Q 221 of 1999 - Did the authority give the Claimants "an opportunity to comment"?
14 The Claimants contended before the learned primary judge that the refusal of the Authority to provide them with sufficient information denied them "an opportunity to comment" within the meaning of s 24HA(7)(b).
15 In rejecting that contention, her Honour considered that an opportunity to comment did not suggest that detailed submissions were envisaged. Her Honour continued (at par 22):
"While a statutory power is required to be exercised in accordance with procedures fair to the individual, those are to be considered in the light of the statutory requirements, the interests affected and the purposes the statute seeks to advance or protect: Kioa v West,[(1985) 159 CLR 550] at 585. The relevant requirements of the Determination here, that there be 'a clear description of the area that may be affected by the Act or class of acts' and 'a description of the general nature of the act or class of acts' would not require the provision of the more detailed information which the (Authority) receives in the application for permit."
16 Later her Honour said (at par 24):
"The purpose of the notification, it would seem to me, is to allow an opportunity to a native title claimant to bring forward information known to them and to point out any possible adverse affects [sic] upon their native title rights, in the event they are made out. The permit remains valid despite a judgment pronouncing native title rights, although a permit will not extinguish them. What the statute raises for consideration is the possibility of activities being permitted which may, in a practical sense, diminish the native title rights or harm the area over which they are exercised."
17 In our opinion, the Authority has sufficiently complied with its obligations under s 24HA(7) by giving the 109 notifications referred to above and by inviting the appellants native title claimants to comment on the possible grant of the permit the subject of each of those notifications. As will appear, we think the Authority has in fact provided more information to the appellants than the sub-section requires.
18 In this appeal, the only relevant order the learned primary judge made on 5 August 1999 was, in terms, an order in favour of the Claimants, viz, that the Authority provide them with a clear description of any part of their native title sea claim area that may be affected by a grant of a permit the subject of their application for the order of review. However, in her reasons, her Honour rejected the Claimants' arguments that they were entitled to all the other information they requested before it could be said that the respondent had given them "an opportunity to comment" within the meaning of that term in s 24HA(7)(b). It is these rulings they have challenged by their notice of appeal. The Authority did not take any point about the absence of an appealable order. We think this appeal should be disposed of on the basis that her Honour by this order in effect declared that, apart from the particular deficiency in the information provided by the Authority to the Claimants the subject of the order, the Authority had otherwise complied with its obligations under s 24HA(7). See Landsal Pty Ltd v REI Building Society (1993) 41 FCR 421 at 429 - 430.
19 The Claimants contend that s 24HA(7) should be read as obliging the Authority, before determining to grant a permit, to comply with the common law rules of procedural fairness. It is said that these rules, in their application to the present case, give the Claimants a proper opportunity to advance all legitimate arguments to avert a decision that might profoundly affect their interests, an opportunity that in turn requires that they be given a proper notice of the case they have to meet. This, the Claimants say, entitles them to insist on the Authority providing them with extensive information before they can be in a position to respond to the Authority's proposal to grant the permits.
20 It is necessary, in order to explain our reasons for rejecting these submissions, to identify the operation of s 24HA(7), something that requires an examination of the provisions of the Native Title Act providing for the validation of future acts, of which s 24HA is a part.
21 Unless a provision of the Native Title Act provides for validation, a future act in relation to land or waters (which includes an otherwise valid act done after 1 January 1994 that would extinguish or be inconsistent, wholly or partly, with the continued existence of native title) is invalid to the extent that it affects native title (s 24OA). The Act, as amended by Act No 97 of 1998, makes provision in Div 3 of Pt 2 for a range of future acts that affect native title, but which, subject to Div 3, can be validly done.
22 Section 24HA is in Subdivision H of Div 3 of the Act. Like s 24HA(7), various sections of the other Subdivisions of Div 3 make provision for the involvement in the validation process of those with native title interests in the area in which the future act is to be done. Some, eg, s 24GB(9) in Subdivision G, are relevantly the same as s 24HA(7). But others confer different rights of involvement in the validation process.
23 Most of the Subdivisions of Div 3 contain provisions which require notice that certain action is to be taken with respect to lands or waters to be given to persons with native title interests in those lands or waters. These range from persons with judicially established native title to bodies representing in a general way all who may possibly have native title interests. Those entitled to notice include the registered native title body corporate for the area in relation to which the future act is to be done, ie, the body holding native title under a court determination that native title exists in the area in respect of which the body is registered: (see the definition of "registered native title body corporate" in s 253); any registered native title claimants to any part of the land or waters within the area, and any representative Aboriginal/Torres Strait Islander body for the area.
24 A "representative Aboriginal/Torres Strait Islander body" means a body determined by the Commonwealth Minister to be such for a specified area under s 202(1) of the Native Title Act. Its primary function is to facilitate the researching and making of applications for determinations of native title by individuals or groups from among Aboriginal peoples or Torres Strait Islanders and the giving of assistance to such individuals or groups in connection with negotiating indigenous land use agreements (s 202(4)(a) and (c)). A representative body may be established in relation to a particular area, though no determination has been made that native title exists and though no claim to native title, whether registered or not, has been made. A registered native title body corporate will know precisely the boundaries and content of the native title in which it is interested. So will a registered native title claimant. A representative Aboriginal/Torres Strait Islander body designated for a particular area can be expected to have information as to the existence or possible existence of native title rights and interests in its area which will range from precise knowledge of the location and content of those interests to the ability to make inquiries which may yield information as to the possible existence of such rights and interests.
25 Sometimes others, including the public, are also entitled to notice of acts intended to be done that will affect any native title rights.
26 These provisions of Div 3 also give the persons entitled to notice various rights of response: some have a right to object to the action being taken on narrow, specified grounds; others have a right to make submissions with respect to the proposed action and to have those submissions taken into account by the decision-maker; others have a right to be consulted by the decision-maker and others have the right, of which s 24HA(7)(b) is typical, to an opportunity to comment on the proposed action.
27 There is, in our opinion, a discernible legislative intent in these provisions of Div 3, to some of which we will refer in a little more detail later, that shows that, depending upon who is to do the future act and depending on the impact the act will have on established native title rights or on native title rights that may possibly exist in the lands or waters affected by the act, persons with determined or possible native title interests in the land are to have carefully graded rights to be notified beforehand and are also to have carefully graded rights to have attention given by the decision-maker to their views about the doing of the act. These deliberately structured differences between the various entitlements to be notified of and to respond to proposals to do future acts are, to adopt words used in New Zealand Fishing Industry Association Inc v Minister of Agriculture and Fisheries [1988] 1 NZLR 544 at 551, more than mere semantic differences. There, Cooke P agreed with the following statement of the trial judge (who was dealing with a statutory quota management system for commercial fisheries):