Little and Others on behalf of the Badimia People v Oriole Resources Pty Ltd [2005] FCAFC 243 (5 December 2005)

Last Updated: 5 December 2005

FEDERAL COURT OF AUSTRALIA

Little and Others on behalf of the Badimia People v Oriole Resources Pty Ltd
[2005] FCAFC 243

NATIVE TITLE – future acts – act attracting the expedited procedure – grant of Miscellaneous Licence – whether an act ‘likely to involve major disturbance to any land or waters concerned’ – whether likely to ‘create rights whose exercise is likely to involve major disturbance to any land or waters ...’ – predictive assessment of likely major disturbance required – Tribunal proceeding on assumption that rights granted under Miscellaneous Licence could be exercised to full – construction unduly favourable to appellants – Tribunal finding no likelihood of major disturbance – erroneous finding – evaluative judgment – court in position to make substituted judgment – on predictive assessment no major disturbance likely – appeal dismissed

Native Title Act 1993 (Cth) 24AA, s 237
Mining Act 1978 (WA) s 91

Mining Regulations 1981 s 42B

Little v Oriole Resources Pty Ltd [2005] FCA 506 cited
Smith v Western Australia [2001] FCA 19; (2001) 108 FCR 442 cited
Little v State of Western Australia [2001] FCA 1706 cited
Ward v State of Western Australia (1996) 69 FCR 208 cited
State of Western Australia v Ward [1996] 993 FCA 1; (1996) 70 FCR 265 cited
Dann v Western Australia (1997) 74 FCR 391 cited







ALBERT LITTLE AND OTHERS ON BEHALF OF THE BADIMIA PEOPLE v ORIOLE RESOURCES PTY LTD and THE STATE OF WESTERN AUSTRALIA
WAD 110 OF 2005


FRENCH, STONE & SIOPIS JJ
5 DECEMBER 2005
PERTH

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	WAD 110 OF 2005

On Appeal from a Single Judge of the Federal Court of Australia

BETWEEN:	ALBERT LITTLE AND OTHERS ON BEHALF OF THE BADIMIA PEOPLE APPELLANTS
AND:	ORIOLE RESOURCES PTY LTD FIRST RESPONDENT THE STATE OF WESTERN AUSTRALIA SECOND RESPONDENT
JUDGES:	FRENCH, STONE AND SIOPIS JJ
DATE OF ORDER:	5 DECEMBER 2005
WHERE MADE:	PERTH

THE COURT ORDERS THAT:

1. The appeal is dismissed.






Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	WAD 110 OF 2005

On Appeal from a Single Judge of the Federal Court of Australia

BETWEEN:	ALBERT LITTLE AND OTHERS ON BEHALF OF THE BADIMIA PEOPLE APPELLANTS
AND:	ORIOLE RESOURCES PTY LTD FIRST RESPONDENT THE STATE OF WESTERN AUSTRALIA SECOND RESPONDENT

JUDGES:	FRENCH, STONE AND SIOPIS JJ
DATE:	5 DECEMBER 2005
PLACE:	PERTH

REASONS FOR JUDGMENT

THE COURT:
Introduction

1 On 21 May 2003 the State of Western Australia (the State) published a notice under s 29 of the Native Title Act 1993 (Cth) (NTA) advertising the proposed grant of a Miscellaneous Licence under the Mining Act 1978 (WA). The proposed Licence covered an area of 120 hectares, about 70 kilometres north east of Dalwallinu at the Mt Gibson Gold Mine. The purpose of the Licence was mining camp infrastructure and associated facilities.

2 The Licence was to be granted to Oriole Resources Pty Ltd (Oriole). Oriole’s stated intention was to rely upon pre-existing mining camp accommodation at the site and to use the Licence for the purpose of a possible powerline easement, access tracks and rubbish disposal.

3 The State asserted in its notice that the proposed grant was an act attracting the expedited procedure under the NTA and therefore not subject to the right to negotiate process under that Act.

4 Registered native title claimants representing the Badimia People lodged an objection to the application of the expedited procedure. That objection was dismissed by the National Native Title Tribunal (the Tribunal) in the exercise of its arbitral function. An ‘appeal’ to the original jurisdiction of this Court on questions of law was dismissed. The claimants, on behalf of the Badimia People, now appeal to the Full Court.

5 The critical question in this case is whether the grant of the Licence would be likely to involve ‘major disturbance’ to the land affected by it. The Tribunal answered that question in the negative albeit on a basis, unduly favourable to the appellants, that it was required to consider the likelihood of major disturbance on the assumption that the rights conferred by the Miscellaneous Licence would be exercised to their full potential rather than in accordance with the stated intentions of the grantee.

6 While the Tribunal erred in assessing that there would be no ‘major disturbance’, that assessment was done on a false assumption. On a proper evaluation based upon the unchallenged stated intention of the grantee to exercise the rights conferred by the Miscellaneous Licence to only a limited extent, there could be no major disturbance to the land or waters. For that reason the appeal should be dismissed.

Factual and Procedural Background

7 Oriole is a company related to PacMin Mining Corporation Limited (PacMin) which was, until 2002, the owner of the Mt Gibson Gold Mine. The Mt Gibson Gold Mine is located about 280 kilometres north east of Perth and about 12 kilometres east of the Great Northern Highway. It has been operating since 1986. It was put on a care and maintenance basis in 1999.

8 On 12 January 2000 Oriole lodged an application for a Miscellaneous Licence 59/53 in respect of an area of 120 hectares near the gold mine for the purpose of mine site accommodation and associated facilities pursuant to reg 43B(n) of the Mining Regulations 1981. The application was incidental to plans to recommence mining operations. The application included the area of a pre-existing Miscellaneous Licence 59/12 which had been granted on 26 August 1986 and which covered 8.75 hectares of land. The purpose of that Licence was also expressed as ‘mine site accommodation and associated facilities’. An existing mining camp and accommodation for some 106 personnel lies within the 8.75 hectares.

9 In a statement filed by PacMin on 4 February 2000 with the Mining Registrar at Mt Magnet pursuant to reg 37(3) of the Mining Regulations and made in support of the Licence application, PacMin stated that:

‘(a) The licence once granted will be for the sole purpose of the mining camp infrastructure associated with the Mount Gibson Gold Mine;

(b) This campsite consists of transportable unit accommodation structures, transportable house structures and associated facilities;

(c) These facilities have been in place for a number of years and associated with the Mount Gibson Gold Mine operations.’

10 On 21 May 2003 the State published a notice of the proposed grant of the Miscellaneous Licence. The notice was published pursuant to s 29 of the NTA. The Licence was described as covering an area of 119.96 hectares, located 74 kilometres north-east of Dalwallinu. The notice contained a statement that the State considered the grant to be an act attracting the expedited procedure under the NTA. That is the Licence could be granted unless, within the period of four months after the notification day, a native title party lodged an objection with the Tribunal against the application of the expedited procedure.

11 On 27 May 2003 an objection to the application of the expedited procedure was lodged at the Tribunal by the registered claimants in a native title determination application brought on behalf of the Badimia People. The claimants are the appellants in these proceedings. The claim area covered by their application includes the 120 hectares the subject of the proposed Miscellaneous Licence. The formal statement of objection was by way of an objection to the inclusion in the State’s s 29 notice of the statement that the proposed grant of the Miscellaneous Licence attracted the expedited procedure. In their objection, the claimants stated their belief that the grant of the Miscellaneous Licence would create rights the exercise of which would involve major disturbance to the land over which it was to be granted.

12 The Tribunal issued directions for the determination of the objection. On 3 June 2004 it determined, adversely to the claimants, that the grant of the Miscellaneous Licence was an act which attracted the expedited procedure under the NTA. The claimants then appealed from the determination of the Tribunal. Their appeal, to this Court in its original jurisdiction, was directed to the Tribunal’s approach to the construction of the relevant provision of the NTA, namely s 237(c) and its approach to determining that the grant of the Miscellaneous Licence would not be likely to be a major disturbance to the land in question.

13 The appeal was heard by Nicholson J and dismissed on 29 April 2005. The appellants now appeal against his Honour’s decision.

The Statutory Framework

14 The NTA sets out in Div 3 of Pt 2 a comprehensive regime relating to the validity of acts, known as future acts, which are proposed by the Crown or other persons and which affect native title. Section 24AA which is an overview section for Div 3, states, in subs (2):

‘Basically, this Division provides that, to the extent that a future act affects native title, it will be valid if covered by certain provisions of the Division, and invalid if not.’

15 The term ‘act’ used in the NTA includes legislative action such as the making, amendment or repeal of any legislation (s 226(2)(a)). It also includes the grant, issue, variation, extension, renewal, revocation or suspension of a licence, permit, authority or instrument (s 226(2)(b)). It covers the creation, variation, extension, renewal or extinguishment of any interest in relation to land or waters and of any legal or equitable right whether under legislation, a contract, a trust or otherwise (s 226(2)(c) and (d)). It also covers the exercise of any executive power of the Crown in any of its capacities whether or not under legislation and an act having any effect at common law or in equity (s 226(2)(e) and (f)).

16 A future act in relation to land or waters is one which, apart from the NTA, validly affects native title in relation to the land or waters to any extent or in respect of which three conditions apply. They are that it is to any extent invalid, that it would be valid to that extent if any native title in relation to the land or waters did not exist and, if it were valid to that extent, it would affect the native title (s 233(1)(c)). There are other elements of the definition which are not material for present purposes.

17 Division 3 of Pt 2 of the NTA deals with various classes of future act. Subdivision P of that Division deals with the grant of mining rights which may affect native title and compulsory acquisitions of native title rights and interests as well as such other acts as may be included with the approval of the Commonwealth Minister. Where subdivision P applies to an act the government party proposing to do the act must give public notice of it in accordance with s 29. Notice must be given to native title parties which include registered claimants in respect of the land or waters affected by the Act and the grantee, where relevant, as in the proposed issue of a licence or lease. The government party proposing to do the act, the beneficiary of the act and any registered native title bodies corporate and registered claimants in relation to the area covered by it must then negotiate in good faith with a view to reaching an agreement about it (s 31). In default of agreement the Tribunal, as an arbitral body under the NTA, can make a determination (ss 35 and 36). Compliance with the procedures set out in subdivision P conditions the validity of any future act to which it applies. The term ‘right to negotiate’ broadly describes the regime so created.

18 The mandatory application of the negotiation and arbitration processes may be avoided where the government party giving the s 29 notice asserts, at the time that it does so, that the act is one which attracts the expedited procedure. An objection to the inclusion of that statement in the notice can be lodged by a native title party as has occurred in the present case. Where no objection is lodged, the government party can proceed to do the act without having to go through the negotiation process. Where an objection is lodged the arbitral body, here the Tribunal, must determine whether the proposed act attracts the expedited procedure. If it so determines, then the government party may proceed to do it without having to go through the right to negotiate process. If the act is found to be one that does not attract the expedited procedure then the normal right to negotiate process applies.

19 The term ‘act attracting the expedited procedure’ is defined in s 237 of the NTA thus:

‘A future act is an act attracting the expedited procedure 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 (disregarding any trust created under Division 6 of Part 2) 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 (disregarding any trust created under Division 6 of Part 2) 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.’

20 Importantly, s 237 was amended in 1998. Under the NTA as it stood before those amendments the section provided:

‘A future act is an ‘act attracting the expedited procedure’ if:

(a) the act does not directly interfere with the community life of the persons who are the holders (disregarding any trust created under Division 6 of Part 2) of native title in relation to the land or waters concerned; and
(b) the act does not interfere with areas or sites of particular significance, in accordance with their traditions, to the persons who are the holders (disregarding any trust created under Division 6 of Part 2) of the native title in relation to the land or waters concerned; and
(c) the act does not involve major disturbance to any land or waters concerned or create rights whose exercise will involve major disturbance to any land or waters concerned.’

21 Appeals against decisions of the Tribunal may be made to this Court in its original jurisdiction and pursuant to s 169 of the NTA which provides, inter alia:

‘(1) A party to an inquiry relating to a right to negotiate application before the Tribunal may appeal to the Federal Court, on a question of law, from any decision or determination of the Tribunal in that proceeding.
...

(5) The Court has jurisdiction to hear and determine appeals instituted in the Court in accordance with this section and that jurisdiction may be exercised by the Court constituted as a Full Court.

(6) The Court must hear and determine the appeal and may make such order as it thinks appropriate by reason of its decision.

(7) Without limiting subsection (6), the orders that may be made by the Court on an appeal include:

(a) an order affirming or setting aside the decision or determination of the Tribunal; or
(b) an order remitting the case to be heard and decided again, either with or without the hearing of further evidence, by the Tribunal in accordance with the directions of the Court.’

22 The Mining Act 1978 (WA) authorises the grant of Miscellaneous Licences in s 91 which provides, inter alia:

‘(1) Subject to this Act, ... the mining registrar or the warden, in accordance with section 42 (as read with section 92), may, on the application of any person, grant in respect of any land a licence, to be known as a miscellaneous licence, for any one or more of the purposes prescribed.
...

(3) A miscellaneous licence shall –

(a) be in the prescribed form; and

(b) authorise the holder to do such matters and things as are specified in the licence.
...

(6) A miscellaneous licence shall not be granted unless the purpose for which it is granted is directly connected with mining operations.’

23 The Mining Regulations 1981 set out prescribed purposes for the grant of Miscellaneous Licences thus:

‘42B. For the purposes of section 91(1), a miscellaneous licence may be granted for the use of land for one or more of the following purposes:

(a) a road;
...
(e) a power line;
...

(n) any other purpose directly connected with mining operations approved by the Director General of Mines.’

The Evidence before the Tribunal

24 The only evidence brought on behalf of the claimants before the Tribunal was that of Cedric Stileman Davies, a geologist, who was employed by the Yamatji Land and Sea Council, which is the native title representative body for the area. Mr Davies deposed that in the course of his work as a geologist in Western Australia he had resided at various mine site accommodation facilities associated with mining operations and commonly known as mining camps. All of the mining camps at which he resided had included the following facilities:

(a) accommodation units in the form of portable or semi-permanent dongas;
(b) ablution facilities;
(c) laundry facilities;
(d) a large central hard standing area with buildings including:

(i) a restaurant/cafeteria with associated kitchens, food storage and delivery facilities;
(ii) a wet mess/bar area and small shop;
(iii) a television/video room;
(iv) an administration office;
(v) public telephones;
(vi) ice machines, potable water facilities etc.
(e) dedicated parking areas and associated roads;
(f) concrete pathways between buildings;
(g) a sewerage system;
(h) a rubbish dump;
(i) reticulated landscaping;
(j) some form of recreational facility or combination of facilities.
Mr Davies exhibited photographs of mining camps to his affidavit.

25 Oriole provided an affidavit sworn by Mr Timothy Carter, an Executive Director of Oroya Mining Ltd who has had more than 20 years experience in senior management positions with Australian exploration, open-cut and underground mining companies. He had reviewed the operation of the Mt Gibson gold project in 1991 and had been actively involved in feasibility studies for its recommissioning. Mr Carter exhibited to his affidavit a letter dated 19 December 2003 from an Environmental Officer at the Department of Industry and Resources stating her intention to recommend to the State Mining Engineer that the project be approved subject to conditions on an attached schedule.

26 The conditions on the proposed Miscellaneous Licence were included in a schedule which drew the attention of the licensee to the provisions of the Aboriginal Heritage Act 1972 (WA) and the Environmental Protection Act 1986 (WA). The conditions required, inter alia, that the development and operations under the Licence were to be carried out in such a manner as to create the minimum practicable disturbance to existing vegetation and natural land forms. On completion of the life of the mining operations the holder of the Licence would be required to remove all installations constructed under it, cover all wells and holes in the ground to such degree of safety as should be determined by the Inspector and on areas cleared of natural growth, to plant trees and/or shrubs and/or any other plant as shall conform to the general pattern and type of growth in the area. The rehabilitation conditions were subject to the Warden or Minister for Mines otherwise ordering or consenting.

27 The Tribunal’s hearing was conducted on the papers on the basis of the affidavit material referred to and the written contentions submitted by the parties.

28 Among the materials provided by the grantee party, Oriole, was a statement by Oriole that existing Miscellaneous Licence 59/12 contains the substantive mining camps and accommodation to support the recommissioning of operations within the existing defined resource areas the subject of previous mining operations. Oriole contended before the Tribunal that the Licences required for associated support infrastructure including a possible powerline easement, access tracks for construction of protective fire breaks and rubbish disposal. It stated that it is not proposed to construct any further substantive infrastructure or other works within the boundaries of the Licence other than those expressly mentioned and that the existing Miscellaneous Licence 59/12 will be surrendered on the grant of Licence 59/23.

The Tribunal’s Findings

29 The Tribunal observed that the claimants had produced no evidence of the views or concerns of Aboriginal people in respect of the land the subject of the proposed Licence or as to the exercise of rights created by its grant. There was no evidence of any use of, or customs or traditions relating to the land. There was evidence that there are no Aboriginal communities on or in the vicinity of the licensed area. There was no evidence of the existence of any areas or sites on the land of ‘particular’ significance or otherwise. The Tribunal found (at [26]):

‘There is no evidence to lead to an inference on reasonable grounds that any disturbance which may result from the grant and the exercise of rights thereunder is or would be considered by them as a major disturbance. There is no evidence of what the impact of the exercise of any such rights may have on them or as to concern as to any impact. (sic) The grantee contends that the Licence is required for "associated support infrastructure" including a possible powerline easement, access tracks for construction of adequate protective fire breaks and rubbish disposal and that it does not propose construction of any further substantive infrastructure. It is clear however that the Licence, if granted, will increase very considerably the areas available for "mine site accommodation and associated facilities", which at present is limited to the 8.75 hectares the subject of Licence 59/12, and in respect of the enlarged area will permit it "to do such matters and things as are specified in the licence".’

It seems from the later part of the preceding passage that the Tribunal approached its task on the assumption that it was required to assess whether the full exercise of the rights conferred by the Miscellaneous Licence was likely to amount to a major disturbance. As appears from what follows, it then focussed upon the perceptions and reactions of the relevant Aboriginal people to mining infrastructure associated with the Mt Gibson Gold Mine in determining whether what could be done under the Licence would be likely to involve major disturbance to the land.

30 The Tribunal held that the grant of the Licence would create rights whose exercise might involve major disturbance but ultimately concluded that this was not likely. It regarded it as a matter of some significance that there was no evidence to suggest that the construction and use of the existing accommodation facilities on the land subject to Miscellaneous Licence 59/12 or anything else done under its authority were considered by Aboriginal people to fall into that category or that they had any concerns whatever about it. The evidence produced by the State had shown the proposed Licence to be in an area where there had been and was considerable mining and exploration activity. The whole of the area covered by the proposed Licence was formerly the subject of an Exploration Licence E59/517 which had been granted in November 1993 and surrendered on 11 November 2000. The Tribunal member said (at [27]):

‘On the available evidence I am satisfied that the Australian community as a whole, in the absence of any evidence of the concerns (if any) and views of the Aboriginal people in the locality, would consider the grant of the Licence and the exercise of the rights created thereby to be no more than another aspect of the conduct of the Mining and Exploration Industry in an area, presently and over many years the subject of considerable mining and exploration activity and that whilst the exercise of such rights will result in or involve disturbance to the land, in all of the circumstances it is not likely to involve "major" disturbance or to create rights whose exercise is likely to involve major disturbance in the ordinary meaning of that expression.’

31 Nowhere in the Tribunal’s reasons for decision was there a reference to the decisions of this Court relevant to the effect of the amendments to s 237. The Tribunal proceeded upon the basis that the question of major disturbance was to be approached on the assumption that the rights granted by the Miscellaneous Licence would be exercised to their full including the construction of accommodation.

The Appeal at First Instance

32 In their notice of appeal dated 9 June 2004, as amended on 9 February 2005, in the original jurisdiction of this Court, the claimants alleged that the Tribunal had misconstrued s 237(c) of the NTA (grounds 1 to 4). It had also erred in law in its approach to the assessment of whether the grant of the Licence was likely to involve major disturbance to the land or waters concerned or to create rights whose exercise was likely to involve such disturbance.

The Reasons for Judgment of the Primary Judge

33 The claimants contended before the learned primary judge that the likelihood to be assessed in the second limb of s 237(c) related to the creation of rights by virtue of the grant of the Licence. The predictive exercise did not extend to whether the rights so created would or would not be exercised. The Licence would create the right to build a mining camp. The exercise of such right, if it was found likely to exist (a certainty on the claimants’ construction) should have been found by the Tribunal to be likely to involve major disturbance. That is to say the question of the likelihood of major disturbance in par 237(c) was to be assessed by reference to the scope of the rights created pursuant to the grant of the Licence rather than by a predictive assessment whether the rights created under the Licence were likely to be so exercised as to involve major disturbance to the land affected by them. The State contended before his Honour that under the correct approach to s 237(c) a predictive assessment must be undertaken under either limb having regard to the rights which are created at the time of the grant.

34 The difficulty with this aspect of the debate before his Honour is that, as noted earlier, the Tribunal assessed whether there was likely to be a major disturbance by reference to what could be done under the Licence. It did not acknowledge any requirement for a predictive assessment of the things likely to be done under the Licence. Nor did it cite the authorities relevant to the construction of s 237(c) in its amended form.

35 The learned primary judge referred to those authorities namely Smith v Western Australia [2001] FCA 19; (2001) 108 FCR 442 and Little v State of Western Australia [2001] FCA 1706 and concluded (at [27]):

‘Accordingly, I do not consider the approach to interpretation of the second limb of s 237(c) contended for by the applicants can be accepted. There is nothing in the applicants’ submissions or in the statutory language in issue to answer the issues raised and reasoning followed by the Tribunal in Smith 169 FLR 1. The statements in Smith [2001] FCA 19; 108 FCR 442 and Little support the correctness of it. Applying the second limb in the manner contended for by the State still leaves that limb with a function.’

His Honour did not consider that the ground of appeal based upon the construction of the second limb of s 237(c) was made out.

36 The second argument before his Honour went to the construction of the word ‘major disturbance’. After referring to authorities he said (at [37]):

‘Turning then to ground nine in that context, it cannot be the case that the fact that the Licence may authorise a construction of a mining camp necessarily entails that it is likely to involve a major disturbance. The predictive assessment must be made of that fact in the context of all the evidence before the Tribunal. The decisions make apparent that the Tribunal is not operating in a vacuum isolated from the evidence before it. The Tribunal would have fallen into error of law if, having reached the view that the Licence authorised the construction of a mining camp, it did not make a predictive assessment as to whether it was likely to involve major disturbance. That necessarily required it to go to the evidence and not simply to the dictionary definition of ‘mining camp’ or, indeed, to the evidence alone of the nature of the existing mining camp.’

37 The claimants also contended that the Tribunal’s reliance on the history of mining and exploration in the general area involved it in error of law because it made the assumption that this must mean further mining and exploration would not amount to a major disturbance. They submitted that there was in fact no evidence of actual mining and exploration activity or the nature of those activities in the area referred to in the reasons.

38 His Honour found that there was evidence before the Tribunal of actual usage of the land in the area. In addition to maps showing the location of mining activity in the region of the tenement the Tribunal had before it, in the contentions put in by the grantee party, a statement in relation to activity on the leases constituting the Mt Gibson Gold Mine. Extensive ground disturbance had occurred associated with mining operations dating back to 1986. While this was not in affidavit evidence, the Tribunal was entitled to inform itself in the manner it thought fit and was not bound by the laws of evidence. No issue was made on the appeal to his Honour about the source of that evidence. The Tribunal also had before it the Prospectus in relation to the Mt Gibson Gold Mine which stated:

‘... Most of this gold was mined from a series of fourteen open pits which are on three separate trends with a combined total strike length exceeding 10 kilometres.’

39 His Honour held that it was appropriate for the Tribunal, in the course of its predictive assessment to have regard to the context of the proposed grant. It did not err in law in doing so either as an aspect of the predictive assessment or as an aspect of forming a view in relation to the Australian community. Other grounds relating to the relevance of the views and concerns of the Aboriginal community and the question of unreasonableness in the Tribunal’s decision-making were also considered and rejected by his Honour.

The Grounds of Appeal to the Full Court

40 There are two grounds of appeal in this case which are as follows:

‘2. Second limb of s237(c)

2.1 His Honour erred and misinterpreted the requirements of s237(c) in holding that, or alternatively in not finding that the National Native Title Tribunal erred in holding that, the assessment of whether "the act is not likely to ... create rights whose exercise is likely to involve major disturbance to any land or waters concerned" involves a predictive assessment of the likelihood of the rights created by the act in question (in this case the miscellaneous licence L 59/53) being exercised in a way that involves major disturbance. His Honour should have assessed the likelihood of major disturbance by reference to the exercise of all rights created by the act rather than to the likelihood of those rights being exercised, and should have held that the s237(c) of the Native Title Act is not satisfied if the rights to be created by the act are such that when they are fully exercised, they are likely to involve major disturbance.

2.2 His Honour and the National Native Title Tribunal then should have found that the rights created by the licence to build a mining camp through the whole area of proposed miscellaneous licence L59/53 would mean that the Tribunal could not be satisfied on a proper interpretation of s237(c) that the act would not create rights whose exercise would be likely to involve major disturbance to the land and waters concerned within the meaning of those terms in s237(c) and thus would mean that the act does not attract the expedited procedure.

3. Interpretation of "major disturbance to land and waters concerned"

3.1 His Honour erred and misconstrued the meaning of and requirements under s237(c) of the Native Title Act, or alternatively in not finding that the National Native Title Tribunal erred in making such a misconstruction, in that he did not find a major physical impact on the particular land or waters concerned would be sufficient to amount to "a major disturbance to the land and waters concerned" for the purposes of s237(c). His Honour should have found that if exercise of rights created by the act, or if the activities likely to be carried out, would amount to a major physical impact to the land or waters concerned, then s237(c) would not be satisfied and it would not be necessary or relevant to then explore the context and circumstances such as any activity on neighbouring area. His Honour should have found that activities on the area near land or waters concerned could not make what would otherwise be a major disturbance not major in the circumstances.’

The Construction of Section 237

41 Section 237 of the NTA requires three conditions to be satisfied before a future act can be characterised as ‘an act attracting the expedited procedure’. The first condition is that the act not be likely to interfere directly with the carrying on of the community or social activities of the relevant native title holders (s 237(a)). The second is that it not be likely to interfere with areas or sites of particular significance, in accordance with their tradition, to the relevant native title holders (s 237(b)). The third condition (s 237(c)) requires that 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.’

The condition created by s 237(c) differs in form from those created by s 237(a) and (b) in that it requires consideration not only of the effect of the relevant future act but also of the effect of any rights created by it.

42 The class of ‘rights’ created by the future act referred to in the second limb of s 237(c) can logically be defined in two alternative ways:

1. They are rights comprised in and coming into existence upon the doing of the future act.
2. They are rights which may or may not come into existence after the doing of the future act.

A future act will often, if not always, be an act creating rights. The grant of a mining tenement creates legal rights vested in the holder to do the things comprised in the grant. The grant of a Miscellaneous Licence confers a right upon the holder to do the things authorised by the Licence which, in this case, are to construct mining infrastructure and associated facilities.

43 If the rights created by the future act, which are contemplated by s 237(c), are the rights whose creation is the future act, the second limb appears to be otiose. The likelihood of major disturbance is then a matter to be assessed in light of the act. There is no occasion for a two step analysis by reference to rights created by the act. The act is the creation of the rights. If that is universally the case then the second limb is a drafting superfluity. For those cases in which the act is the creation of the relevant rights this construction renders par (c) consistent in terms of policy and structure with the other two paragraphs.

44 A construction of s 237(c) which may give its second limb some work to do would apply it to the circumstance in which there are rights which are not created by the future act itself but may come into existence as a consequence of things done under that act. So a particular legislative or executive act may empower a person to make decisions or elections or to do things upon which certain rights subsequently come into existence. That is not this case, for there is no suggestion that there are any relevant grants other than those comprised in the grant of the Licence which may come into existence upon some post-grant contingency. If it were the case the second limb is best construed as requiring the same kind of predictive assessment as the first limb and as the other paragraphs. The words accommodate that construction. There seems no rational basis for a distinction to be drawn under which the second limb would be construed according to the pre-amendment position.

45 Whether the latter approach to the construction of the second limb is open the nature of the proposed future act in this case required only that the Tribunal consider one question under s 237(c) that being whether:

‘... the act is not likely to involve major disturbance to any land or waters.’

The question remains whether there is anything in the legislative history or prior judicial exegesis of s 237 which militates against that construction.

46 In the Explanatory Memorandum to the NTA it was said of s 237 in its original form:

‘... an act which does not directly interfere with the community life of native title holders or involve major disturbance to their land can proceed through an expedited process (clauses 31 and 32).’
Native Title Bill 1993 Explanatory Memorandum Part A at 6

47 In Ward v State of Western Australia (1996) 69 FCR 208, Carr J characterised the function imposed on the Tribunal by s 237 thus (at 222):

‘The Tribunal was required to make a predictive assessment of whether the grant of the exploration licences and the exercise of rights conferred by those licences would or would not be likely to result in interference of any of the three relevant types.’

In State of Western Australia v Ward [1996] 993 FCA 1; (1996) 70 FCR 265, Lee J considered the construction of s 237 and said, (at 279):

‘In my respectful opinion the use of the present tense to describe the effect of a proposed future act means that s 237 of the Act requires an assessment to be made of the future act according to its nature, and where the future act is the creation of a right to mine, by having regard to the potential consequences made possible by the exercise of that right. That is to say the section asks what the future act "does" according to the nature of the rights it creates. The inquiry to be made pursuant to s 237 is whether, on its face, the future act gives rise to powers, the exercise of which would infringe s 237(a), (b) or (c) if connection of the native title party to the land or water "affected" by the proposed future act is pointed to by the material, such connection being the existence of community life, or areas or sites of particular significance or cultural ties and traditional customs of the native title party that would be affected by any major disturbance of that land or water.’

The difference in approach between Carr J and Lee J in the two Ward cases mentioned was resolved by the Full Court in Dann v Western Australia (1997) 74 FCR 391. The Full Court preferred the approach taken by Lee J over that taken by Carr J – see Dann at 394 (Wilcox J), 399-400 (Tamberlin J) and 412 (Nicholson J).

48 The amendments to s 237 effected by the Native Title Amendment Act 1998 (Cth) were designed to overcome the construction favoured by the Full Court in Dann. So much appears from the Explanatory Memorandum for the Native Title Amendment Bill 1997, in which it was said (at 20.39):

‘Existing section 237 sets out the circumstances when an act attracts the expedited procedure. If native title parties object to the expedited procedure for a particular future act, the arbitral body must determine whether the act meets the requirements set out in section 237. Some changes are being made to section 237 as set out below (these were proposed in the 1996 amendments).

. The first change addresses a Federal Court decision (Ward v Western Australia (1996) 136 ALR 557) and provides that an act will only attract the expedited procedure in section 32 if it is not likely to (rather than ‘does not’) interfere directly with the physical aspects of community life. If there is evidence that the act will interfere with native title claimants’ physical ability to enjoy their native title rights, for example placing an impediment to hunting, fishing or gathering or the ability to conduct religious ceremonies, the expedited procedure will not apply.
. The other changes confirm that, because it is not possible for the arbitral body to know the actual effect of a future act in deciding whether it attracts the expedited procedure, the arbitral body must undertake a predictive assessment, and look at what is likely to occur.’

49 The operation of s 237(a) and (b) in the light of the amendment has been considered in Smith at 449-450 [23] where French J said:

‘It was submitted that the amendment to s 237 reflected a legislative intention to require a predictive assessment of the effects of the proposed future act in accordance with the approach taken by Carr J in the Ward case, rather than that adopted by the Full Court in Dann. In my opinion that is the plain intention behind the amendments to s 237 and that intention is effected by the language that has been used. The Tribunal is therefore required to assess whether, as a matter of fact, the proposed future act is likely to give rise to the interference or disturbance referred to in pars (a), (b) and (c) of s 237. That involves a predictive assessment not confined to a consideration of the legal rights conferred by the grant of the proposed tenement.’

Nicholson J agreed with this approach in Little at [69].

50 In our opinion, the approach to the construction of s 237 generally indicated in Smith and Little is correct. No policy foreign to that approach is introduced by the second limb of s 237(c) according to the construction set out earlier in these reasons. It follows that the first ground of appeal cannot succeed.

51 As noted above however, the Tribunal did not undertake the exercise required by s 237(c) but proceeded to assess the likelihood of ‘major disturbance’ by reference to what could have been done under the Licence rather than what was likely to be done. What the preceding analysis of the Tribunal’s reasons discloses is that the Tribunal embarked upon its task upon an assumption, unduly favourable to the claimants, based upon its misconstruction of s 273(c). Acting on that false assumption the Tribunal found the hypothetical possible effect of the grant not to constitute a major disturbance. If, as the claimants contend, it applied a wrong legal test to the question of what is a ‘major disturbance’, then the second ground of appeal would succeed. It would then be necessary for the requisite predictive assessment to be undertaken on a basis less favourable to the claimants. This now requires consideration of whether the Tribunal erred in its approach to its assessment of ‘major disturbance’.

Major Disturbance

52 The words ‘major disturbance’ which appear in s 237(c) have not been affected by the 1998 amendments. In Dann Wilcox J said that the word ‘major’ is an adjective of degree (at 395):

‘In determining whether a given envisaged disturbance to land or waters amounts to a major disturbance, the Tribunal must make a value judgment. I agree with my colleagues that, in doing this, the Tribunal must give the term "major disturbance" its ordinary English meaning. It must consider the matter of degree from the viewpoint of the community generally. However, as the disturbance is necessarily a local phenomenon, its effect on local people is particularly important. The disturbance may have such consequences for people in the local area as to be properly called a major disturbance notwithstanding that it is of no consequence to people who live far away. And, of course, in evaluating the disturbance, the Tribunal must be aware of cultural differences. If the disturbance will have a significant impact on Aboriginals who live in or use the affected area, that might be sufficient to warrant a finding that it will constitute a "major disturbance" even if it would be unimportant to non-Aboriginals.’

53 Tamberlin J accepted that the word ‘major’ necessarily involves an element of subjective assessment as to the degree of disturbance. He said (at 401):

‘It is correct to say that the interpretation of the words "major disturbance" is a question of ordinary statutory construction which involves the ascertainment of the meaning and effect of those words. However, when applying the words, as interpreted, to the facts of any particular case it is necessary to take into account the views of all members of the community without excluding any particular section of the general community. There is no justification discernible in the language of s 237(c) for excluding the views of any section of the community. Equally it would be wrong to suggest that the views of any particular section of the community must in all instances prevail or be determinative. The function of the Tribunal is to consider all the relevant evidence placed before it and then to determine whether any disturbance to land or waters can be properly characterised as "major".’

His Honour identified the appropriate approach as one which would take into account the concerns of the Aboriginal community including matters such as community life, customs, traditions and cultural concerns. It would be unduly restrictive to refuse to take account of such considerations on the ground that ‘community life’ and ‘traditions’ are covered by s 237(a) and (b) to the exclusion of their consideration under s 237(c) (at 401).

54 Nicholson J in Dann observed that the word ‘major’ as a qualifying adjective to ‘disturbance’ introduces a subjective element and hence potential for cultural bias in determining whether a disturbance is ‘major’. He agreed that the content and context of s 237(c) mean that the expression ‘major disturbance’ should be understood as an ordinary English term and be given its ordinary meaning as understood by the whole Australian community, including Aboriginal people. He saw nothing in the section to preclude Aboriginal people raising under s 237(c) matters which they considered touched on the issue of major disturbance of the land or waters. In so far as they might repeat matters raised under pars (a) or (b) there would be no practicality in that occurring where those matters had failed to support a positive finding in their favour in terms of either pars (a) or (b) (at 413).

55 The Tribunal accepted that the grant of the Licence would create rights whose exercise ‘may involve major disturbance’. In the context in which that observation was made it is clear that the Tribunal was referring to the range of things that could be done under the rights conferred by the proposed Miscellaneous Licence notwithstanding that Oriole did not intend to go beyond the use of the additional land for the creation of a powerline easement, access tracks and rubbish disposal. Its assessment of ‘major disturbance’ on the hypothesis of an extensive exercise of the rights conferred by the Licence appeared to turn almost entirely on the absence of evidence of any concern on the part of Aboriginal people. It was seen by the Tribunal as of some significance that there was no evidence to suggest that the construction and use of the existing mining camp and accommodation were considered by Aboriginal people to be a ‘major disturbance’. The concluding paragraph on this question in the Tribunal’s consideration brought in a reference to ‘the Australian community as a whole’ and the Tribunal’s satisfaction that the Australian community would consider the grant of the Licence to be ‘no more than another aspect of the conduct of the Mining and Exploration Industry in an area, presently and over many years the subject of considerable mining and exploration activity ...’.

56 The substantive reasoning of the Tribunal on this point turned critically upon the absence of any concerns expressed or evidence given on behalf of the claimants or other Aboriginal people who might have an interest in the area. However, while the concept of ‘major disturbance’ involves judgments of degree these are not entirely subjective. Just because a view may be imputed to the ‘Australian community’ that the establishment of a significant mining camp and accommodation facilities in an area already the subject of extensive mining activity is not a ‘major disturbance’ to the land that does not answer the question whether it is or not. On the hypothesis on which the Tribunal proceeded which allowed for the possibility of the extensive exercise of rights under the Miscellaneous Licence, including the provision of a mining camp and accommodation, it is hard to see how the potential disturbance could be described as other than a ‘major disturbance’. Whilst it is difficult to identify any expressed error in the reasoning in this respect, it is sufficient to say that the conclusion is sufficiently unreasonable to demonstrate underlying error.

57 This conclusion does not determine the appeal in favour of the appellants. Had the Tribunal undertaken a predictive assessment of the likely impact of the grant of the Licence it could not, on the evidence, have come to any conclusion other than that the proposed works would be limited in the way asserted by Oriole. In particular, it could not have come to the conclusion that Oriole would be likely, for some idiosyncratic reason contrary to its stated intention, to duplicate existing mining camp accommodation facilities. On that basis the Tribunal would undoubtedly have found the act to be one which was not likely to involve any major disturbance to the land. There was, as it pointed out, no evidence of Aboriginal use of or concerns in relation to the affected land. The broader judgment, essayed by the Tribunal, being evaluative on undisputed facts this Court is in as good a position as the Tribunal to make its own assessment. In our opinion the likely limits on the extent of the works proposed by Oriole pursuant to the grant of the Licence would not involve any major disturbance to the land affected by it. The grant would not be likely to involve major disturbance to the land. The word ‘likely’ is used in the sense of a real chance of major disturbance. For this reason the second ground of appeal fails.

Conclusion

58 For the preceding reasons, the appeal will be dismissed.

I certify that the preceding fifty-eight (58) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.

Associate:

Dated: 5 December 2005

Counsel for the Appellants:	Ms CL Tan
Solicitor for the Appellants:	Helen Lawrence, Yamatji Marlpa Land and Sea Council
Counsel for the Second Respondent:	Mr KM Pettit SC with Mr S Wright
Solicitor for the Second Respondent:	State Solicitor for Western Australia
Date of Hearing:	7 November 2005
Date of Judgment:	5 December 2005