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Casenote by David Ritter
The Native Title Act 1993 (Cth) ('the NTA') provides a scheme for the protection of native title in relation to future activities which may impinge upon existing native title rights. This is known as the 'future acts' or 'right to negotiate' system. The basic requirement in this system is that where a government proposes to create a right to mine that might affect native title, any 'native title party in respect of the area in question (defined by ss253, 29(2)(a) and (b), and 30 of the NTA) has a right to negotiate with the government party and the 'grantee party' about the proposal (s26). However, in certain circumstances, there is provision for an expedited process to be followed that does not include negotiation. In order to take advantage of the 'expedited procedure', the government must accompany the notice of intent to grant a licence to perform a future act with a statement that the act is one which attracts the expedited procedure (s29(4)). Section 237 describes the circumstances in which a proposed act is one that attracts the expedited procedure:
'237. A future act is an "act attracting the expedited procedure" if:
'(a) the act does not directly interfere with the community life of the persons who are the holders (disregarding any trust created under Division 6 of Part 2) of native title in relation to the land or waters concerned; and
'(b) the act does not interfere with areas or sites of particular significance, in accordance with their traditions, to the persons who are the holders (disregarding any trust created under Division 6 of Part 2) of the native title in relation to the land or waters concerned; and '(c) the act does not involve major disturbance to any land or waters concerned or create rights whose exercise will involve major disturbance to any land or waters concerned'.
When a government gives notice that a proposed future act is one which attracts the expedited procedure, a native title party is entitled to raise an objection to the use of the expedited procedure on the basis that s237 has not been satisfied. This objection must currently be made to the National Native Title Tribunal ('the NNTT'). The NNTT must then determine whether the proposed act has correctly been identified as an act which attracts the expedited procedure (s32(4)) according to the definition provided in the NTA (s237). The NNTT is required to hold an inquiry to facilitate its determination as to the objection (s139(b) and, generally, Division 5 (subdivision B)). Finally, the NNTT is required to make a determination (s162) that the expedited procedure does apply (s32(4)), or that the expedited procedure does not apply (s32(5)).
Section 169 of the NTA provides that a party to an inquiry relating to a right to negotiate application may appeal to the Federal Court, on a question of law, from any decision or determination from the NNTT in that proceeding. This case is the first decision of the Federal Court to consider these provisions. It was determined concurrently with appeals from two other expedited procedure determinations, namely Clarrie Smith v State of Western Australia & Ors (unreported, Federal Court, WAG 6007/1995) and Ben Ward & Ors v State of Western Australia & CRA Exploration (unreported, Federal Court, WAG 600/1996. See Vol 1, 3 Australian Indigenous Law Reporter). The appeals were heard together because they had numerous issues in common. The principle issue for determination on the appeal was the proper construction of s237 of the NTA.
In the three expedited procedure determinations in question, the Hon C J Sumner as the Member presiding had adopted the construction of s237 of the NTA that had been set out by Deputy President Seaman in the earlier expedited procedure determination of Irruntyju- Papulankuntja Community (NNTT WO95/7, 6 October 1995). In that determination, Deputy President Seaman had construed s237 as follows (quoted by Carr J on page 18):
'(1) The Act treats the objectors as applicants and they have to satisfy the NNTT by evidentiary material that s237 does not apply to the NTA [page 5].
'(2) The act with which the section is concerned in this case is the grant of the exploration licences and the express "does not" in each section must be read as meaning "is not likely to". The grant of a licence cannot cause the interferences or disturbance to which the section refers without activity by a grantee party. Bearing in mind that the provision is concerned with an expedited procedure I am of the view that, absent exceptional circumstances, the effect which the grant is likely to have is not to be judged by a consideration of the intentions and capacities of particular grantee parties but by the power of the Government party to control the activities of a grantee party by existing legislation, conditions of grant and regulatory process and upon the basis that grantee parties will act lawfully [page 6].
'(3) The objectors must show that it is likely that lawful activities by or on behalf of the grantee party closely connected with the exercise of the rights given by the exploration licence will result in physical interference with the life of the community (s237(a)), will interfere with areas or sites of particular significance in accordance with the traditions of the native title party (s237(b)), or will cause physical disturbance to the land which constitutes a major disturbance by the standard of the broader community (s237(c)) [page 6]'.
In applying this construction of s237, the NNTT relied on the operation of the Aboriginal Heritage Act 1972 (WA) and associated procedures as being generally effective in ensuring that there would be no interference with areas or sites of significance.
Counsel for the appellants submitted that the interpretation of s237 adopted by the NNTT was incorrect. The chief grounds of appeal raised by the appellants may be broadly summarised as follows:
The Court's treatment of each of these grounds of appeal is outlined below.
The appellants submitted that the NNTT had imposed the burden of proof on the native title parties to show the expedited procedure did not apply. It was submitted by the appellants that it had been wrong for the NNTT, as an administrative body conducting an inquiry, to decide that the burden of proof was on the native title party. Counsel sought to rely on McDonald v Director-General of Social Security ([1984]1 FCR 354), in which a caution was sounded about the use of the concept of onus of proof in administrative, as opposed to judicial, proceedings.
The judgment in McDonald refers to what is described as a 'commonsense' approach to evidence that may be taken by administrative tribunals. Under this approach, the administrative body in question must act on material which is before it, but is not bound by any rules of evidence and can inform itself on any matter which it thinks appropriate. Carr J described the commonsense approach to evidence in this manner (pages 15-16):
'The "commonsense approach to evidence" is not the same as applying an evidential onus of proof. In administrative matters such as these, any party (not just the native title party) has what might be termed an evidentiary choice. They might choose not to lead any evidence on a particular issue. But that does not necessarily mean that they must fail on that issue, ie that they have an evidential onus of proof. The Tribunal might (subject to observing the requirements of procedural fairness) make its own inquiries and satisfy itself that the particular issue should be decided in favour of the party electing not to put evidence before it. Alternatively, part of an opposing party's evidence, whether in cross examination or otherwise, may satisfy the Tribunal on the point. The party has, in colloquial terms, taken its chances and won. However ... where facts are peculiarly within the knowledge of a party to an issue, its failure to produce evidence as to those facts may lead to an unfavourable inference being drawn where the administrative Tribunal applies its commonsense approach to evidence. Again, if this happens, it will not be because of the application of any evidential onus of proof, but by the application of the commonsense approach to evidence'.
Carr J held that this 'commonsense approach' is the appropriate approach for the NNTT to take in expedited procedure inquiries (page 21). His Honour considered the manner in which the NNTT had conducted itself in taking evidence from the parties in each application. He referred at some length to passages from the NNTT's reasons, where the need for some submission of evidence had been discussed (pages 19-21). After analysing the passages in question, Carr J concluded that it is 'reasonably clear' that the NNTT had applied the 'commonsense approach' to evidentiary matters (pages 22, 23 and 24). His Honour held that (page 21) the NNTT had not imposed any burden of proof upon-the-native title parties in any of the three expedited procedure inquiries in question.
It was further argued by the appellants that the NNTT had erred in deciding that the expression 'does not', which appears in each subsection of s237 of the NTA, means 'is not likely to'. Carr J dismissed this argument, holding that when 'the NNTT was assessing what was likely to happen in each of these matters it was, at the same time, assessing what was likely not to happen'. The judge decided that the NNTT 'was required to make a predictive assessment of whether the grant of the exploration licences and the exercise of rights conferred by those licenses would or would not be likely to result in interference of any of the three relevant types' (pages 25-26). In the judge's opinion, this was what the NNTT had done, and in so doing it had not committed any error of law.
In each of the three determinations in question, the NNTT held that the direct interference with community life referred to in s237(a) had to be 'physical' interference with the life of the community.
Carr J held that there was 'no justification for requiring a direct interference with community life also to be a physical interference'. His Honour's reasoning was simply that the word 'physical' did not appear in s237(a) (page 26):
'Section 237(a), in stating the first requirement of an act attracting the expedited procedure, requires that the act does not directly interfere with the community life of the native title holders. It does not say that such direct interference has to be the physical type. "Community life" might include all sorts of spiritual and the like activities which might be directly interfered with without any physical interference. For example, the very thought of intensive exploration activities, perhaps involving vehicles, bulldozers and heavy equipment and the setting up of seismic lines on hunting grounds 10 kilometres away, could upset an Aboriginal community and directly interfere with its community life without any physical interference with that life. Members of that community might well be very distressed by the thought of such activities. The spiritual part of life falls quite readily, as a matter of ordinary language, into what is encompassed by "community life"' (at 27).
Carr J ruled that the NNTT had erred when it defined the interference referred to in s237(a) as being confined to physical interference (pages 27 and 30).
In each of the three expedited procedure inquiries in question, the NNTT adopted the view that the major disturbance referred to in s237(c) must be a major disturbance 'by the standards of the broader community'. Counsel for the appellant submitted that the matter of major disturbance under s237(c) should be considered from the point of view of the native title parties (page 31). It was submitted that there is no reason why the standards of the broader community would be intended to be the relevant criteria. It was argued that such a construction involves reading down of the section when there is no warrant to do so (page 33). It was further contended by the appellants that if there is any ambiguity in the section, then it ought to be construed beneficially to the native title parties, particularly in the context of interference to their lands (page 33).
The respondents argued that it was significant that whereas there are express references in ss237(a) and (b) to the community life of native title holders, and to areas or sites of particular significance in accordance with the traditions of native title holders, s237(c) 'simply refers to 'major disturbance' without any words linking that phrase to the native title holders. Carr J agreed with this submission, stating (page 34) that:
'Subsection (c) does not refer to the standards of the native title holders and that is in marked contrast to the preceding sections. I think the parliament intended to leave to the Tribunal the assessment, as a matter of fact in each case, whether an act involved a 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'.
Thus, His Honour held that the NNTT, by interpreting the phrase 'major disturbance in s237(c) by the standards of the broader community, had not made any error of law.
After some consideration of the appellant's submissions in relation to this broad ground of appeal (pages 34-40), Carr J ruled that he did not have jurisdiction to consider these matters. It was His Honour's view that the submissions in relation to this matter did not disclose a question of law, as required by s169(1) of the NTA to found the jurisdiction of the Federal Court in such matters. His Honour stated that:
'What the appellants seek to do is to bring into question the weight which the Tribunal accorded to such matters as the guidelines and their likely practical effect, the expressions of intent to comply with the Aboriginal Heritage Act, and the likelihood that people whose attention is drawn to a particular law will abide by it, on the one hand, and various other aspects ... on the other hand. To do this would be to usurp the function which parliament has entrusted to the Tribunal ... one of the factual inquiries it had to make was into the legal and practical effectiveness or otherwise of the Aboriginal Heritage Act' (page 40).
The judge concluded that the NNTT did not err in law by taking into account the effectiveness of the Aboriginal Heritage Act, how it was administered in practice, the likelihood that the grantee parties would have to consult with the native title parties in order to comply with the Aboriginal Heritage Act, and in those circumstances the likelihood that they would do so. His Honour held that all of these matters 'were part of a fact finding exercise to determine whether there was likely to be any interference with areas or sites of particular significance' (page 41).
His Honour felt that this ground of appeal amounted to no more than a basis upon which to supplement the grounds of appeal relating to matters of onus of proof and the construction of s237. His Honour concluded that in general, the NNTT could not be criticised as failing to construe s237 in a manner sympathetic to the objects of, and preamble to, the NTA (page 43).
The only ground of appeal which was upheld by the NNTT was in reference to s237(a), where the NNTT had erred in law by construing 'direct interference' as meaning 'physical interference' with the community life of the native title holders. On the basis of the appellants' limited success, Carr J considered that all three cases should be remitted to the NNTT for the limited purpose of considering 'whether in each case there is likely to be direct interference with the community life of the native title holders although not necessarily physical in its character or nature' (page 47). However, the Court did not issue orders to that effect, and will hear further submissions from counsel in relation to what orders should be made.
This decision is likely to have a significant effect on the construction of the law adopted by the NNTT in determining expedited procedure objections. In relation to the construction of s237(a), the NNTT will now have to observe the test laid down by Carr J that 'direct interference' is not limited to 'physical interference' and can include 'non-physical interference'. It will now be for the NNTT to decide what constitutes a 'non-physical direct interference with community life' (page 30).
Another effect of the decision is likely to be that a greater uniformity will be adopted by various members of the NNTT in applying the definitions set down in s237 of the NTA. Previously, there has been divergence among the members of the NNTT as to how s237 is to be construed. All members of the NNTT, until some superior or more persuasive precedent emerges, must now follow the construction of s237 that is expressed by Carr J in this decision. However, there remains scope for different Members of the NNTT to take different approaches in how they apply this case.
Although as a matter of law the appellants only succeeded on one of their grounds of appeal, the significance of this limited success should not underestimated. It may be that the broadening of the interpretation of 'direct interference' to include non-physical interference will be sufficient to bar the application of the expedited procedure in many instances. At page 30 of the judgment, Carr J noted that counsel for one of the respondents had submitted that the extension of the expression 'direct interference' to non-physical interference would mean that s237(a) 'would be used in almost every case to exclude the expedited procedure. Whether the prediction of counsel was accurate will only become apparent as future objections to the expedited procedure are determined by the NNTT, but Carr J had these words to say on the matter.
'It must be remembered that the Tribunal's decision will be based on the evidence before it. If there is no evidence to support either a physical or non-physical direct interference with community life and some evidence to suggest the contrary, then the commonsense approach would suggest that the there will be a finding of no interference falling within s237(a). If however [counsel for one of the respondents] is correct, then this will be simply the result of the way in which the section is drawn combined with the evidence which is put before the Tribunal'.
Thus, the attitude of Carr J seems to be that the commonsense approach to evidence may place some brake on the extent to which non-physical interference with community life will turn out to be a barrier to the application of the expedited procedure. If, on the other hand, the floodgates are opened, and the expedited procedure is held not to apply in most cases, then this will be simply the result of the plain intention of the statute.
It is difficult to assess the long-term significance of this judgment. At this formative stage in the development of native title law in Australia, many relevant decisions are subject to appeal. In this particular case there are, with great respect, what might be characterised as certain anomalous aspects to the judgment of Carr J. Perhaps the most notable of these is that His Honour does not refer to the principles in relation to how the Native Title Act is to be interpreted which are set down in cases such as the High Court decision in North Ganalanja & Bindanggu Aboriginal Corporation for the Waanyi People v Queensland & CRA ((1996) 135 ALR 225-see casenote in Vol 3, 77 Aboriginal Law Bulletin 17) and the decision of the Full Court of the Federal Court in Kanak v National Native Title Tribunal ((1995) [1995] FCA 1624; 132 ALR 329-see casenote in Vol 3, 78 Aboriginal Law Bulletin 32). In contrast to this decision, these other authorities considered it important that the NTA is a statute that is remedial in nature, and that it is therefore appropriate to give the provisions of the NTA a construction that is beneficial to native title parties. At the time of writing, no appeal against the decision of Carr J had been lodged.
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URL: http://www.austlii.edu.au/au/journals/AboriginalLawB/1996/42.html