Parker v State of Western Australia

Federal Court of Australia (Full Court)|2008-03-07|Before: Tamberlin J, Branson J, Subdivision P, Tamberlin JJ, Moore J

Introduction 20 On 13 July 2005 Western Australia gave notice under s 29 of the Native Title Act 1993 (Cth) ("the Act") of a future act, namely its intention to grant an exploration licence over an area in the Pilbara region of that State. The intended grantee of the licence is Derek Noel Ammon who will, on the grant of the licence, transfer it to Iron Ore Holdings Ltd. Mr Ammon and Iron Ore Holdings Ltd are together referred to hereafter as "the grantee party". Within the area covered by the proposed exploration licence is a site of particular significance to the appellants known as the Barimunya site. The notice included a statement that Western Australia considered that the act is an act attracting the expedited procedure (s 29(7)). 21 The appellants (hereafter referred to as "the native title party") lodged an objection with the National Native Title Tribunal against the inclusion of the statement that the act attracted the expedited procedure (s 32(3)). By doing so the native title party made an "expedited procedure objection application" which is a "right to negotiate application" within the meaning of the Act (s 75, s 139(b) and s 253). The Tribunal was obliged to hold an inquiry into the application (s 139). 22 On 2 June 2006 the Tribunal constituted by the Hon C J Sumner, Deputy President, determined that the future act is an act attracting the expedited procedure (s 32(4)). The native title party appealed to the Federal Court from the Tribunal's determination (s 169). The learned primary judge (Siopis J) dismissed that appeal. This is an appeal pursuant to s 24(1)(a) of the Federal Court of Australia Act 1976 (Cth) ("the Federal Court Act") from the judgment pronounced by the primary judge (Parker v Western Australia [2007] FCA 1027).

Legislative provisions 32 Section 237 of the Act provides: A future act is an act attracting the expedited procedure if: (a) the act is not likely to interfere directly with the carrying on of the community or social activities of the persons who are the holders (disregarding any trust created under Division 6 of Part 2) of native title in relation to the land or waters concerned; and (b) the act is not likely to interfere with areas or sites of particular significance, in accordance with their traditions, to the persons who are the holders (disregarding any trust created under Division 6 of Part 2) of the native title in relation to the land or waters concerned; and. (c) the act is not likely to involve major disturbance to any land or waters concerned or create rights whose exercise is likely to involve major disturbance to any land or waters concerned. As the question of law set out above makes clear, only paragraph (b) of s 237 has relevance to the appeal from the Tribunal's determination. 33 Sections 17 and 18 of the Aboriginal Heritage Act 1972 (WA) ("the Aboriginal Heritage Act") provide: 17 Offences relating to Aboriginal sites 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 authorisation of the Registrar under section 16 or the consent of the Minister under section 18. 18 Consent to certain uses (1) For the purposes of this section, the expression "the owner of any land" includes a lessee from the Crown, and the holder of any mining tenement or mining privilege, or of any right or privilege under the Petroleum Act 1967, in relation to the land. … (2) Where the owner of any land gives to the Committee notice in writing that he requires to use the land for a purpose which, unless the Minister gives his consent under this section, would be likely to result in a breach of section 17 in respect of any Aboriginal site that might be on the land, the Committee shall, as soon as it is reasonably able, form an opinion as to whether there is any Aboriginal site on the land, evaluate the importance and significance of any such site, and submit the notice to the Minister together with its recommendation in writing as to whether or not the Minister should consent to the use of the land for that purpose, and, where applicable, the extent to which and the conditions upon which his consent should be given.

Question (1) 34 It is far from clear that question (1) above is a question of law on which the native title party was entitled to exercise the right of appeal created by s 169(1) of the Act. 35 As the primary judge correctly noted, the reasons for determination of the Tribunal make clear that it appreciated that it was bound to take into account whether there was a real risk of interference with the Barimunya site otherwise than by conduct in breach of s 17 of the Aboriginal Heritage Act. At [34] of the Tribunal's reasons for determination, the Tribunal referred to an observation concerning the protective effect of the provisions of the Aboriginal Heritage Act made by Nicholson J in Little v Western Australia [2001] FCA 1706. The Tribunal went on at [35] to state: The Tribunal has always given significant weight (as it must) to this finding but does not interpret it as meaning that in all cases the protective regime will be adequate to make the s 237(b) interference unlikely (see Banjo Wurrunmurra and Others on behalf of Bunuba Native Title Claimants; Butcher Cherel and Others on behalf of the Gooniyandi Native Title Claimants/Western Australia/Bernfried Gunter Wasse, James Ian Stewart, Paul Winston Askins, NNTT WO04/136 and WO04/137, [2005] NNTTA 90 (2 December 2005), Hon C J Sumner and cases cited therein at [35] for a recent example). Each case must be considered on its particular facts. What is clear is that the Tribunal is entitled to have regard and give considerable weight to the Government party's site protection regime. 36 As his Honour also noted, the Tribunal also appreciated the significance of s 18 of the Aboriginal Heritage Act to the determination it was required to make. At [47] of its reasons for determination the Tribunal said: As already explained, the possibility that a s 18 application may be made is not, since the amendment to the Act in 1998, decisive (as it was prior to 1998) in leading to a conclusion that there will be interference with sites of particular significance. This possibility has always been a part of the Government party's regulatory regime which has been considered by the Tribunal and Federal Court in Little v Western Australia [2001] FCA 1706. Its importance in deciding whether there is a real risk of interference with sites of particular significance will depend under the predictive assessment approach on all the circumstances. If the evidence were to be that exploration could not be carried out without avoiding sites or that a s 18 application was virtually inevitable then these circumstances would need to be given greater weight. It would still, however, need to be considered in the context of the number of sites, the consultative mechanism in place with the native title party through a heritage survey or otherwise and the attitude of the grantee party to site protection. 37 No party challenged the legal accuracy of the above passages from the reasons for determination of the Tribunal. That is, there is no dispute between the parties as to the answer to this question of law. Nor can it be demonstrated that the Tribunal relevantly misunderstood the law. 38 As the native title party's written submissions reveal, their real complaint with respect to the Tribunal's consideration of s 17 and s 18 of the Aboriginal Heritage Act is that the Tribunal gave too much weight to the protective provisions of that Act and insufficient weight to the risk of the grantee party obtaining a s 18 exemption in respect of the Barimunya site. The weight to be given to these matters for the purpose of making a finding of fact is not a question of law. It was for the Tribunal to determine the weight to be given to these and other relevant matters in making necessary findings of fact. 39 For the above reason it was not open to the native title party to invite the primary judge, and thus it is not open to them to invite this Court, to exercise afresh the power given to the Tribunal to make a factual finding necessary for the purpose of determining the application before it.

Questions (2) and (3) 40 The submissions of the native title party made clear that it is appropriate for these two questions to be considered together. As with question (1), there seems to be no dispute between the parties as to the answer to these questions of law. It is accepted that the Tribunal was bound to give consideration to whether the exercise of the rights conferred by the proposed exploration licence would be likely to constitute interference with the site according to the traditional laws and customs of the native title party. 41 The native title party argued, in effect, that the primary judge erred in concluding that the Tribunal had taken into account a matter that it was bound to take into account when its reasons for determination include no express reference to it. That matter was that the evidence disclosed that, according to the traditional laws and customs of the native title party, merely walking on the Barimunya site without being accompanied by an elder constituted interference with the site. Incidentally, I have inferred from the fact that the primary judge felt free to make reference to this aspect of the evidence apparently the subject of the Tribunal's confidentiality order that the native title party must have indicated to his Honour that it was not inappropriate to do so. 42 The native title party drew attention to s 162(2) of the Act which provides: The Tribunal must state in the determination any findings of fact upon which it is based. 43 The reasons for determination of the Tribunal reveal that it was concerned not to publish information confidential to the native title party. At [24] the Tribunal stated: The native title party has provided documentary evidence including affidavits, sworn on 17 May 2005 of Slim Parker and Timothy Parker, members of the native title party claimant group and Paul Antony Sheiner. The affidavits of Slim and Timothy Parker and some other evidence were the subject of a non-disclosure or 'confidentiality' directions pursuant to s 155 of the Act. In these reasons I have only referred to those documents to the extent necessary to explain my decision and have not included material which should according to customary law and traditions remain confidential. 44 No party before the Tribunal contended that the Barimunya site was not a site of particular significance, in accordance with their traditions, to the native title party within the meaning of s 237(b) of the Act. Nor does it appear that the evidence referred to in the above statement of the Tribunal was challenged. 45 The Tribunal recorded its finding concerning the Barimunya site at [42]-[44] where it stated: I have no difficulty in finding that the Barimunya is a site of particular significance to the native title party in accordance with their traditions. The evidence provided by Mr Slim Parker, Mr Timothy Parker and Ms Fiona Sutherland, Anthropologist with Australian Cultural Heritage management in a letter to Paul Sheiner of 3 April 2006 were the subject of confidentiality orders because of the sensitive nature of the site. However, the native title party provided a copy of BHP Billiton's 'Aboriginal Heritage Induction Handbook' which is publicly available and contains the following reference to Barimunya: "The three large hills that dominate the landscape at Yandi are a significant ethnographic site known as Barimunya. In order to comply with the Western Australia Aboriginal Heritage Act, 1972. and the wishes of the heritage custodians BHP Billiton Iron Ore is committed to the management and protection of this site. To ensure this, an area of land surrounding the hills has been made a Designated Area. Part of this area has been fenced and marked with signs marking the Designated Area status." The allocation of a Designated Area status to an area has no legal status but is a process internal to BHP Billiton and makes the area subject to special management measures. Ms Sutherland's evidence records that the site was initially recorded in 1980 and 1982 and that the site also embraces sites P2067 (Meteorite Gorge) and P2068 (Petrogale Gorge). The publicly available maps provided by DIA and prepared by the Tribunal show the area of the site to have a very large buffer zone, approximately 10 kilometres by 10 kilometres …. Within this larger area there are two areas of approximately one square kilometre each which adjoin each other. Additional maps prepared by the Tribunal show these to contain the Meteorite Gorge and Petrogale Gorge sites. Centrally located within the entire boundaries of the DIA and Tribunal map are also three hills called 'The Three Sisters', between 700 and 800 metres above mean sea level. The buffer zone also extends over approximately a half of the area of E47/1237. The significance of the Barimunya site was not contested by either of the other parties and there is no need to publish further details of the site or analysis of reasons for this finding. Suffice it to say that the Barimunya is a very special traditional place for the native title party. 46 At [48] the Tribunal identified nine factors that it took into account in finding that there is unlikely to be interference with the Barimunya site. Those factors were: · The existence of the site is well known and had been the subject of earlier site surveys (including for BHP Billiton). · Parts of the buffer zone (and possibly the actual site) are currently the subject of a heritage survey being carried out by MIB and the grantee party in relation to E47/1237. · The most important part of the DIA delineated site area, the Three Sisters hills, are also within the Innawonga and Bunjima Peoples registered claimant area and any exploration will be the subject of a site survey conducted by them pursuant to the RSHA. · While the grantee party has made application for a mining lease (M47/1360) which appears to be at least partially over the DIA delineated site, suggesting the possibility of future mining in the area, the future act with which the Tribunal is concerned here is an exploration licence only. A proposal to mine will be a separate future act and subject to the right to negotiate provisions of the Act not involving the expedited procedure. · Before making a recommendation to the Minister the ACMC will be aware of the views of the Traditional Owners which will include members of the MIB and Innawonga and Bunjima claim groups. · The agreement of the Traditional Owners with BHP which preceded the development of the Yandi mine recognised the significance of this area and restricted access to it by employees of BHP (Slim Parker affidavit). · The native title party has not been opposed to exploration per se but has not been satisfied with the RSHA adopted by Yamatji. Negotiations have been about the type and cost of site survey, not about whether a survey should be conducted. · The Government party's condition … will provide the option for the MIB native title party to enter into a RSHA. I am aware of the contents of the RSHA a copy of which was tendered in this matter (see also findings in Champion at [21]). I can see no reason why the RSHA will not provide for an adequate Aboriginal heritage survey, something with which Yamatji, the native title representative body for the area with a special responsibility for looking after the interests of native title holders and claimants, by its endorsement of the RSHA agrees with. · The grantee party is currently carrying out surveys with MIB and other native title claimants. Other groups have indicated that work programs will not interfere with sites such as the proposed drilling in the Phil's Creek area on E47/1237 which is within the DIA delineated area …. 47 The native title party contended that it is a necessary inference, particularly having regard to the requirement of s 162(2), that the Tribunal did not take into account that merely walking on the Barimunya site without being accompanied by an elder would constitute interference with the site. The primary judge at [21] rejected this contention concluding that the Tribunal had taken into account that even walking on the site in the absence of senior members would constitute interference with the site. His Honour at [24] found that it followed a fortiori that the Tribunal took into account that low impact drilling, as defined in the RSHA, would constitute interference with the site. For the reasons set out below I am not persuaded that any error affects the above conclusion of the primary judge. 48 As mentioned above, it was not in dispute before the Tribunal that the Barimunya site was of particular significance to the native title party according to their traditions. The Tribunal at [42] of its reasons for determination identified the evidence that explained that significance and noted that it was the subject of confidentiality orders because of the sensitive nature of the site. It may be assumed that the evidence made plain that, according to the traditions of the native title party, merely walking on the site without being accompanied by an elder constituted interference with the site. There is no reason to suppose that, having carefully identified the evidence, the Tribunal then overlooked it. Moreover, the attention paid by the Tribunal in its reasons for determination to the large buffer zone around the site, the making of an area of land surrounding the site a "designated area" and the fencing and marking with signs of part of that area, all support the natural inference that the Tribunal did not overlook the evidence. 49 The requirement of s 162(2) of the Act does not, in my view, undermine the above inference. The case of the native title party appeared to be based on the assumption that s 162(2) obliged the Tribunal to record in its reasons for determination every aspect of the evidence and other material before it, whether controversial or not, upon which it placed reliance in making its determination. This is unlikely to have been the intention of the legislature in enacting s162(2). Gleeson CJ observed, with respect to the Refugee Review Tribunal in Minister for Immigration and Multicultural Affairs v Yusuf (2000) 206 CLR 323 at [9]: The distinction between facts in issue, particulars, and evidence, which may be difficult even in adversarial litigation conducted with or without formal pleadings, is even more difficult when applied to proceedings before the Tribunal. The same observation may be made with respect to the National Native Title Tribunal. 50 We did not receive detailed submissions concerning the extent of the obligation imposed on the Tribunal by s 162(2). This is therefore not an appropriate case for careful analysis of this issue. The following observations may nonetheless be made. Two principal purposes may be assumed to be intended to be served by s 162(2). First, that a party dissatisfied with the determination can understand how the Tribunal arrived at its determination and, in particular, can form a view on whether the determination was lawfully made. Secondly, to facilitate review by the Court of the Tribunal's determination should any party exercise its right to appeal pursuant to s 169. Having regard to the above purposes, the likely intention of the legislature was to require the Tribunal to set out such of its findings of fact as were critical to the making of its determination (Curragh Queensland Mining Limited v Daniel (1992) 34 FCR 212 per Black CJ, with whom Spender and Gummow JJ agreed, at 220). 51 The determination in this case was a determination that the act is an act attracting the expedited procedure. The findings of fact upon which the determination was immediately based were that the act satisfied the requirements of each of paragraphs (a), (b) and (c) of s 237. So far as s 237(b) is concerned, the material factual matters for the Tribunal's consideration were whether: (a) the Barimunya site fell within the area of the proposed exploration licence; (b) the site was of particular significance, in accordance with their traditions, to the native title party; and (c) the grant of the exploration licence was not likely to interfere with the site. 52 The Tribunal stated in its reasons for determination its findings in respect of each of the above matters. As indicated above, it was not required, technically speaking, to make a finding about what would constitute interference, in accordance with the native title party's traditions, with the Barimunya site. The evidence in this regard was not in dispute. Nonetheless, it was appropriate for the Tribunal to indicate, as it did, the evidence that it took into account in this regard in making its determination. 53 The Tribunal's reluctance to refer in its determination to the details of this evidence which was of a confidential nature is entirely understandable. Moreover, as indicated above, it had little, if any, reason to do so. By identifying the uncontested evidence upon which it found "without difficulty" that the site was of particular significance to the native title party, the Tribunal enabled the parties, and this Court, to know the factual basis of its finding. 54 The Tribunal was satisfied by the nine factors identified in [46] above that the act was not likely to interfere with the site. The native title party is aggrieved by this finding. It may or may not have been a finding that this Court would have made. However, it has not been demonstrated that the Tribunal did not give consideration to whether Low Impact Exploration as defined by the RSHA would constitute interference with the Barimunya site. Nor has it been demonstrated that the Tribunal did not take into account what would comprise interference with that site according to the traditional laws and customs of the native title party. Rather it is to be inferred that the Tribunal was satisfied that the nine factors in its reasons for determination rendered it unlikely that the grant of the exploration licence would result in any person walking on the Barimunya site without being accompanied by an elder.

Conclusion 55 For the above reasons the appeal should be dismissed with costs. I certify that the preceding thirty-six (36) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Branson.

WESTERN AUSTRALIA DISTRICT REGISTRY WAD 138 OF 2007

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN: MAITLAND PARKER ON BEHALF OF THE MARTU IDJA BANYJIMA PEOPLE (WC98/62)

TAMBERLIN J 56 This is an appeal from a decision of a Judge of the Court which dismissed an appeal in respect of a determination by the National Native Title Tribunal ("the Tribunal") which held that the proposed grant of an exploration licence by the State of Western Australia, the first respondent, to Mr Ammon, the second respondent, was an act which attracts the expedited procedure provided for under the Native Title Act 1993 (Cth) ("NTA"): see Parker on behalf of The Martu Idja Banyjima People v State of Western Australia [2007] FCA 1027.

Background 57 In accordance with s 29 of the NTA, the first respondent gave notice that it intended to grant an exploration licence to Mr Ammon. Mr Ammon is an executive officer of Iron Ore Holdings Ltd, the third respondent, which was to be the ultimate holder of the licence. The notice included a statement that the grant attracted the "expedited procedure" under the NTA, which enables an act to be carried out without the normal negotiations required by s 31. 58 On 9 November 2005, the appellants, on behalf of the Martu Idja Banyjima People, made an application to the Tribunal objecting to the use of the expedited procedure, and relying on s 237(b), which identifies an act as attracting the expedited procedure if it is "not likely to interfere with areas or sites of particular significance" in accordance with traditions of the relevant native title holders. 59 The exploration area the subject of the licence comprises about 120 square kilometres in East Pilbara and overlaps almost 81% of the registered native title claim of the Martu Idja Banyjima People. The activities permitted under an exploration licence granted under the Mining Act 1978 (WA) are described in Walley v Western Australia (2002) 169 FLR 437 at 449-451, to which the Tribunal referred in its reasons. These activities include literature searches; geological and aeromagnetic mapping; rock chip sampling and assaying; use of electrical geophysical programs; and drilling of identified targets. They also include rights to enter with personnel and equipment and the right to excavate and dig pits and tunnels. It is apparent that these activities can create significant disturbance on a site the subject of a licence. 60 It is also important to note that the Tribunal's reasons record the existence of a substantial buffer zone around an important site known as Barimunya, within which zone are two adjoining areas of about one square kilometre containing sites of traditional importance to the Martu Idja Banyjima People. 61 Detailed affidavits filed by the appellants contained sensitive material of such importance that the Tribunal made confidentiality directions in respect of them, and only referred to them insofar as was considered necessary to explain the reasons for its determination. The Tribunal's reasons reflect throughout a concern to respect this need for confidentiality, and the primary judge in this Court made similar observations at [20]. 62 After summarising the Tribunal's reasons, his Honour at [18] rejected the appellants' submission that the Tribunal incorrectly treated the existing protective regime under the Aboriginal Heritage Act 1972 (WA) as determinative of the factual question for decision in this case, namely, whether there was "interference" within the meaning of s 237 of the NTA. 63 His Honour did not agree that the Tribunal failed to properly consider the sensitivity of the Barimunya site and considered that it had taken this matter into account. His Honour at [20] noted the emphasis in the Tribunal's reasons of the need for confidentiality in respect of the evidence given by the appellants, and ventured the opinion that this may explain the absence of an express detailed statement or recitation by the Tribunal of the precise form of interference.

ISSUES ON APPEAL 64 The first issue on the appeal is whether his Honour erred in law in finding that the Tribunal had made a finding as to whether there was a real risk of interference with the Barimunya site pursuant to s 237(b) of the NTA. This broad issue raises two points: first, whether the Tribunal failed to consider the particular significance of the Barimunya site to the appellants and the Martu Idja Banyjima People, and what might comprise interference with that site in accordance with the traditional laws and customs concerning it; and secondly, whether, assuming the Tribunal did take into account the particular significance of the Barimunya site, its determination was so unreasonable as to warrant the conclusion that it should be set aside. 65 The second issue on appeal is whether the primary judge erred in law in finding that the Tribunal considered and made a finding of fact as to whether there was a real risk of interference with the site, when his Honour ought to have found that the Tribunal failed to fulfil its obligation to state in its reasons the findings of fact on which its determination was based, as required by s 162(2) of the NTA, which provides that "[t]he Tribunal must state in the determination any findings of fact upon which it is based". In this case, the determination was that the grant of the exploration licence to Mr Ammon is an act attracting the expedited procedure under the NTA.

FIRST ISSUE - WAS THERE A VALID FINDING? 66 As is apparent from a review of its reasons, the Tribunal was aware of the great sensitivity and importance of the Barimunya site when deciding whether there might be any interference with the site as a result of the proposed activity in its vicinity. When reviewing the Tribunal's reasons, it is important to bear in mind that the primary question for the Tribunal, which was essentially a question of fact and degree, was whether the requisite extent of likely interference to the site by the proposed activity existed. 67 The Tribunal's reasons refer to the decision of Nicholson J in Little v Western Australia (2001) 6(4) AILR 67 and to the Tribunal's application of his Honour's reasoning in its decision in Champion v Western Australia (2005) 190 FLR 362. While the Tribunal's reasons note that it was bound by the decision of Nicholson J, the Tribunal expressly accepts that the existence of the protective regime provided under ss 16, 17 and 18 of the Aboriginal Heritage Act 1972 (WA) was, of itself, not sufficient to establish there is unlikely to be interference in this case. This is apparent from the Tribunal's reasons at [35], where it states that significant weight must be given to the reasoning of Nicholson J in Champion 190 FLR 362, but emphasises that resolving questions raised by s 237 of the NTA requires consideration of the detailed circumstances of each case. It is evident on a fair reading of its reasons that the Tribunal concluded that, while weight would be given to the existence of the protective statutory regime, its mandate was to determine whether interference is likely to occur within the meaning of s 237(b). 68 Consideration as to the likelihood and degree of interference arises from the Tribunal's express finding at [42], on the basis of the confidential evidence given by Mr Slim Parker, Mr Timothy Parker and Ms Fiona Sutherland, that the Barimunya site was of particular significance to the Martu Idja Banyjima People in accordance with their traditions. In discussion of the evidence of Messrs Slim and Timothy Parker and Ms Sutherland, the Tribunal noted at [44] that any interference must take into account the extensive buffer zone surrounding the site. However, because the significance of the site was not contested, the Tribunal did not consider that there was any need to furnish further details of the site or to analyse its finding in any greater detail. The Tribunal noted at [42] the existence of a publicly available document produced by BHP Billiton called the Aboriginal Heritage Induction Handbook, which expressed a commitment on behalf of that company to manage and protect the Barimunya site. This document observes that part of the relevant area had been fenced and marked with signs indicating its "Designated Area status", and while it is not legally binding it lends some support to the Tribunal's conclusion. 69 When determining the likelihood of interference with the Barimunya site, the Tribunal also considered at [48] a list of specific factual considerations, such as the existence and extent of the buffer zone, the making of a site survey, the recognition of the need for restricted access, and the evidence of the traditional owners. It also gave weight at [49]-[55] to the not unreasonable premise that the parties would be expected to abide by legal and contractual obligations, despite some consideration of allegations of previous non-compliance by Mr Ammon, and that the parties would attempt to avoid disturbance to important sites. The Tribunal noted that, in any event, if there was a need or risk of disturbance, an application may be made under the relevant sections of the Aboriginal Heritage Act 1972 (WA). 70 Having correctly framed the question for determination as whether there was a real risk of interference with a site of particular significance (the same test formulated in Smith v Western Australia (2002) 108 FCR 442 at 449-450), the Tribunal at [48], after considering the above matters, found that there was not likely to be interference with the Barimunya site. 71 In light of the above reasons and findings of the Tribunal, in my view it cannot be said that the Tribunal failed to consider the significance of the site to the appellants and the Martu Idja Banyjima People and what might constitute interference with that site in accordance with their traditional laws or customs. The Tribunal correctly formulated the question of interference, surveyed the evidence before it, made the necessary findings of fact on the question, and took into account the importance of the protective regime under the Aboriginal Heritage Act 1972 (WA) when determining whether there was a risk or likelihood of interference with the site. Having taken this correct and comprehensive approach, the Tribunal cannot be said to have failed to deal properly with this matter. 72 The second point under this first issue is the submission that the finding of the Tribunal was so unreasonable as to amount to an error of law. In my view, this proposition is untenable. As discussed above, the reasons of the Tribunal correctly framed the issues before it, surveyed all the evidence pertaining to those questions and took into account all the relevant considerations, including such matters as the existence of the protective regime under the Aboriginal Heritage Act 1972 (WA), the existence of a substantial buffer zone around the Barimunya site and the relevant commitments and undertakings of the parties. Accordingly, I consider that the determination reached by the Tribunal was clearly open to it, and cannot be said to be so unreasonable as to indicate a failure by the Tribunal to perform its function and thereby render its decision invalid. 73 It follows from the above conclusions that the primary judge did not err in concluding that the Tribunal had properly made a finding as to whether there was a real risk of interference with the Barimunya site, as required by s 237(b) of the NTA.

SECOND ISSUE - FINDINGS OF FACT AND SECTION 162(2) 74 The second issue on appeal is whether the Tribunal failed to state the relevant findings of fact on which it based its determination and thereby breached s 162(2) of the NTA. 75 The relevant finding of fact made by the Tribunal at [48] was that "there is unlikely to be interference with the Barimunya site". This is an express finding on which the Tribunal based its ultimate determination at [67] that the grant of the exploration licence is an act attracting the expedited procedure under s 237 of the NTA. It is clear that the Tribunal made this finding having regard to the detailed evidence of Messrs Slim and Timothy Parker and Ms Sutherland, which explained the sensitivity of the Barimunya site and outlined the range of activities which were considered likely to interfere with the site. Although it is true that this evidence was not spelt out in detail in the Tribunal's reasons due to its highly confidential nature, in my view the reasons sufficiently demonstrate that it was taken into account when the Tribunal concluded that there was unlikely to be interference with the site. I am satisfied that the essential findings of fact are sufficiently stated by the Tribunal, as required by s 162(2) of the NTA. 76 In giving reasons, it may be appropriate for the Tribunal to refrain from reciting or even referring specifically to detailed evidence disclosed in confidence. It is a question of striking a reasonable balance between the sensitivity of certain evidence and the appropriate extent to which that evidence needs to or should be recited when setting out findings. While a more detailed discussion of the evidence and findings could arguably have been engaged in by the Tribunal in this case, it cannot be said that the approach taken amounts to an error of law because, given that the specific detailed evidence was accepted without contradiction and was referred to expressly in the reasoning of the Tribunal, the factual basis for the finding was made known to the parties who had access to the relevant evidentiary material, albeit on a confidential basis. 77 Accordingly, I do not consider that the Tribunal has breached s 162(2) of the NTA by failing to state any relevant finding of fact on which its determination is based. 78 A final matter which arose on the hearing was a dispute as to whether the appellants' argument based on s 162(2) of the NTA should be permitted to be raised on appeal. The respondents submit that, since the argument was not put before the primary judge, it therefore cannot be said that there was any error of law in his Honour's decision as a consequence of not deciding or considering the issue. While there is considerable force in this submission, I have decided to address the question in the above manner and have found that it is without substance.

CONCLUSION 79 For the above reasons, I would dismiss the appeal with costs. I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tamberlin.

Associate: Dated: 7 March 2008 Counsel for the Appellant: Mr G McIntyre SC

Solicitor for the Appellant: Christensen Vaughan

Counsel for the First Respondent: Mr R Mitchell

Solicitor for the First Respondent: State Solicitor's Office

Counsel for the Second and Third Respondent: Mr G Irving

Solicitor for the Second and Third Respondent: Taylor Linfoot Holmes

Date of Hearing: 16 November 2007

Date of Judgment: 7 March 2008

Native Title Act 1993(Cth)ss 29, 31, 32, 75, 139, 162(2), 169, 237, 253

Migration Act 1958(Cth)s 430(1)(c)

Federal Court Rules 1979(Cth)

REASONS FOR JUDGMENT MOORE J 1 I have had the benefit of reading first the judgment of Tamberlin J in a draft form and then the judgment of Branson J in a draft form. It is unnecessary to repeat some of the detail concerning the factual background, the Native Title Tribunal's decision and the legislation referred to by their Honours. The second appellant has recently died and should be removed as a party. It is unnecessary and inappropriate to name him. 2 Subdivision P of Div 3 of the Native Title Act 1993 (Cth) creates a right in native title claimants to negotiate in relation to future acts. This right has been described, in relation to an earlier legislative form, as a valuable right and not to be regarded as a windfall accretion to the bundle of rights for which the claimants seek recognition under the Act: see the joint judgment in Fejo v Northern Territory (1998) 195 CLR 96 at [25]. This right is lost if the Tribunal determines that the future act (otherwise attracting the right to negotiate and the correlative duty to negotiate in good faith) is an act attracting the expedited procedure. That happens if the Tribunal makes a determination that the act is not likely to interfere directly with the conduct of community or social activities of the claimants, interfere with their areas or sites of particular significance according to their traditions or involve major disturbance (or create rights with that effect) to any concerned land or waters. A determination by the Tribunal that a future act attracts the expedited procedure can, potentially, have a significant legal and practical effect for the native title claimants. 3 In the present case, there was no dispute that the Barimunya site was of particular significance to the claimants in accordance with their traditions. The Tribunal made a finding to this effect and described the site as a very special traditional place for the claimants. One of the claimants' contentions was (as articulated in a document the Tribunal treated as confidential but now publicly referred to both in submissions and judgments) that this site would be interfered with if people entered the site unless they were accompanied by senior members of the claim group and then only when absolutely necessary. The evidence of the claimants, accepted by the Tribunal, supported this contention. 4 The Tribunal concluded at [48] of its reasons, that there was unlikely to be interference with the Barimunya site. Putting to one side, for the moment, the reasons the Tribunal gave for reaching this conclusion, there are a number of logical bases which might have founded it having regard to the claimants' contention discussed in the preceding paragraph. One might be that the site was not of particular significance in accordance with the claimants' traditions. That would be based on a finding about existing facts. Another might be that the Tribunal did not accept the evidence concerning what constituted the claimants' traditions. Again that would be based on a finding about existing facts. Yet another might be, even accepting the evidence concerning what constituted the claimants' traditions, the future act would not be likely to interfere with the site. This third conclusion could result from several subsidiary conclusions. One might be that notwithstanding the future act, it was not likely anyone would enter the site. Another might be that notwithstanding the future act, it was not likely anyone would enter the site unaccompanied by senior members of the claim group and, even if they did, it was not likely they would do so in any circumstance other than when it was absolutely necessary. For my part, I cannot think of any other bases for the Tribunal's ultimate conclusion. 5 Before discussing the Tribunal's reasoning in its report, it is convenient to consider the nature of the obligation imposed by s 162(2). In my opinion, we are obliged to determine the meaning of the subsection having regard to the issues raised in this appeal and to do so irrespective of what was said (or not said) by the parties about its construction. As Kirby J observed in Coleman v Power (2004) 220 CLR 1 at [243], a court may adopt a construction of legislation that has not been argued by the parties, subject to considerations of procedural fairness. 6 The subsection requires the Tribunal to state in its report any findings of fact upon which the determination is based. It is to be noted that the subsection refers to "any findings of fact" and does not use formulations found in other Commonwealth legislation such as s 43(2B) of the Administrative Appeals Tribunal Act 1975 (Cth) ("findings on material questions of fact") or s 430(1)(c) of the Migration Act 1958 (Cth) ("findings on any material questions of fact"). The issue of what is comprehended by this latter formulation was discussed by Whitlam and Gyles JJ in Xu v Minister for Immigration and Multicultural Affairs (1999) 95 FCR 425 (at [31] and following) who noted the difference between pars (c) and (d) ("evidence or material on which the findings of fact were based") of s 430 and said: ...the contrast between (c) and (d) is fundamental to a proper understanding of s 430. Materiality arises in various contexts. In this context, the language of that contrast immediately calls up: "… the difference between the factum probandum (the ultimate fact in issue) and facta probantia (the facts adduced to prove or disprove that ultimate fact)" (Fullagar J in Hayes v Federal Commissioner of Taxation (Cth) (1956) 96 CLR 47 at 51; Bowen CJ and Fox J in Sean Investments v MacKellar (1982) 42 ALR 676 at 682.) See also the use of the phrase "ultimate facts" by Stephen J in Kentucky Fried Chicken Pty Ltd v Gantidis (1979) 140 CLR 675 at 685. The same contrast is reflected in the rules of pleading, for example, O 11 r 2(a) of the Federal Court Rules 1979 (Cth) which distinguish between material facts, which are to be pleaded, and the evidence by which those facts are to be proved, which is not to be pleaded. Material facts are those which are necessary to constitute a cause of action or ground for relief. Gummow J has referred to the same distinction in more than one statutory context - see Grace Brothers Pty Ltd v Magistrates, Local Courts of NSW (1988) 84 ALR 492 at 505 and Wiest v Director of Public Prosecutions (1988) 23 FCR 472 at 519. The judgment of the Court in Zoeller v Republic of Germany (1989) 23 FCR 282 at 294 is to the same effect. Applying that analysis to the present section would suggest that (c) refers to those findings of fact which are necessary to the decision, and, in that sense, ultimate facts, and (d) refers to that which proves the necessary ultimate fact. That analysis is confirmed, and, in our opinion, required when it is recognised that s 430 relates to administrative decisions made on the merits pursuant to a statute. Materiality in s 430 must be materiality to the decision to which it applies. In other words, materiality as it is understood in administrative law. A statute may expressly or impliedly contain conditions which must either exist in fact or as to which the decision-maker must be satisfied before making the decision. A statutory provision may expressly or impliedly oblige the decision-maker to take certain facts into account when making the decision, or prohibit the decision-maker from taking certain facts into account when making the decision. These facts may either have to objectively exist or may depend upon the satisfaction of the decision-maker. Where a statute does not expressly or impliedly constrain the decision-maker, the decision-maker is the sole judge of materiality and there can be no judicial review of that question, no matter how wrong or illogical the decision-maker is seen to be by a judge. In those circumstances, a fact is material only if the decision-maker considers it so. The consequence of this reasoning is that it is quite impossible to upset a decision because a decision-maker does not take into account a fact which an applicant proposes as material, but which is not made material by the Act. That being so, it would be truly anomalous to conclude that a material fact has been omitted from a statement of reasons where the Act does not make the fact material. The only conclusion open from such an omission is that the decision-maker did not consider the fact material. If a judge makes an assessment that an absent fact is material otherwise than by holding that the Act requires the fact to be considered, then that plainly involves a merits review which the High Court have emphatically said should not happen. Furthermore, it is not permissible to elevate those facts and circumstances which are relevant to a material fact to materiality, as to do so would obliterate the distinction between (c) and (d) in s 430 (1). On this view, what should happen is those facts which the Act requires to be decided, and perhaps those facts which the Tribunal decides are material in the area committed to its discretion, should be identified in the written statement and found, one way or the other, with reasons provided under (b) referring to evidence and other material under (d). 7 I should promptly add that this analysis did not survive fully the judgment of the High Court in Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 in which it was decided that the reference to "material facts" was to those facts thought by the Tribunal to be material to its decision. However, the analysis of Whitlam and Gyles JJ illustrates the difference between findings of facts which sustain ultimate findings of fact and the ultimate findings themselves. It is to be recalled that s 162(2) speaks of "any findings of fact upon which [the determination] is based" (emphasis added). This expression contains two features. The first is the language of wide import in the expression "any findings". The second is that the findings be those upon which the determination was based. In my opinion and particularly having regard to the use of the word "any", the Tribunal is obliged to set out the findings of fact it makes which lead to the determination of the matters covered by the enquiry which, in this instance, is the determination of whether the act is an act attracting the expedited procedure: see s 32(4). A statutory obligation to reveal fully the found facts upon which a decision is based is understandable given the significance of a decision that a future act attracts the expedited procedure. 8 However, the Tribunal's ultimate finding in a case such as the present has to be whether "the act is not likely to interfere" (or is likely to interfere) in one or more of the several ways identified in s 237. It is difficult to characterise that as a finding of fact. What the Tribunal is required to do involves a method of analysis very similar to the method used to ascertain whether an asylum seeker is entitled to a protection visa which was considered by the High Court in Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559, that is making findings of facts about past events (and in this instance, present events as well) and determining what is likely to occur in the future (see 574-575). Determining what is likely to occur in the future is a matter of speculative though informed appraisal and not fact-finding about present or past events, though those findings will inform that appraisal. 9 I now turn to consider directly the issues raised in this present appeal. The appellants have endeavoured to identify the issues initially raised in the appeal heard by the primary judge (though, in truth, it was not an appeal in the strict sense but involved the exercise of the Court's original jurisdiction) and in the appeal to this Full Court, in a number of documents. It can be assumed that the appellants and those advising them were aware that s 169(1), in terms, limited the initial appeal to the primary judge to a question of law. The question or questions were framed in the following way in the original amended notice of appeal:

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