Little v State of Western Australia

The second determination 13 In the case of the second determination, the notice was issued by the State under s 29 of the Act on 22 March 2000. It proposed to grant to the Grantee exploration licences 59/974 - 59/977 inclusive. The notice included the statement that it considered the grant of such licences to attract the expedited procedure. 14 On 29 May 2000 the applicants (again described in the Tribunal's reasons as "the Objector") lodged an objection application ("the Objection") to the inclusion in the notice of such statement, claiming that the exploration licences gave rise to the same interference the subject of the Objection to the first determination. 15 On 6 September 2000 directions were made by a Deputy President of the Tribunal. These were described by the Tribunal in its reasons as requiring: "…the State to provide the Tribunal and the other parties a statement of its contentions, specified information and documents on or before the 1st November 2000; the Objector to provide to the Tribunal and the other parties on or before the 8th November 2000, a statement of its contentions to include a statement of the nature and location of sites or areas of significance on or adjacent to the proposed tenements, identifying in each case the particular significance of the site area, a statement of the community or social activities of the native title parties contended to be likely to be interfered with directly by the grant, relevant documents and a statement of the evidence to be given by any witness for the native title party. … The directions also required the Grantee to provide a statement of its contentions, relevant documents and statements of evidence on or before the 15th November 2000, for all parties to file legal submissions as to Section 237 of the Act on or before the 22nd November 2000, for a listing hearing on the 22nd November 2000 and for a hearing date in the week commencing the 11th December 2000 if the matter were not to be determined on the papers. Liberty was allowed to apply for a variation of those directions. No application was made at any time for any such variation." 16 Details of areas covered by tenements and registered sites under the Aboriginal Heritage Act 1972 (Cth) and related information was filed by the State on 31 October 2000. The State filed contentions in support on 1 November 2000. The applicants filed contentions in support of the Objection together with an affidavit of Mr N P Green, Director of Research at the Council on 7 November 2000. 17 On 12 September 2000 the applicants sought a s 150 conference. This was the conference which was terminated without resolution on 15 December 2000, the matter being referred back to the Tribunal on 18 December 2000. 18 From 2 March 2001 the Objection the subject of the second determination was dealt with jointly with the Objection the subject of the first determination in the manner previously recounted save as to the following particulars deriving from its own factual circumstances. 19 On 27 April 2001 when the Council sent to the Tribunal a statement of further contentions and the affidavit of Mr Davies, the geologist, it additionally complained that the protected area excluded from proposed tenement 59/977 was not sufficiently described in the endorsement excluding it. The Tribunal held that the submission overlooked the fact that s 19(3) of the Aboriginal Heritage Act 1972 (Cth) requires a declaration of a protected area to specify the boundaries of the protected area in sufficient detail to enable them to be established and that such description was available to the Objector so that it was not necessary that it be included in the endorsement. 20 The hearing on 7 May 2001 followed the course previously outlined in relation to the Objection of the first determination. The Grantee confirmed it wanted the matters heard. The Tribunal member confirmed his earlier advice he was not prepared to admit the further contentions or the affidavit, pointing out it was the Tribunal's obligation to take all reasonable steps to make a determination as soon as practicable: ss 36(1) and (3) of the Act. His reasons record that the issue was also dealt with as follows: "He pointed out that the Objector had had ample opportunity to earlier seek leave to adduce further contentions and evidence. He further pointed out that the objection application had been lodged almost 12 months previously. Direction has been made on the 6th September 2000 requiring the Objector to lodge its contentions and statements of evidence by the 8th November 2000 which it had been purported to do, and that to allow further contentions and evidence at the present stage would involve further delay in giving the other parties opportunity to reply and fixing further listing dates." The Objector's representative referred to the wish to negotiate, being the reason for the request to lodge the further contentions and affidavit; she expressed concern at the boundaries of the protected area and drew attention to s 142 of the Act claiming that the Objector was not being given a reasonable opportunity to present its case. That submission was rejected. 21 The Tribunal then proceeded to its second determination which was also published on 9 May 2001.

Evidence 22 Two books of agreed documents were admitted into evidence on the hearing of this appeal. Included in the documents so admitted were affidavits of Messrs Hill and Davies, the tender of which had been rejected by the Tribunal. Additionally, there were affidavits of Messrs Fleet, Robinson and Bynder. Objections were taken on behalf of the Grantee to the tender of these latter three affidavits on the grounds that they were not material tendered to the Tribunal; were irrelevant to the issues raised in the appeal and contained material which is hearsay, speculation and assertion rather than evidence. Nevertheless, senior counsel for the Grantee accepted that these affidavits could be admitted for the limited purpose of being considered in relation to what the applicants contend should have been permitted by the Tribunal to have been placed in evidence. 23 Examination of the affidavit of Mr Fleet shows that he describes himself as an anthropologist employee of the Council who has been engaged in conducting research and writing the connection report for the Badimia native title claim. He recounts conversations spoken to him in the course of that work and refers to a report and survey. His conclusion is that the Lake Moore area has a great cultural and spiritual significance to the Badimia people. 24 The affidavit of Mr Robinson states that he is an anthropologist employed at The University of Western Australia. He gives evidence also relative to Lake Moore and supports the reasons why it is necessary to determine through an Aboriginal heritage survey involving Aboriginal people with traditional knowledge and responsibility for the area, whether Lake Moore has a special significance. 25 The affidavit of Mr Bynder shows him to be a Badimia man. He gives evidence in relation to Lake Moore and its significance to Badimia people.

Grounds of appeal 26 There are three grounds of appeal. The first is that in determining the objection applications the Tribunal failed to accord procedural fairness to the applicants. The second is that the Tribunal erred in law in the reliance which it placed on ss 36(1) and (3) of the Act. Thirdly, in respect of the objection application the subject of the second determination, it is maintained that the Tribunal also erred in law in deciding the application without determining whether the Aboriginal Heritage Act protected area no 6 on Lake Moore situated within tenement E59/977. 27 The second and third grounds of appeal relate to specific statutory provisions. The first ground of appeal requires an understanding of the statutory context within which the Tribunal was required to proceed in order to make the determinations. This is because "where the decision in question is one for which provision is made by statute, the application and content of the doctrine of natural justice or the duty to act fairly depends to a large extent on the construction of the statute": Kioa v West (1985) 159 CLR 550 at 584 per Mason J. 28 The Grantee has filed a notice of contention containing three grounds corresponding to each of the appeal grounds. In relation to the first ground the contention is that if the Tribunal failed to accord procedural fairness a properly conducted hearing could not have produced different determinations so that any denial of procedural fairness did not deprive the applicants of the possibility of a successful outcome. In relation to the second ground the contention is that the Tribunal was obliged to determine the applicants expedited procedure objection applications as soon as practicable in any event having regard to certain matters. In relation to the third ground, it is contended that the Tribunal, acting reasonably, could not have held that the grant of E59/977 was "likely" to have any of the consequences stated in pars (a), (b) or (c) of s 237 of the Act by reason of any misdescription of land declared a protected area under s 19 of the Aboriginal Heritage Act.

Relevant statutory context 29 The starting point is s 237 of the Act which 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 person 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." 30 Section 32 applies if a notice under s 29 of the Act includes a statement that the Government party considers the act is an act attracting the expedited procedure. It provides rights for lodgement of objection against the inclusion of a statement in the notice. In the case of a native title party, an objection may be lodged within four months after the notification day: s 32(3) of the Act. 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 it determines that it is, the Government party may do the act: s 32(4) of the Act. If it determines that it is not, subs 31(1) applies as if the notice did not include the statement: s 32(5) of the Act. Relevantly here the arbitral body is the Tribunal: see ss 27 and 253 of the Act. 31 An objection application pursuant to subs 32(3) of the Act, known as an expedited procedure objection application, may be made by a native title party to the Tribunal. Subject to compliance with the requirements of s 76 of the Act in respect of material and fees to accompany applications, the Tribunal "must accept the application". Applications covered by s 75 of the Act are styled as right to negotiate applications. 32 The Tribunal is established in Pt 6 Div 1 of the Act. It has the functions in relation to applications, inquiries and determinations given to it by Pt 3 and Div 5. Section 75 is included in Pt 3. Section 109 sets out the Tribunal's way of operating and describes it as follows: "(1) The Tribunal must pursue the objective of carrying out its functions in a fair, just, economical, informal and prompt way. (2) The Tribunal, in carrying out its functions, may take account of the cultural and customary concerns of Aboriginal peoples and Torres Strait Islanders, but not so as to prejudice unduly any party to any proceedings that may be involved. (3) The Tribunal, in carrying out its functions, is not bound by technicalities, legal forms or rules of evidence." 33 Division 5 sets out provisions in relation to inquiries and determinations by the Tribunal. Section 139(b) provides that the Tribunal must hold an inquiry into a right to negotiate application covered by s 75. Section 140 authorises an inquiry to cover more than one matter, issue or application. Section 141(2) provides that 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. 34 Section 142 addresses the opportunity to make submissions concerning evidence. It provides: "Subject to subsection 151(2) and sections 154 and 155, the Tribunal must ensure that every party is given a reasonable opportunity to present his or her case and, in particular, to inspect any documents to which the Tribunal proposes to have regard in making a determination in the inquiry and to make submissions in relation to those documents." 35 The limitations in the three qualifying provisions relate to the following matters. Firstly, s 151(2) provides that the Tribunal may (inter alia) in relation to a right to negotiate application, make a determination: "by considering, without holding a hearing, the documents or other material lodged with or provided to the Tribunal. However, the Tribunal must hold a hearing if it appears to the Tribunal that the issues for determination cannot be adequately determined in the absence of the parties." 36 Section 154 contains a provision that hearings are to be held in public except in special circumstances provided for and s 155 empowers the Tribunal to prohibit disclosure of evidence. Neither of these latter sections has any relevant qualifying effect in this present proceeding. 37 Section 143 provides for representation before the Tribunal and s 144 requires questions of law arising in an inquiry to be decided in accordance with the opinion of the member presiding. 38 Subject to s 37, the Tribunal, after holding an inquiry in relation to a right to negotiate application, must make a determination about the matters covered by the inquiry. Section 37 qualifies that only in the case of agreement or ministerial determination. In making its determination the Tribunal must state any findings of fact upon which it is based: s 163. It is also required to make its determinations in writing and to give a copy to each of the parties: s 164. 39 The powers of the Tribunal to take evidence are set out in s 156. These authorise it to take evidence on oath or affirmation; to summon a person to give evidence; and to control cross-examination or re-examination. These powers are extended by s 157 to enable the Tribunal to authorise another person to take the evidence. 40 Section 36 appears in Div 3 of Pt 2 of the Act which deals with future acts in native title. Section 35 provides that any negotiation party may apply to the arbitral body for a determination under s 38 if certain conditions as to time are met. Section 38, subject to s 37, provides that the arbitral body must either determine that the act must not be done or may be done or may be done subject to conditions to be complied with by any of the parties. Section 36(1) provides that, subject to s 37, the arbitral body must take all reasonable steps to make a determination in relation to the act as soon as practicable. There is provision in s 36(3) that if the arbitral body is the Tribunal and does not make the determination within the period of six months starting when the application is made, it must, as soon as is reasonably practicable after the end of the period, advise the Commonwealth Minister in writing of the reason for it not doing so and include in that advice an estimate of when a determination is likely to be made. 41 It is also said by counsel for the applicants to be relevant to the issue of considering the statutory context that consideration is given both to the Preamble to the Act and to the objects stated in it. The objects as set out in s 3 are: "The main objects of this Act are: (a) to provide for the recognition and protection of native title; and (b) to establish ways in which future dealings affecting native title may proceed and to set standards for those dealings; and (c) to establish a mechanism for determining claims to native title; and (d) to provide for, or permit, the validation of past acts, and intermediate period acts, invalidated because of the existence of native title." In relation to the Preamble, attention is directed to the statement that "in future, acts that affect native title should only able to be validly done if … every reasonable effort has been made to secure the agreement of the native title holders through a special right to negotiate".

Procedural fairness ground 42 This ground is particularised in six respects, some of which overlap. The contention for the applicants is that the failure to accord procedural fairness occurred because of the pleaded instances of conduct considered either individually or cumulatively. It is on the affidavits of Mr Davies and Ms Lawrence which reliance is placed for the facts said to establish the failure of the Tribunal to accord procedural fairness. Content of procedural fairness 43 For the applicants, the relevant content of procedural fairness is accepted as derivative from the applicable statutory framework, the nature of the decision to be made, the subject matter being dealt with and the facts and circumstances of the case: Re Minister for Immigration & Multicultural Affairs; Ex parte Miah (2001) 179 ALR 238 per McHugh J at [129]; Re Minister for Immigration & Multicultural Affairs; Ex parte Aala (2000) 176 ALR 219 per Gaudron and Gummow JJ at [60]; McMullen v Commissioner for Superannuation (1985) 61 ALR 189 at 209. Here the Tribunal's jurisdiction was enlivened by the applicants, as the native title party according to the Tribunal Expedited Procedure Objection applications, under s 75 of the Act. The Tribunal was obliged to hold an inquiry into the applications: s 139(a). The Tribunal was required to determine whether the acts were acts attracting the expedited procedure: s 32(4) and s 237. The consequence of a determination that the acts attracted the expedited procedure would be to allow the State to validly grant the tenements and to deny the applicants the right to negotiate under s 31 of the Act: s 32(4) and s (5). 44 It is said for the applicants that the way in which the Tribunal was to be conducted follows from examination of ss 108(2), 109(1), 142, 143, 151, 152, 156 and 162. The submission is that a clear thread runs through these provisions that the Tribunal is to act fairly to the parties and to provide the parties with a real opportunity to be heard. 45 Additionally, it is said that factors relevant to determining the content of procedural fairness in the circumstances of this case start with the traditional religious relationships between Aborigines and their land: Edgar & Ors v State of Western Australia & Ors (2001) FCA 607 at [1]. Further, there is the consideration that litigation involving native title should acknowledge the novelty of the legal and factual issues at stake: North Ganalanja Aboriginal Corporation v Queensland (1996) 185 CLR 595 at 614 - 5 and emphasises the resolution of native title disputes by negotiation: North Ganalanja at 614, 632 and 657 and the Preamble to the Act. The submission is made that the obligation on the Tribunal to hold an inquiry into a right to negotiate carries with it the need to ensure that all relevant evidence and submissions are obtained or received. Failure to do so would undermine the purposes of the Act. It is emphasised also that the content of procedural fairness is not limited to the rights and discretions provided for in the Act: Miah per McHugh J at [126]. Additionally, reliance is placed on the requirements of the common law in relation to procedural fairness. While the statutory provisions provide the source of the relevant law, these provisions may be expanded by the implication of conditions supplied by the common law: Annetts v McCann (1990) 170 CLR 596 at 604. The question is whether a statute conferring a power to do something on a public official excludes by plain words of necessary intendment the common law rules of natural justice: Miah at 266 - 267 per McHugh J. It is submitted for the applicants this required the Tribunal to (a) give reasonable notice of an intended hearing; (b) allow an opportunity to be heard; (c) allow the applicants to prepare and present evidence; and (d) allow them to be represented and make submissions. 46 The case for the Grantee does not place in issue that the Tribunal was required by law to accord procedural fairness, or, dispute the content contended for on behalf of the applicants. The case made for the Grantee is that in all and each of the circumstances relied upon to establish a breach of procedural fairness, there was no such breach. Additionally, it is contended for the Grantee that if there was such a breach, it was not relevant to the result. Refusing adjournment and dealing with application on the papers 47 The first three particularisations of the procedural fairness ground related to the events of 17 April 2001. It is alleged firstly, the denial arose from the listing of the applications for hearing on that date with adequate knowledge by the Tribunal that the solicitors and staff of the applicants' representative body were unavailable and after communications with the Grantee not conveyed to the Council before a decision to re-list was made. Secondly, it is pleaded the denial arose from the failure to adjourn the hearing on that date after an adjournment application by a locum solicitor on behalf of the Council. Thirdly, it is alleged the denial arose from the decision of the Tribunal on that date to determine the application "on the papers" without giving the Council a reasonable opportunity to make submissions on the issue. 48 For the applicants it is submitted that the unfairness of the procedure followed by the Tribunal on 17 April 2001 arises from both the circumstances in which the decision was made and the making of the decision. Those circumstances are partly set out in the affidavit of M/s Lawrence. She is a senior legal officer with the Council who was representing the Badimia people during the absence on leave, in April and May 2001, of the Principal Legal Officer of the Council. It was on 10 April 2001 that she received notification by e-mail from the Tribunal case manager that the hearing postponed from 23 March 2001 had been scheduled for 10.00am on Tuesday, 17 April 2001. On 12 April 2001 she requested that the matter be listed after 20 April 2001 (when Mr Davies, the Future Acts Officer would be available) because neither she nor the Pilbara Region Future Acts Officer were available at the appointed date and time. At 5.00pm on 12 April 2001 she was advised by the Tribunal that they had been unable to contact the Tribunal member concerning her request. M/s Lawrence advised she would be on a plane at the appointed time en route to Carnarvon, that no other solicitors or future act officers with knowledge of the file were available and requested the listing hearing be rescheduled for the afternoon so she could attend by telephone. Her affidavit evidence was that she understood that due to unavailability of all relevant people the listing would be rescheduled for the afternoon of 20 April 2001 (although her precise source of knowledge of this understanding is not made apparent). However, at 9.30am on 17 April 2001 she received advice from the Tribunal that the Tribunal member had refused to so reschedule the listing. Consequently, a locum solicitor was arranged at short notice to attend the hearing. She requested an adjournment so that a solicitor or future act officer with knowledge of the matter could attend and advised that the Council wished to submit further evidence and to have an opportunity to be heard in relation to it. 49 Concerning communications by the Tribunal with the Grantee, the submissions for the applicants point to communications in 2000 said to be over solicitous ensuring procedural fairness for the Grantee. They do not assist in relation to the matters particularised. 50 At the hearing on 17 April 2001 (as recorded in the Tribunal Case Manager's Notes) the following were the positions taken by the parties: (a) the locum solicitor for the Council (M/s Ozich) said she was not in a position to do anything that day as she lacked instructions. She asked if a date for hearing was to be set because the Council wanted to submit further evidence. (b) the Grantee's representative (Mr Atkins) said he wanted the matter dealt with. He advised he had negotiated agreement covering three and a half of the eight tenements and wanted the remainder of the tenements granted. When he attended a Badimia Working Group Meeting it had been aborted. (c) The Deputy President said the unavailability of counsel was an ongoing problem, the Tribunal taking last priority. He said on 2 March 2001 it had been suggested the matters be heard on the papers. [This is not recorded in the Tribunal Case Manager's Notes of the listing hearing on that date]. He also said he could strike the matters out for failure to comply. He was not granting any more time. He directed Ms Ozich to advise the Council the matter would be dealt with on the papers. He added the parties continued to have the right to negotiate. I accept the above evidence and do not find it necessary to making specific findings of fact beyond that. 51 For the applicants it is also submitted that as the parties had been in negotiation until 20 March 2001 so that the existence of unfairness should be construed in those circumstances. At the listing hearing on 2 March 2001 the Principal Legal Officer of the Council had requested an adjournment because negotiations were underway for the carrying out of a heritage survey over the Lake Moore area, which he said was of great significance to Aboriginal people. Adjournments were granted to 23 March 2001 "in the hope that agreements would be signed by then". The Deputy President requested the Principal Legal Officer continue his negotiations. However, as soon as the Grantee did not want to engage in the process, the Tribunal felt the need to expeditiously complete the inquiries. This approach of the Tribunal was said to be "lop-sided". 52 For the Grantee it is submitted that the events of April (and May - to which we will come) cannot be considered separately from the circumstances occurring in year 2000 which gave prior opportunity to the applicants. In relation to the first determination, from the date of the preliminary conference before the Deputy President held on 22 June 2000, the applicants were aware of the opportunity provided to them (and the requirement to do so before 24 August 2000) to prepare a statement of their contentions and to file (before 7 September 2000) legal submissions and to be ready for a hearing commencing on 18 September 2000, if the matter were not to be determined on the papers. As has been seen, the applicants' contentions were filed by the due date. It was the applicants who sought a conference and they were aware that was terminated without resolution on 15 December 2000. In the case of the second determination the applicants had until 8 November 2000 to provide a statement of contentions and until 22 November 2000 to file legal submissions, a listed hearing being directed for the week commencing 11 December 2000, if the matter were not to be determined on the papers. Therefore, in both the case of the first and second determination, the applicants had been directed to be ready to argue at hearings each of which would have taken place before the end of the year 2000. It is in that context that the Grantee says unfairness must be judged. 53 Returning to the first particularisation of the procedural fairness ground, it was the duty of the Tribunal to provide to the applicants a reasonable opportunity to be heard. Subject to consideration of the second particularisation. That opportunity was provided by the listing of the matter on 17 April 2001. The obligation on the Tribunal did not extend to listing the hearing at a date when particular counsel would be available. 54 The second particularisation refers to the refusal to adjourn after the application by the locum solicitor. That refusal occurred in circumstances where the applicants had been notified on 10 April 2001 of the listing on 17 April 2001. Although it was not until 9.30am on 17 April that M/s Lawrence received notification that the listing would not be rescheduled, she was not entitled to assume it would be until so notified. Furthermore, when notified of the position on 12 April 2001 M/s Lawrence adhered to a travel schedule which could not enable her to meet the listing time. The need for adjournment therefore arose from her actions in not being ready for a hearing of which she had received at least seven days notice. The opportunity of hearing offered on 17 April 2001 was, therefore, a reasonable opportunity. The reasonableness of the opportunity provided on 17 April 2001 is also to be assessed in the context of the requirement for the applicant parties to be ready for a hearing prior to the end of 2000 and subsequently to be ready for a hearing (postponed due to reasons beyond the Tribunal member's control) on 23 March 2001. In those circumstances the Tribunal member was entitled to expect parties to be ready to proceed before him. Furthermore, the statutory provision of reasonable opportunity provided for in s 142 of the Act is expressly subject to the power to determine the objection on the papers provided for in s 151(2). The reasonable opportunity provided for in the former is excluded by the plain words of necessary intendment when s 151(2) is applied. 55 The third particular is whether there was a denial of procedural fairness in the Tribunal deciding to determine the applications on the papers without giving the Council a reasonable opportunity to make submissions on that issue. The power of the Tribunal to so determine arising as it does from s 151(2) of the Act is a power which arises in the Tribunal "without holding a hearing". The patent intention of the power is that the Tribunal can decide to proceed on the papers if it is satisfied that the issues for determination can be adequately determined in the absence of the parties. There is no express qualification of this power. The power is not circumscribed by reference to the consent of parties. If the Tribunal was correct that it should not hear further evidence, there was no reason for it not to be satisfied that the determination could be adequately dealt with in the absence of the parties. The clear legislative intent behind the power is that in those circumstances the Tribunal should be able to act on the papers. The qualification of s 142 by the provisions of s 151(2) makes this apparent. Consideration of the objectives of the Act cannot lead to a contrary view. Therefore I do not consider that the exercise by the Tribunal of the power under s 151(2)(b) on 17 April 2001 constituted a denial of procedural fairness. Refusing to accept contentions and affidavit of Mr Davies 56 For the applicants it is contended that what occurred on 7 May 2001 must be seen in the context of what occurred on 17 April 2001. The evidence of what occurred on 7 May 2001 appears in the affidavit of M/s Lawrence, in the affidavit of Mr Davies and in the Case Manager's Notes made on behalf of the Tribunal. The issues before the Tribunal on 7 May 2001 arose in the following way. On 23 April 2001 Mr Davies sent a facsimile to the Tribunal seeking a variation in directions to allow for the submission of further evidence. He was advised by the Tribunal's Case Manager that a variation in directions would not be required; to provide contentions and affidavits and that, if Wildbeach had no objection, the Tribunal would accept the further documents. He responded by filing contentions and an affidavit sworn on 27 April 2001. The substance of the contentions was that the grant of five of the tenements would create rights the exercise of which was likely to involve a major disturbance including, but not restricted to, the activities detailed in the accompanying affidavit. In addition, the accompanying statement of further contentions it was contended that the endorsement for tenement E59/977 did not provide a description of the location and area of land protected under s 19 of the Aboriginal Heritage Act so that the site was unprotected. On 3 May 2001 the Tribunal's Case Manager advised Mr Davies the matter was listed on 7 May 2001 for the purpose of allowing the Council to make submissions to the Tribunal as to why further evidence should be accepted. 57 Mr Davies and M/s Lawrence attended the hearing on 7 May 2001. The Deputy President opened proceedings by stating the Council's request was refused because the contention that the endorsement by the Crown Solicitor's Office was insufficient to delineate protected areas was not consistent with the requirements of s 19 of the Aboriginal Heritage Act. On a submission from M/s Lawrence that the reason for the hearing was to determine whether further evidence was to be admitted, the Tribunal member said that was not the case (the hearing being to consider an issue of conduct by the Council). M/s Lawrence referred to the requirements of s 142 of the Act. The Tribunal member referred to s 36 of the Act as requiring a determination to be made as soon as possible. He said the objections had first been lodged on 3 March 2000 and there had been a number of hearings and mediation conferences. The representative of the Grantee stated he did not wish to attend any further meetings and wanted the matter dealt with. The Tribunal member stated the matter would be determined on the papers as soon as possible. 58 The affidavit in relation to which such submissions were made is also in evidence. It assembled its paragraphs under headings reading "Reverse circulation drilling in areas of hypersaline ground water", "Diamond (core) drilling" and "Excavation of up to 1000 tonnes of material". It exhibited a map and three photographs. As the reasons for the determinations stated, the affidavit of Mr Davies was intended to be directed to s 237(c) of the Act and expressed his opinion "as a geologist" that the grant of the proposed tenements would create rights whose exercise was likely to involve major disturbance. As the same reasons state, it was the opinion of the Tribunal member that the question of whether the proposed tenements were likely to involve major disturbance from the viewpoint of the Australian community generally, was not to be answered by the opinion of a geologist as to what disturbance may result but by the circumstances and evidence adduced. 59 It is submitted for the applicants that in deciding not to allow further evidence and submissions to be made on and after 7 May 2001, the Tribunal was unduly influenced by the supposed delay by the applicants representative body in filing affidavits and making submissions; the fact that the objection was first lodged almost a year earlier; and the erroneous construction of s 36 of the Act. It is further said that the Tribunal wrongly ignored the duty which it had to conduct an inquiry (see: CVT (1995) 136 ALR 703 at 722); the accommodation which it had given to the parties endeavouring to negotiate a settlement from September 2000 to April 2001; and that any delay in filing additional submissions and affidavits did not disentitle the applicants from an adjournment to allow other affidavits to be lodged. It is said that the short additional period of time which would have been required in comparison to the period over which the Tribunal had been prepared to allow negotiations to take place could not have inhibited the Tribunal performing its statutory duties. 60 The case for the applicants cites Yim v Immigration Review Tribunal (1994) 54 FCR 186, where it was held at 195 per Branson J that the failure by a tribunal to give proper consideration to the issue of whether a hearing should be adjourned to allow psychiatric evidence to be obtained amounted in the circumstances to a denial of natural justice. That is a decision very much related to its particular circumstances and the question here has to be judged in its own circumstances. Similarly, the case for the applicants cites the need to give justice paramountcy over case management principles: Queensland v JL Holdings Ltd (1997) 189 CLR 146. However, the Tribunal member was not purporting to provide paramountcy to case management principles, only to the requirements of expedition reflected in s 109 of the Act in the particular circumstances of how the applications before him had developed. 61 The hearing on 7 May 2001 occurred after the decision of the Tribunal member made on 17 April 2001 to make the determinations on the papers. That decision qualified the reasonable opportunity given to the applicants on 7 May 2001 to move for a variation of directions. That explains the decision of the Tribunal member not to receive further evidence. Furthermore, his refusal is also supportable by reference to the view he took of the effect of s 19 of the Aboriginal Heritage Act and the requirements of promptness reflected in s 109(1) of the Act. In my opinion, there cannot therefore be a denial of procedural fairness. Refusal to accept additional affidavits 62 It is also contended for the applicants that there was other evidence which could have been adduced if procedural fairness had been accorded to them. That evidence is that which is now contained in the affidavits of M/s Fleet, Mr Robinson and Mr Bynder. Those affidavits, with respect to the land included in the exploration licences, attest to the spiritual and cultural significance of Lake Moore to the Badimia people; a ceremonial ground being located within the area of Lake Moore; the Kunturu site of significance on the western shore of Lake Moore; and the culturally significant stone pathway across Lake Moore. It is said that conducting the enquiries and making the determinations without allowing the applicants to present this evidence was procedurally and substantively unfair. 63 For the applicants, attention is also directed to affidavit evidence of M/s Lawrence that she attended the listing hearing on 7 May 2001 intending to seek leave to file further affidavits on sites and community activities from anthropologists and Badimia claimants. Reliance is also placed on the absence of cross-examination on this evidence. Additionally, attention is directed to the record in the Tribunal Case Manager's notes of the hearing on 7 May 2001 that M/s Lawrence had stated her understanding that the reason for the hearing was to determine whether further evidence was to be admitted. 64 The submissions for the Grantee point to the absence of any record of any submission by the applicants seeking to tender other affidavits in addition to the one sworn by Mr Davies on 27 April 2001. Further, it is submitted that even in this proceeding by way of appeal there is no evidence that the applicants originally intended to adduce the further affidavits which have now been filed. The further affidavits of M/s Fleet, Mr Robinson and Mr Bynder were sworn respectively on 19 June, 19 July and 20 July 2001. It is therefore submitted that the evidence in these further affidavits was not evidence which the applicants were in a position to adduce at the original hearing. To allow them to succeed on this ground would, it is said, in effect give them a de facto adjournment when they had ample opportunity to assemble the evidence prior to the hearing before the Tribunal. 65 The record in the Tribunal Case Manager's notes is as consistent with the respondents' position as with that of the applicants on the issue and so does not assist the latter. The weight of evidence favours the Grantee's case and I find accordingly that it is not the case that at the hearing on 7 May 2001 it was intended to seek leave to file the affidavits of M/s Fleet, Mr Robinson and Mr Bynder. Accordingly no denial of procedural fairness could have arisen in that respect. Whether any denial of procedural fairness could have materially affected the Tribunal's decision 66 For the applicants it is submitted that evidence contained in the affidavits of Mr Davies and in the further affidavits of M/s Fleet, Mr Robinson and Mr Bynder could have materially affected the Tribunal's decision so that the appeal must be allowed: Re Refugee Review Tribunal; Ex parte Aala (2000) 176 ALR 219, particularly at [4], [80], [104] and [132]. If it is found by another court that any of the foregoing matters raised on behalf of the applicants did constitute a denial of procedural fairness, it is necessary to ask whether that would have made a difference to the Tribunal's decision. It is not every departure from the rules of natural justice which entitle an aggrieved party to a new hearing: Stead v State Government Insurance Commission (1986) 161 CLR 141 at 145 and see also Giretti v Commissioner of Taxation (1996) 70 FCR 151 and Abriel v Australian Guarantee Corporation Ltd [2001] FCA 165. 67 For the Grantee it is contended that if the additional contentions and affidavit of Mr Davies sent to the Tribunal on 27 April 2001 had been considered and even if all the additional evidence now before the Court including the additional affidavits of Fleet, Robinson and Bynder, had been considered the Tribunal would still have had to make determinations in favour of the Grantee. The Grantee supports that submission in the following way. 68 Whether the grant of the relevant exploration licences would in each case have been an act attracting the expedited procedure depends upon the tests set out in pars (a), (b) and (c) of s 237 of the Act. As has been seen above, each of these tests depends upon whether the act of granting the licences would have been "likely" to have certain consequences. It is said that this requires a predictive assessment approach and an assessment on the balance of probabilities. 69 It was the Native Title Amendment Act 1998 which substituted the words "is not likely to" for the words "does not" in pars (a), (b) and (c) of s 237 of the Act. In Dann v Western Australia (1997) 74 FCR 391, the Full Court ruled in favour of the approach taken by Lee J in Western Australia v Ward (1996) 70 FCR 265 at 278 - 279 that the Tribunal's task on the language of the section as it was then was to access the potential consequences of the exercise of the right and it was not required to determine the degree of likelihood that the consequences would in fact occur. That was in contrast to the predictive assessment approach adopted by Carr J in Ward v Western Australia (1996) 69 FCR 208 at 222 and in Dan at first instance (1996 142 ALR 21 at 37 - 38. I agree with French J in Smith on behalf of the Gnaala Karla Booja People v State of Western Australia [2001] FCA 19 at [23] that the effect of the amending act is that the Tribunal is 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 so that a predictive assessment is involved being one not confined to a consideration of the legal rights conferred by the grant of the proposed tenement. 70 In Smith at [23], French J also held that consistently with the objects of the Act, the word "likely" requires risk assessment by the Tribunal that will exclude from the expedited procedure any proposed act which would involve a real chance or risk of interference or major disturbance of the kind contemplated by s 237. He supported that view by reference to Tillmanns Butcheries Pty Ltd v Australian Meat Industry Employees' Union (1979) 27 ALR 367 at 375 (Bowen CJ) and 380 - 381 (Deane J) and to Jungarrayi v Olney (1992) 105 ALR 527 at 537 - 538. He therefore did not accept that the term "likely" was directed to a judgement on the balance of probabilities as to interference or major disturbance. For the Grantee, it is submitted that Smith should not be followed in this respect and that the balance of probabilities approach should be favoured as being consistent with the nature of predictive assessment. 71 For the applicants it is said that a single judge of this Court should follow, as a matter of judicial comity, a decision of another single judge of the Court unless the Court is convinced the other judgment is "clearly wrong". It is submitted that the reasoning of French J at [23] of Smith is correct or, at worst, not clearly wrong and should be followed by the Court. 72 In his judgment, French J set out the amendments to s 237 of the Act and the explanatory memorandum. I agree with the submission for the applicants that neither of these compel the conclusion that the word "likely" in s 237 means more probable than not. Having examined the authorities relied upon by French J - namely Tillmanns Butcheries and Jungarrayi - I consider that the decision reached by him should be followed. 73 The consequence of this is that it is necessary to consider whether the Grantee has made out the second of its grounds of contention on the basis that the affidavit of Mr Davies and any additional affidavit evidence could not have led the Tribunal, acting reasonably, to have held that the grant of any of the exploration licences was "likely" (in the sense of creating a real chance or risk) to have any of the consequences stated in pars (a), (b) or (c) of s 237 of the Act. Whether act likely to interfere with community or social activities: s 237(a) 74 There is no evidence in any of the applicants' further proposed evidence relevant to this matter. Consequently, the Tribunal could not reasonably have concluded that exploration activities would be "likely" to interfere with the carrying on of the applicants' community or social activity. Whether act likely to interfere with areas or sites: s 237(b) 75 As far as "sites" are concerned, it is accepted for the Grantee that, leaving aside the further affidavit of Bynder, the further evidence does show that the Kunturu site may be of particular significance to the applicants. However, it is submitted the Tribunal could not reasonably have concluded that exploration activities would be likely to interfere with any of these sites because all of them are subject to the protection of ss 16 and 17 of the Aboriginal Heritage Act 1972 and there is no evidence suggesting that it is likely this protection would be removed. 76 Those sections read: "16. (1) Subject to section 18, the right to excavate or to remove any thing from an Aboriginal site is reserved to the Registrar. (2) The Registrar, on the advice of the Committee, may authorize the entry upon and excavation of an Aboriginal site and the examination or removal of any thing on or under the site in such manner and subject to such conditions as the Committee may advise. 17. A person who - (a) excavates, destroys, damages, conceals or in any way alters any Aboriginal site; or (b) in any way alters, damages, removes, destroys, conceals, or who deals with in a manner not sanctioned by relevant custom, or assumes the possession, custody or control of, any object on or under an Aboriginal site, commits an offence unless he is acting with the authorization of the Registrar under section 16 or the consent of the Minister under section 18" In addition s 18 makes provision for the Minister to give his consent to the use by an owner of land in a way which would be likely to result in a breach of s 17 in respect of any Aboriginal site having regard to the general interest of the community. 77 For the applicants it is submitted therefore that the Aboriginal Heritage Act does not provide unqualified protection in these provisions but merely makes it an offence to damage sites contrary to the Act. Furthermore, the power of the Minister under s 18 to permit a breach of s 17 may occur in circumstances where a native title party has no right under the Act to make submissions to the Minister. Nevertheless, I do not consider it can be said it is likely such interference would occur given the protective effect of the sections in the Aboriginal Heritage Act. In other words the chance of such interference is not real and is remote in those circumstances. 78 In relation to "areas" and turning to the affidavit of Mr Bynder, that is an affidavit which suggests there is a sacred quality attached to the entirety of Lake Moore. For the Grantee it is submitted that for three reasons it could not reasonably form the basis of a conclusion by the Tribunal that the grant of the exploration licences would be likely to interfere with areas or sites of particular significance, in accordance with the traditions of the applicants for several reasons. The first is that Mr Bynder fails to establish that he is properly qualified to speak about the applicants' traditions in relation to areas or sites of significance. The scope of his evidence is that he is able to narrate a dreaming story. He does not say he holds any particular position within the community of the Badimia people or that he has actively maintained his contact with this community and its traditions. Secondly, he asserts that Lake Moore is sacred but does not identify the nature of its sacred quality and what this requires. It is submitted that without knowing this it would be impossible for the Tribunal to have drawn any conclusions as to whether exploration activities would be likely to interfere with that sacredness. Thirdly, he does not address whether Lake Moore is of "particular" significance. 79 As to the first point, it is the case that Mr Bynder does not establish his qualifications to speak for the Badimia people so that his evidence has the weight of one Badimia person. Similarly, as to the third point, I consider a fair reading of the affidavit does arguably show that Lake Moore is of "particular" significance to Mr Bynder but not for the Badimia people generally. Concerning the second point, I proceed on the assumption that spiritual attachment to land cannot presently be excluded as an element of tradition in relation to an area. However, the evidence of Mr Bynder does not go to the nature of the sacredness so that it is not evidence on which a Tribunal could arguably reach a conclusion about likelihood of a real chance or risk of interference, even more so in the absence of any qualification of witness as a spokesman for the area. Mr Robinson's affidavit would not have strengthened the applicant's case further in these respects. It follows that even if the further evidence had been admitted it would not have assisted in establishing the ground under s 237(b). 80 Submissions for the applicants warn that this Court must not fall into the error of making an evaluative judgment of the merits of Mr Bynder's affidavit other than to determine whether it is possible its contents could lead to a different decision by a differently constituted Tribunal. I accept that is the correct approach to take. I do not consider the submissions for the Grantee are intended to be understood in any other way. Whether act is not likely to involve major disturbance to any land or waters: 237(c) 81 The only evidence from a member of the applicants' claim group as to their view of the disturbance is the affidavit of Mr Bynder. The only other evidence is a claim by anthropologists that in their view the very thought of exploration activities will cause distress to the applicants' community but that is arguably insufficient to qualify under the paragraph. This evidence stands on the same footing as that in relation to s 237(b); that is, it is not evidence which arguably establishes a real chance or risk of a major disturbance to land or waters concerned or the creation of rights having that effect.

Statutory construction ground relating to s 36 82 The case for the applicants in respect of this ground is that it was relied upon in error by the Tribunal. This is because ss 36(1) and (3) apply to an application for a determination under s 35 and s 38 of the Act in relation to whether a future act may be done rather than a decision upon an expedited procedure objection application under s 32(3) of the Act. It is submitted that due to its erroneous construction of the legislation, the Tribunal wrongly considered it was statutorily required to make a determination as soon as practicable. Consequently the Tribunal took into account an irrelevant consideration and erred in law. 83 For the Grantee it is submitted that if the Tribunal did not deny the applicants procedural fairness or the result would have been the same even if procedural fairness was not accorded, success on this ground of the appeal would not justify remitting the matter. 84 Furthermore, it is submitted that the Tribunal had an obligation to act promptly (see s 109 of the Act) which is emphasised by the presence of s 151(2) allowing the Tribunal to make a determination on the papers. This in turn is supported by the naming of the procedure by Parliament as the "expedited procedure" so that ss 36(1) and (3) were relevant in indicating a statutory intention to limit the more lengthy process provided for in ss 35 and 38 and hence by inference the expedited procedure. 85 In my opinion the reliance by the Tribunal on the ss 36(1) and (3) was in error in its terms but would not justify remitting the matter unless the procedural fairness ground was made out. The reason why it would not justify remittal is that expedition was appropriate in the circumstances for the reasons submitted on behalf of the Grantee including particularly the provisions in s 109 of the Act.

Ground relating to protection of Lake Moore 86 As previously referred to this objection application applies only to the second determination. 87 It is submitted for the applicants that the Tribunal was in error in saying that it was not required to determine whether there was a gazettal error. It is said this is because, if exploration rights were granted over an area which was supposed to be protected but which, due to administrative error, was not protected, it could not be said there was no real chance of interference with a site of particular significance, in the terms of s 237(b) of the Act: Smith v State of Western Australia (2001) FCA 19. 88 For the Grantee it is submitted there is no evidence that the gazetted boundaries of the site were incorrect compared to the actual location of the site. Furthermore, it is said that the site would have been protected by ss 16 and 17 of the Aboriginal Heritage Act wherever it was located, whether or not within the gazetted area. 89 In my opinion the submissions for the Grantee are correct.

Conclusion 90 For these reasons I consider that the appeals should be dismissed. I certify that the preceding ninety (90) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice RD Nicholson.

Counsel for the First Respondent: No appearance

Counsel for the Second Respondent: Mr C L Zelestis QC with Mr J Thompson

Solicitor for the Second Respondent: Talbot & Olivier

Date of Hearing: 4 September 2001

Date of Judgment: 6 December 2001