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8 May, 1997
Native Title - proposed future act - whether proposed future act is an act attracting the expedited procedure - whether grant of exploration licence does not involve major disturbance - meaning and effect of 'the act does not' - whether tribunal required to consider cultural concerns of Aboriginal peoples
Facts:
The Government Party gave notice under the Native Title Act 1993 (Cth) ('NTA') that, in its opinion, the grant of an Exploration Licence to a mining company, GPA distributors Pty Ltd (the grantee party), was an 'act attracting the expedited procedure' under the NTA.
The Native Title Party (Jack Dann and Patricia Goonak on behalf of the Unggumi and Ngarinyin People) exercised the right to object to the Government Party's notice. The National Native Title Tribunal heard the objection and determined that the act was an 'act attracting the expedited procedure' within s. 237 of the NTA in that -
(a) the act does not directly interfere with the community life of the persons who are holders ... of native title in relation to the land or waters concerned; and(b) the act does not interfere with the areas or sites of particular significance, in accordance with their traditions, to the persons who are the holders ... 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 Native Title Party appealed to the Federal Court and Justice Carr upheld the appeal on the basis that the Tribunal had misdirected itself at law to the meaning of 'community life' in NTA s. 237(a), by not taking into account the spiritual aspect of community life. He remitted the matter to the Tribunal for the purpose of considering whether, under s. 237(a) there was likely to be direct interference with community life though it may not be a 'physical' interference.
However, Carr J confirmed the view of the Tribunal that 'major disturbance' in NTA s. 237(c) was to be judged by 'the standards of reasonable people in the broader community', not taking into account the effects referred to in NTA subs 237(a) or (b) or the cultural ties and traditional customs of the native title parties. In reaching that view, Carr J disagreed with a view to the contrary expressed by Lee J in Western Australian v Bropho (1997) 2(2) AILR 262 (Bropho).
Carr J also confirmed the Tribunal's view that, in view of the regulatory protective scheme of the Aboriginal Heritage Act 1972 (WA), it was not possible to conclude that Aboriginal sites were likely to be interfered with.
Held:
Allowing the appeal, that -
(1) When making a determination under s. 237 regard must be had to the nature of the future act and the rights and obligations conferred by it rather than by attempting to make a predictive factual finding as to what may be 'likely' to happen (Tamberlin J, p. 13, lines 45-50, Wilcox J, p. 3, lines 10-30,Nicholson J, p. 23, lines 1-5); following Lee J in Western Australia v Ward [1996] FCA 993; (1996) 141 ALR 753)
AILR 251 (Ward II) and Bropho.
(2) In assessing whether an act involves a major disturbance it is appropriate to take into account the views of the Aboriginal community and native title holders (Tamberlin J, p. 11, lines 5-15, p. 13, line 50; Wilcox J p. 5, line 5; Nihcolson J, p. 21, line 50 to p.22, line 5); agreeing with in Ward v Western Australia [1996] FCA 1452; (1996) 136 ALR 557 at 576; (1996) 1(4) AILR 549 (Ward No I) and in the present case at 142 ALR 37 and Lee J in Bropho at p. 10. The reference to community life and traditions in subs. 237(a) and (b) does not displace the mandate expressed in s. 109(2) that in conducting inquiries, account should be taken of the cultural and customary concerns of Aboriginal peoples (Tamberlin J, p.11, lines 10-15 and Nicholson J, p. 19, lines 5-10, Wilcox J expressing no view); following Lee J in Ward No. II and Bropho and disagreeing with Carr J in Ward No.I.
I have read in draft form the reasons of Tamberlin and RD Nicholson JJ. I agree with each of them and the orders they propose. I wish to comment on only two matters: the proper construction of the formula 'the act does not interfere' (or 'involve') used in paras. (a), (b) and (c) of s. 237 of the Native Title Act 1993 , and the method of determining under para. (c) whether or not an act involves 'major disturbance' to land or waters. These are the two major issues in the appeal. Each has caused some division of opinion or difficulty within the Court or Native Title Tribunal.
The sole function of s. 237 is to indicate the types of 'future act' that constitute 'an act attracting the expedited procedure'. In other words, s. 237 is only a definition section. In order to be meaningful, it must be read with the definition of 'future act' in s. 233. That definition encompasses both what RD Nicholson J calls 'juridical acts', such as legislation and executive actions, and physical activities. A juridical act such as the making, amendment or repeal of legislation or the grant of an interest in land could never, by itself, have any of the effects set out in s. 237. So it is apparent that s. 237 was intended to be read as including the indirect effects of a future act, as defined. This much is common ground between the present parties, as indeed it was between Carr J and Lee J in the judgments quoted by RD Nicholson J. Where the parties diverged, as their Honours did before them, was in relation to the next step, the manner of assessment of the indirect effects of a juridical act.
One view is that which was favoured by Carr J, in both Ward v Western Australia [1996] FCA 1452; (1996) 136 ALR 557 and the present case at first instance. According to that view, in determining whether a particular future act falls within s. 237, it is necessary for the Tribunal to make what Carr J called 'a predictive assessment' of the results of the future act. In the case of a future act consisting of the grant of an exploration licence, on this view the Tribunal is required to conduct an inquiry as to the physical activities that are likely in fact to take place on the subject tenement pursuant to the licence. On this approach the Tribunal needs to examine the proposals of the prospective licensee for carrying out exploration activities and also consider the degree of likelihood that the State Minister will exercise power under s. 18 of the Aboriginal Heritage Act 1972 (WA) to permit interference with significant areas or sites. This approach to s. 237 is urged on us by the first respondent, the State of Western Australia.
The competing view is that enunciated by Lee J in State of Western Australia v Ward [1996] FCA 993; (1996) 141 ALR 753 and urged by the present appellant. According to this view, it is neither necessary nor appropriate for the Tribunal to attempt to foresee what physical activities will in fact occur on the subject tenement if an exploration licence is granted; the appropriate course is to assess the nature of the future act. On this view of the section, where the relevant future act creates a right, the Tribunal's task is to assess the potential consequences of the exercise of that right; the Tribunal is not required to determine the degree of likelihood that these consequences will in fact occur.
It will be apparent that both approaches to the section involve an attempt to assess the physical consequences of the future act, in this case the grant of an exploration licence. But one approach looks at the likely actual consequences, the other at possible consequences.
With respect to Carr J, I prefer the view of Lee J. First, that view accords better with the words used in the section. The formula, 'does not interfere' (or 'involve') uses the present tense, not the future tense. The words direct attention to what the future act 'does'; that is, its immediate effect. As I have noted, in the case of a future act such as the grant of an exploration licence, in one sense the act 'does' nothing that could fall within s. 237. However, if the section is read to encompass the indirect effects of the future act, the immediate effect of the grant is to permit the licensee to perform whatever activities are permitted by the licence, when it is read with relevant legislation such as the Mining Act 1978 (WA) and the Aboriginal Heritage Act 1972 . That is what the future act 'does'.
As it seems to me, if Parliament had intended the Tribunal to make a predictive assessment, it would have framed the section differently in two respects. First, Parliament would have couched the three paragraphs in s. 237 in the future tense. Second, it would have specified the requisite degree of satisfaction in relation to the effects of the act. It is notable that those who have favoured the 'predictive assessment' approach have found themselves in disagreement about that matter.
The approach of Lee J also seems better to accord with policy considerations. The only significance of a future act falling within s. 237 is that it thereby becomes an 'act attracting the expedited procedure'. In other words, it becomes eligible for 'fast- track' processing, without any requirement to negotiate: see ss. 31 and 33. It would be incongruous to attribute to Parliament an intention that, in order to qualify for an expedited procedure in respect of an exploration licence, the proposed licensee has to develop a detailed plan of its proposed exploration operations and justify that plan, technically and financially, at a public inquiry. On the 'predictive assessment' approach, the licensee must do this; the Tribunal could not reach any degree of satisfaction about the absence of the effects specified in paras. (a), (b) and (c) of s. 237 unless it was satisfied that there existed a feasible method of exploiting the licence that avoided, or was likely to avoid, any of those effects and that the licensee proposed to apply that method. The preparation of a detailed plan of operations would often be a time-consuming and costly business. It would be burdensome to impose that obligation on a person who is a mere applicant for a licence, and who may never obtain any interest in the land. And it would be a strange way of providing an expedited process.
A further consideration is the difficulty of making a reliable assessment about future activities. Even where a plan of operations is developed carefully and in good faith, there is a strong chance of a variation between the plan and the reality; perhaps because new information comes to hand or for financial or other reasons. The exploration licence may change hands. And not all operational plans will be developed carefully and in good faith.
Moreover, if the Tribunal has to consider the degree of likelihood that the Minister will exercise power under s. 18 of the Aboriginal Heritage Act, as it apparently has sometimes done, its task moves from the realm of the difficult to that of the impossible. The Tribunal has no way of predicting the likelihood that the Minister (whoever he or she may be at the relevant time) will decide to exercise that power, for any one of an indefinite number of reasons.
Recognising the impossibility of making a rational assessment of the likelihood that the Minister would apply s. 18 in the particular case, some Tribunal members have resorted to statistics concerning the number of occasions when the power has been exercised in the past. That course is as reliable as predicting the number of runs a batsman will score in a particular innings by reference only to his batting average.
One consequence of the view I favour is that it may be more difficult for the Government Party or proposed licensee to demonstrate that a particular future act is an act attracting the expedited procedure. The question will be determined, in effect, on a 'worst case' scenario. However, that result may be consistent with Parliament's intention. The purpose of s. 237 is to identify future acts that can properly be allowed to proceed without affording a negotiation opportunity to the native title parties. It would be understandable if Parliament had thought that such acts ought to be limited to those that, even in a 'worst case' situation, will not have any of the effects specified in s. 237.
I need say little about the second subject, the meaning of 'major disturbance'. The Court was informed in the course of argument that some Tribunal members had held that an envisaged disturbance to land or waters should be regarded as a 'major disturbance' if it was so categorised by one of the parties. If that view has been taken, it is clearly wrong. It is for the Tribunal to determine whether a particular future act will involve a disturbance to land or waters and, if so, whether the disturbance answers the description of being a 'major disturbance'. Submissions from the parties may assist the Tribunal in reaching conclusions on these matters, but assertion is not enough; the Tribunal must decide.
The word 'major' is an adjective of degree. In determining whether a given envisaged disturbance to land or waters amounts to a major disturbance, the Tribunal must make a value judgment. I agree with my colleagues that, in doing this, the Tribunal must give the term 'major disturbance' its ordinary English meaning. It must consider the matter of degree from the viewpoint of the community generally. However, as the disturbance is necessarily a local phenomenon, its effect on local people is particularly important. The disturbance may have such consequences for people in the local area as to be properly called a major disturbance notwithstanding that it is of no consequence to people who live far away. And, of course, in evaluating the disturbance, the Tribunal must be aware of cultural differences. If the disturbance will have a significant impact on Aboriginals who live in or use the affected area, that might be sufficient to warrant a finding that it will constitute a 'major disturbance' even if it would be unimportant to non-Aboriginals.
This appeal raises important questions concerning the interpretation and application of s. 237 of the Native Title Act 1993 (Cth) ('the Act') which delineates the circumstances in which 'future acts' will attract what is referred to as the 'expedited procedure'.
The appeal is from a judgment of Carr J which allowed an appeal from the National Native Title Tribunal ('the tribunal') and remitted the matter to the tribunal for determination of the application of s. 237(a) of the Act, according to law.
The tribunal had determined, under s. 32(4) of the Act, that the grant of exploration licences by the State of Western Australia ('the Government party') under the Mining Act 1978 (WA) ('the Mining Act') attracted the expedited procedure. A consequence of this was that the tribunal was not obliged to request the Government party to negotiate with the native title parties to a land titles claim with a view to reaching agreement to the grant of the exploration licence (s. 32(5)).
Over the past eighteen months differing approaches have been taken by the tribunal and members of this Court in relation to s 237. As a result it is fair to say that there is some uncertainty as to the application of the section.
On 21 November 1994, the second respondent, GPA Distributors Pty Ltd ('the grantee party'), applied for exploration licences over an area of approximately seventy-eight square kilometres held under pastoral lease tenure and as stock route reserve. The grantee party was not a party to this appeal.
The land in question is situated one hundred and eighteen kilometres east of Derby in the Shire of Derby West.
On 26 July 1995 the Government party gave notice to the native title parties under s. 29 of the Act of its intention to grant the exploration licences to the grantee party. The notification included a statement pursuant to s. 29(4) that it considered the relevant future act (being the grant of an exploration licence) was an act which attracted the expedited procedure.
On 9 August 1995 Mr Jack Dann ('the appellant'), and Ms Patricia Goonak, on their own behalf and on behalf of the Unggumi and Ngarinyin people, made an application for determination of native title over land which included the above area.
Also, on that day, Mr Dann objected under s. 32(3) to the inclusion of the statement in the Government party's notice, thereby triggering a requirement under s. 32(4) that the tribunal must determine whether the future act attracted the expedited procedure.
On 10 August 1995 the Registrar of the tribunal accepted that application and the applicants thereby became registered native title claimants and 'native title parties' in accordance with s. 30(a) of the Act.
The tribunal, constituted by the Honourable CJ Sumner, heard the objection on 20, 24, and 27 November 1995. On 20 December 1995 it determined that the grant of Exploration Licence 04/998 to the grantee party attracted the expedited procedure.
An appeal was lodged to this Court on 17 January 1996. The matter was heard and judgment was delivered by Carr J on 19 December 1996. His Honour concluded that the tribunal had erred in relation to s. 237(a) and ordered that the matter be remitted to the tribunal for the limited purpose of considering whether under s. 237(a) there was likely to be direct interference with the community life of the native title holders although not necessarily interference which would be 'physical' in its character or nature.
An appeal to this Court was lodged on 8 January 1997.
By Amended Notice of Appeal dated 19 March 1997 the appellant appeals from that part of the decision of his Honour in which he declined to remit to the tribunal for determination the application of subs. 237(b) and (c) of the Act according to law.
Three errors of law asserted are that:
1. His Honour erred in interpreting the expression 'major disturbance' in s. 237(c) of the Act as meaning major disturbance to be judged by 'the standards of reasonable people in the broader community' and not as requiring consideration of whether the disturbance would effect:(i) community life; or
(ii) areas or sites of particular significance; or
(iii) cultural ties and traditional customs of the native title parties.
2. His Honour erred in imposing a burden on the native title party to prove that the Minister was likely to exercise his power under s. 18 of the Aboriginal Heritage Act (WA) ('the Heritage Act') and that therefore there was likely to be interference with areas or sites of particular significance to the native title party.
3. His Honour erred by failing to find there was a real chance that the Minister would exercise the power available under s. 18 of the Heritage Act 1993 to allow interference with areas or sites of particular significance to the native title party and therefore that the expedited procedure did not apply.
These grounds of appeal raise some basic questions as to the interpretation and application of s. 237.
Section 237 of the Act reads:
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 ... 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 ... 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 term 'future act' is defined in s. 233 as follows:
233(1) Subject to this section, an act is a 'future act' in relation to land or waters if:(a) either:
(i) it consists of the making, amendment or repeal of legislation and takes place on or after 1 July 1993; or
(ii) it is any other act that takes place on or after 1 January 1994; and
(iii) it is not a past act; and
...
(c) apart from this Act, either:
(i) it validly affects native title in relation to the land or waters to any extent; or
(ii) the following apply:
(A) it is to any extent invalid; and
(B) it would be valid to that extent if any native title in relation to the land or waters did not exist; and
(C) if it were valid to that extent, it would affect the native title.
The expression 'act' is defined in s. 226(2) to include any of the following acts:
(a) the making, amendment or repeal of any legislation;(b) the grant, issue, variation, extension, renewal, revocation or suspension of a licence, permit, authority or instrument;
(c) the creation, variation, extension, renewal or extinguishment of any interest in relation to land or waters;
(d) the creation, variation, extension, renewal or extinguishment of any legal or equitable right, whether under legislation, a contract, a trust or otherwise,
(e) the exercise of any executive power of the Crown in any of its capacities, whether or not under legislation;
(f) an act having any effect at common law or in equity.
The first question concerns the meaning and effect of the words 'does not' in the expression 'the act does not involve major disturbance to any land or waters or create rights whose exercise will involve major disturbance' in s. 237(c).
These words are also used in s. 237(a) and (b). Accordingly, the first question raises the issue of the appropriate approach to the whole of s. 237, not just the approach to s. 237(c).
Two different views have emerged, as a result of decisions in the tribunal and in this Court on appeal from the tribunal, as to the meaning and effect of the above expression.
One view, adopted by Carr J in Ward v Western Australia [1996] FCA 1452; (1996) 136 ALR 557 at 572 (Ward I), is that:
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. (Emphasis added)
His Honour confirmed this view in the present case at first instance. His Honour's judgment is reported as Dann v Western Australia [1996] FCA 1147; (1996) 142 ALR 21. His Honour did not perceive any relevant difference between the expressions 'does not', 'will not' or 'is not likely to'.
A different view as to the application of s. 237 was taken by Lee J in Western Australia v Bropho. In that case his Honour did not accept that the expression 'does not' was equivalent to the expression 'is likely to'. He emphasised the importance of the repeated use in each of the paragraphs of s. 237 of the present tense as conveyed by the words 'does not'. In his Honour's view, the relevant task was to examine what the 'future act does' according to the nature of the rights which it creates.
At pp. 5-6 his Honour said:
As I have said in Ward [a reference to State of Western Australian v Ward [1996] FCA 993; (1996) 141 ALR 753 (Ward II)], s. 237 is directed to an assessment of the quality of the proposed future act and it does not require the Tribunal to undertake the further task of determining the likelihood of any or all of the possible consequences of such an act ....Accordingly, material put before the Tribunal by a grantee party in an inquiry ... directed to the present intentions of that party in respect of the exercise of future rights that may be created and conferred on it if the future acts were done, is not relevant to a determination to be made by the Tribunal ... As I have said, the task of the Tribunal was to assess the nature of the proposed future act according to the rights that act would create and to determine whether the character of the future act was such that it involved a major disturbance to land or waters in respect of which a claim of native title had been made.
In his reasons in Bropho Lee J incorporated the more detailed analysis made by him in his previous decision in Ward (II) referred in the above extract.
The reasoning of the tribunal in the present matter was succinct on the issue of major disturbance. The relevant part of its decision reads:
Major disturbanceGiven the activities which are generally permitted by an exploration licence ... and the conditions which it is proposed to place on the licence and in the absence of any special factors I conclude that the grant is unlikely to involve major disturbance to the land. (Appeal Book p. 59)
The relevant statement of law, as formulated and applied by the tribunal in the present proceeding, was expressed in the following terms:
which shows that the grant of the exploration licence, including lawful activities of the grantee party which are permitted by the regulatory regime applicable to it (including the legislation, regulations, imposition of conditions and the use of Ministerial and Departmental discretions) is likely to result in ....(c) physical disturbance to the land which constitutes a major disturbance by the standards of the broader community (s. 237(c) NTA). (Appeal Book p. 46)
The 'decisions of the Tribunal' referred to were two decisions of Hon. P Seaman QC and one of Mr Sumner. These decisions were made before the Court's decisions in Ward (I) and Ward (II).
It is apparent from the above statement that the tribunal accepted that a fact finding exercise must be undertaken in order to predict and assess likely future results of the physical activity in question.
In this respect the tribunal took the approach subsequently adopted and applied by Carr J in Ward (I).
In the present case the relevant 'future act' for the purposes of s. 237 is the proposed grant of an exploration licence. See s. 226(2)(b).
It is apparent from s. 234, which defines 'low impact future acts', that a future act can include physical activities such as excavation, clearing, mining, construction, disposal or storage. Accordingly, physical activities are included in the term 'future act' as covered by s. 237.
The essential difference in the two approaches is that the approach of Lee J focuses on the nature of the rights conferred by the grant of the exploration licence (which is the relevant future act) without requiring evidence or calling for factual findings as to likely future events and consequences. On the other hand, the view preferred by Carr J, involves a predictive assessment as to the likely results arising from actual implementation of the exploration licence in the manner contemplated by the applicant. This exercise involves a prediction based on evidence as to the likely effect and application of other legislation such as the Heritage Act. It also assumes that the present intentions of the applicant will be implemented and does not allow for any subsequent variation in these intentions.
The question as to the correct approach to be taken in the present case is a difficult one having regard to the language used in the section. However, the approach suggested by Lee J should be preferred for the following reasons.
On the basis that the above approach is the correct approach to s. 237 it follows that the tribunal and the primary judge erred in law in applying the predictive assessment approach in the present case.
Although not precisely formulated, it appears from decisions of the Court (Lee J and Carr J) that there is a further difference between the two judges as to the appropriate approach. This difference has arisen in deciding whether a 'disturbance' can be classified as 'major' within s. 237(c). The use of the word 'major', of course, necessarily involves an element of subjective assessment as to the degree of disturbance. The question is: by whose criteria and standards is the assessment to be made?
In Bropho Lee J concluded that:
... any assessment of the degree of disturbance to land or water to which a claim of native title relates must include consideration of the impact on the rights and interests, including those of a usufructuary nature, assumed to be attached to the land under a claim of native title. (p 10)
These considerations would call for an appreciation of the customs and practices of the Aboriginal people with respect to the disturbance when making a determination under s. 237(c).
His Honour referred to s. 109(2) of the Act which requires the tribunal to take into account, when conducting inquiries, the cultural and customary concerns of Aboriginal peoples.
In Ward (I) 136 ALR at 576, speaking of s. 237(c) Carr J said:
Paragraph (c) does not refer to the standards of the native title holders and that is in marked contrast to the preceding paragraphs. 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 the present case Carr J confirmed that approach. However, at 142 ALR 37 his Honour said:
The idea embodied in the expression 'major disturbance' is not a complex one. It is an ordinary English term and, in my view, should be given its ordinary meaning, as understood by the whole Australian community, including Aboriginal people. If parliament wanted it to have a special meaning it could easily have so provided.
The difference which appears to emerge from the judgments may be more semantic than real. In substance, Lee J, is saying that it is necessary to take into account the views of the Aboriginal community as to the importance or degree of disturbance, while Carr J is stating that the degree of disturbance is to be judged by the standards of the broader or general community including Aboriginal people.
It is correct to say that the interpretation of the words 'major disturbance' is a question of ordinary statutory construction which involves the ascertainment of the meaning and effect of those words. However, when applying the words, as interpreted, to the facts of any particular case it is necessary to take into account the views of all members of the community without excluding any particular section of the general community. There is no justification discernible in the language of s. 237(c) for excluding the views of any section of the community. Equally it would be wrong to suggest that the views of any particular section of the community must in all instances prevail or be determinative. The function of the tribunal is to consider all the relevant evidence placed before it and then to determine whether any disturbance to land or waters can be properly characterised as 'major'.
The appropriate approach is to take into account the concerns of the Aboriginal community including matters such as community life, customs, traditions, and cultural concerns of the native title holders. It would be an unduly restrictive approach to refuse to take account of these considerations on the ground that 'community life' and Aboriginal 'traditions' are covered by pars (a) and (b) of s. 237 to the exclusion of their consideration under para. (c). The reference to community life and traditions in s. 237(a) and (b) does not displace the mandate expressed in s. 109(2) that in conducting inquiries account must be taken of the cultural and customary concerns of Aboriginal peoples.
In view of the above, the proper conclusion is that it is necessary to take into account the views and concerns of native title holders, but the importance and weight to be assigned to these matters will vary in each particular case according to the circumstances and evidence adduced.
The specific error is said to arise in this way.
The Government party contended that the existence and terms of the Heritage Act supported a conclusion that there was not likely to be interference with areas or sites of particular significance. The native title party disputed this.
Section 17 of the Heritage Act makes it an offence to excavate or destroy, or in any way alter, an Aboriginal site.
The native title party drew attention to the existence of the Ministerial discretion under s. 18 of the Act to permit excavation, destruction, damage or alteration of Aboriginal sites. It was said that absolute control of Aboriginal sites was given to the Minister.
Section 18 of that Act relevantly provides:
18 (2) Where the owner of any land gives to the Trustees notice in writing that he requires to use the land for a purpose which, unless the Minister gives his consent under the section, would be likely to result in a breach of section 17 in respect of any Aboriginal site that might be on the land, the Trustees shall, ... form an opinion as to whether there is any Aboriginal site on the land, evaluate the importance and significance of any such site, and submit ... notice to the Minister together with their recommendation in writing as to whether. .. the Minister should consent to the use of the land for that purpose, and, where applicable, the extent to which and the conditions upon which his consent should be given.(3) Where the Trustees submit a notice to the Minister ... he shall consider their recommendation and ... shall either
(a) consent to the use of the land ...
(b) ... decline to consent to the use of the land ...
and shall forthwith inform the owner in writing of his decision. (Emphasis added)
The native title parties contend that there was a real chance of interference or major disturbance within s. 237 and that the regulatory protective scheme in the Heritage Act should be treated as ineffective because of the wide and unfettered discretion conferred on the Minister.
The tribunal did not consider that the mere fact that there was a Ministerial discretion which permits interference with sites was, of itself, sufficient to say there was likely to be interference with sites. Rather, it considered that it was necessary to look at the exercise of the Minister's discretion in previous specific cases in order to determine whether it had become a matter of common practice for the Minister's consent to be granted with the consequence that it could be said that there was an effective regulatory scheme in place.
Evidence was adduced by the native title party that between 1990 and 1994 the Minister had granted in the order of 45 consents of which 20 were subject to conditions and 25 were unconditional. No evidence was adduced by the Government party in relation to the circumstances surrounding these consents. This evidence was designed to establish that there was no significant protection afforded by the provisions of the Heritage Act.
The native title party submits that the tribunal wrongly imposed a burden of proof on it because the tribunal was not satisfied that the Heritage Act protection was ineffective and that his Honour erred in this respect when he confirmed the determination of the tribunal.
The tribunal concluded that, on the evidence before it, it was unable to form the view contended for by the native title parties that the regulatory scheme under the Heritage Act was ineffective. In particular, it was unable to conclude how many consents related to exploration or whether the consents were given in relation to archaeological sites or ethnographic sites. The importance of this latter distinction is said to be that the ethnographic sites are more readily identified as sites of particular significance.
Because the above facts were left in an uncertain state on the evidence and because such facts should be taken to be peculiarly within the knowledge of the Government party, it was contended that the failure of the Government party to adduce evidence on the merits should have led to an unfavourable inference on these matters.
It was then said that in failing to draw this unfavourable inference the tribunal incorrectly imposed a burden of proof on the native title party.
In the tribunal's reasons reference is made to its inability, on the evidence presented before it, to reach a conclusion as to the effect of the consents. Mr Sumner concluded this reference to the evidence by saying:
I have found that there are sites of particular significance but the evidence falls short of establishing that there are so many or of such a kind as to make the consultation procedures insufficient to ensure that there is not likely to be interference.
The tribunal's reasons make no reference to imposing any burden of proof. The approach taken in the reasons is to have regard to the state of the evidence before the tribunal and to comment on the inadequacy of the evidence to support the contention on behalf of the native title parties that the protective scheme was ineffective.
There is no dispute in the present matter that there is no legal burden of proof on either party in proceedings under s. 237 of the Act. See the decision of Carr J below [1996] FCA 1147; (142 ALR 21 at 31-32).
The mere fact that the Government party did not adduce evidence as to all the circumstances surrounding the s. 18 consents does not in my view have the effect of imposing a burden of proof on the native title party. This circumstance might be considered to be a matter for comment in submissions by inviting the tribunal to draw an adverse inference against the Government party. However, the omission to lead evidence by the Government party does not mean that there has been a shifting of the burden of proof or indeed the application of any burden of proof.
This submission must be rejected.
It is worth noting at this point that, on the preferred approach to s. 237, it is not necessary to embark on the difficult task of making a prediction as to what, in fact, the Minister might be likely to do if an application were made under s. 18 of the Heritage Act.
A third ground of appeal is that his Honour failed to find that there was a 'real chance' that the Minister would exercise his discretion under s. 18 of the Heritage Act to allow interference with sites of particular significance to the native title party.
It is apparent from his Honour's judgment (142 ALR 41) that he considered that the tribunal had made a careful examination of the Ministerial powers conferred under the Heritage Act. He pointed out that the tribunal heard evidence as to the way in which the Acts were actually administered and found, as a fact, that the grantee parties would not be able to exercise their rights unless they entered into an agreement with the Aboriginal communities concerned. His Honour considered that the tribunal had taken into account the relevant considerations with respect to the Heritage Act. His Honour did not find any error in this aspect of the tribunal decision.
In relation to this ground of appeal it is appropriate to refer to two important matters.
The first is that on the preferred approach to s. 237 it was not necessary to adduce evidence as to the way in which the Heritage Act or other Acts might be administered in practice in order to predict how discretions under those Acts would be likely to be exercised in particular circumstances.
A second matter is that, even if one were to take the predictive assessment approach, there is no justification for applying a 'real chance' test when making a finding as to what may be likely to occur.
In order to determine whether a result is 'likely' there is no justification for departure from the ordinary civil standard of balance of probability. There is no convincing reason why a lower threshold of proof should be applied. Nor is there any justification for importing from the immigration cases a 'real chance' standard such as that adopted in Chan v Minister for Immigration and Ethnic Affairs [1989] HCA 62; (1989) 169 CLR 379 at 389 and 429. In that case the question before the Court was whether the appellant had a 'well-founded fear of persecution'. One can have a well-founded 'fear' of an occurrence notwithstanding that it is not likely to occur. Fear is an emotion not an objective fact. Chan is of no relevance in this matter.
Chan also, of course, involved considerations as to the objectives of the International Convention in Securing Recognition of Refugee Status and the associated Protocol.
Accordingly, there is no merit in this third ground of appeal.
For the above reasons, the approach taken in Ward (I) to s. 237 is to be preferred. The consequence is that, when making a determination under s. 237, regard must be had to the nature of the future act and the rights and obligation conferred by it rather than by attempting to make a predictive factual finding as to what may be 'likely' to happen. In assessing whether an act involves a major disturbance or creates relevant rights, it is appropriate to take into account the views of the Aboriginal community and native title holders.
There has been no error of law by his Honour or the tribunal demonstrated in relation to the question of burden of proof.
The appropriate orders are that the appeal should be allowed. The matter should be remitted to the National Native Title Tribunal for further determination in accordance with law. The first respondent should pay the appellant's costs.
This is an appeal from that part of the decision of Carr J given on 19 December 1996 (now reported as Dann v Western Australia [1996] FCA 1147; (1997) 142 ALR 21) in which he declined to remit the matter to the National Native Title Tribunal ('the Tribunal') for the determination of the application of subs. 237(b) and (c) of the Native Title Act (Cth) ('the Act') according to the law.
The matter came before Carr J by way of an appeal brought under s. 169(1) of the Act from a determination of the Tribunal made under s. 32(4) of the Act that the grant of certain exploration licences by the State of Western Australia under the Mining Act 1978 (WA) ('the Mining Act') attracted what the Act describes as 'the expedited procedure'. The appeal was heard together with an appeal by Delores Cheinmora involving common issues. This latter appeal was dismissed and, apart from its relevance to the present appeal, is not before the Court.
The factual circumstances involved in the Dann appeal were that Mr Jack Dann and Ms Patricia Gonnak are applicants on their own behalf and on behalf of the Unggumi and Ngarinyin people for a native title determination. The application was accepted on 10 September 1995.
On 21 November 1994 the second respondent had applied for exploration licences over approximately seventy eight square kilometres comprising pastoral lease and stock route reserves one hundred and eighteen kilometres east of Derby in the Shire of Derby West. On 26 July 1995 the State of Western Australia ('the Government Party') gave notice under s. 29 of the Act of its intention to grant the exploration licences. In that notice the Government Party, acting pursuant to s. 29(4) of the Act, included a statement ('the Statement') that it considered the grant of each of the exploration licences was an 'act attracting the expedited procedure'.
On 9 August 1995 the appellant objected, under s. 32(3) of the Act, to the inclusion of the Statement in the Government Party's notice. The Tribunal heard the objection on 20, 24 and 27 November 1995. It gave its determination on 20 December 1995 to the effect that the grant of each of the exploration licences to the respective grantee parties was an act which attracted the expedited procedure. On 17 January 1996 the appellant appealed to this Court against the Tribunal's decision.
The appeal before Carr J, like this appeal, turns on the proper construction of s. 237 of the Act, which reads:
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 his reasons Carr J stated the appeal before him had been run on the basis that, although it was yet to be established there were any holders of native title, the objectors were to be regarded as such. Furthermore, it was accepted the relevant future act was not simply the grant of the exploration licence but rather included the activities which are authorised by licence, notwithstanding the distinction drawn in s. 237(c) between the act and the creation of rights by the act.
The word 'act' is defined by s. 226(2) to be:
226 (2) Subject to subsection (4), 'act' includes any of the following acts:(a) the making, amendment or repeal of any legislation;
(b) the grant, issue, variation, extension, renewal, revocation or suspension of a licence, permit, authority or instrument;
(c) the creation, variation, extension, renewal or extinguishment of any interest in relation to land or waters;
(d) the creation, variation, extension, renewal or extinguishment of any legal or equitable right, whether under legislation, a contract, a trust or otherwise;
(e) the exercise of any executive power of the Crown in any of its capacities, whether or not under legislation;
(f) an act having any effect at common law or in equity.
'Future act' is defined in s. 233(1) as follows:
233 (1) Subject to this section, an act is a 'future act' in relation to land or waters if:(a) either:
(i) it consists of the making, amendment or repeal of legislation and takes place on or after 1 July 1993; or
(ii) it is any other act that takes place on or after 1 January 1994; and
(b) it is not a past act; and
(c) apart from this Act, either:
(i) it validly affects native title in relation to the land or waters to any extent; or
(ii) the following apply:
(A) it is to any extent invalid; and
(B) it would be valid to that extent if any native title in relation to the land or waters did not exist; and
(C) if it were valid to that extent, it would affect the native title.
Subsection 233(2) excludes from these provisions validation legislation and subs. 233(3) excludes acts creating or affecting Aboriginal or Torres Strait Islander land or waters. It was not disputed on the hearing of the appeal that the proposed grant of the exploration licence was a 'future act'.
Section 234 defines a 'low impact future act'. Relevantly, para. (b) of the definition provides that such an act does not consist of, authorise or otherwise involve:
(i) the grant of a freehold estate in any of the land or waters; or(ii) the grant of a lease over any of the land or waters; or
(iii) the conferral of a right of exclusive possession over any of the land or waters; or
(iv) the excavation or clearing of any of the land or waters; or
(v) mining; or
(vi) the construction or placing on the land, or in the waters, of any building, structure, or other thing (other than fencing or a gate), that is a fixture; or
(vii) the disposal or storing, on the land or in the waters, of any garbage or any poisonous, toxic or hazardous substance.
It will be observed that these listed acts comprise either juridical acts (see: paras(i), (iii)) or activities (see: paras(iv) to (vii)).
Section 235 defines 'permissible future act'. Without canvassing all the qualifications in that definition, matters which are addressed as having the potential to be an act include the making of legislation - see: subs. 235(3) and (4), the grant of a mining lease - s. 235(6) and the renewal, regrant or extension of a commercial, agricultural, pastoral or residential lease having certain effects - s. 235(7). These, the acts envisaged by this section, are juridical in character.
Section 236 provides that an 'impermissible future act' is any future act that is not a permissible future act.
Carr J accepted, and it is not disputed on the hearing of this appeal, that the proposed grant of an exploration licence falls within the definition of 'permissible future act' because it is an act (other than the making, amendment or appeal 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.
As Carr J pointed out, sub Div B (entitled 'Right to negotiate') of Div 3 of Pt 2 of the Act applies to certain permissible future acts. The acts covered by the subdivision include, by operation of s. 26(2) and subject to s. 26(3), 'the creation of a right to mine, whether by the grant of a mining lease or otherwise'; the variation of such a right; the extension of the period for which such a right has effect; the compulsory acquisition of native title rights and interests and any other act approved by the Commonwealth Minister in writing. Of the above mentioned acts those in paras. (a)-(d) are juridical acts. Whether or not the power of the Minister to approve an act pursuant to para. 26(2)(e) is limited to approval of juridical acts was not argued in the hearing of the appeal. The exclusions provided for in s. 26(3) have no relevant exclusionary effect here. The verb 'mine' is defined by s. 253 to include 'explore or prospect for things that may be mined ...'. Accordingly, an exploration licence amounts to the creation of right to mine for the purposes of the Act.
The Tribunal found there were four specific sites of particular significance in accordance with the traditions of the native title parties and some further sites of such particular significance on the relevant land. It found also there was an Aboriginal community ('the Windjingayre Aboriginal Community') situated approximately thirty kilometres away from the proposed exploration area, on land leased to the Aboriginal Lands Trust under a special purpose lease provided for by s. 116 of the Land Act 1933 (WA). It found that approximately thirty to forty people lived there from March to November each year but moved to Derby during the wet.
The Tribunal found the grant of the exploration licence was not likely to interfere directly with community life. It applied the words 'direct interference' as meaning 'physical interference' (a matter on which Carr J sent the proceeding back to the Tribunal to consider whether there was any non-physical interference).
In relation to interference with sites of particular significance, the Tribunal adopted reasoning which it had applied in the Cheinmora appeal, and made findings as to the likely effect of the regulatory regime. In this aspect the Tribunal concluded the provisions of the Aboriginal Heritage Act 1972 (WA) and the information procedures provided under the Mining Act 1914 meant there was unlikely to be interference with areas or sites of particular significance in accordance with the traditions of the native title parties.
The Tribunal also concluded a grant of the exploration licences was unlikely to involve major disturbance to the land. It reached this conclusion in the following way.
The Tribunal set out the conditions proposed to be attached to the grant of the exploration licence. In addition, it referred to s. 66 of the Mining Act which reads:
Section 66 ... authorizes the holder of an exploration licence, in accordance with any conditions imposed:- to enter and re-enter the land with such agents, employees, vehicles, machinery and equipment as are necessary for the purpose of exploring for minerals in, on or under the land;
- to carry on such operations and carry out such works as are necessary including digging pits, trenches and holes, and sinking bores and tunnels;
- to excavate, extract or remove earth, soil, rock, stone, fluid or mineral bearing substances in such amount, as does not exceed 1,000 tonnes, or in such greater amount as the Minister may, in any case, approve in writing;
- subject to the Rights in Water and Irrigation Act, to take and divert water from any natural spring, lake, pool or stream, and to sink a well or bore and take water therefrom and to use the water so taken for the explorer's domestic purposes and for any purpose in connection with exploring for minerals.
It then referred to s. 63AA of the Mining Act where it is provided that, on the granting of an exploration licence or any subsequent time, the Minister may impose reasonable conditions for the purpose of preventing or reducing or making good injury to the natural surface of the land or injury to anything on the natural surface of the land or consequential damage to any other land.
Additionally, reference was made to s. 63 of the Mining Act which deemed every exploration licence to be subject to certain other conditions, namely:
- To fill in or otherwise make safe to the satisfaction of the State Mining Engineer all holes, pits, trenches and other disturbances to the surface of the land which are in the opinion of the State Mining Engineer likely to endanger the safety of any person or animal; and- To take all necessary steps to prevent fire, damage to trees or other property and to prevent damage to any property or damage to livestock by the presence of dogs, the discharge of firearms, the use of vehicles or otherwise.
The conclusion of the Tribunal was that, taking into account the activities generally permitted by an exploration licence and the conditions which it was proposed to place on the licence and in the absence of any special factors, 'the grant is unlikely to involve major disturbance to the land'.
The first thrust of the present appeal is directed to the conclusions of Carr J as to the manner in which par 237(c) should be applied in order to determine whether the Act does not involve 'major disturbance to any land or waters...'.
In his reasons Carr J accepted the Tribunal had acted on the construction which he had considered to be correct in his reasons in Ward v Western Australia [1996] FCA 1452; (1996) 136 ALR 557 at 574-6. The view which his Honour reached there was as follows:
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 paragraphs. Paragraph (c) does not refer to the standards of native title holders and that is in marked contrast to the preceding paragraphs. 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.
It was contended before his Honour in the present proceeding that s. 237(c) should be construed so that 'major disturbance' is applied with regard to the standards of the native title parties. This was supported by a contention that the Act, being a special law enacted for Aboriginals pursuant to s. 51(xxvi) of the Constitution, required particular attention to be given to the first object of the Act, namely, 'to provide for the recognition and protection of Native Title'. Carr J rejected that submission on the ground the question was the extent to which Parliament, by enacting s. 237(c) in its present form, intended to protect Aboriginal people in the context of competing national interest that activities such as, in this case, exploration for minerals, should proceed under non-discriminatory government licence. He considered that matters of the community life of the native title holders, including their spiritual life, and sites of particular significance in accordance with their tradition were dealt with by the first two paragraphs of s. 237 so that para. (c) did not refer to those standards and was in marked contrast to them.
As Carr J acknowledged in his reasons, these views were different to those expressed by Lee J in two matters on which judgment was delivered after Carr J had reserved his decision on the appeal to him in this proceeding. The first was State of Western Australia v Ward and Ors [1996] FCA 993; (1997) 141 ALR 753 ('Ward (No. II') in which Lee J said:
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 by 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. 37(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 s. 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.
The other was State of Western Australia v Bropho and Ors in which Lee J said:
I note that in Ward v State of WA [1996] FCA 1452; (1996) 136 ALR 557 at 576 Carr J, after acknowledging that the question was a difficult one, reached a conclusion that the extent of disturbance to the land or waters concerned is to be judged according to 'the standard of reasonable people in the broader community'. Although it is unnecessary for me to decide that question in this 'appeal', I would make the following observations.
The common thread in subs. 237(a), (b), (c) is a claim to the holding of native title in relation to the land or waters to which the future act is sought to be directed. Under s. 109(2) in conducting any inquiry the Tribunal must take account of the cultural and customary concerns of Aboriginal peoples. A claim to the holding of native title is a claim to communal group, or individual, rights or interests in relation to land or waters where the rights or interests (which include hunting, gathering, or fishing rights or interests) are possessed under traditional laws acknowledged, and traditional customs observed, by Aboriginal peoples. It follows that such a claim involves the cultural and customary concerns of the Aboriginal peoples.
Given that subs. 32(4) and s. 237 are concerned with a determination whether the right of a native title party to have negotiations in respect of those rights and interests conducted with the State, and having regard to the provisions of the Act as a whole, in particular s. 39, if would seem to follow that any assessment of the degree of disturbance to land or water to which a claim of native title relates must include consideration of the impact on the rights and interests, including those of a usufructuary nature, assumed to be attached to the land under a claim of native title.
In relation to these Carr J said:
With respect, I agree that the inquiry to be made pursuant to s. 237 is whether the future act gives rise to powers, the exercise of which would infringe subs. 237(a), (b) or (c). But in my view the Tribunal, in assessing those powers, is not obliged to confine its inquiry to the provisions of the Mining Act and the terms and conditions which that Act and the regulations made under that Act prescribe for exploration licences. It is entitled to take into account, as it did in these matters, the fact that the exercise of rights conferred by an exploration licence may be subject to specific restrictions. Those restrictions may be found either in the Mining Act itself (see s. 24 for example) or in the Aboriginal Affairs Planning Authority Act or in the Aboriginal Heritage Act. The restrictions apply for the very purpose of protecting aboriginal interests.
There are in this dicta three identifiable strands:
(1) The first is whether 'the act' in s. 237(c) refers to something more than the exercise of the rights under the grant of exploration licence.(2) The second, which is closely related to the first, is whether the Court or Tribunal is entitled to take into account the fact that the exercise of rights conferred by a right to mine may be subject to specific restrictions of a regulatory character both in relation to mining and Aboriginal interests.
(3) The third is whether the element of 'major disturbance' is to be assessed by reference to the standards of the broader community or whether it should include consideration of the impact on the cultural and customary concerns of the Aboriginal peoples.
Turning to the first of these strands it is clear 'the act' in s. 237(c) is a reference to the 'future act'. As a consequence of s. 233 a future act (being the subject to which s. 237 relates) may be juridical (legislative or non-legislative) or an activity. The same is true of the effect of s. 235 in relation to permissible future acts. What s. 237 requires is for the 'future act' to be assessed as to whether it 'does not directly interfere with the community life' (para. (a)); 'does not interfere with areas or sites of particular significance, in accordance with their traditions' (para. (b)); and 'does not involve major disturbance to any land or waters concerned or create rights whose exercise will involve' such disturbance (para. (c)). The subject of each of these paragraphs is 'the act'. I therefore agree with Lee J in Ward (No. 2) (supra) that this requires an assessment to be made of the future act according to its nature. That view is further supported by reference to the use of the present tense 'does not' in relation to the subject of the 'future act', as Lee J pointed out.
To apply the section it is necessary to ascertain the nature of 'the act' by having regard to the relevant act. In the case of an exploration licence that will involve regard being had to the terms and conditions of the exploration licence. That in turn requires reference to the Mining Act and any legislation affecting directly the content of those rights (for example, as posited in submissions, state legislation making such rights unexercisable in relation to Aboriginal sites within s. 237(b)). Only in that way will there be a true understanding of the legal character of 'the act' so that it can be assessed in the terms of the section according to its nature.
In my opinion it would be artificial to restrict the understanding of 'the act' in the case of the grant of an exploration licence solely to the terms and conditions spelt out in that licence. The licence is a creature of the Mining Act. It can only properly be understood by reading it with that Act.
Turning to the second strand, it is apparent that the references to 'the act' in para. 237(c) - as well as paras. (a) and (b) - may extend to juridical or non-juridical acts. In the case of the former, the question is whether the application of the paragraph should be limited to a consideration of the juridical rights arising from 'the act' without considering it in relation to other regulatory legislation capable, if exercised, of affecting the juridical right; for example, in the case an exploration licence acts which may support a restrictive regime such as the Aboriginal Affairs Planning Authority Act or the Aboriginal Heritage Act. There are difficulties in doing this because, unless a provision in such legislation legally affects the nature of the relevant act (in this case the grant of an exploration licence), there is a question of whether it is probable the restriction will or will not be implemented. That leads directly into predictive assessment of factual situations. This also applies in relation to questions concerning the manner in which the rights available under the exploration licence might or might not be exercised; for example, the extent to which the exercise of rights might involve excavation, extraction or removal.
There are considerable difficulties in construing the provision to allow the Court to take into account the factual setting in the case of a juridical act. For example, intentions of a present holder of a mining tenement will hold good either only so long as the holder remains entitled to the tenement or maintains the intention. To have regard to such matters is not to have regard to 'the act' but to have regard to the manner in which 'the act' may be performed.
In the case of a non-juridical act, for example an act being an activity of the type referred to in paras. 234(b)(iv)-(iv), the section could not be applied without the Court taking evidence of facts pertaining to actual operation. However, that arises not because the section dictates that factual evidence is a necessary pre-condition of operation of the section, but because the nature of 'the act' to which the section is relevantly applying requires evidence to be adduced to establish its nature.
I therefore do not consider that regard can be had, if the limitations of the statutory reference to 'the act' are to be observed, to the existence of a restrictive regime in other legislation which may or may not affect the operation of the rights in the relevant act. Consequently, it is not appropriate for regard to be had to the Aboriginal Affairs Planning Authority Act or the Aboriginal Heritage Act, just as it is not appropriate to have regard to factual matters involving subjective intention. To have such regard is to do more than have regard to the legal character of 'the act'.
In my opinion this result follows from the fact that the section as it is worded requires 'the act' to be the measure against which the possibility of a 'major disturbance' is to be assessed in relation to any land or waters concerned. It is 'the act' itself which provides the measure; where the act is a juridical act it does not require the measure to be any factual projection of how the rights inherent in 'the act' may in fact be exercised. It is not the manner in which the rights will be exercised so as to involve major disturbance which is put in issue by para. (c); rather it is the existence of rights having the potential to involve major disturbance upon which Parliament has required attention to be focussed. Only where the act is non-juridical will evidence be needed to establish the nature of the act.
Of course it must be borne in mind in the interpretation of s. 237 as a whole and para. (c) in particular, the section is designed to provide for an 'act attracting the expedited procedure'. It is submitted for the respondent if regard is only had to the juridical character of the act, albeit in the context of rights which effect it, it is unlikely an act will satisfy the section and attract the expedited procedure. If that be the case, Parliamentary amendment is the solution, in my opinion.
In short, while I understand why Carr J considered regard to factual matters concerning the proposed mode of exercise of the rights inherent in 'the act' would provide a practical method for determining whether an act attracts the expedited procedure, I consider it is not the course mandated by Parliament in the language which it has used. In any event, it contains within it inherent problems, such as those which arise from transfer of title or change of intention.
Turning to the third strand, I consider Carr J was correct when he concluded that para. (c) is in marked contrast to the preceding paragraphs. On its face it is intended to impose a test of 'major disturbance' in relation to 'land or waters' so that, if there is such a disturbance, there will be no act attracting the expedited procedure and by that means the land or waters will be preserved to enable the native title application to be determined.
There is no difficulty of implementation made apparent by the use of the word 'disturbance' in relation to 'the act'. The word 'major' as a qualifying adjective to 'disturbance' introduces a subjective element and hence potential for cultural bias in determining whether a disturbance is major. Counsel for the appellant was unable to provide one example of a disturbance to cultural and customary concerns of the Aboriginal peoples which would not be brought within either paras. (a) or (b) of s. 237.
I agree with Carr J that the content and context of para. (c) mean that the expression 'major disturbance' should be understood as an ordinary English term and be given its ordinary meaning as understood by the whole Australian community, including Aboriginal people. There is nothing in the section to preclude Aborigine people raising under this paragraph matters which they consider touch on the issue of major disturbance of the land or waters. In so far as those matters repeat matters raised to support their case under paras. (a) or (b), there would be no practicality in that occurring where those matters have failed to support a positive finding in their favour in terms of either paras. (a) or (b).
In the course of his reasons Carr J addressed an alternative submission put to him by counsel for the appellant to the effect that the Tribunal's task was not to assess whether interference or major disturbance was 'likely' in the sense of more likely than not, but in the sense of whether there was a 'real chance' of interference or major disturbance. He said:
Given the exclusive wording of s. 237 and the repetitive use of the words 'does not' I am inclined to agree that the Tribunal's predictive assessment should be based on the proposition that interference or major disturbance may be 'likely' even though it is not satisfied, or the balance of probabilities, that it will occur. A real chance that interference or major disturbance will occur is, inmy opinion, inconsistent with the statutory requirement that it 'does not' occur.
He considered that the Tribunal in Dann, while not expressly referring to the 'real chance' test, nevertheless approached the issue of major disturbance in accordance with that standard of proof.
I do not accept the submission for the appellant that Carr J himself favoured the 'real chance' test.
Furthermore, as submission from counsel for the appellant make apparent, the selection of the test of 'real chance' was derivative through counsel from Chan v Minister for Immigration [1989] HCA 62; (1989) 169 CLR 379. There is no equivalent legislative, regulatory or convention basis for the adoption of a real chance test in the construction or application of s. 237.
The appropriate standard of proof follows from the precise wording of s. 237. I have already accepted the view that it is necessary to apply the section to ascertain what the future act 'does' according to the nature of the rights it creates. That involves a judgment being made of whether it is more probable than not that 'the act' will directly interfere in either of the stated ways or involve major disturbance to any land or waters concerned. That involves an assessment of whether, according to the nature of the rights contained in the act, it is more probable than not that any of those outcomes will result. No other standard of proof should be imported.
The amended grounds of appeal contend Carr J erred in law in confirming the determination of the Tribunal in which the Tribunal imposed a burden on the native title party of proving that the Minister was likely to exercise his power under s. 18 of the Aboriginal Heritage Act and there was thereby likely to be interference with areas or sites of particular significance to the native title party.
On the view which I have reached of the operation of s. 237 no such burden arises in the case of a juridical act because it is not necessary to consider the likelihood of whether or not that power will in fact be exercised in a particular way. What the section requires in the case of a juridical act is for 'the act' to be assessed in the terms required by each of the paragraphs of s. 237. There is no relevant requirement to adduce factual evidence and hence no relevant burden.
In the case of a non-juridical act, such as an activity, the burden of adducing evidence of the nature of the activity will fall on the party seeking to have the act qualify for the expedited procedure. The burden will be confined to establishing the nature of 'the act' and not to issues of predictive assessment. It will not therefore cast any burden on the native title parties in the manner contended for in the amended grounds of appeal.
For these reasons I consider the appeal should be allowed to the extent the Tribunal should be required to reconsider the application of s. 237(c) to the grant of the exploration licence in accordance with the law. That would be additional to the further consideration of s. 237(a) previously remitted to the Tribunal by Carr J.
Ward v The State of Western Australia (Ward I) was reported in (1996) 1(4) AILR 549.
The State of Western Australia v Bropho was reported in (1997) 2(2) AILR 262.
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