Smith on behalf of the Gnaala Karla Booja People v State of Western Australia

The Tribunal's Reasons for Decision 10 It is not necessary for present purposes to review the evidence before the Tribunal. This was done in considerable detail in the Tribunal's reasons for determination. The critical findings and conclusions are set out at pp 46-50 of those reasons. They were grouped under each of pars (a), (b) and (c) of s 237. 11 An important preliminary opinion related to the nature of the assessment of prospective interference or major disturbance required by the words "likely to interfere" or "likely to involve major disturbance" used in s 237. The Deputy President held that the word "likely" should be interpreted as referring to "a real or not remote chance or possibility, regardless of whether it is less or more than 50%". This construction is challenged by the State in its notice of contention. 12 In relation to s 237(a) the Tribunal found that the only community or social activities of the objectors carried out in the vicinity of the tenement were those of hunting and camping as described by a witness, Joseph Northover, an Aboriginal Police Liaison Officer. He was found by the Tribunal to be an honest, straightforward and helpful witness. As well as being a member of the registered claimant group, he is also Chairman of the Gnaala Booja Land Council and personally has a traditional Aboriginal connection with the land the subject of the tenement and the surrounding land being part of what he referred to as "the Collie area" and the "Wellington area". 13 There was no evidence of specific locations where hunting and camping occurred. The tenement area itself comprised a small part of that said to be used for hunting and camping. There were third party activities in the area which had logging trucks and tourist vehicles using its numerous roads and tracks. While kangaroos in the close vicinity of drilling operations might move away from drilling and associated activity, this would be only one of a number of activities which would be likely to cause them to leave the vicinity. The choice of where to hunt was also affected, to some degree, because of a disease risk area evidently proclaimed by the Department of Conservation and Land Management, laying over approximately the lower half of the tenement to the extent that it was not freehold land. 14 The Tribunal held that par 237(a) was concerned with direct interference with the objector's activities of hunting and/or camping. It had regard to the evidence about those activities, the limited area of the tenement in relation to the overall area in which they are carried out, their periodic and short term nature, the activities of third parties which would interfere with them and inhibit the use of firearms and the existence of the disease risk area and restrictions on movement imposed by the Department of Conservation and Land Management. The Tribunal also took into account evidence as to the purpose and nature of the proposed exploration work and the regulatory regime which would apply to it as identified in the Mining Act and the conditions and statutes endorsed on the proposed licence. It found that the grant of the tenement and the exercise of the rights it created were not likely to interfere directly with the community or social activities of the persons who were the native title holders in relation to the land or waters concerned. 15 In relation to par 237(b), the Tribunal held there was no evidence to justify a finding that there was, within the proposed tenement, any area or site of particular significance, in accordance with their traditions, to the holders of native title on the land or in such close proximity as to be the subject of relevant interference. A hairy-faced snake of the Dreamtime of which Mr Northover gave evidence, may have, according to tradition, passed through the tenement area as it was said to have done in respect of large parts of the Collie area. This may have given the whole area, including that to be covered by the tenement, significance but, so far as the evidence disclosed, there was, in the Tribunal's opinion, no "particular significance" in the sense of significance which was special or out of the ordinary in relation to any specific part of the whole of the area of the tenement. The evidence did not identify any particular waterhole or resting place or corroboree ground of concern. The Tribunal concluded that the grant of the tenement was not likely to interfere with areas or sites of particular significance in accordance with their traditions to the holders of native title in relation to the land or waters concerned. 16 For the reasons given in respect of the findings as to pars (a) and (b) of s 237 and because of the activities to which the tenement was already subjected and the nature of the conditions and regulatory regime which would apply to the proposed licence if granted, the extensive area of the hunting and camping activities compared with the relatively small tenement area and the nature of those activities, the Tribunal found that the grant of the licence was not likely to involve "major disturbance" to any land or waters concerned or create rights whose exercise was likely to involve such disturbance.

Grounds of Appeal 17 The grounds of appeal set out in the application are: "1. The Tribunal having concluded that hunting and camping, as community and social activities, were carried out by the native title party on the area of the tenement, misdirected itself as to the meaning of the words in section 237(a) of the Native Title Act 1993 in concluding that the grant of the tenement and the exercise of the rights it creates is not likely to interfere directly with community or social activities of the persons who are native title holders in relation to the land or waters concerned. 2. The Tribunal erred in law in concluding that section 237(a) of the Native Title Act 1993 is concerned with and limited to interference with the physical aspects of the carrying on of community or social activities of the native title holders. "

Notice of Contention 18 The State of Western Australia filed a notice of contention asserting that: "The Tribunal erred in law in applying an interpretation of the word "likely" in Native Title Act subsection 237(a) as referring to a real or not remote chance or possibility, regardless of whether it is less or more than 50% (Reasons for Determination page 45)." Section 237 - Some Historical Background 19 The provisions of s 237 as it stood prior to the 1998 amendments to the Native Title Act were, not surprisingly, the subject of some judicial exegesis. The importance of the application of the right to negotiate to mining exploration activities and to native title applicants ensured that there would be, before the Tribunal and this Court, debate about the scope of the expedited procedure exemption. 20 There were differing views expressed by judges at first instance about the construction of the original s 237. Crucial questions to be addressed under pars (a) and (b) of the old section were whether the proposed act, in the words of the section, "does not directly interfere" with the community life of the native title holders and with areas or sites of particular significance. A similar question raised by par 237(c) was whether the act involves major disturbance to any land or waters concerned or creates rights whose exercise will involve such disturbance. On one view these questions required consideration of whether the consequences negating the application of the expedited procedure were "likely" and involved "…a predictive assessment of whether the grant of the exploration licences and the exercise of rights conferred by those licences would or would not be likely to result in interference of any of the three relevant types" - Ward v State of Western Australia (1996) 69 FCR 208 at 222 (Carr J). The other view was that it was not the Tribunal's task to attempt to foresee what activities would in fact occur on the subject tenement if an exploration licence were to be granted. The appropriate course involved assessment of the nature of the future act. So where the relevant future act created a right, the Tribunal's task was to assess the potential consequences of its exercise, not to determine the degree of likelihood that they would in fact occur - State of Western Australia v Ward (1996) 70 FCR 265 at 279 (Lee J). The latter view was preferred by the Full Court in Dann v Western Australia (1997) 74 FCR 391 at 393 (Wilcox J), 399-400 (Tamberlin J) and 411 (RD Nicholson J). 21 In the Native Title Amendment Bill 1997 as first introduced into the Parliament, s 237 was to be amended to read: "237 Act attracting the expedited procedure A future act is an act attracting the expedited procedure if: (a) the act does not directly interfere with is not likely to interfere directly with the physical aspects of the community life of the persons who are the holders (disregarding any trusts created under Division 6 of Part 2) of native title in relation to the land or waters concerned. (b) the act does not 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 trusts 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 is not likely toinvolve major disturbance to any land or waters concerned or create rights whose exercise will is likely to involve major disturbance to any land or waters concerned." The Explanatory Memorandum to the Native Title Amendment Bill 1997 explained these amendments, in par 20.38 thus: "20.38 Existing section 237 sets out the circumstances when an act attracts the expedited procedure. If native title parties object to the expedited procedure for a particular future act, the arbitral body must determine whether the act meets the requirements set out in section 237. Some changes are being made to section 237 as set out below (these were proposed in the 1996 amendments). . The first change addresses a Federal Court decision (Ward v Western Australia (1996) 136 ALR 557) and provides that an act will only attract the expedited procedure in section 32 if it is not likely to (rather than 'does not') interfere directly with the physical aspects of community life. If there is evidence that the act will interfere with native title claimants' physical ability to enjoy their native title rights, for example placing an impediment to hunting, fishing or gathering or the ability to conduct religious ceremonies, the expedited procedure will not apply.[Schedule 1, item 42] . The other changes confirm that, because it is not possible for the arbitral body to know the actual effect of a future act in deciding whether it attracts the expedited procedure, the arbitral body must undertake a predictive assessment, and look at what is likely to occur.[Schedule 1, items 43 and 44] 22 In the legislative process this definition was further amended into the form which it has under the present Act. This variation of the proposed amendment was reflected in the Native Title Amendment Bill 1997 [No 2] which was passed as the Native Title Amendment Act 1998. In a Supplementary Explanatory Memorandum to the Native Title Amendment Bill 1997 [No 2] it was stated: "This amendment replaces item 42 in the Bill which deals with one of the criteria for determining whether the future act (such as the grant of an exploration lease or licence) attracts the expedited procedure. The effect of replacement paragraph 237(a) is that the procedure can only apply if the grant of the lease or licence is not likely to interfere directly with the carrying on of the community or social activities of native title holders."

The Question of Likelihood 23 The State of Western Australia asserts in its notice of contention that the Tribunal erred in law in applying an interpretation of the word "likely" in s 237(a) as referring to a real or not remote chance or possibility regardless of whether it is less or more than fifty per cent. It was submitted that the amendment to s 237 reflected a legislative intention to require a predictive assessment of the effects of the proposed future act in accordance with the approach taken by Carr J in the Ward case, rather than that adopted by the Full Court in Dann. In my opinion that it is the plain intention behind the amendments to s 237 and that intention is effected by the language that has been used. The Tribunal is therefore required to assess whether, as a matter of fact, the proposed future act is likely to give rise to the interference or disturbance referred to in pars (a), (b) and (c) of s 237. That involves a predictive assessment not confined to a consideration of the legal rights conferred by the grant of the proposed tenement. The requirement for a predictive assessment however does not mandate that interference or major disturbance of the kind contemplated by the section must be established or negated on the balance of probabilities. The Act is beneficial and the right to negotiate regime is an element of the protection of native title which is one of the main objects of the Act. That protection is not to be narrowly construed. The term "likely" in this context is not directed to a judgment on the balance of probabilities as to interference or major disturbance. Such a judgment would potentially permit, without benefit of any negotiation, quite significant risks (of that interference or major disturbance) to be incurred. To put it crudely and quantitatively, on that construction a forty nine per cent chance of interference or major disturbance flowing from the act proposed would keep it within the realm of the expedited procedure. Consistently with the objects of the Act, the word "likely" requires a risk assessment by the Tribunal that will exclude from the expedited procedure any proposed act which would involve a real chance or risk of interference or major disturbance of the kind contemplated by s 237. Such an approach to the construction of the word "likely" is familiar in Australia although it depends upon the particular statutory context in which the word is used - see Tillmanns Butcheries Pty Ltd v Australian Meat Industry Employees' Union (1979) 27 ALR 367 at 375 (Bowen CJ) and 380-381 (Deane J); Jungarrayi v Olney (1992) 105 ALR 527 at 537-538. In my opinion the Tribunal was correct in the approach that it took to this aspect of the construction of s 237.

Direct Interference with Community Activities 24 The principal point of the applicant's challenge to the Tribunal's decision is reflected in ground 1. It is concerned with the requirement that the apprehended interference which would exclude the operation of the expedited procedure be "direct". 25 The applicant identified the following factors as grounding the Tribunal's conclusion that interference with the activities of hunting and/or camping would not be direct: (a) The limited area of the tenement compared to the overall area upon which the applicant's activities are carried out. (b) The periodic nature and short term of the applicant's activities. (c) The activities of others conducted within the vicinity of the tenement which would interfere with the carrying on of the applicant's activities. (d) The restrictions of the Department of Conservation and Land Management upon the manner of engaging in activities within the area. (e) The nature of activity proposed by the tenement holder in the area. (f) The statutory restrictions and restrictions in the grant of the tenement which apply to the tenement. The Tribunal was said to have misdirected itself in the way it applied the word "directly" to these circumstances. It was said to have assessed the degree of interference with the applicant's activities which would be occasioned by the future act bearing in mind other impacts upon those activities, the frequency of the activities and the regulation and limitations of the grantee's activities. "Directly", it was said, is an adverb qualifying the word "interfere" which in the relevant context means, according to the dictionary definition, "in a direct manner; …exactly… immediately; by a direct process or mode…". The applicant submitted that if there is a collision course possible at any time or any place between the carrying out of any of the community and social activities and the exercise of rights pursuant to the future act, if each party exercises its rights to the full, then there is a direct interference with the activities of the applicant. It is said not to matter that such collisions might be infrequent or that they might in some circumstances be avoided. If the native title party would be in a position to choose to carry out a community or social activity on a part of the proposed mining tenement area without the existence of the future act, and is not in a position to make that choice, or is inhibited in making that choice, because of the future act, then the future act would have a direct effect of interference with those activities. 26 The criterion of direct interference in par (a) may be thought of more fruitfully as functional than as definitional. That is to say, it is more usefully regarded as a direction to the Tribunal about its approach to an essentially evaluative judgment than as a definition of a class of consequence which, if attaching to a future act, would take it outside the scope of the expedited procedure. This direction to the Tribunal does not require precise and semantically correct cause and effect analysis in every case. Simple causal analysis in this context would rarely yield a primary cause and effect with no other cause intervening. The notion of direct interference involves rather an evaluative judgment that the act is likely to be a proximate cause of the apprehended interference. And the concept of interference itself is to some degree evaluative. It must be substantial in its impact upon community or social activities. That is to say trivial impacts or impacts which are not relevant to the carrying on of the community or social activities are outside the scope of the kind of interference contemplated by the section. 27 The evaluation is contextual. The extent of interference and the proximity of its causal connection to the future act proposed should not be considered in isolation. In assessing the risk of direct interference generated by a future act the Tribunal is entitled to have regard to other factors which so affect community or social activities that the impact of the proposed future act is insubstantial. It is that kind of assessment which the applicant in this case regards as impermissible. In my opinion, however, it reflects a commonsense approach to the question posed for the Tribunal which was reflected in the approach which it took in this case. To have regard to the constraints already imposed on the community and social activities of the native title claimants by third parties and external regulation is a legitimate element of the assessment of the extent of interference flowing from the proposed act. Counsel for the applicant accepted that it was this issue that was at the core of his argument. It was put to him in the course of oral argument that what the ground really boiled down to was that the Tribunal, by implication, had suggested that interference was not direct if there were other concurrent impacts in the light of which the impact of the proposed future act was assessed. It was the applicant's position that what the Tribunal should have done was simply look at the impact of the proposed future act. 28 In my opinion, the Tribunal's approach was correct. In so saying, I refer to the question of law raised by the first ground of appeal. The factual assessment made is not susceptible of review in these proceedings. There was no error of law and the first ground of appeal fails.

Interference with Physical Aspects 29 Under the second ground of appeal the complaint was raised that the Tribunal had expressed the opinion that "section 237 is concerned with and limited to interference with the physical aspects of the carrying on of community and social activities of the native title holders". It was then said that this opinion was unnecessary to its decision because no reliance was placed by the applicant upon any non-physical aspects of their activities. In my opinion, this point can wait for another day. Given the applicant's position that he was not relying upon any non-physical aspect of activities of the native title applicant group, the opinion of the Tribunal in this respect had no impact upon the outcome of the case. It is therefore not necessary to further address the second ground of appeal.

Conclusion 30 For the preceding reasons the application will be dismissed. The ground advanced in the notice of contention also fails. I will hear from the parties as to costs. I certify that the preceding thirty (30) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice French .

Counsel for the Applicant: Mr GMG McIntyre

Solicitor for the Applicant: Noongar Land Council

State Crown Solicitor's Office Solicitor for the First Respondent: Counsel for the Second Respondent: Solicitor for the Second Mr KJ Green Respondent: Huston Partners

Date of Hearing: 15 December 2000

Date of Judgment: 19 January 2001