Question 2: If the answer to question 1 is "yes", is the scope of the inquiry into the expedited procedure objection concerned with the area of: (a) the grant of E04/2327 being the proposed act specified in the section 29 notice; (b) the grant of E04/2327, subject to the excision of the Bunuba #2 claim overlap area; or (c) the Bunuba #2 claim overlap area?
57 It is this question which agitates the parties much more than Question 1.
58 The parties agree that the differences between them, which have led to the Tribunal stating Question 2 in the way that it has, have to do with the text and operation of the expedited procedure provisions of the NTA. It is appropriate to commence by noting these provisions.
59 The NTA by Div 3 of Pt 2 deals with "future acts". Section 233 defines a future act. It includes an "act" in relation to land or waters if it is an act that takes place on or after 1 January 1994, is not a past act, and apart from the NTA, either validly affects native title in relation to the land or waters to any extent, or is to any extent invalid, and would be valid to that extent if any native title in relation to the land did not exist, and if it were valid to that extent, would affect the native title.
60 This is a challenging definition. It is not in dispute, however, that the proposed grant of the tenement, in this case, is both an "act" and a "future act" as defined. I accept it is.
61 Subdivision P of Div 3 of Pt 2 of the NTA governs what is called the "right to negotiate". One might surmise that, if there were no such statutory right, a person or group holding or claiming to hold native title to any land or waters the subject of a future act might have been entitled to vindicate that interest by claiming an injunction preventing its infringement. In many respects the right to negotiate has the effect of replacing such a general law right.
62 By s 25(1)(a), Subdiv P applies to certain conferrals of "mining rights". The expression "mining rights" is not defined in the NTA. It is used in s 25 by way of an "overview" of how the subdivision operates.
63 The subdivision applies in a number of circumstances, as provided for by s 26, including by subs (1) in relation to the creation of a "right to mine". The expression "right to mine" is not defined, but the word "mine" is defined by s 253 of the NTA and includes, by para (a), the expression "explore or prospect for things that may be mined". Thus, the expression "right to mine" includes the proposed grant of the tenement in this case.
64 The State acknowledges that the proposed grant of the tenement in this case involves the conferral of a mining right to which the right to negotiate created by Subdiv P applies. There is no dispute about that. The Court accepts this is so.
65 The right to negotiate arises in the following way. Section 29(1) requires that before the "act is done", the State must give notice of the act in accordance with s 29.
66 By s 29(2), the State must give notice to:
(a) any registered native title body corporate (a native title party) in relation to any of the land or waters that will be affected by the act; and
(b) unless there are one or more registered native title bodies corporate in relation to all of the land or waters that will be affected by the act:
(i) any registered native title claimant (also a native title party); and
Note: Registered native title claimants are persons whose names appear on the Register of Native Title Claims as applicants in relation to claims to hold native title: see the definition of registered native title claimant in section 253.
(ii) any representative Aboriginal/Torres Strait Islander body;
in relation to any land or waters that will be affected by the act; and
(c) if the doing of the act has been requested or applied for by a person (for example, where it is the issue of a licence or the grant of a lease for which the person has applied) - that person (a grantee party); and
(d) the registrar or other proper officer of the arbitral body in relation to the act.
67 In accordance with those requirements, the objector, as a registered native title claimant in respect of land and waters falling within the land and waters that would be affected by the act, as well as the BDAC, the native title holder body corporate for the balance of the land proposed to be affected by the grant of the tenement, were duly notified.
68 Public notification, it may be assumed, was also given in accordance with s 29(3); that is not in issue.
69 The s 29 notice, by s 29(7) may include a "statement that the Government party considers the act is an act attracting the expedited procedure".
70 Section 29 notices given in this case, including to the objector, state that the Department of Mines and Petroleum considers that the grant of the tenement attracts the expedited procedure pursuant to s 32(1) of the NTA.
71 Section 32 of the NTA deals specifically with the expedited procedure and its full terms should be noted:
(1) This section applies if the notice given under section 29 includes a statement that the Government party considers the act is an act attracting the expedited procedure (see section 237).
Act may be done if no objection
(2) If the native title parties do not lodge an objection with the arbitral body in accordance with subsection (3), the Government party may do the act.
Kinds of objection
(3) A native title party may, within the period of 4 months after the notification day (see subsection 29(4)), lodge an objection with the arbitral body against the inclusion of the statement.
Objections against inclusion of statement
(4) If one or more native title parties object against the inclusion of the statement, the arbitral body must determine whether the act is an act attracting the expedited procedure. If the arbitral body determines that it is, the Government party may do the act.
Act not attracting expedited procedure
(5) If the arbitral body determines that the act is not an act attracting the expedited procedure, subsection 31(1) applies as if the notice did not include a statement that the Government party considers the act attracts the expedited procedure.
Withdrawal of objection
(6) At any time before the arbitral body makes a determination under subsection (4), a native title party may withdraw his or her objection. If all such objections are withdrawn, the Government party may do the act.
Withdrawal of statement about expedited procedure
(7) At any time before the arbitral body makes a determination under subsection (4), the Government party may, by giving written notice to the negotiation parties, withdraw its statement that it considers the act is an act attracting the expedited procedure. If it does so, subsection 31(1) applies as if the notice did not include such a statement.
72 Section 237 provides that 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.
73 The objector then filed an objection in the form of Form 4 under the Regulations, which included a statement as to why the objector believes that the proposed act is not an act attracting the expedited procedure.
74 Following a preliminary objection on the ground that the objector did not believe the notice met with the requirements of the NTA, the objection was stated to be made on the following grounds:
The objectors have connections to all the country identified on the map which includes E04/2327. These connections include those maintained through hunting game, collecting bush tucker and medicines, as well as visiting and looking after sites. Exploration activity will scare away bush animals especially when people are drilling and using bulldozers. Drilling activity and costeaning will also destroy plants the objectors use for bush tucker and medicines and may also destroy sites. The grant of E04/2327 will significantly impact on the objecting community's conduct and enjoyment of these activities.
Under the objectors customary law and beliefs people who are not traditional owners need to ask permission to go out on the country affected by E04/2327. Permission and information about this country is held by elders many of whom cannot read, write or interpret maps. The elders can only properly provide permission or further information when they know the intentions of the party and the exact area that will be affected. The grant of E04/2327 without speaking to elders is against the customary law and beliefs of the objectors.
There are artefact scatters in the area of E04/2327 left by the objectors ancestors. These artefacts are not recorded sites and can only be found by close examination of the area in question. These sites are particularly significant because they record the historic activities and movements of the objectors ancestors. The sites are not easily identifiable and require specialist expertise to identify them. The action of driving across country to get to the area of proposed exploration activity as well as the exploration activity itself is likely to destroy these artefact scatters unless they are properly identified, recorded and protected.
(As in original.)
75 It may be noticed that the objector did not limit the grounds of its objection to matters that were confined to the land and waters the subject of the Bunuba #2 native title claim - which, as it transpires only overlaps with the area the subject of the proposed grant of the tenement to the extent of less than 0.1% - but generally to "all the country identified on the map which includes E04/2327". This may be considered not all that surprising, however, given most of the individual persons who, in effect, comprise the objector hold native title interests, managed by BDAC, in the adjacent area.
76 On the face of it, the grounds of the objection made by the objector are capable of falling under either or both of paras (a) and (b) of s 237.
77 It was in these circumstances that the inquiry of the arbitral body, the Tribunal, into the application by the objector commenced.
78 At this point, a few additional observations might be made about the inquiry.
79 Nowhere in s 32, dealing with the expedited procedure, is the conduct of an "inquiry" by the arbitral body referred to.
80 As may be seen, subs (4) requires the arbitral body to "determine whether the act is an act attracting the expedited procedure" if one or more native title parties object against the inclusion of the statement in the s 29 notice.
81 By s 29(2)(b)(i), the objector, as a registered native title claimant, had the right to object and is thereby ascribed the status of a native title party.
82 Section 27 of the NTA deals with "Arbitral bodies".
83 By virtue of the operation of s 27(2)(b), because the law of Western Australia has not established an arbitral body, the Tribunal is the arbitral body in respect of the act here in question.
84 So far as inquiries and determinations by the Tribunal are concerned, Div 5 of Pt 6 of the NTA makes provision. Subdivision A deals with "Special inquiries". Subdivision AA deals with "Native title application inquiries". Subdivision B - which would appear to be relevant here - deals with "Inquiries - General".
85 Section 139, within Subdiv B, then provides, relevantly, that:
The Tribunal must hold an inquiry into:
…
(b) an application covered by section 75 (a right to negotiate application);
86 Division 2 of Pt 3 deals with right to negotiate applications and s 75 contains a table setting out applications that may be made to the Tribunal under that division and the persons who may make each of those applications. The first kind of application listed is an "Expedited procedure objection application" which is described as an:
Application objecting as mentioned in subsection 32(3) against the inclusion of a statement that an act is an act attracting the expedited procedure.
87 The persons who may make such an application are specified as "A native title party".
88 Therefore it may be seen that, by this elaborate statutory structure, the Tribunal holds an "inquiry" into an "expedited procedure objection application".
89 By s 141(2), the "parties to an inquiry" in relation to a right to negotiate application are the Government party, the native title parties and the grantee parties. The latter, of course, includes a party such as Mings, to whom a proposed tenement would be granted.
90 While s 139 requires the Tribunal to hold an inquiry in relation to a right to negotiate application, there is no definition or other description of what an "inquiry" entails.
91 One might say that, obviously enough, there needs to be an inquiry, as generally understood, sufficient to enable the Tribunal, as the arbitral body, to determine under s 32(4) whether the act in question is an act attracting the expedited procedure. Again, obviously enough, it would need to receive or obtain information that will enable it to consider that question by reference to the criteria mentioned in paras (a), (b) and (c) of s 237.
92 The Macquarie Dictionary (4th ed) relevantly defines "inquiry" as follows:
noun … 1. An investigation, as into a matter. 2. The act of inquiring, or seeking information by questioning; interrogation.
The Shorter Oxford English Dictionary (5th ed) relevantly defines "inquiry" as follows:
Noun … 1. Investigation, examination … 2. An investigation, an examination, esp. an official one;
93 The common features of an inquiry under each of these dictionary definitions is an investigation or examination of a matter.
94 An arbitral body, under the NTA, is not a judicial body. In this case, the Tribunal plainly is not a body exercising the judicial power of the Commonwealth. It is an administrative body. It is no doubt subject to general law in the conduct of its functions and the exercise of its powers. Accordingly, it would be bound to act fairly and accord what is usually called "procedural fairness" to parties to the inquiry whose rights might be affected by, for example, the determination it must make on the right to negotiate application/expedited procedure objection application, in a case such as the present. See, for example, the decision of the Tribunal in Western Australia v Thomas (1996) 133 FLR 124 at 162; [1996] NNTTA 30.
95 As to how the arbitral body should otherwise go about conducting a required inquiry, the NTA is silent, and the Court is informed by the parties that there are no relevant regulations or other legislative instruments that provide guidance.
96 Ordinarily, one would have thought, given that in determining an expedited procedure objection application the Tribunal must make a determination by reference to the criteria specified in s 237, that no party carries any "onus" to prove anything (as to which see FMG Pilbara Pty Ltd v Yindjibarndi Aboriginal Corporation RNTBC (2014) 227 FCR 182 at [79]; [2014] FCA 1335; Ward v Western Australia (1996) 69 FCR 208 at 217 and, in another context concerning performance of the functions of the Administrative Appeals Tribunal, McDonald v Director-General of Social Security (1984) 1 FCR 354; [1984] FCA 59). However, any party wishing to influence the outcome of the determination may be expected to put appropriate material and make submissions to the Tribunal, and to have the opportunity to question material and submissions put by any other party in that regard, as part of the inquiry conducted by the Tribunal.
97 Because the arbitral body plainly is administrative in nature and not judicial there is no question of it being bound by the laws of evidence, for example. See s 109(3) of the NTA.
98 As to whether the Tribunal may require the provision of information to it to obtain information that it considers relevant to its inquiry, there would appear to be no reason why a body that is required to undertake such an inquiry should not be able to request parties to its inquiry to provide relevant information. The Tribunal may not be able to compel them to do so but it may at least ask them to provide information, particularly information that is within their power or control, and it may be able to obtain information that is in the public domain. See Thomas at 162.
99 The Tribunal might also expect that parties who have information within their power or control would want to provide any relevant information if it exists, and the Tribunal would perhaps be permitted to draw adverse conclusions if, following a request, the information is not provided. See Walley v Western Australia (2002) 169 FLR 437 at [10]; [2002] NNTTA 24.
100 Generally speaking, unlike bodies such as the Administrative Appeals Tribunal or the Refugee Review Tribunal, which have been held by the High Court of Australia not to labour under a general "duty to inquire" in conducting review applications (see Fraser v Minister for Immigration and Border Protection [2015] FCAFC 48 at [15]; Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594 at [20]; [2011] HCA 1; Minister for Immigration and Citizenship v SZIAI (2009) 111 ALD 15 at [25]; [2009] HCA 39), this arbitral body is set up, on this occasion, with the express obligation to conduct an "inquiry" into the expedited procedure objection application coming before it.
101 All these matters are mentioned because they may be relevant to determining the answer to Question 2 as to the "scope of the inquiry". They confirm that the Tribunal's function in an inquiry is not limited.
102 On the face of it, by s 32(4), if a native title party has objected against the inclusion of the s 29(7) statement in the notice, "the arbitral body must determine whether the act is an act attracting the expedited procedure". The fact that there is only one native title objector to the future act in question here, when there potentially could have been two (noting BDAC was also notified but did not lodge an objection), does not necessarily mean that the inquiry is to be limited to that portion of the land or waters the subject of the s 29 notice to which the objector's native title claim relates.
103 As may be seen from the grounds of objection provided in this case, the objector has not in fact sought to limit its grounds of objection to any particular portion of land or waters within the proposed tenement area and indeed it appears to relate to the whole.
104 On the face of it, therefore, the answer to Question 2 should not be (c), which the State contends is the right answer.
105 The State contends that because it proposes to grant the tenement subject to the objector's claim area being excised from the grant area, the Tribunal need not consider the objector's objection, and as BDAC has not objected, there is no relevant objection and the inquiry should, in effect, be terminated with a determination that the expedited procedure is not attracted.
106 The State observes that the criteria specified in s 237, by which a future act may be determined to be an act attracting the expedited procedure, in each case contemplates the act being one that is not likely to involve the relevant criterion in question either "in relation to the land or waters concerned" or "to any land or waters concerned".
107 In short, the State contends that because an inquiry by the arbitral body arises, and only arises, because of a particular objector's objection, the "land or waters concerned", to which s 237 relates, must necessarily be the "land or waters" which overlap the claim or determined area of an objector.
108 In my view, s 32(4), which is fundamental to the arbitral responsibilities that the Tribunal has in this case, is not amenable to such a construction.
109 In the circumstances of any objection, what matters must be considered having regard to the criteria stated in paras (a), (b) and (c) of s 237, is an evidentiary issue guided by the matters put in issue by the objector.
110 Under s 32(4), once there is an objection by a native title party, as there is here, the Tribunal "must determine whether the act is an act attracting the expedited procedure". It must hold an inquiry to determine the question.
111 The criteria in s 237(a) require the Tribunal to ask whether the grant of the tenement is likely to interfere directly with the carrying on of the community or social activities of the objector in relation to the land or waters concerned - that is to say the land or waters to which the act in question - the grant of the tenement - relates. The same is to be said of the criteria to be regarded in paras (b) and (c).
112 It is always going to be an evidentiary question as to whether or not an objector, even one who only has a registered native title claim over a portion of the land or waters the subject of the proposed act, will be affected in relevant ways by the act.
113 Just because the objector's standing to object only arises because it is a registered claimant in relation to a portion of land in the proposed tenement area, does not necessarily mean that the act might not interfere directly with the carrying on of the community or social activities of the objector on the land or waters to which they claim native title; or that the act might not interfere with areas or sites of particular significance to them, which are to be found outside the area to which they claim native title, but within the ground the subject of the proposed tenement. In each case, that is the factual question for inquiry and determination by the arbitral body.
114 It is not the function of this Court, particularly in a special case proceeding of this nature, to inquire into such questions of fact.
115 To put the matter shortly, the fact that, at the inquiry before the Tribunal, the State has indicated to the Tribunal that it would propose to grant the tenement in respect of the land or waters currently the subject of the s 29 notice, less the proposed "excised area", may arguably be relevant to the inquiry to be conducted by the Tribunal. But that would not make redundant the grounds of objection made in any case if the objector, as here, objects that the future act will affect the objector's interests elsewhere in the proposed tenement area, outside the area in which native title is claimed.
116 Currently the future act which has attracted the s 29 notice includes the land or waters the subject of the objector's registered native title claim. If that notice was withdrawn and there was a fresh notification given that did not include that area, then it would appear that no requirement would arise under the NTA to notify the current objector and, in such a case, the objector would have no right to object to the act under the NTA. But that is not the case before the Tribunal or this Court for the purpose of this reference.
117 A subsidiary question, on which neither counsel for the State nor the objectors were able to provide assistance to the Court, may be whether the Tribunal would be entitled, in any event, to make a determination that the act is an act attracting the expedited procedure on the condition that the act to be done will not include the so called overlap area which is the subject of the objector's registered native title claim.
118 Because that is not a question of law referred to the Court, and no party has made submissions about it, the Court should not attempt to answer it. It is not for this Court to give advisory opinions or indeed advice as to how the Tribunal, or any party or parties should act. The Court should confine itself to answer the two questions asked, and no more.
119 The answer to Question 2 is as follows:
The scope of the inquiry into the expedited procedure objection is concerned with the area of (a) the grant of E04/2327 being the proposed act specified in the s 29 notice.
I certify that the preceding one hundred and nineteen (119) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Barker.