Mineralogy Pty Ltd v National Native Title Tribunal [1997] FCA 1404

REASONS FOR JUDGMENT INTRODUCTION This is an application, under the Administrative Decisions (Judicial Review) Act 1977 (Cth) ("the ADJR Act"), for an order of review of a decision of the National Native Title Tribunal, made on 18 April 1997. On that date the Tribunal decided, pursuant to s 32(4) of the Native Title Act 1993 (Cth) ("the Act"), that the proposed extension of the term of the applicant's exploration licence EO8/118 ("the proposed extension") was not an "act attracting the expedited procedure". The first respondent, the National Native Title Tribunal, and the third respondent, the State of Western Australia, each filed notices to the effect that they did not wish to take any part in the hearing, and they did not do so. The contest is thus between the applicant on the one hand and the second respondent on the other hand. FACTUAL BACKGROUND As its name might suggest, the applicant is a mineral exploration company. On 3 April 1987 it became registered, by transfer, as the holder of exploration licence EO8/118 ("the exploration licence"). The exploration licence had been granted, under s 57 of the Mining Act 1978 (WA) ("the Mining Act"), to explore for minerals in part of the Ashburton Mineral Field, for an initial term of five years commencing on 20 February 1986. The (Western Australian) Minister for Minerals and Energy granted five extensions of the term of the exploration licence, each such extension being for a period of 12 months. The last of those extensions extended the term of the exploration licence to 19 February 1996. On 20 October 1995 the applicant applied to the Minister for Minerals and Energy for a further extension of the term of the exploration licence. The Minister has not determined that application. By the operation of s 61(3) of the Mining Act the exploration licence continues in force until that application for extension is determined. On 13 March 1996, the State of Western Australia, ("the Government party"), gave notice under s 29 of the Act of its intention to grant a further extension of the term of the exploration licence. That extension would have been until 19 February 1997. This matter has been conducted on the basis that the Government party proposes to extend the term of the exploration licence for a period extending some time into the future. There was no suggestion from the second respondent that the matter was rendered moot by the fact that the period of extension for which the applicant applied had already expired. In its notice of intention the Government party, acting pursuant to s 29(4) of the Act, included a statement ("the Statement") that it considered that the grant of the further extension was an "act attracting the expedited procedure", a term defined in s 237 of the Act. On 10 May 1996 the second respondent, Mr Red Alexander, applied for a determination of native title over land which included the area (other than a small portion of freehold land) within the exploration licence. The Registrar of the National Native Title Tribunal accepted that application and the second respondent thereby became a registered native title claimant and "native title party" - see s 30(a) of the Act. Also on 10 May 1996, the second respondent objected (under s 32(3) of the Act) to the inclusion of the Statement in the Government party's notice. The exploration licence extends over land comprising two pastoral leases, a special lease, freehold land, a reserve and vacant Crown land. The National Native Title Tribunal, constituted by the Hon C J Sumner, heard the second respondent's objection on 7 March 1997. In the proceedings before the Tribunal, the applicant argued that the Tribunal did not have jurisdiction to determine whether the proposed extension was an act which attracted the expedited procedure. This was because, so the applicant contended, the proposed extension was not a "future act" and that the characterisation of the proposed extension as a "future act" was a necessary condition precedent to the Tribunal's jurisdiction. In summary, the applicant submitted to the Tribunal that the proposed extension was not a "future act" either because it was a "past act" or because it will not "affect" any native title rights. The Tribunal considered, most carefully, the applicant's contentions that it lacked jurisdiction. It decided that it could only find that the proposed extension was not a "future act", on the basis that it was a "past act", by determining that the original grant of the exploration licence was invalid because of the existence of native title. This, so it observed, would require "... an inquiry of some legal and factual complexity ..." which was "something which is inappropriate in an expedited procedure inquiry". The Tribunal similarly declined to investigate whether the proposed extension fell outside the definition of a "future act" because the original grant of the exploration licence had extinguished inconsistent native title rights and the proposed extension would confer no more than those original rights. The Tribunal noted that this would involve applying the principles explained by the High Court of Australia in Wik Peoples v Queensland (1996) 187 CLR 1 (in relation to certain pastoral leases) to the original grant of the exploration licence. It would also involve deciding the question whether any native title rights "affected" by that grant were extinguished or merely suspended until the expiry of the term of the exploration licence and then revived, a question left open by the High Court in Wik. The Tribunal expressed the view that if it embarked upon this inquiry ".. more evidence about the nature of the grant would have been required". It declined to embark on such an inquiry, having previously referred to the policy of the Act in relation to the application of the "right to negotiate" provisions to undetermined native title claims as being "... to assume that native title exists and may be affected". On 18 April 1997 the Tribunal published its determination (and its reasons for the determination) that the proposed extension was not an act which attracted the expedited procedure. On 20 May 1997 the applicant filed this application.

THE LEGISLATIVE FRAMEWORK Subdivision B (which is entitled "Right to negotiate" and which I shall refer to simply as "Subdivision B") of Division 3 of Part 2 of the Act applies to certain "permissible future acts", a term defined by s 235 of the Act. Subject to the applicant's submissions that the proposed extension is not a "future act" because it is a "past act", the grant of an extension of the term of an Exploration Licence would appear, on a prima facie basis, to fall within that definition because it is an act (other than the making, amendment or repeal of legislation) which could be done in relation to the land concerned if the relevant native title holders instead held ordinary title to that land - see s 235(5). Section 26(2) [when read with s 26(1)] relevantly provides that the creation of a right to mine, whether by the grant of a mining lease or otherwise, or the extension of the period for which such a right has effect are, subject to s 26(3), permissible future acts to which Subdivision B applies. Section 253 defines the verb "mine" as including to explore or prospect for things that may be mined. Accordingly, to grant an exploration licence (subject to exceptions not here relevant) amounts to the creation of a right to mine for the purposes of the Act. The exclusions provided for in s 26(3) do not apply to these matters. Some indication of the purpose of Subdivision B can be obtained from the "Commentary" published with the Act and the second reading speech of 16 November 1993. Those documents indicate that Subdivision B is intended as a mechanism for determining whether or not certain acts may be done. In essence, they are acts relating to mineral exploration and mining, the compulsory acquisition of native title rights for the purpose of conferring rights on a third party and any other acts approved by the Commonwealth Minister. There are other "permissible future acts" which do not fall within Subdivision B - see s 235. Within the regime established by Subdivision B there is provision for what might be termed a "fast track" or expedited procedure. An "act attracting the expedited procedure" is defined by s 237 as one which does not directly interfere with the community life of native title holders or with areas or sites of particular significance in accordance with their traditions, or which does not involve major disturbance to any land or waters concerned or create rights whose exercise will involve such major disturbance. The significance of an act attracting the expedited procedure is that the Government party may do the act. If the act does not attract the expedited procedure then there are provisions for negotiation and determination by the Tribunal as to whether the act may or may not be done. I shall now trace through the procedural steps provided by Subdivision B to set the statutory context for the present matter. Section 29 of the Act requires the Government party to give notice of its intention to do the permissible future act. Section 29(4) permits the Government party to include in such notice a statement that it considers the act is an "act attracting the expedited procedure". As I have mentioned above, it did so in this matter. The Government party must give that notice to various persons including any registered native title claimant in relation to any of the land or waters that will be affected by the permissible future act. Such a claimant is described in the relevant provisions as being included within the expression "native title party", see s 29(2). The expression is extended by s.30 to include any person who becomes a registered native title claimant within two months of the giving of notice by the Government party. The second respondent in these proceedings is thus a native title party. Section 32(2) of the Act provides that if the native title parties do not lodge an objection to the inclusion of the Statement with the arbitral body in accordance with s 32(3), the Government party may do the act (in this case, grant the proposed extension of the applicant's exploration licence). Section 32(3) provides that the native title parties may, within two months of being given notice by the Government party, lodge an objection with the arbitral body against the inclusion of the Statement. The second respondent has done so. In this matter the arbitral body is the Tribunal, constituted by Mr Sumner. Section 32(4) provides that if the 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. Section 32(5) provides that if the arbitral body determines that the act is not "an act attracting the expedited procedure", the arbitral body must request the Government party and the grantee parties to negotiate in good faith with the native title parties with a view to obtaining their agreement to doing the act, whether subject to conditions or not, and must offer to mediate among "the negotiation parties" to assist in obtaining their agreement. The term "negotiation party" is defined by s 253 as meaning a Government party, a grantee party or a native title party. There are provisions relating to such negotiations and for the making of a determination by the arbitral body if the negotiation parties cannot reach agreement. From the above it may be seen that, on the assumption that the Government party complies with the Tribunal's abovementioned request, a successful objection to the inclusion of the Statement confers on the objector what is commonly described as a "right to negotiate". Section 35 provides that if agreement is not reached between the parties concerned within the respective periods referred to in that section from the giving of the notice under s 29, then any party may apply to the Tribunal for a determination whether the "permissible future act" may or may not be done or may be done subject to compliance with conditions. It appears that "the right to negotiate" is regarded by objectors as a valuable one. Section 75 of the Act describes, by means of a short table, applications that may be made to the Registrar under Division 2 of Part 3 of the Act. Although the applications are referred to as being made "to the Registrar" it was common ground that in the present matter this meant "to the Tribunal". An objection to an act attracting the expedited procedure is treated as an application to the Tribunal. The portions of that table which are relevant to the present matter read as follows:

APPLICATIONS

Kind of Persons who application Application may make application

Objection to Application under subsection A native title inclusion in an 32(3) objecting against the party expedited procedure inclusion of a statement that an application act is an act attracting the expedited procedure.

Section 139 provides that the Tribunal "must hold an inquiry into: ... an application covered by section 75 ..." (which is described as a "right to negotiate application"). Section 139, and the sections following it, govern the procedure to be followed by the Tribunal. Section 162 of the Act requires the Tribunal, after holding an inquiry in relation to a "right to negotiate application", to make a determination about the matters covered by the inquiry. Section 162(2) requires the Tribunal to state in the determination any findings of fact upon which it is based. Section 165 provides that a determination of the Tribunal, other than a determination in relation to a "right to negotiate" application, is not binding or conclusive. Section 169(1) of the Act provides that a party to an inquiry relating to a "right to negotiate" application may appeal to the Federal Court, on a question of law, from any decision or determination of the Tribunal in that proceeding. Section 169(5) declares that the Court has jurisdiction to hear and determine appeals instituted in accordance with the section. Section 169(6) provides that the Court must hear and determine the appeal and may make such order as it thinks appropriate by reason of its decision. Examples of such orders are set out in s 169(7). As mentioned above, in the present matter the Tribunal found against the applicant on the jurisdictional issue and determined that, on the evidence before it, the proposed extension was not an "act attracting the expedited procedure". This was because the Tribunal found that the activities which would be permitted by the exploration licence would be likely to result in direct interference with the community life of the native title party within the meaning of s 237 of the Act. THE ISSUES TO BE DECIDED The grounds set out in the application for review disclose two issues for decision. They are: 1. Whether the Tribunal had jurisdiction or was authorised by the Act to make the decision (sections 5(1)(c) and (d) of the ADJR Act) and, in particular, whether it was a condition precedent to the Tribunal's jurisdiction or authority to make the decision, that the proposed extension be a "future act" to which Subdivision B applies?; and 2. Whether the proposed extension is not a "future act" because either: (a) it is a "past act" as defined in s 228(4) of the Act; or (b) if it is not a "past act", it does not "affect" (as defined in s 227 of the Act) any native title that may still exist? I shall deal with those issues in the above sequence. 1. Whether the Tribunal had jurisdiction or was authorised by the Act to make the decision (sections 5(1)(c) and (d) of the ADJR Act), and, in particular whether it was a condition precedent to the Tribunal's jurisdiction or authority to make the decision, that the proposed extension be a "future act"? A Preliminary Point The applicant submitted that this Court, on reviewing the Tribunal's decision on the grounds of lack of jurisdiction, must independently determine the existence of "the pre-conditions to the Tribunal's jurisdiction." It further submitted that the Tribunal cannot conclusively give itself jurisdiction by wrongly deciding that the "pre-conditions" to its jurisdiction have been fulfilled. The second respondent did not argue to the contrary. The essence of the second respondent's submissions on this aspect was that the Tribunal clearly had jurisdiction to determine that the proposed extension was not an act that attracted the expedited procedure. I consider those submissions below. But first I shall attend to the applicant's submissions concerning this Court's role in the matter. In my view, the principles explained by the High Court of Australia in Federated Engine-Drivers and Firemen's Association of Australasia v Broken Hill Proprietary Co. Ltd (1911) 12 CLR 398 at 415, 428, cited with approval in The King v Blakeley; Ex parte Association of Architects, Engineers, Surveyors and Draughtsmen of Australia (1950) 82 CLR 54 at 70 and 74-75 apply. In the former case, Barton J (at p 428) said that what he described as "the primary Tribunal" in that matter would have been: "... as wrong to accept jurisdiction without sufficient inquiry as to refuse it with precipitancy. Where the jurisdiction is disputed, adequate and careful inquiry is still the duty of the Court of first instance, just as it may become the duty of the superior Court. On the other hand, where the jurisdiction is not contested by the party defending, very slight inquiry may be adequate, and many cases will, to the mind of the Tribunal be so plainly within its competence that it will rightly forego inquiry unless the objection is taken, and the objector tenders proof of facts in its support." In Blakeley (at p 70) Latham CJ explained: "But the Commissioner [a Conciliation Commissioner under the Commonwealth Conciliation and Arbitration Act 1904] cannot conclusively determine the question of the existence of a dispute. He cannot give himself jurisdiction by wrongly deciding this question of fact. . . . In other words, the existence of the facts is a condition of jurisdiction." His Honour had held, at the previous page, that it was the responsibility of the High Court of Australia to determine for itself whether that condition of jurisdiction was satisfied at the time when the Commissioner made his decision. I propose to apply the principles so expounded in those cases. In my view, when, as in this matter, a party to proceedings before the Tribunal challenges its jurisdiction or authority, it is the duty of the Tribunal to make due inquiry about whether it has that jurisdiction or authority. Similarly, it is the function of this Court, on review, to decide that matter for itself. I now turn to the particular question whether the characterisation of the proposed extension as a "future act" is an essential condition precedent to the Tribunal exercising jurisdiction under s 32(4) of the Act? Applicant's Contentions The applicant first referred to the context of s 32(4) of the Act and in particular the fact that that subsection is to be found in Part 2 of the Act which is entitled "Native Title", Division 3, which is entitled "Future acts and native title" and Subdivision B which, as I have indicated above, is entitled "Right to negotiate". The applicant submitted that the power of the Tribunal to decide whether an act attracts the expedited procedure under s 32(4) appears within the context of a broader scheme of provisions dealing with "future acts" extending between ss 21 and 44 of the Act. Then the applicant pointed to the criteria set out in s 237 to be applied by the Tribunal when exercising its jurisdiction under s 32(4) to determine whether a proposed act is an "act attracting the expedited procedure". Section 237 is in the following terms: "Act attracting the expedited procedure 237. A future act is an "act attracting the expedited procedure" if: (a) the act does not directly interfere with the community life 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 does not 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 does not involve major disturbance to any land or waters concerned or create rights whose exercise will involve major disturbance to any land or waters concerned." In particular, Mr C.H. Mah, counsel for the applicant referred to the opening words "A future act is an 'act attracting the expedited procedure'". Mr Mah submitted that s 237 presupposes that the Tribunal has before it a proposed act which is a "future act". Given the opening words referred to immediately above, it was not, so he submitted, meaningful to apply the criteria contained in that section unless the Tribunal had before it a proposed act which is a "future act". From the context in which the Tribunal's power under s 32(4) appears and the wording of s 237, the Tribunal's jurisdiction, so it was contended, must therefore be limited to a consideration of whether "future acts" (and not any other kind of act) are "act(s) attracting the expedited procedure". It followed that such characterisation as a "future act" was, so the applicant submitted, "an essential pre-condition to the Tribunal's jurisdiction to make a decision" under s 32(4) of the Act. Second Respondent's Contentions The second respondent's contention that the Tribunal clearly had jurisdiction to determine that the proposed extension was not an "act attracting the expedited procedure" was put on various bases. First, Mr A.V. Shelley, counsel for the second respondent, referred to the fact that a determination of whether an act attracts the expedited procedure takes place in the context of the right to negotiate process set out in Subdivision B. In my view, there can be no dispute with that proposition. Secondly, Mr Shelley referred to the fact that s 26(1) of the Act provides that Subdivision B applies if a Government party proposes to do any permissible future act covered by s 26(2). That submission is clearly right; that is what the subsection says. It is the next step in Mr Shelley's argument which I consider to be too big a step. The contention was that s 26(1): "... therefore contains the legislature's intention that, for the purposes of the right to negotiate process, the acts set out in s 26(2) are permissible future acts" (emphasis added). Mr Shelley then referred to s 26(2)(c) which included as a permissible future act the extension of the period for which a right to mine has effect and various other provisions which might (but in this case did not) exclude such an extension from being a "permissible future act". This latter part of the submission can be accepted. The applicant impliedly conceded (and in my opinion correctly) that if the proposed extension is a future act then it would be a "permissible future act". In those circumstances, it is not necessary to explore the details set out in paragraphs 12-15 of the second respondent's written submissions which were to that effect. I return to the point at which I disagree with the above part of the second respondent's contentions. The relevant statutory provisions read as follows: "Subdivision B - Right to negotiate When Subdivision applies Subdivision applies to certain permissible future acts 26(1) This Subdivision applies if ... a State ... (the "Government party") proposes, at any time after the commencement of this Subdivision, to do any permissible future act covered by subsection (2) in relation to an onshore place. Acts covered (2) Subject to subsection (3), the acts are as follows: (a) the creation of a right to mine, whether by the grant of a mining lease or otherwise; (b) the variation of such a right, to extend the area to which it relates; (c) the extension of the period for which such a right has effect, other than under an option or right of extension or renewal created by the lease, contract or other thing whose grant or making created the right to mine; . . ." I reject the second respondent's contention because, in my view, s 26(1), in very clear language, applies Subdivision B to those permissible future acts which are "covered by" s 29(2). It must be remembered, as I have mentioned earlier, that there are other "permissible future acts" defined in the Act. In my opinion, only those "permissible future acts" which are covered by s 26(2) fall within the "right to negotiate" regime. Then it was submitted on behalf of the second respondent that if there is any inconsistency between the list of those acts described as future acts in s 26(2) and the general definition of a future act under s 233 and the extended definition of a past act under s 228(4), s 26 must apply for the purposes of the "right to negotiate" process. This was, so it was contended, because s 26 as a specific section must take precedence over general sections of the Act. The second respondent submitted that such a construction is consistent with an acknowledgment of the value of the right to negotiate process to potential native title holders and the requirement that the Act should be benevolently construed. I was referred to North Ganalanja Aboriginal Corporation v Queensland (1996) 185 CLR 595, Kanak v National Native Title Tribunal (1995) 132 ALR 329 at pp 331, 348 and Dann v Western Australia (1997) 144 ALR 1 at 9. I accept that if there were any inconsistency between the various provisions or if those provisions threw up any ambiguity, then it would be appropriate to take the course suggested on behalf of the second respondent. It would certainly be a most attractive course which would avoid complex arguments of mixed fact and law (of the type raised by the applicant in this matter) in the context of what Parliament obviously intended to be either an expedited procedure or one which did not take very long - see s 32(4), s 35(a) and (b), s 36 and in particular s 36(2). However, in my view, the construction proposed on behalf of the second respondent is not one that is open. Section 26(1) of the Act refers to "any permissible future act covered by subsection (2)." The expression "permissible future act" is a defined term - see s 235. It is not, in my opinion, possible to by-pass the definition of that term and proceed direct to s 26(2). Section 235 provides various definitions of what is a "permissible future act". In each case those definitions are preceded by or include the description "a future act". In my opinion it is quite clear that for an act to be a "permissible future act", it must first be a future act. Thus, when s 26(1) applies Subdivision B to permissible future acts which "are covered by s 26(2)" it first refers to a genus of acts ("permissible future acts") and then, by describing certain species of those within that genus in s 26(2), causes Subdivision B to apply to them. I think that is the plain meaning of s 26(1). The second respondent advanced the following further contentions: . in this matter, the Government party "quite properly" issued a notice, under s 29 of the Act, of its intention to grant the proposed extension and included the Statement (that it considered the proposed extension attracted the expedited procedure); . in accordance with his entitlement, as a native title party, the second respondent lodged an objection to the act attracting the expedited procedure; . under s 32(4) once the second respondent lodged his objection, the consequence was that the Tribunal must determine whether the proposed extension was an act attracting the expedited procedure. Section 32(4) provides: "(4) If the 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." . the Tribunal had jurisdiction to determine and was compelled to determine whether the proposed extension was an act attracting the expedited procedure; . that jurisdiction to make the determination is also confirmed and subscribed by ss 75, 77, 139(b) and 162. The second respondent argued that the applicant's submissions raised complex questions of fact and law which are inappropriate for decision as part of a determination of whether the proposed extension attracted the expedited procedure. The second respondent contended that the situation was analogous to observations made by the High Court of Australia concerning the inappropriateness of determining complex questions of fact and law at the stage of a determination whether to accept a claim for native title - see North Ganalanja Aboriginal Corporation v Queensland at 616, 617, 622, 624 and 625. It needs to be borne in mind that this is an application to review an administrative decision. It is worthwhile focusing on precisely what the decision-maker was called upon to do in this matter. I have referred above to the sections in the Subdivision which reflect Parliament's intention that this decision-making process is not to take very long. For example, even in a situation where it is found that the expedited procedure is not attracted and a "negotiation party" subsequently applies to the Tribunal to make a determination in relation to the Act, s 36(1) places an obligation on the Tribunal to act expeditiously. That obligation is to take all reasonable steps to make a determination within (so far as would, or might, be relevant in this matter) four months from such application. If the Tribunal does not make the determination within that period, s 36(2) places a further obligation on the Tribunal with which it is to comply as soon as is reasonably practicable after the end of that period. The further obligation is to advise the Commonwealth Minister in writing of the reason for it not making the determination within the above period. I am not suggesting that these expressions of Parliament's requirement of expedition may provide jurisdiction or authority where it might not otherwise exist. What I am suggesting is that, in the context of fair and efficient decision-making, it is a factor which may be taken into account upon judicial review. In this matter the issue for decision by the decision-maker (the Tribunal) was whether the proposed extension attracted the expedited procedure. In view of the jurisdictional objection raised by the applicant, the Tribunal was faced with a situation in which it could make two decisions either of which would have determined the matter before it. The first was, at least potentially, a very complicated question of mixed fact and law concerning whether the proposed extension was a "future act". This in turn would have involved the Tribunal in deciding whether the proposed extension did not or will not "affect" any native title rights or interests that may still be in existence or whether it (the proposed extension) is actually a "past act". The second course, and this was the course which the Tribunal adopted in this matter, was not to embark on an examination of such complex issues of law and fact, but to make a finding on a factual issue. The factual issue which the Tribunal chose to decide was whether there was likely to be direct interference with the community life of the second respondent. The Tribunal found on the evidence that there was likely to be such direct interference. In those circumstances there was no prospect of the proposed extension attracting the expedited procedure, even if it were properly to be characterised as a "permissible future act". The applicant was not seeking to have the benefit of the expedited procedure; its position was that the proposed extension was a "past act" which did not fall within Subdivision B at all. When one turns to s 32(4), one sees the clearest expression of Parliament's intention that if the native title parties object against the inclusion of the Statement (by the Government party in its notice of intention), the Tribunal "must determine whether the act is an act attracting the expedited procedure." In those circumstances there is considerable appeal in the contention advanced by the second respondent that if the Tribunal could determine that issue simply by making factual findings about direct interference with community life and the like (s 237), without considering whether the act is, as a matter of law, a "permissible future act", it had Parliament's authority to do so in this matter. Attractive as that line of argument seems (and at one stage of my deliberations it seemed very attractive), and conducive as its acceptance would probably be to the fair and efficient making of the relevant administrative decision, I find that I cannot accept it. I do not think that it is open to the Tribunal, where its jurisdiction or authority is under challenge, to take the course of assuming that it has jurisdiction and authority on the basis that having to decide the question would involve consideration of complex matters of fact and law. The High Court, in the cases which I have cited above, referred to "sufficient inquiry" and, where the jurisdiction is disputed, to "adequate and careful inquiry" as being the duty of such a tribunal before accepting jurisdiction. There are, potentially, very serious consequences to the parties which turn on the Tribunal's determination that an act is one which attracts the expedited procedure. In this matter, at first impression, the determination to the opposite effect might appear to have little practical importance to the contestants in these proceedings. The applicant's position was that Subdivision B had no application at all to the proposed extension. This was different to the usual position of an applicant who normally seeks a positive determination with the result that the Government party may do the act. The second respondent, one may infer, would be content that the determination made by the Tribunal prevented that automatic statutory result. From his point of view, the determination means that the act may not be done without a negotiated agreement or a determination reached by arbitration. But if the Tribunal had jurisdiction and authority to make the determination it must have had jurisdiction and authority to make it either way, in favour of or against the act attracting the expedited procedure. Even the consequences of the decision which the Tribunal made here did not stop with the negative finding. Section 32(5) sets out the first inevitable consequences - the Tribunal must request the Government party and the applicant to negotiate in good faith with the second respondent and must offer to mediate among them. The further consequences of the Tribunal's negative finding include what I would regard as a very distinct possibility that the Government party might apply to the Tribunal, under s 35 of the Act, for a determination in relation to the act. In those circumstances, the statutory scheme, as I have indicated above, provides for a conclusive determination by the Tribunal (after arbitration) that the act must not be done, or may be done or may be done subject to conditions. In my view, those consequences point to the conclusion that the Tribunal's jurisdiction or authority does not flow simply from the chain of circumstances and statutory provisions set out in the contentions advanced by the second respondent, which I have summarised above. The whole structure of Subdivision B rests on the foundation of the act in question being a "permissible future act". When the existence of that foundation is challenged it is, in my opinion, the duty of the Tribunal and this Court, in turn, to satisfy itself whether the act in question is a "permissible future act". The first stage in that assessment is to decide the question whether the act is a "future act"? 2. Is the proposed extension a "future act" Applicant's submissions The applicant's contention that the proposed extension is not a future act has two broad bases. The first submission was to the following effect: . the original grant of Exploration Licence 08/118 on 20 February 1986 would have extinguished any native title rights which were inconsistent with the statutory rights under that licence; . the proposed extension confers no more than those original rights, so it will not extinguish or be inconsistent with (and thus does not or would not relevantly "affect") any native title; and . once extinguished native title cannot revive. As an alternative submission, the applicant contended that the proposed extension was not a "future act" because it was a "past act". The submission was as follows: . it is arguable that the original grant of Exploration Licence 08/118 on 20 February 1986 was invalid for inconsistency with the Racial Discrimination Act 1975 (Cth) because of its discriminatory effect on native title; . if so, it is a "past act" which has been validated by the Titles Validation Act 1995 (WA); and . the extended definition in s 228(4) of a "past act" means that an extension of a "past act" done before 1 January 1994 will also be a "past act" - subject to qualifications in s 228(6) and (10), none of which apply. Second Respondent's Submissions The Second Respondent again argued that the submissions made by the applicant raise complex questions of fact and law which are inappropriate for decision as part of a determination of whether an expedited procedure applies. Counsel contended that the situation was analogous to observations made by the High Court of Australia about the inappropriateness of determining complex questions of fact and law at the stage of a determination whether to accept a claim for native title - see North Ganalanja at pp 616, 617, 622, 624 and 625. I have already given my reasons for rejecting those submissions. A further and additional submission on behalf of the second respondent was that the proposed extension was not a "past act" under the extended definition in s 228(4) because the "earlier act" of the 1995/1996 extension of the term of the exploration licence did not "create interests" in the applicant, as there was a failure to follow the right to negotiate process with respect to that extension, which was therefore invalid. A still further or alternative submission advanced on behalf of the second respondent was that the proposed extension would affect native title and thus is a "future act". The details of that submission were as follows: . the original grant of Exploration Licence 08/118 was not a valid act, due to the existence of native title over the land and the operation of the Racial Discrimination Act; . the original grant was, however, validated by the provisions of the Act and the Titles Validation Act, as were subsequent extensions of the term of the exploration licence made prior to the commencement of the Act; . despite validation, the original grant and any valid extensions were at all times subject to the non-extinguishment principle (see s 15(1)(d) and 238 of the Act and s 9 of the Titles Validation Act) as a Category "C" or Category "D" past act. The second respondent contended that the effect of the non-extinguishment principle is that, in this instance, after the exploration licence ceases to operate, any native title rights which were affected by that licence, again have full effect; . therefore, so it was submitted, during the course of the operation of a Category "C" or Category "D" past act, native title rights and interests are merely suspended for so long as is necessary to allow the exploration licence to operate and have effect; and . any valid extension of the exploration licence therefore does affect native title as: (i) the extension of the term of the exploration licence would delay the time at which the non-extinguishment principle would apply to allow native title rights and interests to have full effect again and/or (ii) the extension of the exploration licence of itself creates rights which may affect the continued existence, enjoyment or exercise of native title rights and interests. REASONING It may assist in understanding the above submissions and my reasoning if I set out the relevant portions of the statutory provisions involved. They are as follows: "Future act Definition 233.(1) Subject to this section, an act is a "future act" in relation to land or waters if: (a) either: (i) ... (ii) it is any other act that takes place on or after 1 January 1994; and (b) it is not a past act; and (c) apart from this Act, either: (i) it validly affects native title in relation to the land or waters to any extent, or (ii) the following apply: (A) it is to any extent invalid; and (B) it would be valid to that extent if any native title in relation to the land or waters did not exist; and (C) if it were valid to that extent, it would affect the native title. (2) . . . (3) . . . (4) . . . Permissible future act Definition 235(1) This section defines "permissible future act" . . . Non-legislative acts in relation to onshore places (5) A future act in relation to an onshore place is also a "permissible future act" if: (a) it is an act other than the making, amendment or repeal of legislation; and (b) either: (i) the act could be done in relation to the land concerned if the native title holders concerned instead held ordinary title to it; or (ii) . . . Example for purposes of subsection (5) (6) An example of a future act covered by subsection (5) is the grant of a mining lease over land in relation to which there is native title when a mining lease would also be able to be granted over the land if the native title holders instead held ordinary title to it." "Past act Definition 228.(1) This section defines "past act". Acts before 1 July 1993 or 1 January 1994 (2) Subject to subsection (10), if: (a) either: (i) . . . (ii) at any time before 1 January 1994 when native title existed in relation to particular land or waters, any other act took place; and (b) apart from this Act, the act was invalid to any extent, but it would have been valid to that extent if the native title did not exist; the act is a "past act" in relation to the land or waters. (3) . . . Extensions, renewals etc. (4) Subject to subsections (6) and (10), an act (the "later act") that takes place on or after 1 January 1994 is a "past act" if: (a) the later act would be a past act under subsection (2) if that subsection were not limited in its application to acts taking place before a particular day; and (b) an act (the "earlier act") that is a past act because of any subsection of this section (including because of another application of this subsection) took place before the later act; and (c) the earlier act created interests in a person and the later act creates interests in: (i) the same person; or (ii) another person who has acquired the interests of the first person (by assignment, succession or otherwise); in relation to the whole or part of the land or waters to which the earlier act relates; and (d) the interests created by the later act take effect before or immediately after the interests created by the earlier act cease to have effect; and (e) the interests created by the later act permit activities or a similar kind to those permitted by the earlier act." "Act affecting native title 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." WHETHER THE PROPOSED EXTENSION IS A "PAST ACT" In my view, the proposed extension is not a "past act". My basic reason for that view is that on the evidence before the Tribunal, and this Court, the original grant of the exploration licence was not a "past act". It was not a "past act" because, it was not, on the evidence, invalid to any extent within the meaning of s 228(2)(b). The rights conferred by the applicant's exploration licence are set out in s 66 of the Mining Act. As the Tribunal noted, that section authorises the holder of an exploration licence, in accordance with any conditions to which the licence may be subject - . to enter and re-enter the land with such agents, employees, vehicles, machinery and equipment as are necessary for the purpose of exploring for minerals in, on or under the land; . to carry on such operations and carry out such works as are necessary including digging pits, trenches and holes, and sinking bores and tunnels; . to excavate, extract or remove earth, soil, rock, stone, fluid or mineral bearing substances in such amount as does not exceed 1,000 tonnes, or in such greater amount as the Minister may, in any case, approve in writing; and . subject to the Rights in Water and Irrigation Act 1914, to take and divert water from any natural spring, lake, pool or stream, and to sink a well or bore and take water therefrom and to use the water so taken for the explorer's domestic purposes and for any purpose in connection with exploring for minerals. The evidence before the Tribunal showed that the rights granted to the applicant by the exploration licence were exercisable indiscriminately over land which comprised two pastoral leases, a special lease, freehold land, reserved land and vacant Crown land - see page 7 of its reasons. Some 17 conditions are endorsed on the applicant's exploration licence, nearly all of which place restrictions on the exercise of what would otherwise be its rights. One of those conditions imposes a restriction exclusively and specifically for the protection of Aboriginal sites. That is a condition which requires compliance with the provisions of the Aboriginal Heritage Act 1972 (WA) to ensure that no action is taken which is likely to interfere with or damage any Aboriginal site. On the other hand, the sixth condition provides that the grant of rights in respect of Ashburton Location 51 is confined to below a depth of 30 metres from the natural surface. Although there is no evidence on this point, that condition suggests that Ashburton Location 51 is freehold land being used for one or other of the purposes to which I refer below. I do not think that what would otherwise be within the Tribunal's jurisdiction or authority is to be ousted simply on the basis that it is "arguable" that the original grant of the applicant's exploration licence was invalid for inconsistency with the Racial Discrimination Act because of an alleged discriminatory effect on native title. The evidence to which I have referred suggests, on a prima facie basis, that the original grant of the exploration licence and the rights conferred under it did not have the purpose or effect of nullifying or impairing native title rights on the basis of ethnic origin, or the like, on an unequal footing. The rights were granted over lands of the various tenures referred to above. In the absence of evidence that the rights conferred by the applicant's exploration licence relevantly discriminated against Aboriginal people contrary to the Racial Discrimination Act, then a presumption of regularity and validity would apply. Authority for the application of such a presumption in relation to an administrative act can be found in Minister for Natural Resources v New South Wales Aboriginal Land Council (1987) 9 NSWLR 154 at 163-165 and Ousley v The Queen (1997) 148 ALR 510 at 555-556. I should add that these observations are made only in the context of considering what should be the approach taken by the Tribunal when deciding an objection against the attraction of the expedited procedure, where no evidence has been led to suggest either a past contravention of the Racial Discrimination Act or some other basis of invalidity of the earlier act such as breach of a fiduciary duty. The situation would be very different if there were such evidence. Given the nature of such invalidity, there might not need to be very much evidence before such a presumption was rebutted. I leave that question for another day. In this matter, the second respondent's primary position both before the Tribunal and in this Court was that the proposed extension was a "permissible future act" for the purposes of the application of the Subdivision. He sought the perceived benefit of the "right to negotiate" on that very basis. I acknowledge that, in doing so, the second respondent advanced the "inconsistency" argument to which I have referred above, and which I have rejected. If the original grant of the exploration licence had relevantly discriminated in its operation over land which was the subject of native title then one would have expected the second respondent to have made that submission and led some, even slight, evidence to that effect. His additional or alternative submissions which refer to the Titles Validation Act and the suspension of native title rights or interests, involve, as a starting point, reliance upon the same factual basis for invalidity. In my view, in the absence of any such evidence and the presence of evidence which suggests that the exploration licence was granted in a non-discriminatory manner, the Tribunal was obliged to approach its task on the assumption that the original grant was valid. Such a construction preserves the second respondent's "right to negotiate" - which was a central consideration in North Ganalanja - see pp 616-617. I do not consider that the analogy between the circumstances of the present matter and those in North Ganalanja is as strong as the second respondent submits in the contentions which I have summarised above. North Ganalanja involved an application to the National Native Title Tribunal for a determination of native title. The question was whether the President had acted correctly in directing the Registrar of that Tribunal not to accept that application. In the present matter the Tribunal is required to determine whether the proposed extension is "an act attracting the expedited procedure". However, the result in this particular matter is similar i.e. that the final determination of issues such as the validity or otherwise of the original exploration licence, and the examination of the factual circumstances at the time of that grant and the subsequent extensions can safely be left to the time when the second respondent's claim to native title is determined. In the above reasoning, I should not be taken as inferring, other than on a prima facie basis, that the proposed extension falls within s 235(5). That subsection provides that a future act in relation to an onshore place is "also" a "permissible future act" if it could be done in relation to the land concerned if the native title holders concerned instead held ordinary title to it. I shall briefly explain why I propose to leave that question open. Ordinary title is relevantly defined by s 253 of the Act as being a freehold estate in fee simple in the land. Section 27 of the Mining Act provides that a mining tenement may be applied for in respect of any private land which is not already the subject of a mining tenement. It also provides that private land is open for mining in accordance with that Act. The definition of "mining tenement" includes an exploration licence and the definition of "private land" includes any estate of freehold. Section 29 imposes certain restrictions on the grant of a mining tenement in respect of private land which is used for certain purposes therein specified, or within 100 metres of such land, or which has an area of 2000 square metres or less, unless with the written consent of the owner, or unless the tenement is granted in respect of that part of the private land which is not less than 30 metres below the lowest part of the natural surface. It can thus be seen that the proposed extension might well be an act which could be done in relation to the land concerned if the native title holders instead held a freehold estate in fee simple in the land. However, if, for example, some of the land in respect of which the second respondent is a registered native title claimant were cultivated land (and the second respondent held a freehold estate in fee simple in it) then there would have been the restrictions to which I have just referred. There was no evidence that there was any such land and the point was not argued by the parties. I do not think that it is necessary to decide the matter. Having found that there was no basis for the Tribunal to conclude that the original grant of the exploration licence was invalid, there is no need to consider those of the applicant's submissions which were based on the extended definition in s 228(4) of a "past act". That is because I do not consider that, on the evidence, the original grant fell within s 228(2). However, I should add that if I am wrong in my conclusion concerning the application of s 228(2) and the original grant of the exploration licence was a "past act", then in my view, in those circumstances, the proposed extension would clearly fall within s 228(4). WHETHER THE PROPOSED EXTENSION "AFFECTS" NATIVE TITLE? There remains the applicant's further contention based on the submission that the original grant of the exploration licence (assuming for the purposes of this submission that the original grant was valid) would have extinguished any native title rights which were inconsistent with the statutory rights under that licence, that the proposed extension confers no more than those original rights, so it will not extinguish or be inconsistent with any native title and that, once extinguished, native title cannot revive. The applicant relies on Wik. Wik is authority (as the applicant submitted) for the proposition that the grant of a pastoral lease does not necessarily extinguish all native title rights but, to the extent that the rights granted by the pastoral lease are inconsistent with the native title rights, the former prevail and the latter are extinguished. The fallacies in the applicant's argument, as I see it, are to assume that the original grant of the exploration licence extinguished native title and that, so far as the proposed extension is concerned, the question of extinguishment is the only relevant matter. Extinguishment is certainly one way in which native title may be "affected" within the meaning of s 227 of the Act (which I have set out above). An act may also "affect" native title if it is otherwise wholly or partly inconsistent with the continued existence, enjoyment or exercise of native title rights. I turn first to the question whether the original grant of the exploration licence extinguished any native title over the land in question. It seems reasonably clear that inconsistency requires a comparison between the legal rights conferred, in this case by the exploration licence, with whatever native title rights may have existed over the same land. See, for example, Gummow J in Wik at p 185. An Exploration Licence grants certain carefully limited rights for a relatively short period. As mentioned above, the applicant's exploration licence had an initial term of five years. That is a standard initial term - see s 61(1) of the Mining Act. Thereafter the term was extended on an annual basis. The applicant was authorised by that licence to exercise certain specified rights indiscriminately over land within two pastoral leases, a special lease, freehold land, reserved land and vacant Crown land. I have referred earlier in these reasons to the numerous conditions endorsed on the applicant's exploration licence, nearly all of which place restrictions on the exercise of what would otherwise be its rights. Furthermore, the Mining Act imposes surrender conditions. Half the "blocks" within it must be surrendered at the expiration of the third year of its term and half of the remaining "blocks" must be surrendered twelve months later - subject to the Minister's discretion to grant exemption from such requirements - see s 65 of the Mining Act. When the licence expires, so do all the rights previously exercisable under it. To the extent that the exercise of those rights might have been inconsistent with the enjoyment of rights enjoyed by those holding freehold interests or pastoral leases or reserves, that inconsistency disappears on such expiry of the exploration licence. There is no basis upon which to infer that the effect on any native title should be any more permanent. The predecessors of Exploration Licences [provided for in the Mining Act 1904 (WA)] were somewhat inaccurately, described as "Temporary Reserves". A more accurate description of them was "rights of occupancy" of temporary reserves. That description conveys somewhat more meaning about the legal rights conferred than the simple reference to "Temporary Reserves". It is worth digressing briefly on the matter of "Temporary Reserves". So far as mineral exploration rights were concerned, temporary reserves were created over Crown land (a term defined very widely and which included pastoral leases) under the Mining Act 1904 - see s 276. That section provided for the grant of authority temporarily to occupy such reserves. The Tribunal's reasons in this matter (at p 6) show that the applicant's exploration licence covered an area geographically identical to land which was formerly the subject of "Temporary Reserve" No. 6519H granted on 23 August 1973. That "Temporary Reserve" (for which read "right of occupancy") expired in 1985 and was followed by the grant of what, by transfer, became the applicant's exploration licence. The Tribunal noted that it had no evidence about the date of the grants made between 1973 and 1985, the holder of the grant or the conditions (if any) that were imposed. Under both the Mining Act 1904 and the current Mining Act the holder of rights of occupancy or an Exploration Licence respectively had and has priority to apply for a Mineral Lease under the former act or a Mining Lease under the latter act. But the present matter, of course, does not involve the taking of such a step. The applicant is at a much earlier stage of simply seeking an extension of the term of its exploration licence. Counsel for the applicant sought to extend the principles explained by the High Court of Australia in Wik in relation to pastoral leases, to the original exploration licence in this matter. He submitted that Wik established: "... a general test for the extinguishment of native title, that being that where the rights granted by the Crown are inconsistent with native title rights, ... to the extent of the inconsistency ... the native title rights are extinguished." Counsel referred to passages in the reasons for judgment of Toohey J at pp 126 and 133, Gaudron J at 135, Gummow J at 185 and Kirby J at 237. In my view nothing decided in Wik requires the conclusion that there has been any extinguishment of native title in the present matter. Wik, of course, concerned alienation of a leasehold estate, a matter which was central to all of the judgments: see for example Brennan CJ at p 95, Toohey J at 126 and 133, Gaudron J at p 135, Gummow J at p 195 and pages following, and Kirby J at p 238 and pages following. Lockhart J in Pareroultja v Tickner (1993) 42 FCR 32 at 39 observed: "Native title may be extinguished by grants of estates of freehold or leasehold but not necessarily by the grant of lesser interests (e.g. authorities to prospect for minerals)." The matter was also considered in a discussion paper published by the Commonwealth Government in June 1993 entitled "Mabo - the High Court Decision on Native Title". At para 2.10 there appears the following comment: "... even if native title is not extinguished by leasehold or other grants, where such grants are validly made, the native title will be restricted or limited by the grant." The rights conferred by the original exploration licence, which I have summarised above, do not, in my view, by necessary implication extinguish any native title rights (there is no question of any express extinguishment). The exploration rights can be distinguished from the rights conferred by, for example, a pastoral lease. In my view, the evidence in this matter, at most, shows not extinguishment of native title rights by the original grant but the potential for temporary and partial inconsistency with the enjoyment or exercise of native title rights. In those circumstances, the applicant's argument based on the propositions that native title rights have already been extinguished by the original grant and that the proposed extension confers no more than those original rights, must be rejected. I do so. In my view, the original grant of the exploration licence and the proposed extension both validly "affect[ed]" and "affect" (respectively) native title to the very limited extent which I have described above. The proposed extension thus satisfies the condition found in s 233(1)(c)(i). It is not strictly necessary to consider the application of s 233(1)(c)(ii). That subparagraph is expressed as an alternative. It only applies if the proposed extension is to any extent invalid, but would be valid to that extent if any native title in relation to the land did not exist. For reasons similar to those which I have set out above, I consider that a presumption of regularity and validity would apply i.e. that given the prima facie evidence that the rights which the State seeks to confer upon the applicant are exercisable indiscriminately over the various types of land holdings referred to above and in the absence of any evidence to the contrary, it should be presumed that the proposed extension will not contravene the Racial Discrimination Act. In those circumstances, s 233(1)(c)(ii) has no bearing on this matter. The foregoing reasoning disposes of the second respondent's further or alternative submission based upon, among other things, the operation of the Titles Validation Act. It will be recalled that the first step in that submission was a contention that the original grant of the exploration licence was not a valid act due to the existence of native title over the land and the operation of the Racial Discrimination Act. That point has not been established. I have held that the proposed extension is a "future act" by the alternative course referred to above. Finally, it is also not necessary to consider the second respondent's argument which sought to exclude the proposed extension from being a "past act" under the extended definition in s 228(4), on the basis that the "earlier act" of the 1995/1996 extension of the term of the exploration licence did not "create interests" in the applicant due to a failure to follow the right to negotiate process. I have found that the proposed extension is not a "past act", without recourse to the extended definition of that term in s 228(4). I might add that, had it been necessary to decide the issue, I would be inclined to take the view that if the 1995/1996 extension was invalid, as the second respondent argued, then there would not have been a proper determination of the applicant's application for the 1995/1996 extension. The previous term would have simply continued in force until that application was properly determined - see s 61(3) of the Mining Act. CONCLUSIONS For the above reasons I conclude as follows:-

1. The Tribunal's jurisdiction or authority to make the decision under review was conditioned upon the proposed extension being a "future act";
2. The proposed extension is a "future act" because it is not a "past act" and because it validly "affects" native title (and the other titles over which it extends) to the extent to which I have referred above.
3. The Tribunal had the jurisdiction or authority which it so assumed. Accordingly, the application will be dismissed with costs. I certify that this and the preceding twenty-eight (28) pages are a true copy of the Reasons for Judgment of Justice Carr

Solicitors for the Applicant: Messrs Mallesons Stephen Jaques

Solicitors for the Respondent: Aboriginal Legal Service Inc