ordinary processes of the NTA not to be followed in respect of negotiation and determination. Only then should an act attract the expedited procedure.

Lee J

In April 1994 the first respondents, as persons claiming to hold the native title, gave to the Registrar of the National Native Title Tribunal ("the Tribunal") an application for a "determination of native title" pursuant to ss. 13 and 61 of the Native Title Act 1993 ("the Act") in respect of an area of land situated in the Kimberley region of the State of Western Australia and in the Northern Territory.

Section 225 of the Act defines "determination of native title" in the following terms:

225. A `determination of native title' is a determination of the following:

(a) whether native title exists in relation to a particular area of land or waters;

(b) if it exists:

(i) who holds it; and

(ii) whether the native title rights and interests confer possession, occupation, use and enjoyment of the land or waters on its holders to the exclusion of all others; and

(iii) those native title rights and interests that the maker of the determination considers to be of importance; and

(iv) in any case -- the nature and extent of any other interest in relation to the land or waters that may affect the native title rights and interests."

Section 223 of the Act defines "native title" and "native title rights and interests" as follows:

223.(1) The expression "native title" or "native title rights and interests" means the communal, group or individual rights and interests of Aboriginal peoples or Torres Strait Islanders in relation to land or waters, where:

(a) the rights and interests are possessed under the traditional laws acknowledged, and the traditional customs observed, by the Aboriginal peoples or Torres Strait Islanders; and

(b) the Aboriginal peoples or Torres Strait Islanders, by those laws and customs, have a connection with the land or waters; and the rights and interests are recognised by the common law of Australia.

(2) Without limiting subs. (1), "rights and interests" in that subsection includes hunting, gathering, or fishing, rights and interests.

(3) Subject to subs. (4), if native title rights and interests as defined by subs. (1) are, or have been at any time in the past, compulsorily converted into, or replaced by, statutory rights and interests in relation to the same land or waters that are held by or on behalf of Aboriginal peoples or Torres Strait Islanders, those statutory rights and interests are also covered by the expression "native title" or "native title rights and interests".

(4) To avoid any doubt, subs. (3) does not apply to rights and interests created by a reservation or condition (and which are not native title rights and interests):

(a) in a pastoral lease granted before 1 January 1994; or

(b) in legislation made before 1 July 1993, where the reservation or condition applies because of the grant of a pastoral lease before 1 January 1994."

Upon giving the application to the Registrar the first respondents became entitled to be included in the Register of Native Title Claims pursuant to subs. 190(1) of the Act (see also ss. 184-186) and thus become a "registered native title claimant" as that term is defined in s. 253 of the Act. (See Northern Territory of Australia v Lane (1995) 138 ALR 544 per O'Loughlin J at 550.)

In August 1995, pursuant to para. 29(2)(b) of the Act, the State of Western Australia ("the State") gave notice to the first respondents as registered native title claimants (described in that subsection as a "native title party") of its intention to do a "permissible future act" covered by subs. 26(2) of the Act, in relation to an area of land within the State being part of the land to which the first respondents' application to the Tribunal related.

The phrases "future act" and "permissible future act" are defined in s. 233 and s. 235 of the Act respectively.

In broad terms, and putting to one side the making amendment or repeal of legislation, pursuant to s. 233 an act is a "future act" if, apart from the Act, it validly "affects" native title. Section 227 of the Act defines the word "affects" in these terms:- an "act `affects' native title if it extinguishes the native title rights and interests or if it is otherwise wholly or partly inconsistent with their continued existence, enjoyment or exercise." Sections 10, 11 of the Act state that native title is recognised, and protected, in accordance with the Act and is not able to be extinguished contrary to the Act. Pursuant to ss. 23 and 25 of the Act, future acts covered by subs. 26(2), would be subject to the "non-extinguishment principle" declared in s. 238, which reads as follows:

238.(1) This section sets out the effect of a reference to the non-extinguishment principle applying to an act.

(2) If the act affects any native title in relation to the land or waters concerned, the native title is nevertheless not extinguished, either wholly or partly.

(3) In such a case, if the act is wholly inconsistent with the continued existence, enjoyment or exercise of the native title rights and interests, the native title continues to exist in its entirety but the rights and interests have on effect in relation to the act.

(4) If the act is partly inconsistent with the continued existence, enjoyment or exercise of the native title rights and interests, the native title continues to exist in its entirety, but the rights and interests have no effect in relation to the act to the extent of the inconsistency.

(5) Despite the fact that the native title rights and interests have no effect (as mentioned in subs. (3)) or have only limited effect (as mentioned in subs. (4)) in relation to the act, the persons who are entitled in accordance with the traditional laws and customs, as applying from time to time, to possess those rights and interests continue to be the native title holders, subject to Division 6 of Part 2 (which deals with the holding of native title on trust).

(6) If the act or its effects are later wholly removed or otherwise wholly cease to operate, the native title rights and interests again have full effect.

(7) If the act or its effects are later removed only to an extent, or otherwise cease to operate only to an extent, the native title rights and interests again have effect to that extent.

(8) An example of the operation of this section is its application to a category C past act consisting of the grant of a mining lease and confers exclusive possession over an area of land or waters in relation to which native title exists. In such a case the native title rights and interests will continue to exist but will have no effect in relation to the lease while it is in force. However, after the lease concerned expires (or after any extension, renewal or re-grant of it to which subs. 228(3), (4) or s. (9) applies expires), the rights and interests again have full effect.

It follows, therefore, that as used in s. 233 the word "affects" is to be read subjunctively and that an act is a future act if, apart from the Act, it would affect native title in the manner set out in s. 227.

A "permissible future act" is an act that could be done in relation to the land if the "native title holders" concerned instead held "ordinary title", defined in s. 253 of the Act as "a freehold estate in fee simple". The expression "native title holder" is defined in s. 224 of the Act, albeit in circular terms, as "the person or persons who hold the native title".

In the present case the "permissible future act" covered by subs. 26(2) of the Act, of which the State gave notice pursuant to subs. 29(2), was the grant of an "exploration licence" to the second respondents pursuant to the Mining Act 1978 (WA) ("the Mining Act"). By para. 26(2)(a) of the Act the creation of a right to mine is included in the permissible future acts covered by subs. 26(2). Section 253 of the Act states that the verb to "mine" includes to "explore or prospect for things that may be mined". Paragraph 29(2)(d) of the Act required the State to give the notice to the second respondents, each described as a "grantee party" under the Act.

Under subs. 7(2) of the Mining Act an exploration licence may be granted for an area of land of up to 70 "blocks". Section 56C of the Mining Act defines a "block" as:

56C.(1) For the purposes of this Division, the surface of the Earth shall be deemed to be divided --

(a) by the meridian of Greenwich and by meridians that are at a distance from that meridian of 1, or a multiple of 1, minute of longitude; and

(b) by the equator and by parallels of latitude that are at a distance from the equator of 1, or a multiple of 1, minute of latitude, into sections (in this Division called `graticular sections'), each of which is bounded

(c) by portions of 2 of those meridians that are at a distance from each other of 1 minute of longitude; and

(d) by portions of 2 of those parallels of latitude that are at a distance from each other of 1 minute of latitude.

(2) For the purposes of this Division -

(a) a graticular section that is wholly within the State constitutes a block; and

(b) if part of a graticular section is within the State that part of the graticular section constitutes a block.

The rights conferred by the grant of an exploration licence are as set out in s. 66 of the Mining Act which reads as follows:

66. An exploration licence, while it remains in force, authorises the holder thereof, subject to this Act, and in accordance with any conditions to which the licence may be subject --

(a) to enter and re-enter the land the subject of the licence with such agents, employees, vehicles, machinery and equipment as may be necessary or expedient for the purpose of exploring for minerals in, on or under the land;

(b) to explore, subject to any conditions imposed under s. 24 or 25, for minerals, and to carry on such operations and carry out such works as are necessary for that purpose on such land including digging pits, trenches and holes, and sinking bores and tunnels to the extent necessary for the purpose in, on or under the land;

(c) to excavate, extract or remove, subject to any conditions imposed under s. 24 or 25, from such land, earth, soil, rock, stone, fluid or mineral bearing substances in such amount, in total during the period for which the licence remains in force, as does not exceed the prescribed limit, or in such greater amount as the Minister may, in any case, approve in writing;

(d) to take and divert, subject to the Rights in Water and Irrigation Act 1914, or any Act amending or replacing the relevant provisions of that Act water from any natural spring, lake, pool or stream situate in or flowing through such land or from any excavation previously made and used for mining purposes and subject to that Act to sink a well or bore on such land and take water therefrom and to use the water so taken for his domestic purposes and for any purpose in connection with exploring for minerals on the land."

Regulation 20 of the Mining Regulations 1981 specifies that the limit on the removal of earth and soil for the purpose of s. 66(c) is as follows:

For the purposes of s. 66(c), the limit on the amount of earth, soil, rock, stone, fluid or mineral bearing substances which may be excavated, extracted or removed during the period for which the licence remains in force is 1000 tonnes in total, and the excavation, extraction or removal of a larger tonnage, without the Minister's written approval, shall render the licence liable to forfeiture.

It is to be noted that under s. 66(c) there is no limit on the amount of earth, soil, rock, stone, fluid or mineral bearing substances the Minister may permit to be excavated, extracted or removed from the land to which the exploration licence relates.

From the foregoing it may be seen that the rights granted by an exploration licence permit substantial interference with land or water that is subject to such a licence.

Whether the grant of an exploration licence under the Mining Act is a "future act" for the purpose of s. 233, or a "permissible future act" for the purpose of s. 235 of the Act, was not in issue although it may be thought not to be obvious that, but for the Act, the mere grant of an "exploration licence" would necessarily extinguish native title rights or interests or be inconsistent with their continued existence, enjoyment or exercise to, thereby, "affect" native title as that word is defined in s. 227 of the Act. However, given the width of the definition of a "low impact future act" in s. 234 and the preservation of native title by the Act notwithstanding the occurrence of valid future acts, perhaps minor inconsistencies with the existence, exercise or enjoyment of native title rights and interests are included within the meaning of "partly inconsistent" as that phrase is used in s. 227 of the Act in defining the word "affects" to describe the scope of a "future act".

Furthermore, under the Mining Act, it is not necessarily the case that an exploration licence may be granted in respect of a freehold estate in fee simple. Although by s. 27 of the Mining Act an application for a mining tenement, which pursuant to s. 8 of the Mining Act includes an exploration licence, may be made in respect of "private land" as defined in s. 8 of the Mining Act, being inter alia, land alienated from the Crown for any estate of freehold, that expression does not include a freehold estate alienated before 1 January 1899 except for the mining of gold, silver and precious metals. It should be assumed that any hypothetical holding of "ordinary title" referred to in sub-para. 235(5)(b)(i) of the Act would include the rights of a freehold estate that would have applied in the period during which native title has been held, and, therefore, with regard to most land in respect of which native title is claimed the rights of an estate in freehold created before 1 January 1899 are likely to be relevant. It may also be noted that subs. 29(2) of the Mining Act states that except with the consent in writing of the owner and the occupier, a mining tenement shall not be granted in respect of the surface of private land where the land is a site, or is used for a purpose, to which the subsection refers.

Sections 26 and 29 of the Act are part of the sections (ss. 26-44) inserted in the Act as Subdivision B of Division 3 of Pt 2 under the heading "Right to Negotiate". By subs. 23(2) of the Act the validity of a permissible future act is made subject to all of the provisions of Subdivision B.

Subsection 26(1) states:

This Subdivision applies if the Commonwealth, a State or Territory (the `Government party') proposes, at any time after the commencement of this Subdivision, to do any permissible future act covered by subs. (2) in relation to an onshore place.

"Onshore place" is defined in s. 253 as, inter alia, land within the limits of a State.

In effect Subdivision B recognises that a native title party has a right to object to the doing of a future act by a Government party and have the doing of such an act made subject to negotiation between the native title party and the Government party and the proposed grantee. In s. 31 an obligation is imposed on a Government party to negotiate with a native title party and a grantee party (each described in s. 253 of the Act as a "negotiation party") and to do so in good faith. (See: Walley v The State of Western Australia [1996] FCA 490; (1996) 137 ALR 561 [(1996) 1 (4) AILR 568]). Under s. 33 of the Act the scope of the negotiation to be conducted pursuant to the right and obligation to negotiate is not limited.

For the purpose of the subdivision the expression "native title party" appears to be treated as equivalent to "native title holder" and is not dependent on the holding of native title being determined under the Act.

If negotiation does not result in a native title party agreeing to the doing of a future act, s. 35 of the Act permits any negotiation party to apply to an "arbitral body", in this case the Tribunal, (see para. 27(2)(b)), to determine under s. 38 of the Act whether the future act must not be done, may be done, or may be done subject to conditions.

The right of a native title party, and the obligation of a Government party, to negotiate under Subdivision B applies to all permissible future acts covered by subs. 26(2) unless, pursuant to subs. 26(3), the Commonwealth Minister has determined that a future act is excluded from the coverage of subs. 26(2), or, pursuant to subs. 32(4) of the Act, the intended future act is "an act attracting the expedited procedure" as determined by the Tribunal.

With regard to a determination by the Commonwealth Minister that a future act is to be excluded from the coverage of subs. 26(2), subs. 26(4) sets the criteria the Minister is to consider before making such a determination.

Sub-section 26(4) reads as follows:

The Commonwealth Minister must not determine that a future act is excluded from the coverage of subs. (2) unless:

(a) the Commonwealth Minister considers the act will have minimal effect on any native title concerned; and

(b) the Commonwealth Minister has:

(i) notified any relevant representative Aboriginal/Torres Strait Islander bodies, and notified the public in the determined way, of the proposed determination; and

(ii) invited submissions from them about it; and

(c) the Commonwealth Minister is satisfied that, if the proposed determination is made, any native title holders concerned will be appropriately consulted about any access, to any land or waters to which the native title relates, that may be authorised as a consequence of the act or of an act included in the class of act concerned."

By s. 29 of the Act a Government party must give notice of its intention to do a future act covered by subs. 26(2) and, if the Government party considers that the proposed act is "an act attracting the expedited procedure", the notice is to include a statement of that opinion. The Act does not require a Government party to specify the grounds on which that opinion is based, although by reason of the exception to the obligation to negotiate provided in subs. 31(1) it may have been expected that the use of the notice would be restricted to cases which provided grounds for the opinion expressed in the notice.

Pursuant to subs. 31(1) of the Act if the notice includes a statement that the Government party considers that the proposed act attracts the expedited procedure, a Government party is relieved of the obligation to negotiate with a native title party, and with a grantee party. Apparently the notice given by the State in this matter included such a statement.

Where a notice which includes such a statement has been given by a Government party, ss. 32(3) and (4) provide as follows:

32. (3) The native title parties may, within the period of 2 months starting when the notice is given, lodge an objection with the
arbitral body against the inclusion of the statement.

(4) 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."

If the "arbitral body" ("the Tribunal") determines that the proposed act is not an "act attracting the expedited procedure", negotiation between the parties is provided for in subs. 32(5) as follows:

32. (5) If the arbitral body determines that the act is not an act attracting the expedited procedure, the arbitral body must:

(a) 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:

(i) the doing of the act; or

(ii) the doing of the act subject to conditions to be complied with by any of the parties; and

(b) offer to mediate among the negotiation parties to assist in obtaining their agreement.

It may be noted that negotiation is conducted at the request of the Tribunal and not under an obligation to negotiate imposed by the Act. That is not to say, however, that s. 29 provides a Government party with an election to avoid an obligation otherwise imposed by s. 31 and that a Government party, or a grantee party, may refuse to negotiate when requested to do so by the Tribunal under subs. 32(5) and come within the meaning of the term "negotiation party" as used in s. 35 of the Act to describe who may apply to the Tribunal for a determination under s. 38 of the Act. (See: Walley at p. 573.)

Although subs. 32(3) of the Act states that a native title party may lodge an "objection" with the "arbitral body" against the inclusion by a Government party in a s. 29 notice of the statement to which subs. 29(4) refers, if the "arbitral body" is the Tribunal s. 75 of the Act treats the form of that objection as an application to the Tribunal for a determination under subs. 32(4) of the Act. By subs. 75(2) such an application is to be in the form prescribed in Form 4 of Schedule 1 of the Act and is to provide the information prescribed by that form. Items 5, 6, 7, 8 and 9 of the prescribed form are as follows:

5. Whether the objector is the registered native title body corporate or a registered native title claimant. (If a person needs to become registered as a native title claimant in order to benefit from the right to negotiate and to object to the expedited procedure, he or she will need to complete and lodge with the Registrar a native title determination application form.) 6. The government that issued the notice and the date of the notice. 7. A statement why the objector believes that the proposed act is not an act attracting the expedited procedure that includes a statement of the expected impact of the act on the community life of the native title body corporate and areas or sites of particular significance. 8. An outline of the type of evidence that the objector will produce to the National Native Title Tribunal. 9. Any other relevant information.

In October 1995 the first respondents lodged an objection with the Tribunal pursuant to subs. 32(3) of the Act. The relevant parts of the objection with respect to items 7, 8 and 9 of the prescribed form read as follows:

7. The Objectors believe that the proposed act is not an act attracting the expedited procedure because the grant of Exploration licence E 80/2055 will:-

(a) interfere with the community life of the Traditional Owners in the performance of their traditional activities on the land in question;

(b) interfere with the areas of particular significance on the land in accordance with their tradition; and

(c) involve major disturbance to the land and waters the subject of the application for the exploration licence.

In particular, the rights conferred by the grant of an exploration licence under s. 66 of the Mining Act 1978 (WA), allow the following activities to take place:

(i) Access to the land for a period of 5 years without the permission of the native title holders. This is subject to extension at the Minister's discretion for further periods of one year (s. 66);

(ii) To generally explore and carry on operations necessary for such exploration activities including digging pits, trenches and holes, sinking bores and tunnels.

This means the following types of ground-disturbing activities are also allowed: sampling, drilling, trenching, costeaning, bulk sampling, the construction of roads, airstrips, helipads, drilling pads and waste ponds.

(iii) To excavate, extract and remove prescribed amounts of earth, soil, rock, stone, fluid or mineral-bearing substances or greater amounts as the Minister may approve.

The Licence holder can remove 1000 tonnes per Exploration Licence and with the Minister's consent can extract and remove even larger amounts (Regulation 20). The Minister's approval of amounts over 1000 tonnes is not subject to the approval of the native title holders.

(iv) To take and divert (subject to the Rights in Water and Irrigation Act) water from any natural spring, lake, pool or stream on the subject land.

(v) The grant of the Exploration Licence creates a right to have priority for the grant of a Mining Lease or General Purpose Lease (s. 67).

8. The Objectors intend to produce direct evidence and other evidence as may be necessary to support their objection. 9. The Objectors do not seek to provide any further information in relation to the objection.

To determine whether a future act is an "act attracting the expedited procedure" under subs. 32(4) regard must be given to s. 237 of the Act in which the expression is defined. Section 237 reads as follows:

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.

In effect "an act attracting the expedited procedure" is defined negatively in that a future act proposed to be done by a Government party is only an act attracting the expedited procedure if it does not infringe the requirements of s. 237(a), (b) or (c). It should be noted that there is no procedure under the Act that stands as "an expedited procedure". A determination by the Tribunal that an "act attracts the expedited procedure" has effect under the Act as permission to do the act, (subs. 32(4)), and no further "procedure" applies.

By s. 139(b) of the Act the Tribunal is required to "hold an inquiry into an application covered by s. 75, described therein as a "right to negotiate application". Subsection 162(2) of the Act requires the Tribunal to state in the determination made after holding an inquiry in relation to a right to negotiate application any findings of fact upon which the determination is based.

In December 1995 the Tribunal held an inquiry in relation to the first respondents' objection to the inclusion in the notice given by the State of the statement that the proposed future act attracted the expedited procedure.

In February 1996 the Tribunal determined that the proposed future act did not attract the expedited procedure and requested the State, and the second respondents, to negotiate in good faith with the first respondents to obtain their agreement to the doing of the proposed act and offered to mediate between the parties.

The principal material before the Tribunal consisted of evidence adduced by the first respondents on affidavit and a report from the West Australian Aboriginal Affairs Department.

The Tribunal was satisfied by that material that the area within the proposed exploration licence was "well known for its richness of Aboriginal traditional life" and that there was "compelling evidence ... to conclude that there are areas and sites of particular significance according to the traditions of the (first respondents) in this exploration area". The Tribunal was satisfied that the first respondents had "a proper basis to demonstrate that they have real concerns that the likelihood, in relation to the proposed activities, is that those areas and sites may be interfered with". The Tribunal accepted that the objection to the State's claim that the expedited procedure was attracted by the proposed act was properly taken by the first respondents and determined that the expedited procedure was not so attracted.

Although the Tribunal was impressed with the evidence provided by the first respondents of the likelihood of the proposed exploration activities interfering directly with the community life of the first respondents, the Tribunal considered it unnecessary to make any determination in that regard.

Pursuant to subs. 169(1) of the Act the State has "appealed" from that determination. The second respondents took no part in the inquiry conducted by the Tribunal or in the "appeal".

Under subs. 169(1) an "appeal" is heard in the original jurisdiction of this Court. The exercise of that jurisdiction is restricted to the resolution of a question of law. It is to be assumed that jurisdiction so conferred by the laws of the Parliament meets the requirement of Ch III of the Constitution that any jurisdiction conferred on this Court be in respect of "matters" (See: TNT Skypak International (Australia) Pty Ltd v FCT [1988] FCA 119; (1988) 82 ALR 175 per Gummow J at 180-181).

The questions of law on which the State appealed from the determination of the Tribunal were said to be as follows:

1. The Tribunal erred in law in finding that the Aboriginal Heritage Act 1972 is deficient in its protection of sites.

2. The Tribunal erred in law in finding that the inquiry to be undertaken pursuant to s. 237(b) of the Act involved a determination of whether the Objector has a genuine and real concern as to the likelihood of interference with areas or sites of particular significance within the licence area.

3. The Tribunal erred in law in finding that the evidence of the previous conduct of the grantee party admitted into evidence justified objection to the application of the expedited procedure.

Whether the first or third grounds of appeal raise a question of law is not apparent but is unnecessary to decide. The question of law on which the appeal turned was the proper construction of s. 237, and incidentally thereto, of s. 32 of the Act.

As to the first ground of appeal the State submitted that the Tribunal, which had before it a report prepared by a Dr Senior in June 1995 which detailed deficiencies in the operation and application of the Aboriginal Heritage Act 1972 (WA) in respect of the protection of sites of significance to Aboriginal people, erred in relying upon that report to determine that the concerns of the first respondents that such legislation would not save those sites from interference if the exploration licence were granted.

The question of law in this submission was said to be a "no evidence" point, it being submitted that the Tribunal erred in failing to apply a "presumption" that the grantee of an exploration licence would act lawfully and, in particular, observe the terms of the Aboriginal Heritage Act which made it an offence to interfere with a site of significance. It was submitted that acting on that "presumption" the Tribunal should have concluded that it was unlikely that a site of significance would have been interfered with within the meaning of s. 237(b) of the Act.

The reasons provided by the Tribunal referred to the contents of the "Senior Report" but the Tribunal did not rely upon the report for the determination it made. Having found that sites and areas of particular significance to the first respondents existed within the area in respect of which the proposed exploration licence was to be granted, the Tribunal was entitled to consider how the terms of the Aboriginal Heritage Act bore upon those findings but the terms of that law did not remove other relevant matters from the consideration of the Tribunal.

The protection against interference provided by legislation such as the Aboriginal Heritage Act was to be given such weight as the Tribunal considered appropriate in the circumstances of the case before it but the existence of that law did not require the Tribunal to conclude that the prospect of interference to a site of significance was removed by the application of a "presumption" that the law would be observed by a grantee party.

It may be noted that in respect of a substantive determination made under s. 38 of the Act the operation of such a law is not set out in subs. 39(1) as a matter the Tribunal must take into account in making its determination.

Subsection 39(2) of the Act makes it clear that the terms of such protective legislation have not been overlooked by stating that taking into account the effect of a proposed act on areas or sites of particular significance to a native title party does not affect the operation of any law of the Commonwealth, State or Territory for the preservation or protection of those areas or sites. The terms of the sub-section suggest that when a determination is made under s. 38 of the Act matters considered by the Tribunal under subs. 39(1) neither supplant, nor are outweighed by, such a law. Those provisions would not suggest that such a law is given an elevated operation for the purpose of subs. 32(4) of the Act.

That ground of appeal must fail.

As to the third ground of appeal it was submitted that the Tribunal erred in treating evidence given by the first respondents of their experience of the manner of exercise by one of the second respondents of rights obtained by it on the grant of an earlier exploration licence as evidence of the likelihood of interference with a site or area of significance to the first respondents.

The Tribunal noted that the second respondents declined to participate in the proceeding to challenge any part of the material presented by the first respondents in support of their objection and the State did not cross-examine any deponents of the affidavits adduced by the first respondents.

Given the absence of any objection to the presentation of the material to the Tribunal and the terms of subs. 109(3) of the Act, which state that in conducting an inquiry the Tribunal is not bound by technicalities, legal forms or rules of evidence, the use of the material by the Tribunal to conclude that the first respondents had real concerns about the likelihood of interference with areas or sites of particular significance to them if an exploration licence were granted to the second respondents was unremarkable. In any event, as argued, this ground was subsumed in the submissions made on the second ground of appeal, namely, whether the Tribunal applied the proper construction of s. 237 of the Act.

The principal submission in respect of the proper construction of s. 237 of the Act was that the Tribunal erred in its understanding that the requirements of s. 237(b) of the Act were not met if a native title party had a "real concern" that interference with a site or area of significance was likely if the future act was done by the Government party.

Implicitly, the Tribunal found that the nature of the proposed future act made it possible for such interference to occur and further that the nature of the traditions and beliefs of the first respondents with regard to the sites made it appropriate that negotiation be conducted between the parties as to the terms and conditions on which such an exploration licence could be granted by agreement, being an agreement that had regard to the cultural and customary concerns of the first respondents and provided for the protection of the sites and areas against such interference. It was on that basis that the Tribunal concluded that the "expedited procedure" of the Act which excluded such negotiation and the right to apply to the Tribunal for a determination under s. 38, should not apply.

Although not set out in express terms, it is apparent the Tribunal was satisfied that, given the remote location of the land on which sites and areas of significance were situated and the continuing connection of the first respondents with those sites in accordance with their culture and traditions, and that the proposed future act was of such character that interference with those sites may result if an exploration licence were granted, for the purpose of subs. 32(4) and
s. 237(b) of the Act the future act was an act that interfered with such sites and, therefore, was not an act which attracted the expedited procedure.

Having regard to the interdependent operation of the sections of the Subdivision a proper construction of s. 237 of the Act must have regard to the purpose of subs. 32(4), the terms of subs. 26(4) which specifies the limitations on the Commonwealth Minister's power to exclude a future act from the operation of the Subdivision, and s. 39, which sets out matters the Tribunal must take into account in making a substantive determination under s. 38 of the Act, namely, whether the proposed future act is to be prohibited, permitted or permitted subject to conditions.

Section 39 reads as follows:

39.(1) In making its determination, the arbitral body must take into account the following:

(a) the effect of the proposed act on:

(i) any native title rights and interests; and

(ii) the way of life, culture and traditions of any of the native title parties; and

(iii) the development of the social, cultural and economic structures of any of those parties; and

(iv) the freedom of access by any of those parties to the lands or waters concerned and their freedom to carry out rites, ceremonies or other activities of cultural significance on the lands or waters in accordance with their traditions; and

(v) any area or site, on the land or waters concerned, of particular significance to the native title parties in accordance with their traditions; and

(vi) the natural environment of the land or waters concerned;

(b) any assessment of the effect of the proposed act on the natural environment of the land or waters concerned:

(i) made by a court or tribunal; or

(ii) made, or commissioned, by the Crown in any capacity or by a statutory authority;

(c) the interests, proposals, opinions or wishes of the native title parties in relation to the management, use or control of the lands or waters concerned;

(d) the economic or other significance of the proposed act to Australia and to the State or Territory concerned;

(e) any public interest in the proposed act proceeding;

(f) any other matter that the arbitral body considers relevant.

The conclusion that s. 237 and subs. 32(4) require the Tribunal to assess the nature and quality of the proposed future act to determine whether it is "an act attracting the expedited procedure" is reinforced by the breadth of the matters described in subs. 39(1) as matters that the Tribunal must take into account in making a substantive determination of whether such an act must not, or may, be done.

Where s. 39 of the Act states that the Tribunal must take into account the effect of the proposed act on, inter alia, the way of life, culture and tradition of any native title parties and the development of the social, cultural and economic structures of any of those parties, the Tribunal is required by the Act to consider manifold consequences, either singly or in combination, that may follow from the doing of a proposed act and how such consequences may impact upon the complex concepts described in s. 39.

The context of the subdivision suggests that a determination whether "the expedited procedure" is attracted is to be made as speedily as possible and that it is not intended that the Tribunal conduct an inquiry in which detailed anthropological and sociological material or economic analysis is obtained.

The general provisions of subs. 139-149 of the Act instructing the Tribunal in respect of the conduct of inquiries must be read subject to the nature of the application in respect of which an inquiry is required under the Act.

It is not the intention of the Act that in respect of the determination of whether an "act is an act attracting the expedited procedure" that time that should be spent on negotiation, or on a hearing of a substantive question raised by an application made under s. 35 of the Act, or that the costs that would be incurred in additional and unnecessary proceedings be wasted on what is intended to be a "screening" procedure under subs. 29(4) and s. 32 of the Act.

In subs. 32(4) the Act requires the Tribunal to consider the nature of the proposed act and the scope of the actions authorized by that act to assess whether the act has the capacity to interfere directly with the community life of a native title party, or to interfere with an area or site of particular significance to such a party or to involve major disturbance to any land or water with which a claim of native title is concerned.

The task of the Tribunal, having regard to the fact that a right to negotiate is an incident of the rights of native title, and to the mandatory requirement of subs. 109(2) of the Act that in conducting any inquiry the Tribunal take account of the cultural and customary concerns of Aboriginal peoples, is to conduct an inquiry appropriate for the purpose of subs. 32(4), namely, to ascertain whether the matter is one properly dealt with by negotiation between the parties and, if negotiation does not produce agreement, by an inquiry conducted on an application made pursuant to s. 35 of the Act for a determination to be made by the Tribunal pursuant to s. 38.

Having regard to the terms of subs. 32(4) and the purpose to be served by a determination whether a proposed future act "attracts the expedited procedure", there is nothing to support the contention that it is a requirement of the subsection that the Tribunal receive or obtain, material to enable it to make findings as to the future occurrence of events determined on a balance of probabilities or as a matter of likelihood. The Tribunal is required to ascertain whether the objection to a notice which has claimed that a proposed future act attracts the expedited procedure has raised issues appropriate to be left to the negotiation of the parties for the obtaining of permission from the native title party to the doing of the act or determined by the Tribunal under ss. 38 and 39 of the Act if no agreement is reached between the parties.

I note that in Ward v State of Western Australia [1996] FCA 1452; (1996) 136 ALR 557 at 571-572 it was accepted that the Tribunal had not erred in treating the words "does not" used in s. 237 as equivalent to "is not likely to". I am unable to agree that in so acting the Tribunal would be applying a proper construction to s. 237. In my respectful opinion the use of the present tense to describe the effect of a proposed future act means that s. 237 of the Act requires an assessment to be made of the future act according to its nature, and where the future act is the creation of a right to mine, by having regard to the potential consequences made possible by the exercise of that right. That is to say the section asks what the future act "does" according to the nature of the rights it creates. The inquiry to be made pursuant to s. 237 is whether, on its face, the future act gives rise to powers, the exercise of which would infringe s. 237(a), (b) or (c) if connection of the native title party to the land or water "affected" by the proposed future act is pointed to by the material, such connection being the existence of community life, or areas or sites of particular significance or cultural ties and traditional customs of the native title party that would be affected by any major disturbance of that land or water.

Under subs. 32(4) the Tribunal is to give consideration to the events that are made possible by such a future act and to the claims made by a native title party in respect of the land or water in respect of which the future act would apply and is to assess whether there are issues arising out of that material that should be resolved by negotiation between the parties, or by the Tribunal if the parties are unable to reach agreement in that regard. If the Tribunal is satisfied that no issue has been seriously raised that would make it appropriate for the ordinary processes of the Act to be followed in respect of negotiation and determination, the Tribunal is to determine that the proposed act is a future act that attracts the expedited procedure whereupon the act may be carried out.

A determination by the Tribunal that the proposed act attracts the expedited procedure activates permission under the Act for the Government party to do the act. Unlike a determination made under s. 38 of the Act, the Tribunal has no power to impose any conditions on the doing of the act to ensure that the general objects of the Act and, in particular, those of s. 39 and s. 237 are met.

The statement in s. 10 of the Act that the communal rights and interests that form native title are recognised and protected in accordance with the Act emphasises the importance attached by the Act to the right of a native title party under the Act to negotiate with a Government party to obtain amelioration of the consequences for such rights and interests that may follow from the doing of a future act and may affect the maintenance and exercise of those rights and interests, and if necessary to apply to the Tribunal for a determination that the future act must not be done or may be done subject to conditions. Given that negation of that right would be contrary to the protective purpose of the Act, it is most unlikely that Parliament intended that a future act to which an objection has been lodged with the Tribunal pursuant to subs. 32(3) of the Act, being an objection that raises matters that would have to be taken into account by the Tribunal under s. 39 of the Act on an application under s. 35 of the Act, can be "an act attracting the expedited procedure" under s. 237 of the Act thereby preventing those matters being considered at all. That is to say, the definition in s. 237 must be read in the context of the Act as a whole and, in particular, with that part of the Act which requires the Tribunal to determine whether a proposed future act may be done, or not done, by a Government party only after it has taken into account, not only the effect of the proposed act on native title rights, but wider social and cultural interests of the native title parties and the public interest. It must be concluded that the operation of ss. 32 and 237 of the Act is restricted to those cases in which it is patent that no question required to be taken into account under s. 39 on an application made under s. 35 can be raised as a serious issue.

Pursuant to subs. 42(2) of the Act, if the Commonwealth Minister considers it to be in the national interest, or in the interest of a State, the Minister may declare that a determination of the Tribunal is overruled or is overruled subject to conditions to be complied with by any of the parties. A determination referred to in subs. 42(2) would include a determination by the Tribunal that the proposed act is not an act attracting the expedited procedure although, it should be noted that s. 28 which defines the circumstances in which the doing of an act is valid does not include expressly the circumstance of a declaration being made under s. 42 that a determination that an act does not attract the expedited procedure is overruled.

The Tribunal properly understood that the question raised by subs. 32(4) and s. 237(b) of the Act is, if the existence of an area or site of particular significance to a native title party is pointed to by the material, does the act of granting an exploration licence create rights the exercise of which would have the capacity to interfere with such an area or site? If so the Act provides that the issues raised by the objection are to be dealt with by negotiation to obtain the agreement of the native title party to the doing of the act. It follows that in determining in the case before it that the proposed future act did not attract the expedited procedure, the Tribunal correctly applied the Act.

The "appeal" must be dismissed with costs.