RANGIAH J:
243 I have had the great advantage of reading Mortimer CJ's comprehensive and thorough reasons for judgment in draft. I will adopt the abbreviations used by her Honour.
244 Grounds 1, 2, 4, 5 and 6 of the applicant's Further Amended Notice of Appeal challenge the Tribunal's determination, for the purposes of s 36(2) of the NTA, that Santos did not fail to negotiate in good faith. I respectfully concur with the reasons given by the Chief Justice for rejecting each of those grounds.
245 Ground 3 asserts that the Tribunal misconstrued s 39(1)(e) of the NTA in finding that it was prohibited from considering "environmental matters" except in relation to particular environmental concerns having particular effect on native title. Before the Tribunal, the applicant had submitted that the Tribunal was obliged under s 39(1)(e) to take into account the public interest in mitigation of climate change. The Tribunal reasoned that it was not permitted to take that matter into account under s 39(1)(e) because s 39(1) as a whole prohibits the Tribunal from having regard to environmental concerns except where they have a particular effect on native title. The Chief Justice would uphold Ground 3 and would consequently allow the appeal. I have, respectfully, reached a different conclusion.
246 In my opinion, neither the construction of s 39(1)(e) contended for by the applicant nor that given by the Tribunal is correct. Instead, s 39(1)(e) should be construed according to its grammatical meaning, such that it only requires an arbitral body to take into account any matter of public interest that favours or supports the doing of the proposed future act. This means that s 39(1)(e) does not require the arbitral body to have regard to a matter of public interest that is against the doing of the act. There was ultimately no error in the Tribunal's refusal to take into account the public interest in mitigating climate change under s 39(1)(e), since that was a matter against the doing of the relevant acts. I will explain my reasons for these conclusions.
247 The applicant is the registered native title claimant in a native title determination application made on behalf of the Gomeroi People. The claim covers an area in excess of 100,000 km² in New South Wales.
248 Santos proposes to conduct a gas extraction operation, known as the Narrabri Gas Project, over 95,000 ha of land to the south and west of the town of Narrabri. The land is entirely within the Gomeroi claim area.
249 Santos applied for four petroleum production leases. The State proposed to grant the leases. After the failure of negotiations between Santos and the applicant, Santos applied to the Tribunal for an arbitral determination under s 38(1) of the NTA.
250 Section s 39(1)(e) of the NTA requires that, in making its determination, the Tribunal must take into account, "any public interest in the doing of the act".
251 Before the Tribunal, the applicant relied on Professor Steffen's report to submit that it was necessary that no new fossil fuel projects be approved if the temperature targets under the Paris Accord are to be met, and that, if they are not met, climate change will have a devastating impact on Australia, including the Narrabri region. The applicant argued, relevantly, that there is a public interest in, "seeking to mitigate and prevent the worst likely effects of global warming, which has consequences at global, national and local levels".
252 The substance of the applicant's argument is that the Tribunal erred in construing s 39(1)(e) as only allowing it to take into account a matter of public interest relating to particular impacts on native title in the land and waters in the claim area, and not a matter of public interest concerning "general environmental matters". The applicant submits that the phrase "any public interest" in s 39(1)(e) is broad and encompasses the public interest, "in the effects of climate change". The principal dispute between the parties is whether the Tribunal in fact interpreted the provision in the way the applicant contends it did. As to that matter, I agree with the Chief Justice's opinion (at [182] and [199]) that the Tribunal did construe s 39(1)(e) of the NTA as only allowing it to take into account a matter of public interest relating to particular impacts on native title in the land and waters in the claim area.
253 The Chief Justice considers (at [223]) that the Tribunal misconstrued s 39(1)(e) because the provision does not limit consideration to, "a public interest that has a direct or indirect effect on native title rights and interests". On both her Honour's view and the Tribunal's view, s 39(1)(e) is capable of applying to a matter of public interest weighing against the doing of the relevant future act. In that respect, I am respectfully unable to agree with the Tribunal's and the Chief Justice's construction.
254 In my opinion, the plain language of s 39(1)(e) ("any public interest in the doing of the act") only requires the Tribunal to take into account any matter of public interest favouring the doing of the act. While other paragraphs of s 39(1) either enable or require the Tribunal to take into account a range of factors, including public interest factors, against the doing of the act, para (e) does not.
255 Of course, grammatical meaning is not necessarily determinative of legal meaning, and must be considered together with context: see for example, Taylor v Owners - Strata Plan No 11564 (2014) 253 CLR 531 at [65]-[66]; SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362 at [14]. Accordingly, before returning to the language of the provision, I will examine some matters of context, including the way the NTA deals with acts, called "future acts", that affect native title.
256 The starting point is the Preamble, which provides, relevantly:
The people whose descendants are now known as Aboriginal peoples and Torres Strait Islanders were the inhabitants of Australia before European settlement.
They have been progressively dispossessed of their lands. This dispossession occurred largely without compensation, and successive governments have failed to reach a lasting and equitable agreement with Aboriginal peoples and Torres Strait Islanders concerning the use of their lands.
As a consequence, Aboriginal peoples and Torres Strait Islanders have become, as a group, the most disadvantaged in Australian society.
…
The needs of the broader Australian community require certainty and the enforceability of acts potentially made invalid because of the existence of native title. It is important to provide for the validation of those acts.
Justice requires that, if acts that extinguish native title are to be validated or to be allowed, compensation on just terms, and with a special right to negotiate its form, must be provided to the holders of the native title. However, where appropriate, the native title should not be extinguished but revive after a validated act ceases to have effect.
It is particularly important to ensure that native title holders are now able to enjoy fully their rights and interests. Their rights and interests under the common law of Australia need to be significantly supplemented. In future, acts that affect native title should only be able to be validly done if, typically, they can also be done to freehold land and if, whenever appropriate, every reasonable effort has been made to secure the agreement of the native title holders through a special right to negotiate. It is also important that the broader Australian community be provided with certainty that such acts may be validly done.
A special procedure needs to be available for the just and proper ascertainment of native title rights and interests which will ensure that, if possible, this is done by conciliation and, if not, in a manner that has due regard to their unique character.
257 The Preamble provides part of the context in which the provisions of the NTA are construed: see North Ganalanja Aboriginal Corporation v Queensland (1996) 185 CLR 595 at 614 and 637; Wacando v The Commonwealth (1981) 148 CLR 1 at 23. The Preamble recognises that the Australian community has a great interest in protecting native title against acts that would diminish or extinguish those rights and interests. The Preamble also acknowledges that, in some circumstances, the interests of the Australian community may require that acts that would affect native title be permitted to be done even without the agreement of the native title holders. A number of provisions of the NTA seek to balance these competing aspects of the public interest.
258 Part 2, Division 1 of the NTA is entitled, "Recognition and protection of native title". Section 10 provides that native title is recognised, and protected, in accordance with the NTA. Section 11(1) provides that native title is not able to be extinguished contrary to the NTA.
259 Part 2, Division 3 has the heading, "Future acts etc. and native title". Section 24AA(1) states that Division 3 deals mainly with "future acts". Section 24AA(2) explains that, basically, Division 3 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.
260 The word "act" is defined by s 226(2)(b) to include, "the grant, issue, variation, extension, renewal, revocation or suspension of a licence, permit, authority or instrument". The expression "future act" is defined in s 233. Under that definition, an act cannot be a "future act" unless it "affects native title". Accordingly, where Division 3 applies to future acts, it applies to acts that necessarily affect native title. Under s 227, an act "affects" native title if it extinguishes the native title rights and interests or if it is otherwise wholly or partly inconsistent with their continued existence, enjoyment or exercise.
261 Section 24AA(3) explains that a future act will be valid if the parties to an Indigenous Land Use Agreement consent to it being done and the agreement is registered. Section 24AA(4) states that a future act will also be valid to the extent that the act is covered by any of twelve specified sections of the NTA. Section 24OA provides that, unless a provision of the NTA provides otherwise, a future act is invalid to the extent that it affects native title.
262 Part 2, Division 3, Subdivision P is entitled, "Right to negotiate". Sections 25(1) and (2) explain that Subdivision P applies to certain future acts done by the Commonwealth, a State or a Territory, and that, before the future act is done, the parties must negotiate with a view to reaching an agreement about the act.
263 Section 26(1) provides that Subdivision P also applies to a future act if, relevantly, the act is the creation of a right to mine, whether by the grant of a mining lease or otherwise.
264 Sections 29(1) and (2) require that before the act is done, the government party must give notice of the act to, inter alia, any registered native title claimant and registered native title body corporate, "in relation to any of the land or waters that will be affected by the act".
265 Pursuant to ss 29(2) and 30(1), any registered native title claimant or any registered native title body corporate in relation to any of the land or waters that will be affected by the act is a "native title party". Section 30A provides that a "negotiation party" is the government party, any native title party and any grantee party.
266 Section 31(1)(b) requires that the negotiation parties must negotiate in good faith with a view to obtaining the agreement of each of the native title parties to the doing of the act or the doing of the act subject to conditions.
267 Importantly, s 35(1) allows any negotiation party to apply to the arbitral body (relevantly, the Tribunal) for a determination under s 38 in relation to the act if at least six months have passed since the notification day (see s 29(4)) and no agreement has been made in relation to the act.
268 Section 38(1) of the NTA sets out the kinds of determinations that may be made by the arbitral body:
38 Kinds of arbitral body determinations
(1) Except where section 37 applies, the arbitral body must make one of the following determinations:
(a) a determination that the act must not be done;
(b) a determination that the act may be done;
(c) a determination that the act may be done subject to conditions to be complied with by any of the parties.
269 Section 39(1) of the NTA sets out criteria the arbitral body must take into account in making a determination:
39 Criteria for making arbitral body determinations
(1) In making its determination, the arbitral body must take into account the following:
(a) the effect of the act on:
(i) the enjoyment by the native title parties of their registered native title rights and interests; and
(ii) the way of life, culture and traditions of any of those parties; and
(iii) the development of the social, cultural and economic structures of any of those parties; and
(iv) the freedom of access by any of those parties to the land or waters concerned and their freedom to carry out rites, ceremonies or other activities of cultural significance on the land or waters in accordance with their traditions; and
(v) any area or site, on the land or waters concerned, of particular significance to the native title parties in accordance with their traditions;
(b) the interests, proposals, opinions or wishes of the native title parties in relation to the management, use or control of land or waters in relation to which there are registered native title rights and interests, of the native title parties, that will be affected by the act;
(c) the economic or other significance of the act to Australia, the State or Territory concerned, the area in which the land or waters concerned are located and Aboriginal peoples and Torres Strait Islanders who live in that area;
(e) any public interest in the doing of the act;
(f) any other matter that the arbitral body considers relevant.
270 Under s 36A(1), if the arbitral body has not made a determination within the specified period, a relevant Minister may make a determination in relation to the act. Under ss 42(1) and (2), the power to overrule a determination of an arbitral body may be exercised in the interests of the State or Territory concerned or in the national interest.
271 From these provisions, a number of matters relevant to the construction of ss 38(1) and 39(1) can be discerned.
272 First, Part 2, Division 3 is only concerned with "future acts" which must, under the definition of that term in s 233, be acts that affect native title. Acts that do not affect native title are not "future acts" and are not covered by Division 3. Accordingly, ss 38(1) and 39(1) are importantly, although not exclusively, concerned with the nature and extent of the effect of the proposed act on native title rights and interests.
273 Secondly, an arbitral body comes to make a determination under s 38(1) in circumstances where the negotiation parties have been unable to agree about either whether the act should be done or the conditions under which the act may be done.
274 Thirdly, the arbitral body must make one of the three kinds of determinations set out in s 38(1): that the future act may not be done; or may be done; or may be done with conditions determined by the arbitral body.
275 Fourthly, in deciding which kind of determination to make under s 38(1), the arbitral body has a broad discretion, in the sense that no one consideration or combination of considerations is necessarily determinative of the result: cf. Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194 at [19]. The discretion involves, in substance, balancing the interest of the public or a section of the public in the doing of the act against the interests of the public and the native title parties in protecting native title from non-consensual interference.
276 Fifthly, under ss 38(1) and 39(1), the particular effect of the act on the native title rights and interests of the native title parties in the particular land and waters subject to the claim or determination is a factor that will be significant to the arbitral body's determination. That may be seen from ss 29 and 30A, which give standing to be notified and to negotiate to parties who have, or have claimed, native title rights and interests in, "any of the land or waters that will be affected by the act". Further, s 39(1)(a)(i) specially requires consideration of the effect of the act on, "the enjoyment by the native title parties of their registered native title rights and interests": see also s 39(1)(a)(iv) and (v). However, not all the matters the arbitral body is required to take into account under s 39(1)(a)(ii) and (iii), (b), (c) and (e) are necessarily connected with any particular effect on native title rights and interests in the relevant land or waters. Further, the words, "any other matter" in s 39(1)(f) are broad enough to include matters considered by the arbitral body to be relevant even if unconnected with any particular effect on native title rights and interests in the relevant land or waters.
277 Sixthly, although, under s 39(1)(b), the arbitral body must take the native title parties' interests, proposals, opinions or wishes into account, the arbitral body is empowered to make a determination that the future act may be done regardless of such interests, proposals, opinions or wishes. In other words, the native title parties do not have a power of veto.
278 Seventhly, s 39(1) expressly states a number of matters which the arbitral body must take into account, but does not in its terms purport to limit the matters which may be taken into account. If there are limitations upon what matters may be taken into account, they must appear by implication from the subject matter, scope and purpose of the NTA: see Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39-40.
279 I return now to the grammatical meaning of the requirement in s 39(1)(e) that, "In making its determination, the arbitral body must take into account…any public interest in the doing of the act".
280 The phrase "any public interest" was described in O'Sullivan v Farrer (1989) 168 CLR 210 at 216 as, "classically import[ing] a discretionary value judgment to be made by reference to undefined factual matters". However, the factors that may be considered are subject to any express limitations in the relevant statutory provision, as well as any limitations implied from the subject matter, scope and purpose of the provision. In Evans v Western Australia (1997) 77 FCR 193 at 215, R D Nicholson J described the words "any public interest" in s 39(1)(e) as, "not limited in their scope", but, in the circumstances of that case, his Honour was not called upon to consider whether the words following the phrase "any public interest" operate to limit the scope of that phrase. In my opinion, those succeeding words expressly provide such a limitation.
281 In s 39(1)(e), the phrase "any public interest" is immediately followed by the phrase "in the doing of the act". In the latter phrase, "doing" is a noun. The Macquarie Dictionary defines "doing" in its noun form as, "action; performance; execution: it's all in the doing". It does not refer to inaction or non-performance. Where, for example, the relevant act is the granting of a lease, the word "doing" is apt to refer to the lease being granted, but not a refusal to grant the lease.
282 The preposition "in" is relevantly defined in the Macquarie Dictionary as expressing, "inclusion within…limits". It operates, not only to connect the phrase "any public interest" to the phrase "the doing of the act", but to limit the former by reference to the latter. In other words, the phrase "in the doing of the act" confines the scope of the phrase "any public interest". In that context, the phrase as a whole refers to any public interest favouring the doing of the act, and does not encompass any public interest against the doing of the act.
283 In my opinion, s 39(1)(e) in its grammatical meaning only requires the arbitral body to take into account any public interest in the act being done. The provision does not in its terms require any public interest in the act not being done to be taken into account. Nor does it refer to "any public interest or detriment" in the doing of the act. Nor does the provision use any broader phrase such as, "any public interest in connection with the doing of the act", which might have been interpreted as referring to any public interest for or against the doing of the act. In my opinion, the grammatical form of s 39(1)(e) only requires the arbitral body to take into account any public interest in the act being done, not any public interest against the doing of the act.
284 A number of other provisions of Part 2, Division 3 refer to "the doing of" acts (for example, ss 24BB, 24CB, 24DB, 24EB and 31(1)). In each of the provisions, the phrase is used according to its ordinary meaning to refer to an act being done. That suggests that where the same phrase is used in s 39(1)(e), it is used in the same way.
285 It may be noted that when originally enacted, the language of s 39(1)(e) was different. It required the arbitral body to take into account, "any public interest in the proposed act proceeding". Section 39(1)(e) was brought into its current form under the 1998 amendments. In my opinion, the change in language did not bring about any change in meaning. That is confirmed by the relevant Explanatory Memorandum, which states:
20.54 Existing section 39 of the NTA sets out the criteria that must be considered by an arbitral body in making a determination about a future act. The criteria mainly relate to the affect (sic) the act would have on native title and the interests of the native title parties and the public interest in doing the act. The Bill re-enacts section 39 with a number of changes [Schedule 1, item 9, section 39]. The changes that are significant are set out below. These changes were proposed in the 1996 amendments."
(Emphasis added.)
286 The Explanatory Memorandum states that the criteria in s 39 relates to, relevantly, "the public interest in doing the act". The Explanatory Memorandum does not go on to address the changes to the language of s 39(1)(e), suggesting that it was not seen as a change that was "significant". The change appears to have been intended to make the language of s 39(1)(e) consistent with the language of the numerous other provisions of Part 2, Division 3 which refer to an act being "done" or to "the doing of" an act. In substance, s 39(1)(e) continued to require only that the arbitral body take into account any public interest in the proposed act proceeding.
287 A conclusion that s 39(1)(e) applied only to any public interest favouring the doing of an act does not mean that any public interest against the doing of the act cannot be taken into account under ss 38(1) and 39(1). Section 39(1)(f) requires the arbitral body to take into account, "any other matter that the arbitral body considers relevant". The broad words of that provision are capable of encompassing any matter of public interest against the doing of the act, subject to whether the arbitral body considers the matter relevant to its determination. In fact, if a substantial and clearly articulated argument concerning any such matter of public interest is made, the arbitral body may, subject to its assessment of relevance, be required to take the argument into account under s 39(1)(f): see Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 77 ALJR 1088 at [24].
288 In contrast to s 39(1)(f), there is no expressly stated requirement in s 39(1)(e) that the matter be relevant to the doing of the act. However, the connection and limitation between the phrases "any public interest" and "the doing of the act" created by the preposition "in" require that the matter of public interest be relevant to the doing of the act. Accordingly, there is symmetry between s 39(1)(e) and (f) in terms of requiring relevance of the matter to the arbitral body's determination.
289 The reason for drafting s 39(1)(e) such that it only applies to any public interest in the act being done is probably to make it clear or to emphasise that such a matter must be taken into account. An example of a public interest of this kind is found in Cheedy v Western Australia (2011) 194 FCR 562, where the Full Court at [138] was prepared to accept that mining developments generally are in the public interest for the purposes of s 39(1)(e). The Full Court also stated that, in other circumstances, it may be necessary for the Tribunal to consider the public interest in a particular project. Another example may be that expansion of mining for a particular mineral in short supply may be in the public interest for the purposes of s 39(1)(e). It may be observed that what is regarded as a matter of public interest is susceptible to change over time.
290 It may be that a reason why s 39(1)(e) does not specify that the arbitral body must take into account any public interest against the doing of the act is that the important public interest against interference with native title without agreement of the native title parties is already inbuilt into s 39(1)(a) and (b). Under para (a) of s 39(1), the arbitral body must take into account, inter alia, the effect of the act on the enjoyment of the native title parties of their registered native title rights and interests and on their way of life, culture and traditions. Under para (b), the arbitral body must take into account the interests, proposals, opinions or wishes of the native title parties in relation to the management, use or control of land or waters. In addition, as has been discussed, para (f) allows the arbitral body to take into account any other matter it considers relevant, which may include other public interest considerations against the doing of the act. That may explain why the legislature considered it unnecessary to specify in para (e) that the arbitral body must take into account any public interest against the doing of the act.
291 For these reasons, I consider that s 39(1)(e) of the NTA should be construed such that it only requires the arbitral body to take into account any public interest that favours or supports the act being done. The provision does not require any public interest against the act being done to be taken into account.
292 The Tribunal's approach was that the public interest in "general environmental matters" was not required to be considered under s 39(1)(e) because the Tribunal is prohibited from considering environmental matters that do not have a particular effect on the particular native title rights and interests of the native title parties in land or waters to which those rights apply. The Tribunal apparently accepted that a matter of public interest which has such particular effect and which is against the doing of the act is capable of being considered under s 39(1)(e). Although I reject the Tribunal's view that s 39(1)(e) is capable of applying to matters of public interest against the doing of the act, ultimately, the Tribunal did not take into account the public interest in mitigation of climate change (a matter against the granting of the petroleum production leases) under that provision. Accordingly, although the Tribunal's construction of s 39(1)(e) was erroneous, the error was ultimately immaterial.
293 Under s 169 of the NTA, upon appeal, the Court may make such order as it thinks appropriate by reason of its decision. The immateriality of the Tribunal's error means that its determination should not be set aside on the basis identified under Ground 3 of the applicant's Further Amended Notice of Appeal.
294 Although these conclusions are enough to determine the appeal, it is appropriate to consider several related matters that were argued as they assist to provide further context for my construction of s 39(1)(e).
295 The Tribunal concluded at [987]:
I accept that greenhouse gas emissions may lead to environmental harm. However, in my view, since the 1998 Act, it has not been appropriate to consider environmental (or ecological) matters, save to the extent that such concerns may have a particular effect on native title. That matter should be considered pursuant to s 39(1)(f) and subject to the Tribunal's view as to relevance.
296 In this passage, the Tribunal concluded that the effect of the 1998 Act was to exclude from its consideration any matters of general environmental or ecological concern, even under the general provision in s 39(1)(f). As the Chief Justice has explained, until the 1998 amendments, the Tribunal was expressly required to take into account the effect of the proposed act on the natural environment of the land and waters concerned and any assessment of such effect by a court or tribunal or a statutory authority or an assessment commissioned by the Crown. The Tribunal seems to have reasoned from the omission of those requirements that under s 39(1)(f), only environmental or ecological concerns that have a particular effect on native title in the area concerned can be considered by the Tribunal to be relevant to its determination. The Tribunal's view seems to have derived from para 20.57 of the relevant Explanatory Memorandum, which states that:
If there are particular environmental concerns which may need to be taken into account because of the particular effect on native title, the arbitral body retains the ability to consider them under paragraph 39(1)(f).
297 I do not consider that the 1998 amendments had the wide-reaching effect the Tribunal considered it did, for the following reasons.
298 First, s 39(1) only specifies matters that the arbitral body must take into account: it does not in its terms purport to limit the matters which may be considered.
299 Secondly, the broad terms of s 39(1)(f) are inapt to exclude, subject to the Tribunal's determination of relevance, consideration of matters of general environmental or ecological concern.
300 Thirdly, it is apparent that the arbitral body is not only allowed, but may be required, to take into account under s 39(1)(a)(ii) and (iii), (b), (c), and (e), some matters not concerned with a particular effect on native title. In addition, it is not difficult to conceive of other matters not concerned with a particular effect on native title that may be considered under s 39(1)(f). For example, where a native title party also has another property interest, such as a pastoral lease, in the relevant area, it seems improbable that s 39(1)(f) would require an effect of the act on that interest to be discarded as irrelevant. If the legislative intention is not to prohibit the Tribunal from considering some matters not concerned with a particular effect on native title, then it seems unlikely that its intention could be to prohibit the Tribunal from considering some such other matters as it may consider relevant, such as general environmental matters, under s 39(1)(f).
301 Fourthly, para 20.57 of the relevant Explanatory Memorandum accurately states that the arbitral body retains the ability to consider particular environmental concerns having particular effect on native title under s 39(1)(f), but it does not purport to exclude consideration of any matters falling outside that description that the arbitral body considers relevant.
302 I consider that the Tribunal's construction of s 39(1)(f) as necessarily excluding consideration of any, "environmental (or ecological) matters, save to the extent that such concerns may have a particular effect on native title", to be incorrect.
303 Instead, s 39(1)(f) leaves it to the arbitral body to determine what matters it considers relevant. It is for the arbitral body to determine whether it considers an environmental matter raised by a party, whether or not that matter has a particular effect on native title in the particular land and waters, to be relevant. If considered to be relevant, the weight to be applied to that matter is for the arbitral body. In this regard, it may be observed that in Cheedy, the Full Court at [138] provided some guidance when saying that what is "relevant" (which I interpret to mean, "likely to be of particular significance") is, "the effect of the particular mining project on the particular rights and interests asserted in that area".
304 While I do not consider the Tribunal's conclusion that, as a matter of construction, s 39(1)(f) can only apply to matters that have a particular effect on the particular native title rights and interests of the native title parties in the relevant land or waters to be correct, the applicant's third ground only alleges error in the Tribunal's construction of s 39(1)(e). That is consistent with the Tribunal's statement at [929] that the parties had chosen to address environmental questions pursuant to s 39(1)(e). An examination of the applicant's Statement of Contentions before the Tribunal confirms that they made no submission that general environmental considerations should be taken into account under s 39(1)(f).
305 In any event, the Tribunal considered at [1017] the climate change considerations contended for by the applicant, on an "if I am wrong" basis, and concluded that, "it is difficult to attach much weight to the public interest". It is apparent that when considering the matter on an assumption that the Tribunal was entitled to take into account general climate change considerations under s 39(1)(f), the Tribunal's determination was not affected. Further, the Tribunal considered the environmental impact of the proposed petroleum production leases at [943], in the context of s 39(1)(c), when it concluded that, while worldwide climate change may cause extreme weather events affecting Australia and consequential damage, it did not follow that the probable benefit to be conferred by the proposed grants should necessarily be written off against the significant possibility of such damage. In Cheedy, the Full Court held at [135] that the Tribunal was not required to consider under s 39(1)(f) matters that it had already considered under preceding paragraphs of that provision. Accordingly, any error in construction of s 39(1)(f) did not affect the outcome.
306 While it is open to the arbitral body to consider general environmental concerns that it considers relevant under s 39(1)(f), I concur with the Chief Justice's opinion at [211] that the 1998 amendments removed the arbitral body's environmental assessment function and it is not the function of the arbitral body to "second-guess" or re-do environmental assessments made under other State and Territory environmental processes.
307 There is one more matter that should be mentioned. There is incongruity about the way the matter proceeded before the Tribunal. As part of their case that Santos failed to negotiate in good faith, the applicant presented evidence of the offers made by Santos and the applicant's counter-offers. It is apparent that the applicant was, at one stage, willing to agree to the petroleum production leases being granted, but wanted payment of a "production levy" at a higher rate than Santos was willing to offer. Negotiation about the rate of the production levy was consistent with s 33(1) of the NTA, which allows negotiation about conditions, including conditions about payments worked out by reference to the amount of profits made, or any income derived, or any things produced. The impasse was not about whether the applicant was willing to agree to the leases being granted, but the terms on which they would give their agreement.
308 When the matter reached the Tribunal, the applicant took a different tack. The applicant was no longer willing for the petroleum production leases to be granted subject to satisfactory conditions, but contended that the leases should not be granted at all. There were no submissions made to the Tribunal about financial conditions that might be appropriate in the event that the Tribunal determined that the grants of the leases should be permitted. As a result, when the Tribunal determined that the proposed grants should be made, only one condition was imposed, concerning a research program.
309 The applicant's change of position before the Tribunal seems to have come about because s 38(2) of the NTA provides that the arbitral body must not determine a condition that has the effect that native title parties are to be entitled to payments worked out by reference to: the amount of profits made; or any income derived; or any things produced. This provision may be contrasted with s 33(1) which expressly allows negotiation for payment on such bases. Although the parties were originally in agreement that a production levy should be paid and the principal dispute was only about the level of the levy, they were unable to have the Tribunal determine the appropriate level. The applicant's only remaining opportunity to achieve an agreement for payment of a production levy (see s 34) was to succeed in having the Tribunal determine that the proposed leases not be granted.
310 The outcomes of the process do not seem satisfactory. The Tribunal was forced to conduct a lengthy and seemingly wasteful hearing, given that it could only decide that which the parties were originally in agreement about (that the leases should be permitted) and was unable to decide that which was really in dispute (the appropriate level of the production levy). The applicant has been left with nothing but the opportunity to seek compensation under Part 2, Division 5 of the NTA at some time in the future if and when their application for a determination of native title is successful. In the meantime, there will be an ongoing effect upon their claimed native title rights and interests. The Court faces the prospect of having to conduct a potentially lengthy hearing to determine compensation when the matter that was really in dispute could effectively have been determined by the Tribunal if it had the power to do so. The inefficiency and inequity involved in the outcomes may warrant some reconsideration of the legislative scheme.
311 For the reasons I have given, the appeal should, in my respectful opinion, be dismissed.
I certify that the preceding sixty-nine (69) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Rangiah.