Indigenous Law Bulletin
by Tess Burton and Cedric Davies
In Little & Ors v Oriole Resources Pty Ltd (2005) 146 FCR 576 (‘Little v Oriole’) the Full Federal Court said that an application for a licence covering an area of 120 hectares, for the purpose of constructing a mine camp, can be approved without attracting any substantive procedural ramifications under the Native Title Act 1993 (Cth) (‘NTA’). How is it possible that the right to build a small township on a registered native title claim can be granted without entailing an obligation to negotiate with traditional owners? This article takes a critical legal approach to the Full Court’s decision, arguing that the ‘law’ of Little v Oriole is on one level historically and ideologically contingent, and on another operates to stifle the politics which inhere in the intersection between development and Indigenous claims to country.
Little v Oriole is concerned with the expedited procedure, the ‘loophole’ in the future act regime of the NTA. The expedited procedure is a misnomer as it is not a faster procedure for resolving the impact of development on native title, but rather circumvents any procedure under the NTA by which traditional owners can have a say about development. It operates to exempt a tenement application from the right to negotiate; an important and valuable right applying, amongst other things, to mineral developments and entailing the right to be involved in discussions about, but not to veto, development. The expedited procedure is activated by the somewhat circuitous route of the government issuing a notice that it regards the grant of a tenement as satisfying the legislative criteria for the expedited procedure. The registered native title claimants must then lodge an objection, and substantiate the objection before the National Native Title Tribunal (‘the Tribunal’) to avoid the default application of the expedited procedure. Whilst it does not appear to be mandated by the NTA, the Tribunal has adopted ‘the procedurally arduous model of quasi-litigation’ for determining objections to the expedited procedure. Although the expedited procedure denotes an absence of procedure under the NTA, making an objection invokes a complex and intensive procedural regime, where the onus of proof is essentially borne by native title claimants, and the under-funded native title bodies which generally act for them.
Little v Oriole involved an application for a miscellaneous licence by Oriole Resources Pty Ltd (‘Oriole’) for ‘minesite accommodation and associated facilities’ over an area of 120 hectares in the Midwest region of Western Australia (‘the licence’). The licence would encompass a smaller, granted miscellaneous licence of 8.75 hectares on which some mine-site accommodation had already been built. Oriole said that it intended to rely on the pre-existing accommodation onsite, using the licence to build access tracks, powerlines and a rubbish dump. The Western Australian Government notified the registered native title claimants for the area, the Badimia People, that it considered the expedited procedure applied and therefore the licence could be granted. The Badimia People objected to the application of the expedited procedure (‘the objection’), initially before the Tribunal and then on appeal to the Federal Court and the Full Court but were unsuccessful at every level. Had the objection been upheld, the licence would not have been forfeited, but rather would have reverted to being treated in accordance with the requirements of the right to negotiate.
Section 237 provides that the expedited procedure will apply to a future act, if:
(a) the act is not likely to interfere directly with the carrying on of the community or social activities of the persons who are the holders ... of native title in relation to the land or waters concerned; and
(b) the act is not likely to 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 is not likely to involve major disturbance to any land or waters concerned or create rights whose exercise is likely to involve major disturbance to any land or waters concerned.
In objecting to the application of the expedited procedure to the licence, the Badimia People relied on s237(c).
The Full Court did not address the objection by asking whether a licence to build a mine camp should go through the expedited procedure. Instead, it appears that the question asked by the Full Court was: should the application of the expedited procedure be determined on the basis of the full extent of the rights which Oriole could exercise under the licence or on the basis of those rights that Oriole intends to put into effect? The narrower question asked by the Court and framed by s237 has a ‘legitimating’ effect, enacting a rhetorical sleight of hand and shifting ‘the decision about whether or not a particular act attracts the right to negotiate from being seen as a political decision (which it is) to being a technical question devoid of politics.’ The machinery of s237 transforms the politics of development into a legal issue, imbuing it with a ‘mantle of objectivity and neutrality’ such that ‘its resolution appears value-free’, or at least inevitable; ‘the most that anyone could expect, because things pretty much have to be the way they are.’
The Full Court held that when assessing an application for a tenement against s237(c), it is necessary to look at what is likely to be done when it is granted, rather than what could potentially be done as a consequence of its grant. In so doing, the Court engaged in some judicial editing of s237(c), effectively deleting the second limb of the provision which says that the expedited procedure should not apply where an act is likely ‘to create rights whose exercise is likely to involve major disturbance to the land or water concerned’. It said that there was little, if any, difference between the first limb of s237(c) referring to ‘act’, and the second limb of s237(c) referring to the ‘creation of rights’, as a ‘future act will often, if not always, be an act creating rights.’ In Little v Oriole, what might be understood as a ‘struggle for power over land and resources’ or ‘an argument over equity and justice’ was reduced to a matter of grammar and syntax, enmeshed in the obscurity of the sixteen final words of s237 NTA.
The Full Court’s truncation of s237(c), and the potential rights of traditional owners, was not an arbitrary swipe of the judicial red pen, but rather an internally logical decision, delimited by the prior judicial exposition and legislative history of s237. In Dann v Western Australia  FCA 332; (1997) 74 FCR 391 (‘Dann’), the Full Court preferred a ‘worst case scenario’ approach to s237 over a ‘predictive assessment’ of likely interference or disturbance. The 1998 amendments were designed to overcome the construction favoured by the Full Court in Dann and hence, in Little v Oriole, the Badimia People were arguing for an interpretation of s237 with retrograde effect. The Full Court’s decision to interpret s237(c) consistently with the predictive assessment was legally sound in that it was logically coherent in formalistic terms, but on a practical level indicates that there is a hole in the expedited procedure which could be big enough to contain a mine camp. The Court’s own findings in Dann, which were not addressed by the 1998 amendments, were that ‘[p]redictive assessments with respect to mining impacts are likely to be complex, subjective, difficult, unreliable and to some extent impossible to make.’ The predictive assessment places an evidentiary premium on the intentions of proponents, which are inherently capricious, being subject to fluctuations in the price of minerals, or as happened in the case of Oriole immediately prior to the Full Court hearing, a change in ownership of the tenement.
The Full Court differed, not only with the objectors, but also with the Tribunal in its interpretation of s237(c). In determining the objection, the Tribunal approached s237(c) by reference to the maximum disturbance which could have been caused by the rights created by the licence, finding that ‘[i]t is clear ... that the Licence, if granted, will increase very considerably the areas available for “mine site accommodation and associated facilities”’. Nevertheless, the Tribunal concluded that the licence fell within the ambit of the expedited procedure. A 120 hectare mine camp would not, in its view, cause a major disturbance to land. By contrast, the Full Court said that ‘[o]n the hypothesis on which the Tribunal proceeded ... it is hard to see how the potential disturbance could be described as other than a “major disturbance”’. It found that the Tribunal’s conclusion was ‘sufficiently unreasonable to demonstrate underlying error.’
Little v Oriole can be viewed as the most recent manifestation of a dynamic by which the Full Court reigns in the conservative excesses of the Tribunal in its administration of the expedited procedure. The corpus of Tribunal authority on the expedited procedure regime evidences, in our opinion, a ‘philosophy of decision-making which favours certainty and development and discounts native title and the right to negotiate’. The Tribunal has never determined against the grant of a mining tenement and, in the 2004-5 financial year, failed to uphold a single objection made by an Indigenous party. The Tribunal’s adjudication of the objection in Little v Oriole, one of the objections it determined in 2004-5, pursued its ideological predilection for development to the point of irrationality.
Little v Oriole reveals Indigenous parties scrambling to find chinks in the statutory and bureaucratic armour of the expedited procedure. Little v Oriole is also a case-study in how the expedited procedure has developed to the point that it resembles an elaborate ruse. The circular way in which the expedited procedure is initiated, the Tribunal’s quasi-litigious administration of objections and the disingenuous terminology of ‘expedited procedure’ itself, combine to create procedural complexity in formal terms, whilst the substantive procedural rights of native title parties are hollowed out through the ideological primacy accorded to development. The technicalities of the predictive assessment and the procedural aggrandisement of the Tribunal confound native title parties and typically confines the politics of development to a finding that ‘the expedited procedure applies’. Whilst the logic of the Full Court’s decision in Little v Oriole is proper and coherent, the case shows how the requirements of ‘major disturbance’ in s237(c) have been whittled away by political activity and bureaucratic connivance to allow ‘miner disturbance’ to continue without the involvement of Indigenous parties.
The authors work for the Yamatji Land & Sea Council (‘YLSC’), the representative of the appellants in Little v Oriole. The views in this paper are those of the authors and should not be attributed to the YLSC. The authors thank David Ritter and Matthew Anstey for their generosity with their time and advice in the preparation of this paper.
 See, Damien Miller, ‘Knowing Your Rights: Implications of the Critical Legal Studies Critique of Rights for Indigenous Australians (1999) 5 Australian Journal of Human Rights, <http://www.austlii.edu.au/au/journals/AJHR/1999/2.html> at 17 May 2006; David Ritter & Frances Flanagan, ‘Lawyers and Rats: Critical Legal Theory and Native Title’ in Sandy Toussaint (ed), Crossing Boundaries: Cultural, Legal, Historical and Practice Issues in Native Title (2004) 128; David Ritter, ‘Trashing Heritage: Dilemmas of Rights and Power in the Operation of Western Australia’s Heritage Legislation’ (2003) 23 Studies in Western Australian History 195; K Upston-Hooper, ‘Slaying the Leviathan: Critical Jurisprudence and the Treaty of Waitangi’ (1998) 28 Victoria University of Wellington Law Review 683, <http://www.austlii.edu.au/au/journals/VUWLRev/1998/32.html> at 17 May 2006.
 See Native Title Act 1993 (Cth) (‘NTA’), Part 2 Division 3.
 David Ritter, ‘A Sick Institution? Diagnosing the Future Act Unit of the National Native Title Tribunal’  AUIndigLawRpr 23; (2002) 7(2) Australian Indigenous Law Reporter 1, 1.
 North Ganalanja Aboriginal Corporation v Queensland (1996) 185 CLR 595.
 NTA s32.
 Ritter, above n 3, 2; NTA, ss 29(7), 32(1).
 NTA s32 (2) - (4).
 Ritter, above n 3, 5.
 Ibid 2.
 See, most recently: Joint Committee on Native Title and the Aboriginal and Torres Strait Islander Land Account, Commonwealth Parliament, Report on the Operation of Native Title Representative Bodies, (2006).
 Ironically, if Oriole had limited the rights it applied for to access tracks, power-lines and a rubbish dump the application would probably have been subject to the more rigorous s24MD(6B) NTA consultation process.
 Little v Oriole Resources  NNTTA 37; (2004) 189 FLR 240; Little v Oriole Resources Pty Ltd  FCA 506; Little and Others v Oriole Resources Pty Ltd (2005) 146 FCR 576 (‘Little v Oriole’).
 NTA s32(5).
 See Little v Oriole (2005) 146 FCR 576, 577, 586-589
 Ritter, above n 3, 6.
 R Graycar & J Morgan, The Hidden Gender of the Law (1990), 56 quoted in Miller above n 1, 5.
 Freeman, quoted in Ritter & Flanagan, above n 1, 131.
 Little v Oriole (2005) 146 FCR 576, 586 – 589.
 Ibid 586.
 Ritter, above n 1, 204.
 Smith v Western Australia  FCA 19, ; Little v Western Australia  FCA 1706,  – .
 Richard Bartlett, Native Title in Australia (2nd ed, 2003), 483 – 484, summarising Dann v Western Australia  FCA 332; (1997) 74 FCR 391, 394, 400, 412.
 Dann v Western Australia  FCA 332; (1997) 74 FCR 391, 394; Oroya Mining Ltd, ‘Oroya completes Mt Gibson sale’, (Company announcement to ASX, 16 November 2005).
 Little v Oriole Resources  NNTTA 37; (2004) 189 FLR 240, 247.
 Little v Oriole (2005) 146 FCR 576, 590.
 Richard Bartlett, ‘Dispossession by the National Native Title Tribunal’ (1996) 26 University of Western Australian Law Review 108, 109; 125, 127, 136. Bartlett, above n 21, 482 – 483, 487.
 Richard Bartlett, ‘Dispossession by the National Native Title Tribunal’ (1996) 26 University of Western Australian Law Review 137.
 National Native Title Tribunal, Annual Report 2004-2005, Table 12, 79.