McIntyre, Greg --- "Community Activities versus Mining Interference: Smith on behalf of the Gnaala Karla Booja People v State of Western Australia" [2001] IndigLawB 21; (2001) 5(7) Indigenous Law Bulletin 15
Community Activities versus Mining Interference:
Smith on behalf of the Gnaala Karla Booja People v State of Western Australia
Federal Court of Australia
French J
19 January 2001
By Greg McIntyre
This case was an appeal to the Federal Court by a native title applicant group against a decision of a Deputy President of the National Native Title Tribunal.[1] The Tribunal held that the grant of an exploration licence to South Coast Metals Pty Ltd to an area of 31.48 square kilometers of land 17 kilometers south west of Collie (a country town in the southwest of Western Australia) was an act attracting the expedited procedure under the Native Title Act 1993 (‘the NTA’). The State was thus authorised by the NTA to grant the tenement without negotiating with the native title applicants.
The Federal Court upheld the decision of the Tribunal as to the interpretation and application of s 237 of the NTA.
Section 237 defines an act attracting the expedited procedure as:
(a) an act “not likely to interfere directly with the carrying on of the community or social activities” of the native title holders;
(b) an act “not likely to interfere with areas or sites of particular significance, in accordance with their traditions,” to the native title holders; and
(c) an act, or rights created by an act, “not likely to involve major disturbance” to land or waters.
The Federal Court upheld the view of the Tribunal that the word ‘likely’ in those phrases should be interpreted as referring to ‘a real or not remote chance or possibility, regardless of whether it is less or more than 50%.’
That provision had been amended in 1998 from its 1993 version to replace the phrase ‘does not’ in each of those subparagraphs with the phrase ‘is not likely to’.
Justice French said it was his opinion that it was the clear intention of the 1998 amendments to s 237 to require a predictive assessment of the interference caused by the proposed future act. He said that the legislative intent was to adopt the predictive assessment approach taken by Justice Carr in Ward v State of Western Australia (‘the Ward case’).[2] The Full Federal Court in Dann v Western Australia (‘the Dann case’)[3] and Justice Lee in State of Western Australia v Ward,[4] interpreting the 1993 form of words in the section, had held that it was not the Tribunal’s task to attempt to foresee what activities would in fact occur on the subject tenement if the exploration tenement were to be granted. They held that its task was to assess the potential consequences of the exercise of the right created. Justice French was of the view that the plain intention of the amendment to the section was to prefer the approach in the Ward case to that in the Dann case.
The Appellant challenged an opinion expressed by the Tribunal that ‘section 237 is concerned with and limited to interference with the physical aspects of the carrying on of community and social activities of the native title holders’. However, the Appellant conceded that they did not rely on any non-physical activities in the particular circumstances of the case. The Court came to the view that it was therefore not necessary to rule on that ground of appeal in this case.
The principal issue in the case was whether the Tribunal had correctly ruled that the act was likely to directly interfere with the carrying on of community activities. The Tribunal had concluded that any interference with the activities of hunting and camping would not be direct.
The Tribunal found that the interference would not be direct because:
(a) the tenement would cover only a small part of the area of the Appellants’ activities;
(b) the Appellants’ activities were only periodic and short term;
(c) others carried out activities in the area which would interfere with the Appellants’ activities;
(d) the activities of the tenement holder were limited and restricted by the terms of the grant, statute and government requirements.
Justice French rejected the argument of the Appellant that if there was a collision course possible at any time or place between community activities and the exercise of rights pursuant to the grant, then there was direct interference within the terms of the provision. He held that the criterion of direct interference should be regarded as a functional direction to the Tribunal about its approach to an evaluative judgment, which does not require precise and semantically correct cause and effect analysis. He said:
The notion of direct interference involves rather an evaluative judgment that the act is likely to be a proximate cause of the apprehended interference. And the concept of interference itself is to some degree evaluative. It must be substantial in its impact upon community or social activities. That is to say trivial impacts or impacts which are not relevant to the carrying on of the community or social activities are outside the kind of interference contemplated by the section.
The evaluation is contextual. The extent of interference and the proximity of its causal connection to the future act proposed should not be considered in isolation. In assessing the risk of direct interference generated by a future act the Tribunal is entitled to have regard to other factors which so affect community or social activities that the impact of the proposed future act is not insubstantial.
Greg McIntyre is a barrister based in Perth, Western Australia.
[1] State of Western Australia and Derrick Smith & Others on behalf of the Gnaala Karla Boodja [sic] People and South Coast Metals Pty Ltd [2000] Application No: WO99/511 (Unreported, National Native Title Tribunal, Hon E M Franklyn QC, 23 June 2000).
[2] [1996] FCA 1452; (1996) 69 FCR 208
[3] [1997] FCA 332; (1997) 74 FCR 391
[4] [1996] FCA 993; (1996) 70 FCR 265 at 279