Editors --- "The State of Western Australia v R C Bropho for and on behalf of the Swan River and Swan Valley Nyungah Community and ors - Case Summary" [1997] AUIndigLawRpr 35; (1997) 2(2) Australian Indigenous Law Reporter 262

The State of Western Australia v R C Bropho
for and on behalf of the Swan River and Swan Valley Nyungah Community and ors

Federal Court of Australia (Lee J)

18 November 1996, Perth

Aborigines and Torres Strait Islanders -- native title -- Native Title Act 1993 (Cth) -- proposed grant of exploration permits -- s. 29 notice -- inquiry whether the proposed future acts attracted the "expedited procedure" -- National Native Title Tribunal determination that they did not -- appeal by State on question of law -- basis for a finding as to "major disturbance of land or waters".

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The State issued s. 29 notices that it proposed to grant five exploration permits under the Petroleum Act 1967 (WA) in the south-west of the State. The notice included a statement pursuant to s. 29 (4) that the State considered that the grant of each permit was an act which attracted the "expedited procedure".

Three applicants for determinations of native title in the areas concerned lodged objections to the inclusion of the s. 29(4) statement. The National Native Title Tribunal held an inquiry and determined that the proposed future act by the State did not attract the expedited procedure.

The State "appealed" to the Federal court under s. 169 on a question of law, arguing that the Tribunal was bound to determine that a proposed future act attracted the expedited procedure unless it found, on the basis of the grantee parties' intentions that it was "more likely than not" that there would be major disturbance to land or waters concerned.

Held:

The Tribunal's determination as to major disturbance were to be based not on the intentions of grantee parties but on the rights created by the proposed future act.

Lee J:

On 4 October 1995 the State of Western Australia ("the State") gave notice pursuant to subs. 29(1) of the Native Title Act 1993 ("the Act") that it intended to grant to applicants for such permits ("the grantee parties") exploration permits under the Petroleum Act 1967.

Three of the five proposed grants of permits of which notice was given were in respect of contiguous blocks of land ("the land") being an area of approximately 7000 sq kms situated in the south-west of the State extending from Perth to Pemberton along the coastal plain bordered by the Darling escarpment on the east.

Pursuant to subs. 29(4) of the Act the notice given by the State included a statement that the State considered that the grant of each permit was an act which attracted the "expedited procedure".

On 21 November 1994 an application for determination of native title in respect of part of the land had been given to the Registrar of the National Native Title Tribunal ("the Tribunal") by the first respondent Bropho on behalf of the Swan River and Swan Valley Nyungah Community and other Nyungah peoples. On 14 November 1995 as a "native title party" under para. 29(2)(b) of the Act, the first respondent Bropho, pursuant to subs. 32(3) of the Act, lodged an objection with the Tribunal against the inclusion of such a statement by the State in the notice it had served on that respondent.

On 11 December 1995 the second respondent Bropho on behalf of the Swan Valley Nyungah Community and other Nyungah peoples, gave to the Registrar an application for determination of native title in respect of another part of the land. Perhaps in anticipation of the filing of that application the second respondent Bropho on 8 December 1995 lodged an objection under subs. 32(3) of the Act to the inclusion of the statement by the State in its s. 29 notice.

On 22 December 1995 the third respondent Cornwall and others on behalf of the Nyungah people, gave to the Registrar an application for determination of native title in respect of the whole of the land and, on the same day, lodged an objection to the statement included in the s. 29 notice given by the State.

Pursuant to s. 139(b) of the Act the Tribunal was required to hold an inquiry into each of the three objections, described in that section as "right to negotiate applications". The three "applications" were "heard" together in one inquiry conducted by the Tribunal in March 1996. The inquiry received voluminous documentary material and took oral evidence from witnesses over five days of inquiry hearings.

On 30 April 1996 the Tribunal determined under subs. 32(4) and s. 162 of the Act that the proposed future act by the State did not attract the expedited procedure. Pursuant to subs. 32(5) of the Act the Tribunal requested the State and the grantee parties to negotiate with the native title parties in good faith with a view to obtaining the agreement of the native title parties to the grant of the permits, with or without conditions, and offered to mediate among the "negotiation parties" to assist in obtaining their agreement.

Pursuant to s. 169 of the Act the State has "appealed" to this Court, on a question of law, from the determination of the Tribunal on each application. The respondents have filed notices of contention in which it is submitted that the determination made by the Tribunal involved errors of law, correction of which would support the Tribunal's determination on other grounds if the appeal were to succeed on the grounds raised by the State. The grantee parties, as fourth and fifth respondents, took no part in the "appeal".

The principal question of law raised by the State on the "appeal" related to the proper construction of s. 237 of the Act, in particular s. 237(c).

The State's argument, as presented, assumed that s. 237 of the Act obliged the Tribunal to determine that a proposed "future act" attracted the "expedited procedure" unless the Tribunal found that under s. 237(c) it was "more likely than not" that the doing of the proposed future act would involve major disturbance to any land or waters concerned.

I have dealt with the relevant provisions of the Act and the proper construction of s. 237 in the reasons for judgment delivered in State of Western Australia v Ben Ward immediately before delivery of my reasons in this matter. In Ward I held that s. 237 cannot be so construed. It is unnecessary to repeat the analysis of the Act set out in Ward and in that respect the reasons in that matter are to be read as if included herein.

It follows from the foregoing that the Tribunal was not obliged by s. 237(c) to make any finding of fact as to the likelihood of any event occurring by reason of the grant of a permit under the Petroleum Act 1967 .

As I have said in Ward, 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.

Although s. 237(c) may be distinguished from ss. 237(a), (b) in that it introduces a second "limb", namely, the exercise of rights created by the doing of the future act, the addition does not extend the meaning of the section. As I have said in Ward, the future acts to which s. 237 applies, being the permissible future acts "covered by"
paras. 26(2)(a)-(e), will not interfere with the particular interests of native title parties described in s. 237 by the mere act of grant, conferral, or creation of the rights or interests referred to, and sub-sections and ss. 237(a), (b) are to be read as including contemplation of the exercise of the rights to be granted, conferred or created, by the doing of the future act.

Accordingly, material put before the Tribunal by a grantee party in an inquiry conducted under s. 139(b) 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 act were done, is not relevant to a determination to be made by the Tribunal under subs. 32(4). 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 major disturbance to land or waters in respect of which a claim of native title had been made.

In its reasons for determination the Tribunal stated that it would "put aside the contentions of the grantee parties and consider what the Department [of Minerals and Energy] has revealed about the manner in which it is likely to exercise its powers". It was submitted by the State that the Tribunal erred in law in making its determination by failing to take into account the intentions of the grantee parties. For the reasons already stated no error of law would be involved in excluding such an intention from the Tribunal's consideration if the terms of subs. 32(4) and s. 237 were applied according to their proper construction.

Furthermore, the reasons of an administrative tribunal are not to be subjected to fine examination and philological analysis for the purpose of exposing error. As was stated by the High Court in Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 136 ALR 481 at 490-491, the reasons of such a tribunal "are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed".

The thrust of the Tribunal's reasons was to the effect that whatever consideration was given to the present intention of the grantee parties, the weight of other material required the Tribunal to make the determination as stated. To conclude that the Tribunal "excluded" the evidence of intention by the grantee parties from its consideration would be to subject the Tribunal's words to a most literal analysis.

The State further submitted that it was not open on the material before the Tribunal for the Tribunal to conclude that "major disturbance" was likely to occur in the form of the seismic work described to the Tribunal given that such work, if it did occur, could not constitute a "major disturbance".

It is unnecessary to express a view on that submission in the light of the reasons I have already expressed but clearly it was open to the Tribunal to be satisfied that the proposed future act involved a "major disturbance" to land or water where the rights created by the grant of a petroleum exploration permit would allow any work or operation to be carried out necessary for the purpose of oil exploration, the Tribunal being aware that such works include the drilling of wells and the conduct of seismic work.

Although the determination made by the Tribunal was based on a misunderstanding of the proper construction of subs. 32(4) and s. 237 of the Act, it is apparent that the same determination would have been made if a proper construction of those sections had been applied.

As I have stated in Ward a determination made under subs. 32(4) of the Act requires the Tribunal to consider whether the material before the Tribunal points to claims of cultural ties and traditional customs as made by native title parties with regard to such land and waters such as would make negotiation between the State, grantee parties and the native title parties appropriate under the Act. In may be thought that a "major disturbance" to which s. 237 refers will be a disturbance of the land or waters that is significant having regard to the nature of the cultural ties and traditional customs claimed to apply in respect of that land or water.

I note that in Ward v State of WA [1996] FCA 1452; (1996) 136 ALR 557 [(1996) 1(4) AILR 549] 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 ss. 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 subs. 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, it 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.

The "appeal" must be dismissed.