FEDERAL COURT OF AUSTRALIA
NATIVE TITLE - permissible future acts - grant of mining leases - whether arbitral body has power to impose a condition of compensation in its determination - whether issue of such compensation can be adjourned to a later date - whether further conditions can be imposed at the mining stage - whether arbitration can be ordered as a condition referrable to the mining stage - whether conditions providing for negotiation without sanction are within statutory authority - whether public interest test correctly applied.
Native Title Act 1993 (Cth)
Mining Act 1978 (WA)
North Ganalanja Aboriginal Corporation v Queensland (1996) 135 ALR 225
Bull v Attorney-General (NSW) (1913) 17 CLR 370
Racecourse Co-operative Sugar Association Limited v Attorney General (Queensland) (1979) 142 CLR 460
Allingham v Minister of Agriculture and Fisheries [1948] 1 All ER 780
Turner v Owen (1990) 26 FCR 366
Sambell v Cook [1962] VR 448
Levy v Farrell (1861) 1 W&W(E)
Television Corporation Limited v The Commonwealth (1963) 109 CLR 59
Household Financial Services Ltd v Commercial Tribunal of New South Wales (1995) 36 NSWLR 220
Genkem Pty Ltd v Environment Protection Authority (1994) 35 NSWLR 33
Australian Securities Commission v Deloitte Touche Tohmatsu (1996) 138 ALR 655
O’Sullivan v Farrer (1989) 168 CLR 210
Right to Life Association (NSW) Inc v Secretary, Department of Human Services and Health (1995) 128 ALR 2238
TED COMANOO EVANS and RICHARD EVANS on behalf of the KOARA PEOPLE v STATE OF WESTERN AUSTRALIA & ORS
WAG 6010 of 1996
R D NICHOLSON J
PERTH
8 AUGUST 1997
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IN THE FEDERAL COURT OF AUSTRALIA |
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GENERAL DIVISION |
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TED COMANOO EVANS and RICHARD EVANS on behalf of the KOARA PEOPLE Applicants
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STATE OF WESTERN AUSTRALIA First Respondent
SONS OF GWALIA LTD Second Respondent
MOUNT EDON GOLD MINES (AUST) LTD Third Respondent
D J & R M COTTEE and P J TOWNSEND Fourth Respondents
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JUDGE: |
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PLACE: |
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DATED: |
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THE COURT ORDERS THAT:
(1) The matter be remitted to the Tribunal to be heard and decided again in accordance with the law with or without the hearing of further evidence as the Tribunal shall decide.
(2) Counsel be heard as to costs.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
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IN THE FEDERAL COURT OF AUSTRALIA |
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) WAG 6010 of 1996 |
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GENERAL DIVISION |
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JUDGE: |
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DATED: |
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REASONS FOR JUDGMENT
This is an appeal pursuant to s169(1) of the Native Title Act 1993 (Cth) (“the Act”) on questions of law from determinations of the Native Title Tribunal (“the Tribunal”) constituted by Hon Paul Seaman QC, Deputy President, Ms Diane Smith and Mr Michael McDaniel to the effect mining leases may be granted to grantee parties upon certain conditions.
The second to fourth respondents (“the grantee parties”) were not represented on the appeal, having filed notice of intention to abide by the decision of the Court. Leave was given at the hearing for the Commonwealth Minister for Aboriginal and Torres Strait Islander Affairs to intervene.
It was common ground there was no relevant legislative history in relation to the Act which may assist the Court and no contention was made any relevant provision of the Act as it presently stands was affected by arguable invalidity.
THE APPLICATIONS
Before the Tribunal were three applications by the first respondent (“the Government party”) for determinations by the Tribunal pursuant to s35 of the Act in relation to the proposed grant of a number of mining leases in the Eastern Goldfields of Western Australia. The first application (WF96/1) relates to the proposed grant of two mining leases to the second respondent. The second application (WF/96/5) relates to the proposed grant of four mining leases to the third respondent. The third application (WF/96/11) relates to the proposed grant of a mining lease to the fourth respondents.
The first named applicant has registered two native title applications on behalf of the Koara people on the Register of Native Title Claims which cover the whole of the area of the proposed mining leases.
In considering the applications the Tribunal assumed jurisdiction pursuant to Subdiv B of Div 3 of the Act which deals with the right to negotiate in relation to future acts. It is not questioned on the appeal the proposed grants of mining leases involve the creation of rights to mine by the Government party and are permissible future acts within s26(2)(a). That paragraph refers to the creation of a right to mine, whether by grant of a mining lease or otherwise. “Mine” is defined by s253 to include exploration and prospecting.
The applications for determinations required the Tribunal to act pursuant to s38(1) of the Act which reads:
“38(1) Except where section 37 applies, the arbitral body must make one of the following determinations:
(a) a determination that the act must not be done;
(b) a determination that the act may be done;
(c) a determination that the act may be done subject to conditions to be complied with by any of the parties.”
However, the power of the Tribunal to act pursuant to s38(1)(c) is limited by s38(2) in the following terms:
“38(2) The arbitral body must not determine a condition under paragraph (1)(c) that has the effect that the native title parties are to be entitled to payments worked out by reference to:
(a) the amount of profits made; or
(b) any income derived; or
(c) any things produced;
by any grantee party as a result of doing anything in relation to the land or waters concerned after the act is done.”
The Tribunal was also required in making its determination to take into account the matters set out in s39(1) which reads:
“39(1) In making its determination, the arbitral body must take into account the following:
(a) the effect of the proposed act on:
(i) any native title rights and interests; and
(ii) the way of life, culture and traditions of any of the native title parties; and
(iii) the development of the social, cultural and economic structures of any of those parties; and
(iv) the freedom of access by any of those parties to the lands or waters concerned and their freedom to carry out rites, ceremonies or other activities of cultural significance on the lands or waters in accordance with their traditions; and
(v) any area or site, on the land or waters concerned, of particular significance to the native title parties in accordance with their traditions; and
(vi) the natural environment of the land or waters concerned;
(b) any assessment of the effect of the proposed act on the natural environment of the land or waters concerned:
(i) made by a court or tribunal; or
(ii) made, or commissioned, by the Crown in any capacity or by a statutory authority;
(c) the interests, proposals, opinions or wishes of the native title parties in relation to the management, use or control of the lands or waters concerned;
(d) the economic or other significance of the proposed act to Australia and to the State or Territory concerned;
(e) any public interest in the proposed act proceeding;
(f) any other matter that the arbitral body considers relevant.”
The grounds of appeal challenge the conclusions of the Tribunal principally in relation to issues of statutory construction. It is convenient to take each of the grounds in turn.
CAN COMPENSATION BE ORDERED OTHER THAN PURSUANT TO DIVISION 5?
The first ground of appeal asserts the Tribunal erred in law in concluding it had no power on a future act determination “...to determine that compensation be paid .... other than in accordance with Division 5....”.
The Tribunal’s reasons
The steps in the reasoning of the Tribunal were as follows. The Tribunal commenced with reference to s23(4) of the Act, which reads:
“23(4) In the case of any other act to which this section applies:
(a) the non-extinguishment principle applies to the act; and
(b) either:
(i) the native title concerned relates to an offshore place and the act is not a low impact future act; or
(ii) the native title concerned relates to an onshore place and the following conditions are satisfied:
(A) the act is not a low impact future act; and
(B) the similar compensable interest test is satisfied in relation to the act; and
(C) the law mentioned in section 240 (which defines “similar compensable interest test”) does not provide for compensation to the native title holders for the act;
the native title holders are entitled to compensation for the act in accordance with Division 5.”
It found the paragraphs of s23(4)(b)(ii) were satisfied on the facts and so concluded the native title holders were entitled to compensation for the act in accordance with Div 5.
It then referred to s48 which reads:
“48 Compensation payable under Division 2, 3 or 4 in relation to an act is only payable in accordance with this Division.”
As the Tribunal later pointed out, s50(1) requires a determination of the compensation only to be made in accordance with that section. Subsection 50(2) provides for an application to be made to the Registrar under Pt 3 for a determination of the compensation. That Part includes s61 in which provision is made for such an application to be made either by the registered native title body corporate (if any) or a person or persons claiming to be entitled to the compensation either alone or with others.
Reference was then made by the Tribunal to s51 which relevantly provides:
“51(1) Subject to subsection (3), the entitlement to compensation under Division 2, 3 or 4 is an entitlement on just terms to compensate the native title holders for any loss, diminution, impairment or other effect of the act on their native title rights and interests
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(3) If:
(a) the act is not an acquisition under a Compulsory Acquisition Act of all or any of the native title rights and interests; and
(b) the similar compensable interest test is satisfied in relation to the act;
the court, person or body making the determination of compensation must, subject to subsections (5) to (8), in doing so apply any principle or criteria for determining compensation (whether or not on just terms) set out in the law mentioned in section 240 (which defines “similar compensable interest test”).”
This led on to citation of s240 which provides:
“The “similar compensable interest test” is satisfied in relation to a past or future act if:
(a) the native title concerned relates to an onshore place; and
(b) the compensation would, apart from this Act, be payable under any law for the act on the assumption that the native title holders instead held ordinary title to any land or waters concerned and to the land adjoining, or surrounding, any waters concerned.”
The Tribunal then concluded “... the effect of these provisions in the circumstances before us is that any compensation which might be involved must be determined applying the principles or criteria set out in s123 of the Mining Act 1978 (WA).”. That section provides for compensation for loss or damage arising from mining but excludes compensation:
“1(a) in consideration of permitting entry on to any land for mining purposes;
(b) in respect of the value of any mineral which is or may be in, on or under the surface of any land;
(c) be reference to any rent, royalty or other amount assessed in respect of the mining of the mineral; or
(d) in relation to any loss or damage for which compensation can not be assessed according to common law principles in monetary terms.”
It includes compensation for:
“(4)(a)being deprived of the possession or use, or any particular use, of the natural surface of the land or any part of the land;
(b) damage to the natural surface of the land or any part of the land;
(c) severance of the land or any part of the land from other land of, or used by, that person;
(d) the loss or restriction of a right of way or other easement or right;
(e) the loss of, or damage to, improvements;
(f) social disruption;
(g) in the case of private land that is land under cultivation, any substantial loss of earnings, delay, loss of time, reasonable legal or other costs of negotiation, disruption to agricultural activities, disturbance of the balance of the agricultural holding, the failure on the part of the person concerned in the mining to observe the same laws or requirements in relation to that land as regards to the spread of weeds, pests, disease, fire or erosion, or as to soil conservation practices, as are observed by the owner or occupier of that land; and
(h) any reasonable expense properly arising from the need to reduce or control the damage resulting or arising from the mining,
and where the use for mining purposes of aircraft over or in the vicinity of any land (whether or not private land) occasions damage that damage shall be deemed to have been occasioned by an entry onto the land thereby affected.”
The Tribunal then turned back in the Act to the provisions of s13. Subsection (1) provides for applications for a determination of native title or to revoke or vary an approved determination to be made to the Registrar. Subsection (2) then provides:
“If:
(a) the NNTT or the Federal Court is making a determination of compensation in accordance with Division 5; and
(b) an approved determination of native title has not previously been made in relation to the whole or part of the area concerned;
the NNTT or Federal Court must also make a current determination of native title in relation to the whole or the part of that area, that is to say, a determination of native title as at the time at which the determination of compensation is being made.”
The Tribunal pointed out the only applications before it were the three future act determination applications made by the Government party. These were applications pursuant to s35 and s75(1) of the Act and different to an application pursuant to s61 for compensation in association with a grant of native title.
Having noted that s38(1)(c) provides for a determination to be made “subject to conditions” the Tribunal referred to the provisions of s41 of the Act. They read:
“(1) Subject to this section:
(a) a determination by the arbitral body; or
(b) an agreement, a copy of which is given to the arbitral body under section 34;
that the proposed act may be done subject to conditions being complied with by the parties has effect, if the act is done, as if the conditions were the terms of a contract among the negotiation parties. The effect is in addition to any other effect that the agreement or determination may have apart from this subsection.
(2) Where a native title party is a registered native title claimant, any other person (except a registered native title claimant) with whom the claimant claimed to hold the native title concerned is taken to be a negotiation party for the purposes only of subsection (1).
(3) Subject to subsection (4), in the case of a determination by the arbitral body, if the conditions require the Government party or any grantee party to pay compensation to any native title party, the compensation is held in trust, in accordance with the regulations, until it is paid in accordance with section 52.
(4) Subsection (3) does not apply if the determination by the arbitral body is:
(a) a determination of compensation in accordance with Division 5; or
(b) a determination of compensation on just terms for an acquisition of native title rights and interests under a Compulsory Acquisition Act.”
Section 34 provides that “If, at any time before any determination is made by the arbitral body under section 38, the negotiation parties make an agreement of the kind mentioned in paragraph 31(1)(b) or subsection 32(5), they must give a copy of it to the arbitral body.” The paragraph and section referred to respectively cast an obligation on the Government party to negotiate except where the notice includes a statement it considers the act attracts the expedited procedure and for the arbitral body to request it and the grantee parties to negotiate if the arbitral body determines the act is not an act attracting the expedited procedure.
As the Tribunal noted, s52 contains detailed provisions dealing with compensation held in trust. The Tribunal was content to observe compensation was repaid if there is an approved determination that there is no native title or if the future act is no longer to be done: s52(1) and (2).
The relevant portions of section 51 are set out above.
The relevant portions of s52 read:
“52(1) This section applies if compensation (the “negotiated compensation”) in respect of a proposed act is being held in trust in accordance with subsection 41(3) or paragraph 42(5)(b) and any of the following happens:
(a) an approved determination of native title is made to the effect that there is no native title in relation to the area concerned immediately before the act takes place;
(b) the Government party informs the trustee in writing that it no longer proposes to do the act;
(c) the following requirements are satisfied:
(i) an approved determination of native title is made to the effect that the native title parties concerned are (disregarding any holding of the native title in trust under Division 6) the native title holders in relation to the area affected by the act;
(ii) the registered native title body corporate advises the trustee that it wishes to accept the negotiated compensation instead of any compensation to which the native title holders may be entitled to under Division 2,3 or 4 for the act;
(d) the determination is made, on a claim for compensation in respect of the act:
(i) in accordance with this Division; or
(ii) on just terms under a Compulsory Acquisition Act;
that a person is entitled to compensation, or that no compensation is payable to any person;
(e) none of paragraphs (a), (b), (c) and (d) applies and the Federal Court decides, on application by any person, that it would be just and equitable in all the circumstances to pay the negotiated compensation to that person or another person.
(2) In a paragraph (1)(a) or (b) case, the trustee must:
(a) repay the negotiated compensation to the person who paid it to the trustee; or
(b) if that person no longer exists - apply to the Federal Court for a direction as to the payment of the negotiated compensation.
(3) In a paragraph (1)(c) case:
(a) the trustee must pay the negotiated compensation to the body corporate; and
(b) subject to section 53, there is no entitlement to compensation under Division 2, 3 or 4 for the act.
(4) In a paragraph (1)(d) case where the determination is that a person is entitled to an amount of monetary compensation:
(a) if the negotiated compensation is the same as the amount determined - the trustee must pay the negotiated compensation to the person; or
(b) if the negotiated compensation is less than the amount determined - the trustee must pay the negotiated compensation to the person and the Government party must pay the shortfall to the person; or
(c) if the negotiated compensation is more than the amount determined - the trustee must:
(i) pay the person so much of the negotiated compensation as equals the amount determined; and
(ii) refund the excess to the person who paid the negotiated compensation to the trustee or, if that person no longer exists, apply to the Federal Court for a direction as to its payment.
(5) In a paragraph (1)(d) case where the transfer of property or the provision of goods or services constitutes some or all of the compensation, the trustee must apply to the Federal Court for a direction as to the payment of the negotiated compensation.
(6) In a paragraph (1)(d) case where the determination is that no compensation is payable or to be given to any person, the trustee must repay the negotiated compensation to the person who paid it to the trustee or, if that person no longer exists, apply to the Federal Court for a direction as to its payment.
(7) In a paragraph (1)(e) case, the trustee must pay the negotiated compensation in accordance with the decision of the Federal Court mentioned in that paragraph.”
The Tribunal then reached its opinion on this issue as follows:
“In our view s41(3) deals with the compensation ordered to be paid in trust to any native title party at a stage when he or she is only a registered native title claimant and s41(4)(a) deals with a determination for the payment of compensation in accordance with Division 5 at a stage when the native title holders have been determined.
Subdivision B is in Division 3 and therefore compensation payable pursuant to a condition of a determination that an act may be done is only payable in accordance with Division 5. In our view when s48 speaks of compensation being payable in accordance with Division 5 it refers to the principles by which it is to be determined being, in these applications, the principles or criteria referred to in s51(3), which are those contained in s123 of the Mining Act.
It seems to us that s50 deals with a different subject matter, namely an application for an approved determination of native title referred to in s13(2) and s13(3)(a), the compensation again being determined by the application of the principles or criteria referred to in s51(3).”
The Tribunal therefore concluded it had no power to determine that compensation shall be paid other than in accordance with Div 5.
This conclusion must also be read with the conclusion reached by the Tribunal on the scope of the power in s38(1)(c) to impose conditions, which was to the following effect:
“In our view, subject to the limitation contained in s38(2), s38(1)(c) of the Act gives the Tribunal a very wide discretion to make a determination that an act may be done subject to conditions to be complied with by any of the parties. It must be exercised by reference to the criteria set forth in s39 and is controlled by the subject matter, scope and purpose of the Act: see Hot Holdings Pty Ltd v Creasy (1996) 134 ALR 469 at 484.
Without seeking to define the boundaries of the power we consider that it would support the imposition of conditions involving the payment of money when the Tribunal considers that to be necessary to give effective protection to the native title rights and interests and other matters of Aboriginal concern referred to in s39. A simple example of the exercise of the power would be the imposition of a condition that a particular party shall bear the costs of a site survey.”
At the same time the Tribunal rejected a submission on behalf of the native title party for a condition to be imposed that the lessee of the mining leases should pay to the Minister for Mines annually each 30 June a sum equivalent to 5% of the gross amount expended in respect of mining operations on and connected with the tenement, being a sum which the Minister would pay to the native title parties. Leaving aside the issue whether such a condition would be prohibited by s38(2)(c) of the Act as a payment worked out by reference to things produced, the Tribunal concluded it would be a payment in respect of loss, diminution, impairment or other effect on the native title rights and interests resulting from the grant of the mining leases which s51(1) and (3) of the Act required be determined applying the principles or criteria set out in s123 of the Mining Act 1978 (W A) (“the Mining Act”).
Parties submissions
The submissions of all parties on this ground are unanimous in submitting the Tribunal fell into error in failing to appreciate or accept there is a distinction properly to be drawn between (1) a determination pursuant to s38 of the Act which, properly understood, includes the imposition of a condition which has the effect that native title parties are to be entitled to compensation and (2) a determination of the compensation payable pursuant to Div 5 (ss48 to 54) of the Act.
This principal submission is supported by the contention the Tribunal reads too much into the word “compensation” as it appears in s48 and s50(1). This is said to be supported by reference to s41(3) which suggests payments in the nature of compensation can be ordered before a Federal Court determination of native title and to s51(3) where reference is made to “the court, person or body” making the determination of compensation.
The submissions for the Government party put the matter this way:
“(a) in a case where the native title party has made a compensation application in accordance with Part 2 Division 5 (and Part 3 Division 1), and the Tribunal’s jurisdiction to make a final determination of the compensation has arisen (i.e. the compensation application is unopposed: s70; or the parties reach agreement as to the compensation: ss71 and 73), then the Tribunal has the power to make a future act determination under s38(1)(c) that the act may be done subject to the payment of the compensation finally determined by the Tribunal in accordance with Division 5;
(b) in any other case, the Tribunal has the power to make a future act determination under s38(1)(c) that the act may be done subject to the payment of an amount of compensation, determined otherwise than in accordance with the principles in Division 5, and to be held in trust in accordance with s41(3) until dealt with in accordance with s52; and
(c) where (b) above applies, the Tribunal has the power to make a future act determination subject to a condition which specifies a method of calculating the amount of compensation and provides for the payment of the compensation at some time in future.”
These submissions were accepted by the intervener on whose behalf it was additionally submitted the compensation, which it is maintained can be ordered pursuant to s38 as read with s41(3), is in the nature of a security or bond and therefore of a different character to compensation payable under Div 5. This submission was also made on behalf of the applicants in reply.
Observations
In the course of its reasons the Tribunal, citing North Ganalanja Aboriginal Corporation v Queensland (1996) 135 ALR 225 at 234 and 266 stated it considered it should give a beneficial construction to provisions which are designed to protect native title or which otherwise reflect other Aboriginal interests and concerns so as to give the fullest relief which the fair meaning of the language of the Act will allow: Bull v Attorney-General (NSW) (1913) 17 CLR 370 at 384. That approach to statutory construction was not contested on the hearing of the appeal.
Working through the various provisions of the Act previously referred to, the following observations may be made:
(1) Section 13(2) has the effect that any determination of compensation in accordance with Div 5 can only be made after or at the same time a determination of native title is also made.
(2) Section 23(4), which appears as part of Subdiv A of Div 3, provides for an entitlement to compensation in accordance with Div 5 for permissible future acts satisfying the requirements of par(b)(ii). Such entitlement is given by the provision to “the native title holders.” That expression is defined by s224 relevantly to mean “the person or person who hold the native title.” Section 23(4) does not therefore give rise to any entitlement to a registered native title claimant.
(3) Subdivision B of Div 3 applies where a Government party proposes to do any permissible future act covered by s26(2) not excluded by s26(3) and, relevantly, including the creation of a right to mine. The effect of s28(1) is the act will only be valid if there is no native title party, such party does not lodge an objection, the act is determined to attracts the expedited procedure, a determination that the act must not be done is declared to be overruled or, relevantly:
“28(1) ... (d) a copy of an agreement that the act may be done, or may be done subject to conditions being complied with, is given to the arbitral body under section 34; or
(e) a determination is made under section 38 that the act may be done, or may be done subject to conditions being complied with...”
Leaving aside the expedited procedure, the Act by s31 casts an obligation on the Government party to negotiate in good faith with the native title parties and the grantee parties with a view to obtaining agreement to the doing of the act or “the doing of the act subject to conditions to be complied with by any of the parties.” Section 33 provides “... the scope of any negotiations,... may, where relevant, include the possibility of including a condition that has the effect that native title parties are to be entitled to payments worked out by reference to:
(a) the amount of profits made;
(b) any income derived; or
(c) any things produced;
by any grantee party as a result of doing anything in relation to the land or waters concerned after the act is done.” Section 34 then provides a copy of any agreement reached before any determination is made by the arbitral body under s38 is to be given to the arbitral body. Such a determination arises on an application under s35 if there is no such agreement.
The relevant effect of these provisions is therefore to recognise the parties may negotiate an agreement including a condition giving to the native title parties “payments” whether worked out by reference to the stated subjects (in the course of argument in this proceeding accepted as being in the nature of a royalty) or otherwise determined having effect after the permissible future act is done.
(4) Where agreement has not been reached it falls to the arbitral body to make a determination under s38. However, s38(2) expressly precludes that body determining a condition in the nature of those described in s33. Thereby it implies a condition having the effect native title parties are to be entitled to payments not worked out by reference to the subject matters referred to in s33 and s38(2) is within the power to impose conditions under s38(1)(c).
(5) The effect of the body’s determination in turn falls to be understood in terms of s41. Subsection (1) applies not only to such a determination but also to a s34 agreement. It is, however, to be read “subject to this section” and so subject relevantly to (3) and (4). Subsection (3) is expressly “subject to subsection (4)” so for the section to be properly understood reference needs first to be made to the last of those subsections.
Subsection (4) has the effect of excluding from the application of subs(3) the two determinations of compensation to which it refers. The first, compensation in accordance with Div 5, must be a reference to compensation resulting from s23(4). The second, compensation on just terms, is dealt with in Div 5 in s53 but the compensation is not such that the entitlement derives ultimately from that Division.
What then remains for subs41(3) to operate upon? It cannot operate in respect of a s34 agreement because when s41(3) is read with s41(1) it is seen to only be dealing with a determination other than by such an agreement. For it to have efficacy it must be referable to a condition for payment of compensation (not just an order for payments - see s38(2)) other than in accordance with Div 5. That view, however, must be considered against the final words of subs(3) requiring the compensation to be held in trust “until it is paid in accordance with section 52.”
Section 52 is part of Div 5. It defines the compensation referred to in s41(3) and par42(5)(b) as “negotiated compensation.” This latter paragraph contains matching provisions to subss41(3) and (4) applicable where a determination is overruled. For the reason given, namely the construction of subs41(3) in the context of subs41(1), this cannot mean negotiated by the parties between themselves under s34. What it refers to is compensation resulting from a determination of the Tribunal which is not compensation excluded by subs41(4).
But does the reference to s52 mean compensation so determined is “determined in accordance with Division 5”? What subs41(3) refers to is the compensation being “payable” in accordance with that Division, not that it be “determined” in accordance with that Division. This is supported by reference to par52(1)(c)(ii) where “negotiated compensation” is contrasted with compensation “to which the native title holders may be entitled under Division 2, 3 or 4...”; that is relevantly under s23(4). Importantly, by subs(3) and subject to any claim for just terms compensation, negotiated compensation paid to a body corporate has the consequence of extinguishing any entitlement to compensation under Divs 2, 3 or 4 for the act and hence, in the case of a permissible future act, to entitlement to determination of compensation under Div 5 applied as a consequence of s23(4).
(6) When s48 is approached in the context of these other provisions it is seen that in addressing “compensation payable under Division 2, 3 or 4 in relation to an act” it is not referring to “negotiated compensation.” Section 48 falls to be construed in the context of those other sections, particularly s52 which appears in the same Division. Negotiated compensation is truly to be characterised as not (relevantly) “payable under” Div 3 by application of s23(4) but rather as payable under the future act determination made by the arbitral body.
The further significance of this is seen when s50 is considered in the light of that understanding of s48. The reference in s50 to a determination of “the compensation”, requiring it only to be made in accordance with s50, can only be a reference to the type of compensation referred to in s48. It cannot be a reference to negotiated compensation which s52 and other sections makes clear is not compensation payable under Divs 2, 3 or 4. Subsection 50(1) therefore does not have the effect of requiring an application to be made to the Registrar under Pt 3 for a determination. Indeed such application would be an absurdity because negotiated compensation, by the provisions of the Act, has been determined by the arbitral body.
Absurdities or difficulties of application also arise if compensation payable under s38(1)(c) is by reason of s48 held to be payable “in accordance with Division 5.” Firstly, by reason of s13(2), the Tribunal would be required when determining compensation for the purposes of s38(1)(c) to make a determination of native title where there is no approved determination. That would have the potential to stultify permissible future act applications because of the time which may be taken to resolve the determination of native title. Secondly, by reason of s41(4)(a), the s38(1)(c) compensation would never be held in trust in accordance with s41(3).
(7) It has not been submitted there is anything in other sections of the Act in which the word “compensation” is used which would affect these understandings of the way the Act is intended to work: see ss4, 17, 18, 20, 24,25, 28, 43, 45, 49, 54, 58, 79, 94, 137, 161, 200, 202, 244, 251 and 253.
It follows I consider the Tribunal erred in law in the construction which it gave to s48 and s50. Likewise I consider it erred in law when it concluded s41(3) was to be understood as applicable only to a registered native title claimant and s41(4)(a) was applicable to a determined native title holder. In my opinion the ground of appeal is made out and s38(1)(c) is properly to be understood as giving the Tribunal the power to impose a condition requiring the determination of compensation otherwise than in accordance with the procedure and criteria in Div 5. Such compensation is to be held in trust in accordance with s41(3) until it is paid in accordance with s52.
CAN THE TRIBUNAL ADJOURN THE ISSUE OF ASSESSMENT OF NEGOTIATED COMPENSATION?
The second limb of the first ground of appeal is the Tribunal erred in law when in concluded it had no power to adjourn the assessment of negotiated compensation “for assessment by the Tribunal at some later stage.”
This conclusion of the Tribunal was linked to its conclusion of absence of power to assess negotiated compensation. I do not accept as submitted for the Government party, there is no indication in the Tribunal’s reasons it decided against imposing a condition for the payment of compensation only because it considered it would have to do so in accordance with the criteria in Div 5. Its conclusion on adjournment was clearly the product of its view compensation could only be assessed in accordance with the procedure and criteria in Div 5. Having found that view to be in error, the foundation of its consequent view concerning adjournment is no longer present and, in that context, falls with the major premise. However, whether the Tribunal in any event may adjourn assessment of negotiated compensation by it at some later stage is an issue falling for consideration in relation to other grounds of appeal dealing with powers of the Tribunal to determine conditions or some of them at differing times.
COULD THE TRIBUNAL IMPOSE FURTHER CONDITIONS AT THE MINING STAGE?
It was submitted to the Tribunal it could determine the mining leases should be granted on conditions applicable to the exploration stage with a further condition requiring the matters to be returned to the Tribunal to impose further conditions when a Notice of Intent (“the Notice”) is received by the Department of Minerals and Energy. The Tribunal concluded there was no power to resume the inquiry or impose a further set of conditions after the determination of the permissible future act has been made. Its reasons for doing so were:
“The Subdivision speaks throughout of a single act of determination which the Tribunal must take all reasonable steps to make within 6 months after the application is made. After holding the inquiry the Tribunal must make a determination about the matters covered by the inquiry which states any findings of fact on which it is based: s162. Being a determination in relation to a right to negotiate application it is binding and conclusive: s165.
Reluctantly we have come to the view that the statutory intention is that the Tribunal shall hold one inquiry only followed within 6 months after the application by one determination which is complete in itself, stating the facts upon which it is based and the condition to which it is subject.”
For the applicants it is contended the Tribunal has taken too narrow a view of the requirement that it make a determination within 6 months. That requirement is stated in s36(1) which requires the arbitral body to take all reasonable steps to make a determination in relation to the act within the period of 6 months starting when the application is made. The submissions for the applicants accept there should only be one determination. However, it is said the Tribunal has overlooked that if it decides on one date the act should be done and decides conditions at a later period there is still one act of determination satisfying the section. Furthermore, it is submitted the wording of s36 makes it apparent the 6 months time limit is not mandatory.
The ground of appeal as formulated for the applicants is the Tribunal erred in law in concluding it had no power to impose conditions upon the grant to operate in the event of a Notice or of productive mining taking place at any time following the grant.
For the Government party it is submitted the Tribunal made no such decision. It is the case the conditions imposed by the Tribunal included conditions operative only upon the giving of such a Notice. The distinction between the terms in which the ground is expressed and the matter decided by the Tribunal is the latter related to resumption of the inquiry by the Tribunal upon delivery of the Notice. It is said the way in which the case for the applicants has been put admits of the approach encompassed in the way the ground is formulated.
In reply for the applicants, it was additionally submitted in the situation pertaining under the Mining Act whereby there is an entitlement to maintain either prospecting or exploration licences until the Minister has decided whether to grant a mining lease, there could not be any serious disadvantage to the mining industry if the Tribunal in determining the act were to provide for determination of the conditions pertaining to mining when notice to mining is given. There is a lot of practical sense in that proposal, as the Tribunal acknowledged in its reasons. However, the question is one of the power of the Tribunal and involves construction of the statute under which it is operative. If there is an incongruity between the provisions of the Act and the Mining Act in this respect, there may be a case for Parliamentary amendment of the former.
Returning to the terms of the ground, I accept the submission for the Government party the Tribunal did not decide the issue which the ground identifies. The ground cannot therefore succeed.
In deference to the arguments for the applicants on the possibility of a two stage process, I consider I should nevertheless briefly express the opinion which I hold on the finding of the Tribunal if it had been identified in terms in the ground. In my view the Tribunal was not in error on this issue. I accept the submissions for the Government party, which mostly mirror the reasons of the Tribunal, that there are three reasons why this follows from the terms of the Act. The first is a condition the Tribunal may conduct a second inquiry and impose further conditions at a later stage would purport to confer upon the Tribunal jurisdiction to conduct an inquiry at a time after the act had been done, whereas the Act limits the Tribunal’s role to one of making determinations before an act is done: see ss26(1), 28(1), 35, 108 and 139. This is reinforced by the manner in which the Act speaks throughout of a single inquiry into a proposed future act and a single act of determination by the Tribunal: see ss28, 35-42, 139-165 and 162. Secondly, to hold a second inquiry and impose further conditions would deny the Government party and the grantee party the option of not incurring the liability of the conditions by choosing not to do the act because they would already had become subject to the conditions: s41(1). Thirdly, a two stage procedure may deny the power of the Commonwealth to over-rule the determination and therefore the conditions: s42.
CAN THE TRIBUNAL REQUIRE ARBITRATION AT THE MINING STAGE?
The Tribunal considered whether it was within its power to make a determination the act be done subject to conditions dealing with the exploration phase with the further condition that at the stage actual mining operations are to occur, the negotiation parties will then submit to an arbitration to determine the conditions upon which mining would proceed. Of this the Tribunal said:
“It would no doubt be possible to frame the condition on a basis which would select some appropriate person as arbitrator and oblige him or her to operate in a similar way to the Tribunal’s way of operating pursuant to s109 and to apply the criteria in s39 in making the award. It would be possible to provide that the negotiating parties would not be liable to each other for legal costs in the arbitration but otherwise the costs of the arbitration would have to be provided for.
The result of requiring the negotiation parties to proceed by way of arbitration would be that a central part of the Tribunal’s determinative function would have been undertaken by an arbitrator who would not have taken the oath or affirmation of office provided for by s116 of the Native Title Act and would not have the statutory obligations pursuant to s109(2) of the Act. The President would be deprived of the power to allocate members to particular cases pursuant to s123(1)(c) and s124(2) of the Act.
The parties would be deprived of an appeal as of right on a question of law under s169 of the Native Title Act. There would be an appeal by leave of the Court on any question of law arising out of the award: s38(2) and (4) of the Commercial Arbitration Act 1985 (WA).
In our view the imposition of a condition of a determination to the effect that the question of the conditions upon which the actual mining operations would occur should be referred to an arbitrator is outside the scope and purpose of the Act. We consider that on its proper construction it confers discretionary power on the Tribunal and no other body or person to make determinations about the effect of rights to mine on native title: see Racecourse Co-operative Sugar Association Ltd v Attorney-General, supra, at 481. In our opinion the parties are entitled to a decision of the Tribunal and no-one else on that matter: see Allingham v Minister of Agriculture and Fisheries [1948] 1 KB 780 at 781. It follows that we consider that we have no power to give an arbitrator the authority to make such a decision.”
For the applicants it is said the Tribunal was correct insofar as it meant it had no power to impose a condition under s38(1)(c) to be determined by the Tribunal at a later time after the future act determination is complete. However, it was also submitted for the same party the Tribunal does have power to impose a condition under s38(1)(c) (for example, compensation, without specifying the exact amount of that compensation) provided it sets out a method of determining the condition at some time in the future by a method which will produce the same result whoever applies it: Racecourse Co-operative Sugar Association Limited v Attorney General (Queensland) (1979) 142 CLR 460 at 481; Allingham v Minister of Agriculture and Fisheries [1948] 1 All ER 780 at 781.
For the Government party it is contended the imposition of the condition addressed by the Tribunal would be an impermissible delegation to the arbitrator of some or all of the Tribunal’s statutory discretion as an arbitral body to impose conditions upon the act: Racecourse, supra; Turner v Owen (1990) 26 FCR 366 at 388-389 per French J and 372-4 per Pincus J; Allingham, supra; Sambell v Cook [1962] VR 448 at 450; Russell on Arbitration (20th ed) p228 and Levy v Farrell (1861) 1 W&W(E) 10.
For the intervener the submissions of the Government party are relied on. Additionally it is contended the Tribunal was correct in its conclusion because once the arbitral body has made a future act determination under s38, the application should be regarded as having been finally disposed of. However, it is submitted, there is a distinction to be drawn between delegation of the body’s duty to determine the permissible future act and the conditions pertaining to it, on the one hand, and the delegation of power to an arbitration body to facilitate the implementation of conditions determined by the Tribunal. The example is given of a provision in a condition for arbitration to resolve an issue arising in the course of implementation of a condition (although the example is not pressed as an issue for decision here). These submissions are supported by reference to Television Corporation Limited v The Commonwealth (1963) 109 CLR 59 at 84 per Menzies J and to M Aronson and B Dyer, Judicial Review of Administrative Action (LBC Information Services, 1996) p335-336.
Examination of the terms of the ground of appeal directed against the Tribunal’s conclusion again shows that in terms it addresses an issue different to that on which the Tribunal reached its conclusion. The ground claims the Tribunal erred in law in concluding it had no power to impose a condition upon the grant that the grantee be required to resort to arbitration in the event agreement is not reached “following negotiations in good faith pursuant to a condition imposed by the Tribunal to operate in the event of a proposal to undertake developmental or productive mining or construction activity.” This latter aspect was not part of the question which the Tribunal said it was addressing.
Doubtless the ground has been formulated with the actual conditions imposed by the Tribunal in mind. Conditions 3.1 to 3.7 read:
“3.1 Where the grantee party submits to the State Mining Engineer a proposal to undertake developmental or productive mining or construction activity, the grantee party must give to the native title party a copy of the proposal, excluding sensitive commercial data, and a plan showing the location of the proposed mining operations and related infrastructure including proposed access routes.
3.2 Upon receipt of a mining proposal under condition 3.1 the native title party will within 21 days inform the grantee party in writing if they wish to engage in negotiations concerning the proposed mining operations. If the grantee party is so informed, the negotiation process described in conditions 3.4, 3.5 and 3.6 must be undertaken prior to the grantee party commencing activities pursuant to any written approval given by the State Mining Engineer.
3.3 At the time of informing the grantee party that the native title party wish to engage in such negotiations the native title party must nominate a day or days within the following 21 days for a meeting (“first meeting”) to be attended by the native title party and the grantee party to discuss the proposed mining operations, and also nominate a place for the first meeting within reasonable proximity to the land the subject of the mining lease.
3.4 At the first meeting the grantee party will explain key aspects of the mining operations including:
· the extent of the area of the land proposed to be mined;
· the nature of the mining operations;
· the extent to which the ground will be disturbed and the environment affected;
· the likely duration of the mining operation and the likely number of persons to be engaged at any one time; and
· the proposals for rehabilitation of the land;”
and the native title party will describe any concerns regarding the proposed mining operations including the effect upon:
· any native title rights and interest;
· their way of life, culture and traditions;
· their social, cultural and economic structures;
· their access to any parts of the land including access to carry out ceremonies or other activities of cultural significance in accordance with their traditions;
· any area or site on the land of particular significance to the native title party in accordance with their traditions; and
· the natural environment of the land or waters concerned.”
3.5 In the negotiation process the native title party may also raise any other issues they consider relevant to the mining proposal including possible community and economic benefits for the native title party.
3.6 The negotiation period shall not be less than 3 months and shall include at least three further meetings and the native title party and grantee party must negotiate in good faith concerning the matters referred to in conditions 3.4 and 3.5.
3.7 Any matters agreed during the course of the negotiation process must be recorded in writing and signed on behalf of the native title party and grantee party.”
It is of concern to the applicants this process may be embarked upon without any resolution being reached. It appears to be in contemplation an arbitration condition of the type referred to in the ground would provide a means of compelling final resolution.
The ground as expressed cannot be made out.
Again, in deference to the argument directed to the issue, I express my opinion the Tribunal was correct on the issue which it addressed for the reasons which it gave. The determination of “the conditions upon which mining would proceed” (the issue addressed by the Tribunal) is simply too wide to constitute a permissible delegation. In addition to the provisions of the Act referred to in the reasons of the Tribunal on this point as matters which would be circumvented by such a condition there are others in ss41(3), 42, 145, 146, 154, and 156.
The real concern of the applicants, however, is the issue raised in the ground. Without finally deciding the point, because it has not arisen in a situation of concrete fact, whether or not there is a permissible delegation could only be determined in the light of the width of the specific condition and whether it would yield “the same result whoever applies it”: Racecourse supra at 481; that is, whether the scope for its application avoided characterisation as a delegation.
DO CONDITIONS 3.1-3.7 FAIL?
The next ground of appeal seeks to challenge conditions 3.1 to 3.7. It maintains, when read together, they fail to specify with any or any proper degree of particularity the purpose or purposes or outcome or outcomes in respect of which negotiations are to be conducted by the grantee party and the native title party; and create a negotiation process whereby, in the event the grantee party should fail to agree any matters during the course of the negotiation process, the native title party has no entitlement to require the Tribunal to make any determination in respect of the mining proposal and the Tribunal has no power to make any further determination of the mining proposal. It is claimed, as a result, the Tribunal has acted beyond its power because either it has failed to exercise its power to make a determination subject to relevant conditions or it has made a determination subject to conditions which are uncertain in their application or the result they produce.
I accept the submission for the Government party the first limb of this ground fails because on the facts the Tribunal has imposed in these conditions a process which is relevant. The process is directed to the relevant end, namely the effect of the mining leases on native title, and the topics to be required by the conditions to be addressed in the process mirror those in s39 of the Act.
The case for the applicants on the second limb is put in two ways. Firstly it is contended there is uncertainty in the process provided for in the conditions in that they are not self executing to be productive of a definite result and so are not conditions of the type contemplated by the Act. In support reliance is placed on Television Corporation, supra at 70 per Kitto J. There the Minister administering the Broadcasting and Television Act 1942 (Cth) (“the Broadcasting Act”) gave notices to two companies holding commercial television station licences of his intention to impose further conditions. He was empowered to impose further conditions by s108(1). Questions referred to the Full Court under s18 of the Judiciary Act 1903 (Cth) were principally directed to ascertaining whether the result would be the valid creation of further “conditions” of the licences. Kitto J at 69, said:
“What, then, is essential for the validity of a condition which the Minister purports to impose upon a licence, either originally or by way of addition? Good faith on the part of the Minister is necessary: it is not here impugned. Consistency with the Act and relevance to its purposes are undoubtedly required, but I have not been able to see that the proposed further conditions are open to attack in either of these respects. There is, however, another requisite of validity, as I read the Act, and that is that the condition shall possess reasonable certainty of meaning and application.”
The argument for the applicants on this point abjures any reliance upon linguistic uncertainty and relies solely on uncertainty of application. As with the applicants’ case generally, reliance is also placed on the statement by Kirby P in Household Financial Services Ltd v Commercial Tribunal of New South Wales (1995) 36 NSWLR 220 at 231.
In Television Corporation Kitto J went on to explain why he was of the opinion certainty was a requirement. The conditions were not conditions of forfeiture nor did non-compliance attract a penalty. The sanction behind them was that, in accordance with s86(1)(c), where the Minister is satisfied a condition has not been complied with he may suspend or revoke the licence. The effect of the conditions was therefore from the licensee’s viewpoint to provide a power in the Minister to subject the licence to a liability to be suspended or revoked in the event of his being satisfied of non-compliance with a stipulation in them. From the Minister’s point of view it was a power to prescribe a standard which in law the Minister was bound to apply whenever the occasion arose to decide whether a non-compliance had occurred. He therefore considered it was a necessary conclusion what the Broadcasting Act meant by a condition was a specification of acts to be done or abstained from by the licensee company. A specification could not fulfil the dual requirements of the licensee and the Minister unless it was reasonably certain - “that is to say (as has been said in a long line of cases with respect to conditions of forfeiture created by the dealings of private persons with other forms of property) conditions such that from the moment of their creation the Court can say with reasonable certainty in what events forfeiture will be incurred...”. The three authorities cited by Kitto in support - In re Exmouth; Exmouth v Praed (1883) 23 Ch D 158 at 164; Sifton v Sifton [1938] AC 656 at 670-671 and Clayton v Ramsden [1943] AC 320 at 326, 329 and 332 - are all cases involving private instruments (trusts and wills).
Kitto J judged the particular conditions at issue to be insupportable as within power. He said:
“The point is not that the proposed conditions offend against a general principle that uncertainty in executive instruments spells legal invalidity, for there is no such principle: see King Gee Clothing Co Pty Ltd v The Commonwealth [(1945) 71 CLR 184]; Cann’s Pty Ltd v The Commonwealth [(1946) 71 CLR 210]. The point is that a requirement for certainty in the sense I have described is inherent in the provisions by which the Minister’s power is created: cf per Diplock L J, Mixnam’s Properties Ltd v Chertsey Urban District Council.”
In Mixnam’s Properties Ltd v Chertsey Urban District Council (1963) 3 WLR 38 at 53 Diplock L J said:
“The various special grounds upon which subordinate legislation has sometimes been said to be void - for example, because it is unreasonable; because it is uncertain; because it is repugnant to the general law or to some other statute - can, I think, today be properly regarded as being particular applications of the general rule that subordinate legislation, to be valid, must be shown to be within the powers conferred by the statute.... Some doubt is cast on the correctness of “uncertainty” as a separate ground of invalidity by the speeches in the House of Lords in the recent case of Fawcett Properties Ltd v Buckinghamshire County Council [[1961] AC 636]; but if the courts can declare subordinate legislation to be invalid for “uncertainty” as distinct from unenforceable, as in the case of a clause in a statute to which it is impossible to ascribe a meaning, this must be because Parliament is to be presumed not to have intended to authorise the subordinate legislation authority to make changes in the existing law which are uncertain.”
Television Corporation was considered by the New South Wales Court of Appeal in Genkem Pty Ltd v Environment Protection Authority (1994) 35 NSWLR 33 at 43-44. Gleeson CJ pointed out that while Kitto J had decided the issue in Television Corporation on the basis, amongst others, the conditions were insufficiently particularised, Menzies J decided the point to the contrary. Menzies J said:
“Precision and freedom from ambiguity in matters of this sort are no doubt highly desirable so that the licensee will know where it stands in deciding what course it will follow, but provided that a condition is so expressed that it can be ascertained whether or not it is bona fide for the purposes of the Act and is consistent with law, I regard considerations of this sort as beyond the concern of a court of law determining the validity of what is, in truth, subordinate legislation.”
The Court in Genkem was called upon to decide whether condition L6 to a licence held under the Pollution Control Act 1970 (NSW), which condition stated “matter and substances on the premises shall be processed, handled, moved and stored in a proper and efficient manner,...” was invalid. Gleeson CJ rejected the argument that on its true construction the only conditions able to be imposed pursuant to s17D of the Pollution Control Act were conditions which direct the holder of the licence, with specificity, to do, or refrain from doing, particular acts. He considered there was nothing in the wording of s17D to warrant the conclusion contended for.
Powell JA, in agreeing with the result reached by the Chief Justice, said:
“...it seems to me that, whenever, as is the case here, a court is required to determine the efficacy of a challenge to some form of executive instrument or to some form of delegated legislation..., that court’s first task is to determine what is the true nature and extent of the power pursuant to which it is alleged that the executive instrument has issued or the delegated legislation has been made: King Gee Clothing Co Pty Ltd v The Commonwealth (1945) 71 CLR 184; Cann’s Pty Ltd v The Commonwealth (1946) 71 CLR 210. For, unless the relevant executive instrument or piece of delegated legislation, conforms to the power which it is relied upon to authorise it, it will be invalid. In determining whether or not it is essential to the valid exercise of a power to issue executive instruments, or to promulgate delegated legislation, that the instrument, or the delegated legislation, be free from any uncertainty, the court may, on occasion, think it necessary to go no further than the language in which the power is created while, in other cases, the subject matter in respect of which the power may be exercised and the consequences flying from the exercise of the power may be such that the court may think it necessary or appropriate to imply a requirement of certainty.”
It is necessary to go to the Act to ascertain what it was Parliament authorised in order to determine whether the conditions under challenge conform with the Act or not. Turning firstly to the language in which the power to impose conditions is created, there is nothing in s38(1)(c) which expressly limits the nature of conditions other than s38(2). It is apparent the conditions must be attached to “a determination that the act may be done” subject to the conditions.
The subject matter of the conditions appears to be shaped by the broad purpose there be a determination of the act and by the requirements of s39 that in making its determination the arbitral body must take into account the criteria there listed.
The consequences flying from the exercise of the power are the proposed act may only be done as if the conditions were terms of a contract among the negotiation parties; the conditions are also subject to overrule: s42(1); and where the conditions relate to compensation, there is the requirement for payment into trust: ss41(3) and 52.
From the nature of these provisions there is certainly a requirement for linguistic certainty because, absent it, the conditions could not operate as in contract and provisions for payment could fail. That uncertainty is not what is contended for in this case.
The real issue raised here is whether the conditions are such they may not lead to a determination in the requisite terms so that there is a failure of legislative purpose. Assuming the grantee party and the native title party negotiate in good faith concerning the matter referred to in conditions 3.4 and 3.5, failure by them to agree on solutions could have the effect the concerns of the native title party regarding the proposed mining operations including the effect upon native title rights and interest; the way of life, culture and traditions of the native title party, their social, cultural and economic structures; their access to any parts of the land including access to carry out ceremonies or other activities of cultural significance in accordance with their traditions; any area or site on the land of particular significance to the native title party in accordance with their traditions; and the natural environment of the land or waters concerned would remain unresolved: cf s39(1)(a).
The evident purpose of s38(1) is to provide a means of arriving at a determination of whether the permissible future act may be done in circumstances where agreement has not been reached with the native title parties to the doing of the act or the doing of the act subject to conditions: s31. It is possible to posit the conditions to which the native title parties could not reach agreement during the course of negotiations conducted under s31 will be the same or to some extent the same as those raised in response to concerns raised by them under condition 3.4. Negotiations under the conditions in which outstanding matters were unresolved could nevertheless lead to a determination the act may be done. This would defeat the evident purpose of s38. That purpose is to have the arbitral body finally determine the issues where negotiations between the parties have failed to do so. So viewed it is apparent conditions 3.1 to 3.7 do not conform to the power which is relied upon to authorise them.
In my view this construction and understanding of s38 follows from the need to have in mind the Act is to be construed consistently with its objects (s3) and beneficially: see North Ganalanja (supra) and Bull (supra). I regard it as inherent in s38 the arbitral body not leave the outstanding issues between the parties unresolved. For conditions to permit of such issues being unresolved would not be in conformity with the legislation providing the power to make conditions. The circumstances of this Act do not support the application of the approach of Menzies J in Television Corporation (supra) and invite the application of the approach of Kitto J in that case and Powell J A in Genkem (supra).
It must be acknowledged the Act in its present form places the Tribunal in an impossible position. It is asked at the time of the determination of whether an act may be done to formulate conditions pertaining to a mining stage the nature of which is not yet known. It is not empowered to delegate to an arbitrator the resolution of conditions at a later time. Acknowledging these supreme difficulties, I do not consider the solution in the form of conditions 3.1 to 3.7 is one which results in final resolution of unagreed issues in the manner inherent in the provisions relied upon as the source of power. There is therefore a relevant disconformity with the Act having the effect of making the conditions an invalid exercise of power.
The submissions for the applicants on this aspect of this ground were put in the alternative on the basis the conditions were illusory which defeats the evident legislative intent that such conditions should be in a form capable of being invested with the status of a contract by operation of s41(1). As I consider the primary argument for the applicants on the ground succeeds, I do not deal with the alternative argument.
DID THE TRIBUNAL PAY CORRECT REGARD TO THE PUBLIC INTEREST?
Section 39(1)(d) required the Tribunal in making its determination to take into account “the economic or other significance of the proposed act to Australia and to the State or Territory concerned.” Section 39(1)(e) required it to consider for the same purpose “any public interest in the proposed act proceeding.”
In considering the former the Tribunal concluded it was required to consider such significance in relation to the merits of each of the proposed acts and not in relation to the health of the mining industry. It concluded the individual economic or other significance of each of the proposed grants to Australia or to Western Australia “is so small as to be of little account in making our determinations.”
It regarded the latter sub-section as requiring it to take into account the public interest in the protection of native title and also evidence of the public interest in the continuity of exploration and mining. It found there was evidence from the Government party of the significance of the grant of the mining leases as a necessary part of on-going exploration activities showing they were essential to the health of the mining industry and hence of significance to the economy.
The final ground of appeal claims the Tribunal was in error in having regard to the wider issue of the health of the mining industry and hence of the economy rather than the public interest “in the proposed act proceeding” as par(e) specifies.
In support it is contended for the applicants the Tribunal should have concluded there was very little economic or other significance of the proposed grants of title.
The ground falls for resolution as a matter of statutory construction rather than on the merits of the particular evidence. The words “any public interest” are not limited in their scope. In Australian Securities Commission v Deloitte Touche Tohmatsu (1996) 138 ALR 655 at 681-682 the Full Court of this Court accepted the leading authority on the meaning of “public interest” is O’Sullivan v Farrer (1989) 168 CLR 210 particularly at 216. There Mason CJ, Brennan, Dawson and Gaudron JJ said:
“[T]he Act provides no positive indication of the considerations by reference to which a decision is to be made as to whether the grant of an application would or would not be in the public interest. Indeed, the expression “in the public interest”, when used in a statute, classically imports a discretionary value judgment to be made by reference to undefined factual matters, confined only “in so far as the subject matter and the scope and purpose of the statutory enactments may enable...given reasons to be [pronounced] definitely extraneous to any object the legislature could have had in view”: Water Conversation and Irrigation Commission (NSW) v Browning (1947) 74 CLR 492 at 505.”
The Full Court in Deloitte accepted the statement by Lockhart J in Right to Life Association (NSW) Inc v Secretary, Department of Human Services and Health (1995) 128 ALR 238 at 245:
“The public interest is a concept of wide meaning and not readily delimited by precise boundaries. Opinions have differed, do differ and doubtless always will differ as to what is or is not in the public interest.”
The present sub-section requires the Tribunal to start with the proposed act and then to take into account any such interest of it. Where there is evidence the proposed act will have the effect of contributing to on-going exploration activities essential to the health of the mining industry and to the economy, that will be evidence falling within the statutory description of public interest which must be taken into account. There is no express or implied reason why the reference in the Act to the public interest should be read down so as to exclude the effect of the proposed act on the public interest in a healthy mining industry and economy. There is nothing in the context in which the words are here used to occasion the concept of public interest to be construed to the exclusion of those factors.
CONCLUSION
For these reasons I consider the applicants succeed on the grounds directed to the power of the Tribunal to make compensation the subject of a condition and on the efficacy of conditions 3.1 to 3.7. The question arises of the appropriate form of order. The Government party submits the issue should not be referred back to the Tribunal because of the time which the issues have taken to date. The nature of the issues upon which the applicants have succeeded, however, is such that the matter should be remitted to the Tribunal to be decided again in accordance with the law. I will hear counsel as to the appropriate costs order.
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I certify that this and the preceding twenty seven (27) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice R D Nicholson |
Associate:
Dated: 8 August 1997
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Counsel for the Applicants: |
G M G McIntyre
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Solicitor for the Applicants: |
M Rynne
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Counsel for the First Respondent: |
S Wright
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Solicitor for the First Respondent: |
Crown Solicitor for the State of Western Australia
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Counsel for the Intervener: |
H Burmester
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Solicitor for the Intervener: |
Australian Government Solicitor
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Dates of Hearing:
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8 and 9 July 1997 |
