Editors --- "Smith on behalf of the Gnaala Karla Booja People v State of Western Australia - Case Summary" [2001] AUIndigLawRpr 32; (2001) 6(3) Australian Indigenous Law Reporter 27

• Smith On Behalf Of The Gnaala Karla Booja People V State Of Western Australia
• Facts:
• Held:

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Court and Tribunal Decisions - Australia

Smith on behalf of the Gnaala Karla Booja People v State of Western Australia

Federal Court of Australia (French J)

19 January 2001

(2001) 108 FCR 442; [2001] FCA 19

Native title — right to negotiate — expedited procedure — meaning of the word ‘likely’ in s 237 — consideration of ‘interfere directly’ in s 237(a) — whether assessment of direct interference with community or social activities allows regard to external and third party impacts on those activities

Facts:

In July 1999 the State of Western Australia gave notice under s 29 of the Native Title Act 1993 (Cth) (the Act) that it proposed to grant an exploration licence to South Coast Metals Pty Ltd. The notice included a statement under s 32 of the Act, that the State considered that the grant of the exploration licence attracted the expedited procedure. Derrick Smith, on behalf of the Gnaala Karla Booja People, lodged an objection to the inclusion of the statement in the notice. The objection was heard by the Deputy President of the National Native Title Tribunal exercising the Tribunal’s arbitral functions under s 32(4) of the Act. After hearing evidence, the Tribunal determined that the grant of the licence was an act that attracted the expedited procedure.

In substance, the Tribunal held:

(a) In assessing the prospective interference or major disturbance required by the words ‘likely to interfere’ or ‘likely to cause major disturbance’ in s 237 of the Act, the word ‘likely’ should be interpreted as referring to a real and not remote chance or possibility, regardless of whether it is less or more than 50 per cent.
(b) In determining whether the grant of the exploration licence and the exercise of rights created by it were not likely to interfere directly with the carrying on of community or social activities of the native title holders, the Tribunal may have regard to the effect on those activities of existing third party activity and government regulation and also the purpose and nature of proposed exploratory work and the nature of the conditions and regulatory regime which would apply to the licence if granted.

Pursuant to s 169 of the Act, Mr Smith filed a notice of appeal against the Tribunal’s determination.

Held:

1. The word ‘likely’ in s 237 requires a risk assessment that will exclude from the expedited procedure any proposed act that would involve a real chance of risk of interference or major disturbance of the kind contemplated by the section. It is not directed to a judgment on the balance of probabilities as to interference or major disturbance: Ward v State of Western Australia [1996] FCA 1452; (1996) 69 FCR 208; 1 AILR 81 followed; State of Western Australia v Ward [1996] FCA 993; (1996) 70 FCR 265; Dann v Western Australia [1997] FCA 332; (1997) 74 FCR 391; (1998) 3 AILR 202 considered: at para [23] of the judgment.

2. The right to negotiate regime is an element of the protection of native title, which is one of the main objects of the Act. That protection is not to be read narrowly: at para [23].

3. The notion of ‘direct interference’ in s 237(a) involves an evaluative judgment that the act is likely to be a proximate cause of the interference. The concept of ‘interference’ is also to some degree evaluative: it must be substantial in its impact upon community or social activities: at para [26].

4. The extent of interference and the proximity of its causal connection to the future act proposed is contextual and should not be considered in isolation. In assessing the extent of interference on those activities flowing from the proposed act, regard may be had to other factors, such as the constraints already imposed on the community and social activities of the native title claimants by third parties and government regulation: at para [27].

5. It was unnecessary to consider whether the Tribunal expressed the opinion, and as such erred in law, that s 237(a) is concerned with and limited to interference with the physical aspects of the carrying on of community or social activities of the native title holders because the applicant was not relying upon any non-physical aspect of the activities of the native group. Thus, the Tribunal’s opinion in this respect had no impact on the outcome of the case: at para [29].

The Tribunal’s decision was upheld and the application was dismissed.