Indigenous Law Bulletin
Dann v State of WA & Anor
Federal Court (Full Court), Wilcox, Tamberlin and RD Nicholson JJ
 FCA 332; (1997) 144 ALR 1
Casenote by Lisa Wright
This appeal is the culmination of a series of cases concerning the interpretation of s237 of the Native Title Act 1993 (Cth) ('the NTA'). Section 237 sets out the circumstances in which a 'future act' (as defined in s233 of the NTA) will be an 'act attracting the expedited procedure', thereby excluding it from the 'right to negotiate' provisions of the NTA in ss31 and 33. The future act in question was the grant of an exploration licence under the Mining Act 1978 (WA).
As a result of this decision, it is now clear that the expedited procedure will have no application where a native title party can show, prima facie, that the requirements of s237 have not been met.
In brief, a future act will attract the expedited procedure if it does not:
(a) directly interfere with the community life of native title claimants;
(b) interfere with areas or sites of particular significance to native title claimants; and
(c) involve major disturbance to the land and waters concerned, or create rights the exercise of which will involve major disturbance to the land and waters concerned.
The interpretation of sub-paragraph (a) above was not in issue in this case. (See Ward v WA  FCA 1452; (1996) 136 ALR 557 ('the first Ward decision') and Dann v WA  FCA 1147; (1996) 142 ALR 21, where it was held that direct interference with community life need not be physical in nature. Spiritual and the like activities form part of community life, and may be directly interfered with without any physical interference occurring.) However, different views had emerged as to the correct interpretation of s237 as a whole in the decision of Carr J in the first Ward decision, and Lee J in WA v Ward  FCA 993; (1996) 141 ALR 753 ('the second Ward decision') and WA v Bropho (unreported, WAG6008 of 1996, 18 November 1996). (The second Ward decision is reviewed in 'Redressing the balance in favour of native title: WA v Ben Ward' by R Bartlett, Vol 3, 88 Aboriginal Law Bulletin 14.) Carr J's approach was confirmed in this case at first instance: see Dann v WA  FCA 1147; (1996) 142 ALR 21. This divergence of opinion was central to the appeal.
Carr J took the view that the phrase 'does not', as used in s237, is to be interpreted to mean 'would not be likely to'. This approach involves making a predictive assessment as to whether or not the grant of an exploration licence and the exercise of the rights it confers '... would or would not be likely to result in interference of the three relevant types' (see the first Ward decision at 572). Using this approach, the National Native Title Tribunal ('the NNTT') must consider, for example, the degree of likelihood that the Western Australian Minister for Aboriginal Affairs would exercise the power available under s18 of the Aboriginal Heritage Act 1972 (WA) ('the AHA'). (The Minister has an unfettered discretion, pursuant to s18 of the AHA, to consent to activities which will destroy or damage an Aboriginal site. In WA v Bropho (1991) 5 WAR 75, it was held that Aboriginal people have no right of appeal from the Minister's decision, although there is an avenue of appeal for a non-Aboriginal person seeking the Minister's consent if consent is refused.)
Lee J was of a different view. He said that the use of the present tense means that the correct approach is one whereby an examination of the future act is undertaken to determine what it does or does not do according to the nature of the rights which it creates (see WA v Bropho, unreported, WAG6008 of 1996,18 November 1996, at 5.)
On 26 July 1995, the Western Australian government gave notice in accordance with s29 of the Mining Act that it intended to grant an exploration licence on Napier Downs station in the West Kimberley. The notice included a statement that the government considered that the grant of the exploration licence attracted the expedited procedure as per s32(1) of the NTA. (The inclusion of such a statement is standard practice in Western Australia with respect to exploration tenements.)
The native title parties objected to the application of the expedited procedure to the grant of the tenement. It fell to the NNTT to determine whether or not the criteria set out in s237 were satisfied.
The NNTT determined that s237 was satisfied, and that the act attracted the expedited procedure. An appeal to the Federal Court was heard by Carr J, who held that the matter should be remitted to the NNTT for the limited purpose of determining the application of s237(a).
The appeal to the Full Court was brought on the grounds that Carr J had erred in law in:
1. Requiring that 'major disturbance' in s237(c) be judged by 'the standards of reasonable people in the broader community', without requiring consideration of the effect of the disturbance on the community life, customs, traditions and cultural concerns of the native title party;
2. Imposing a burden of proof on the native title party, whereby that party had to show that it was likely that the Minister for Aboriginal Affairs would consent to interference with a site or an area of particular significance to it in accordance with s237(b);
3. Failing to find that there was a real chance that the Minister for Aboriginal Affairs would consent to interference with an area or a site of particular significance to the native title party.
All three judges allowed the appeal, and ordered that the matter be remitted to the NNTT for further determination in accordance with the law. Wilcox J concurred with the findings of Tamberlin and RD Nicholson JJ, making findings on two matters only: the correct interpretation of 'does not', and the method of determining whether or not an act involves 'major disturbance'. Tamberlin J ordered that the NNTT further determine the application of both ss237(b) and (c), whilst Wilcox J made a similar order only with respect to s237(c). However, the formal order did not so confine the remittal, and the Full Court's conclusions related to all three grounds of appeal.
The Full Court unanimously held that the view of Lee J was to be preferred, that is, s237 requires an assessment of the future act according to its nature (see Nicholson J at 20).
Tamberlin J gave the following reasons for preferring Lee J's approach (at 9):
1. At the heart of the question for the NNTT is whether or not the expedited procedure should be attracted. The predictive assessment approach is protracted and onerous, and does not accord with the requirements of s109, which requires the NNTT to act in a prompt and economical way (see Wilcox J at 3-4.)
2. The use of the present tense ('does not') requires a direct and immediate analysis of conferred entitlements, not an inquiry into what may happen in the future (at 20; see also Wilcox J at 3).
3. The NTA is remedial in character and should be conconstrued beneficially. The opportunity to engage in statutory negotiations should not be displaced lightly.
4. It is the degree of disturbance authorised which is relevant, not the likelihood that such disturbance may occur.
5. This approach avoids the need to import concepts such as 'likely' or 'real chance', which require unnecessarily complex and subjective assessments to be made, for example the likely impact of the AHA.
6. It is more consistent with the language of s237 of the NTA.
Wilcox J noted that one consequence of taking this approach is that it may be more difficult to attract the expedited procedure:
'The question will be determined ... on a "worst case" scenario. However, that result may be consistent with parliament's intention. The purpose of s237 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 s237' (at 4).
All three judges were of the opinion that 'major disturbance' should be given its ordinary English meaning (Wilcox J at 4, Tamberlin J at 10-11, Nicholson J at 21).
However, the use of the word 'major' introduces a 'subjective element and hence potential for cultural bias in determining whether a disturbance is major' (Nicholson J at 21). As the disturbance is '... necessarily a local phenomenon' (Wilcox J at 4), it may be that exploration activities have such an impact on the Aboriginal people who live in or use the affected area, that a determination that those activities constitute a major disturbance to the land and waters concerned is warranted (Wilcox J at 4-5).
Tamberlin J held that the correct approach is to take into account the concerns of the Aboriginal community, including matters such as their community life, customs, traditions and cultural concerns. He also said that the reference to these matters in ss237(a) and (b) does not displace the mandate expressed in s109(2) of the NTA that, in conducting inquiries, the NNTT must take into account the cultural and customary concerns of Aboriginal people (at 13).
Wilcox and Tamberlin JJ held that the NNTT may have regard to other regulatory legislation, but that investigation of the likelihood of the exercise of Ministerial consent, or into administrative practices, was not required. Indeed, Wilcox J was of the opinion that trying to predict the likelihood of the exercise of a Ministerial discretion '... is as reliable as predicting the number of runs a batsman will score in a particular innings by reference only to his batting average' (at 4).
Nicholson J went further, finding that it was not appropriate to have regard to other legislative regimes. His Honour drew a distinction between juridical and non juridical future acts (at 20-21), and held that in the case of the former, it is 'not appropriate to have regard to factual matters involving subjective intention' (at 21). Thus, one need only have regard to the legal character of a future act.
The matter was remitted to the Hon Sumner, who reversed his earlier determination and found that the grant of this tenement was not an act which attracts the expedited procedure (see In the matter of Jack Dann and Ors (No. 2), NNTT W095/19, Hon Sumner, 10 June 1997). The effect of the Federal Court's decision is that the NNTT must only consider what consequences are made possible by the grant of the tenement (see W095/19 at 12).
The practical effect of this could be demonstrated by reference to s237(b):
'The new test means that if sites of particular significance are found to exist on the area of the [proposed] exploration tenement, then the expedited procedure is not attracted ... because the [AHA] provides for Ministerial discretion to permit interference with an Aboriginal site' (W095/19 at 12).
In fact in the original determination on this matter, the Member found that there were sites of significance on the area concerned. The Member noted that Tamberlin J's decision meant that sl09(2) has a more substantive effect than previously thought, and can be taken into account in interpreting s237(c). In general, he determined that the NNTT'... can take into account the native title parties' special concerns for the land and attachment to it in determining whether or not there is major disturbance' (W095/19 at 15-16).
There are 2 important general results from this case.
1. The Ministerial discretion available under s18 of the AHA has become a bar to the application of the expedited procedure where there are areas or sites of particular significance to Aboriginal people. This is because the exercise of that discretion will cause interference with those areas or sites.
2. The NNTT had been of the opinion that, as exploration takes place in 'remote' areas, it is unlikely to constitute a major disturbance. It is now clear that whether an area is 'remote', and therefore suffers a major disturbance when explored, is to be judged by looking at those who have a concern for the land affected. This land is not 'remote' to those who live in the area and, especially, to those who have a particular interest, such as native title, in the land and waters concerned.
This decision, and the second Ward decision, mean that those wishing to obtain an exploration tenement would be advised to consent to the application of the right to negotiate to that grant should an objection be lodged. Given the state of the law, it is highly likely that the objection will be upheld. In practice, since the making of these decisions, all objections have been upheld. However, it should be noted that somewhere in excess of 90% of exploration tenements are granted without objection.