Bartlett, Richard --- "Redressing the Balance in Favour of Native Title: WA v Ben Ward (for and on behalf of Miriuwung Gajerrong); WA v Bropho (for and on behalf of Swan River and Swan Valley Nyungah)" [1997] AboriginalLawB 6; (1997) 3(88) Aboriginal Law Bulletin 14

• Redressing The Balance In Favour Of Native Title: Wa V Ben Ward (For And On Behalf Of Miriuwung Gajerrong); Wa V Bropho (For And On Behalf Of Swan River And Swan Valley Nyungah)

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Redressing the Balance in Favour of Native Title: WA v Ben Ward (for and on behalf of Miriuwung Gajerrong); WA v Bropho (for and on behalf of Swan River and Swan Valley Nyungah)

Full Federal Court

Unreported, 18 November, 1996

Casenote by Richard Bartlett

Two unexpected developments in the early history of the National Native Title Tribunal ('the NNTT') have been:

• the adoption by Presidential and some other members of the NNTT of a pattern of decision-making favouring non-Aboriginal settlement, and development over protection of native title and the right to negotiate; and
• a determination by the Federal Court to provide such protection for native title as ensures that holders 'enjoy fully their right and interests' as declared in the Preamble to the Native Title Act 1993 (Cth) ('the NTA').

The Federal Court has become the protector of native title rights, in considerable contrast to the NNTT.[1]

Under the expedited procedure, proposals for grants of mining or exploration tenements may be exempted from the duty to negotiate requirement under the NTA. The NNTT must determine whether the grant is an act which attracts the expedited procedure under s 237 because it 'does not':

'(a) ... directly interfere with the community life ... ;
'(b) ... interfere with areas or sites of particular significance ... ; or
'(c) ... involve major disturbance to any land or waters concerned ... '.

The NNTT had generally held that the grant of an exploration licence under mining legislation attracts the expedited procedure by:

• focusing upon the inquiry whether the grant was 'likely' to result in interference as a consequence of the grant;[2]
• relying on a presumption that the government will ensure that miners do not cause interference under s237,[3] and disregarding miners' intentions accordingly;
• relying on a presumption that the Aboriginal Heritage Act 1972 (WA) provides effective protection for sites of significance;[4]
• disregarding the rights and capacity of miners under such grants to cause interference.[5]

An exception from this pattern of decision-making by the NNTT were the decisions of Member Kim Wilson, who had rejected reliance on such presumption.[6] It is not surprising that the State of Western Australia sought to challenge his different approach before the Federal Court.

The Federal Court decisively rejected the focus of inquiry and presumptions generally followed by the NNTT in Western Australia v Ben Ward on behalf of Miriuwung Gajerrong Peoples.[7] The case involved the proposed grant of an exploration licence under the Mining Act 1978 (WA). The State claimed, in accord with its standard practice with respect to all such grants, that the grant attracted the expedited procedure. The grantee party before the NNTT did not appear, but declared that the native title party must prove any interference, and would not enter into any heritage survey arrangement. Member Wilson held that the proposed grant would not attract the expedited procedure, because the native title parties had demonstrated 'real concerns about the likelihood' of interference with sites of significance. Evidence relied upon by Member Wilson challenged the efficacy of the protection conferred by the Aboriginal Heritage Act, in the experience of the native title parties, with respect to the grantee party and other miners.

The State of Western Australia appealed on relatively narrow grounds, challenging:

• the disregard of the presumption that the grantee party would act lawfully, and, implicitly, that the Aboriginal Heritage Act provided adequate protection;
• an inquiry limited to a finding of 'real concerns' as to interference as not meeting the requirements of s237(b).

But the nature of the grounds of appeal required Lee J in the Federal Court to comprehensively examine the nature of the inquiry required to be conducted by the NNTT with respect to acts claimed to attract the expedited procedure. Lee J had regard to the 'interdependent operation' (p27) and the 'context' (pp 29, 34) of the subdivision of the NTA providing for the right to negotiate, and emphasised:

• the limits upon the Minister's power of exclusion under s26(4) of the NTA from the right to negotiate, requiring that the act have only 'minimal effect on any native title', and consultation with native title parties as to access;
• the complex consideration demanded of the NNTT in making a determination under s38 that an act may or may not be done;
• the importance of the right to negotiate as indicated in the recognition and protection of native title declared in s10.

Lee J concluded that in contradistinction to negotiation or the complex consideration demanded under s38, the determination as to the application of the expedited procedure was intended 'to be made as speedily as possible', and that an inquiry should not have regard to 'detailed anthropological and sociological material or economic analysis' (pp29-30). Accordingly, the NNTT should only determine that an act attracted the expedited procedure if it was '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' (p33), that is, only if it is 'patent' that no matter required to be considered under a s38 determination could be raised as a serious issue (p34).

In such an inquiry, Lee J suggested that the NNTT should have regard to the right and powers to be conferred by the proposed grant, and the 'potential consequences' made possible by the exercise of those rights and powers (p32):

.. there is nothing to support the contention that it is a requirement of the subsection [32(4)] that the Tribunal receive or obtain material to enable it to make findings as to the future occurrence of events determined on a balance of probabilities or as a matter of likelihood' (p31).

In other words, the proper focus of the inquiry upon an expedited procedure determination is the capacity of the grantee party under the proposed grant, not presumptions as to the future conduct of the grantee party or as to the efficacy of the protection of the Aboriginal Heritage Act.

The Federal Court, upon such analysis, dismissed the State's appeal, concluding that the NNTT was satisfied that the grant of an exploration licence would create rights the exercise of which had the capacity to interfere with areas or sites of significance (pp35, 27). The decision has dramatically changed the nature of the inquiry by the NNTT. The focus is now upon the nature of the grant itself, not benign presumptions as to future behaviour by miners.

The prior general practice of the NNTT was to rely on presumptions as to non-interference by miners, and accordingly disregard their intentions. Western Australia v Ben Ward also suggested that the professed intentions were irrelevant, but for very different reasons and with very different results. The analysis was confirmed in a decision upon another appeal by the State from the NNTT released the same day: Western Australia v Bropho for and on behalf of Swan River and Swan Valley Nyungah.[8] Lee J declared that material as to the present intentions of a grantee party was 'not relevant' (p6) and exclusion of such material from consideration involved no error of law (p7).

The analysis of Lee J entailed a comprehensive examination of the purposes of the Native Title Act, with emphasis upon the recognition and protection of native title mandated therein. In its application to the expedited procedure, it rejected the previous NNTT trend favouring non-Aboriginal settlement and development over the protection of native title. The decision will deny reliance on the expedited procedure where any serious issue is raised as to interference prescribed by s237. But it must also raise questions as to the balance adopted by the NNTT in other decisions, such as Re Koara[9] and Waljen People[10]- where the NNTT ordered the override of native title.

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[1] R Bartlett, 'Dispossession by the National Native Title Tribunal', [1996] UWALawRw 3; (1996) 26 UWAL Rev 108.

[2] Irruntyju-Papulankutja Community NNNT, 6 October 1995, No. W095/7, Deputy President Seaman, p6.

[3] Ibid.

[4] Smith, NNTT, 11 Dec 1995, No. W095/21, Member Summer.

[5] Ward, NNNT, 11 Dec 1995, No. W095/11, Member Summer; Irruntyju-Papulankutja Community NNNT, 6 October 1995, No. W095/7, Deputy President Seaman.

[6] Wallaby, NNTT, 29 April 1996, No. WO 95/35. Member Wilson; Ngalura and Injibandi, NNTT, 17 June 1996, Nos W096/16,96/19, Member Wilson.

[7] Federal Court, Lee J, 18 November 1996.

[8] Federal Court, Lee J, 18 November 1996.

[9] NNTT, 23 July 1996, Nos WF96/1, 96/1, 96/11, Deputy President Seaman, Chair.

[10]NNTT, 17 July 1996, Nos WF96/3, 96/12, Member Sumner, Chair.