FEDERAL COURT OF AUSTRALIA

Bullen v State of Western Australia [1999] FCA 1490

NATIVE TITLE – registration of claims under “old” and “new” Native Title Acts – “old” and “new” rights to negotiate – transitional provisions – amendment of application – application of new registration test to old application by reason of new s 29 notices – consequential amendments of application – duty to consider registration test following amendments – whether amendment of claim excludes application of transitional provisions continuing right to negotiate notwithstanding removal from Register – whether “old” or “new” right to negotiate applies under transitional provisions.

Native Title Act 1993 (Cth) s 3, s 28(1), s 253

Native Title Amendment Act 1998 (Cth) s 28

Northern Territory of Australia v Lane (1995) 59 FCR 332, cited

Kanak v National Native Title Tribunal (1995) 61 FCR 103, cited

North Ganalanja Aboriginal Corporation v the State of Queensland (1996) 185 CLR 595, cited

Fourmile v Selpam Pty Ltd (1998) 80 FCR 151, cited

Brandy v Human Rights and Equal Opportunity Commission (1995) 183 CLR 245, cited

Walley v Western Australia (1996) 67 FCR 366, cited

MALCOLM JOHN BULLEN and JAMES EDWARD DIMER on behalf of the ESPERANCE NYUNGARS v THE STATE OF WESTERN AUSTRALIA and MINISTER FOR MINERALS AND ENERGY

W 108 of 1999

FRENCH J

28 OCTOBER 1999

PERTH

THE COURT ORDERS THAT:

1.         It is hereby declared that the new right to negotiate provisions of the Native Title Act 1993, referred to in subitem 11(11) of Schedule 5 to the Native Title Amendment Act 1998, apply in relation to the proposed grant of the following exploration licences:

            (i)         E74/196, E74/197 and E74/198 to Mount Burgess Gold Mining Co NL;

            (ii)        E74/232, E74/233, E74/234, E74/236 and E74/237 to Morning Star Resources

                        NL;

            as if details of the applicants’ claim had not been removed from the Register.

2.         There be liberty to apply in writing within 7 days on the question of injunctive relief and on the question of costs and on the question of whether E74/197 should be excluded from the declaration.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

Introduction

1                     On 6 June 1996, Thomas Bullen lodged a native title determination application with the National Native Title Tribunal on behalf of Nyungar people with traditional rights and interests in land and waters covering a significant area of the south coast of Western Australia around Esperance and waters to the south, including the Recherche Archipelago.  Details of the application were entered in the Register of Native Title Claims at the time.  By reason of that entry Mr Bullen had the benefit, on behalf of the Nyungar people, of the right to negotiate provisions of the Native Title Act 1993 as they then stood.  Those provisions, in short, required the State to publish notices of the grant of proposed mining tenements or the acquisition, for the benefit of third parties,  of native title rights and interests in the area under claim.  Before such tenements could validly be granted or acquisitions validly effected under the Act, there was a requirement for negotiation and, in default of agreement, arbitral determination on whether the proposed grants or acquisitions could be made and, if so, on what conditions.

2                     Notices were published by the State in September 1996 and October 1997 in respect of the proposed grant of exploration licences on land within the area covered by the application.  At the time that major amendments to the Native Title Act 1993 came into effect on 30 September 1998, no agreement had been reached in relation to these licences.  Additional s 29 notices in respect of other matters were issued after 30 September 1998.  As a result the Native Title Registrar was required to apply the more stringent conditions of the new registration test to the original application.  The application was amended in order to meet those conditions.  It failed the test in March 1999 and details of the claim made in the application were removed from the Register.  After further amendment the application was reinstated on the Register in July 1999.  The State now maintains that the present applicants, who were substituted in the native title determination application for Mr Thomas Bullen, now deceased, have lost the right to negotiate in respect of the pre-amendment s 29 notices because of the removal of details of the application from the Register.  The applicants maintain that the transitional provisions of the Native Title Amendment Act 1998 have preserved the right to negotiate.  They apply for declaratory and injunctive relief accordingly to prevent the State from proceeding with the grant of the exploration licences without first going through the required processes of negotiation and arbitration.  The case raises difficult questions of statutory construction.

Statutory Framework

3                     Although the present proceedings are concerned with the operation of the transitional provisions of the Native Title Amendment Act 1998 (Cth) those provisions must be viewed in their wider statutory context.  This requires a consideration of the registration and so called “right to negotiate” provisions of the Act before and after the 1998 amendments.

4                     The main objects of the Act, as stated in s 3, are:

“(a)     to provide for the recognition and protection of native title; and

(b)       to establish ways in which future dealings affecting native title may proceed and to set standards for those dealings; and

(c)        to establish a mechanism for determining claims to native title; and

(d)       to provide for, or permit, the validation of past acts, and intermediate period acts,  invalidated because of the existence of native title.”

The only change to s 3 effected by the amendments is the insertion of the reference to “intermediate period acts”. 

5                     Put shortly, the Act provides mechanisms for the recognition and protection of native title and the validation of certain past dealings with land or waters which were invalid because of the existence of native title.

6                     Before the 1998 amendments, the Native Title Act 1993 set up a process for the recognition of native title involving the Native Title Registrar, the National Native Title Tribunal and the Federal Court.  Applications for determination of native title in relation to an area were made to the Native Title Registrar (ss 13(1) and 61).  Applications were to be accompanied by an affidavit sworn by the applicant that the applicant believed native title had not been extinguished or determined in any part of the area under claim (ss 62(1)(a)(i) and (ii)) and that all statements made in the application were true (s 62(1)(a)(iii)).  All information known to the applicant about other non-native title interests in the land was to be included in the application (s 62(1)(b)) which was also to contain a description of the area over which native title was claimed (s 62(1)(c)). There was no requirement upon applicants to carry out searches or make inquiries about other interests or about extinguishment of native title in the land or waters in question.

7                     The Native Title Registrar, upon receiving an application, was required to include in the Register of Native Title Claims details of any claims contained in the application (s 190(1)(a)) – Northern Territory of Australia v Lane (1995) 59 FCR 332 and Kanak v National Native Title Tribunal (1995) 61 FCR 103.  The Registrar was obliged to accept the application for processing, a step distinct from its inclusion in the Register of Native Title Claims, unless of the opinion that it was frivolous or vexatious or that prima facie “the claim” could not be made out (s 63(1)) – see generally North Ganalanja Aboriginal Corporation v The State of Queensland (1996) 185 CLR 595.  The Registrar’s decision to refuse acceptance was subject to review by a presidential member of the Tribunal and confirmation of that refusal was subject to review by the Federal Court.  The Registrar was not entitled to take into account extrinsic evidence in assessing an application for acceptance, except to the extent that it might be relevant to the question whether an application was frivolous or vexatious – North Ganalanja Aboriginal Corporation (supra). 

8                     The processing of applications after acceptance involved their notification to persons whose interests might be affected by a determination and to the public (s 66(2)).  Interested persons wishing to become parties would notify the Registrar in writing within a specified period, in effect two months, (s 68(2)(b)) and, subject to determination of their eligibility to be parties, would be joined as such.  Absent any agreement resolving the application between the parties, the matter would be referred to a mediation conference (s 72).  If mediation led to an agreement the matter would be referred to the Federal Court for a consent order and otherwise for litigation (s 74).  The Act provided for the Tribunal to make a consent determination where agreement had been reached and for such determination to be registered in the Federal Court.  However this was held to be unconstitutional – Fourmile v Selpam Pty Ltd (1998) 80 FCR 151, applying Brandy v Human Rights and Equal Opportunity Commission (1995) 183 CLR 245.  The process adopted for consent determinations to avoid this difficulty involved referring the matter to the Federal Court under s 74 on the basis that the parties would seek a consent order.

9                     The protection of native title was provided for in Division 3 of Part 2 relating to future acts and native title.  Governments proposing to pass laws or do executive acts affecting native title were required to observe a non-discrimination principle in relation to native title holders.  Onshore dealings with land affecting native title holders were to be done in a way that would not discriminate between them and freeholders (s 23(6)).  Entitlements to compensation were created (ss 23, 24 and 25).  There was a specific protection process known as the “right to negotiate” which required negotiation with registered native title claimants and, in default of agreement, arbitration before government could validly do certain onshore acts for the benefit of third parties where those acts would affect native title rights and interests (ss 31 and 33).

10                  The statutory scheme providing for the right to negotiate was found in Subdivision B of Division 3 (ss 26-44).  The subdivision was expressed by s 26 to apply if the Commonwealth, a State or Territory (the Government party) proposed to do any permissible future act covered by subs (2) in relation to an onshore place.  The acts covered by subs (2) included the creation of a right to mine, whether by grant of a mining lease or otherwise.  The definition of “mine” in s 253 of the Act included “explore or prospect for things that may be mined”.  So the subdivision applied to the grant of an exploration licence.  Acts to which the subdivision applied were only valid if one or other of the conditions set out in s 28 was met:

“28(1)  The act is only valid if:

(a)       by the end of the period of 2 months starting when notice is given under section 29, there is no native title party in relation to any of the land or waters that will be affected by the act; or

(b)       subsection 32(2) (which applies where no objection is made after the giving of a notice that the act attracts the expedited procedure) allows the act to be done; or

(c)        a determination is made under subsection 32(4) that the act is an act attracting the expedited procedure; or

(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; or

(f)        a determination that the act must not be done is declared to be overruled in accordance with section 42.”

Subsection 28(2) is not relevant for present purposes.

11                  The government party was required under s 29 to give notice of its intention to do the act.    Such notice had to be given to any registered native title body corporate in relation to any of the land or waters affected by the act and any registered native title claimant in relation to such land or waters.  Each of those parties was designated a “native title party”.  Notice was also to be given to the relevant representative Aboriginal/Torres Strait Islander body in relation to the land or waters concerned and also to the person on whose request or application the issue of the licence or grant of a lease was to be made.  The government party was also required to notify the public of its intention to do the act (s 29(3)) and could include in the notice that it gave under the section a statement that it considered the act was one attracting the expedited procedure (s 29(4)).  In addition to the native title parties defined in s 29(2)(a) and (b) the class of  native title parties included, by virtue of s 30,:

“(a)     any person who, within the period of 2 months starting when the notice is given, becomes a registered native title claimant in relation to any of the land or waters that will be affected by the act;

(b)       any body corporate that, within that period of 2 months, becomes a registered native title body corporate in relation to any of the land or waters that will be affected by the act.”

A “registered native title claimant” was defined in s 253 as follows:

““registered native title claimant”, in relation to land or waters, means a person whose name appears in an entry (other than an entry amended under subsection 190(2) to include details of a decision or determination) on the Register of Native Title Claims as the person who is taken to be the claimant in relation to the land or waters”.

The Act prescribed minimum periods within which the State Government, the grantee and the native title parties were to endeavour to negotiate an agreement about the proposed tenement or acquisition of native title rights and interests (s 35).  If agreement were unable to be reached within the prescribed period, any one of the parties could apply to the Tribunal as arbitral body to conduct an inquiry and make a determination of whether or not the act could be done and, if so, on what conditions (ss 35, 36 and 38).  The relevant government was required to give all native title parties an opportunity to make submissions to it and to negotiate in good faith with a view to obtaining the agreement of the native title parties to the doing of the proposed act or the doing of the act subject to conditions (s 31).  Absent good faith negotiation on the part of the government party, the Tribunal lacked jurisdiction to embark upon its arbitral inquiry – Walley v Western Australia (1996) 67 FCR 366. 

12                  A government party could claim an exemption from the application of the right to negotiate process on the basis that the particular future act proposed would not directly interfere with the community life of the native title holders in relation to the land or waters concerned or with areas or sites of particular significance and would not involve major disturbance to the land or waters concerned.  This bypassing procedure was called “the expedited procedure” (s 237).  The application of the expedited procedure could be objected to by a registered native title claimant and it was a matter for the arbitral body to hear and determine such objections (s 32(4)).

13                  On 30 September 1998, major elements of the Native Title Amendment Act 1998 came into effect.  One of those elements requires all new native title determination applications to be commenced by filing in the Federal Court instead of being given to the Native Title Registrar, as had previously been the case (ss 13 and 61).  In broad terms, all native title determination and compensation applications are to be made in the Federal Court and referred to the Native Title Registrar to determine whether details of the claims in the applications should be included in the Register of Native Title Claims (s 190).  The Registrar is also responsible for public notification of the application (s 66) although those who wish to become parties must now notify the Court instead of the Registrar as was previously the case (s 84).  The Court will, after notification is completed, ordinarily refer the application for mediation by the Tribunal (s 86B). 

14                  Inclusion or non-inclusion of details of a claim in the Register of Native Title Claims does not impact upon the standing of the application as a proceeding in the Federal Court.  Registration is nevertheless a condition of an applicant for a native title determination to be a native title party under s 30 of the Act and is therefore a condition of the enjoyment by that applicant of the right to negotiate under Part 2, Division 3, Subdivision P of the Act.  The future acts to which it applies include the grant of an exploration licence (s 26(1) and see definition of “mine” in s 253).  The application of the notice, negotiation and arbitration provisions for which the subdivision provides is a condition of the validity of the future acts to which it applies (s 24OA and s 28).  The way in which that result is achieved in the statutory scheme of Subdivision P is that s 28 renders invalid an act to which Subdivision P applies to the extent that act affects native title unless one of a number of alternative conditions applies.  The new section 28 provides:

“28(1)  Subject to this Act, an act to which this Subdivision applies is invalid to the extent that it affects native title unless, before it is done, the requirements of one of the following paragraphs are satisfied:

(a)       by the end of the period of 4 months after the notification day for the act (see subsection 29(4)), there is no native title party in relation to any of the land or waters that will be affected by the act;

(b)       after the end of that period, but immediately before the act is done, there is no native title party in relation to any of the land or waters that will be affected by the act;

(c)        subsection 32(2) (which applies if no objection is made after the giving of a notice that the act attracts the expedited procedure) allows the act to be done;

(d)       a determination is made under subsection 32(4) that the act is an act attracting the expedited procedure;

(e)        native title parties have lodged one or more objections in relation to the act under subsection 32(3), but all such objections are withdrawn under subsection 32(6);

(f)        an agreement of the kind mentioned in paragraph 31(1)(b) is made;

(g)       a determination is made under section 36A or 38 that the act may be done, or may be done subject to conditions being complied with;

(h)       a determination that the act must not be done is declared to be overruled in accordance with section 42.”

Subsection (2) is not material for present purposes. 

15                  Applications for native title determination are filed in the Federal Court pursuant to the amended Act after 30 September 1998 and are required to comply with more demanding conditions than applications given to the Native Title Registrar under the Act as it stood before that date.  Persons making such applications must be authorised to do so by all the members of the relevant native title group (ss 61(1), 251B and 253).  Persons in the native title group must be named or described “sufficiently clearly so that it can be ascertained whether any particular person is one of those persons” (s 61(4)).  Applications cannot be made over areas the subject of previous exclusive possession acts (s 61A(2) and s 23B which defines previous exclusive possession acts).  Nor can the right to exclude others be claimed in areas the subject of previous non-exclusive possession acts (s 61A(3) and s 23F).  By s 62 certain information must now be provided with native title determination applications.  This includes information which enables the boundaries of the area covered by the application to be identified (s 62(2)(a)), maps showing the boundaries (s 62(2)(b)), results of searches of non-native title interests (s 62(2)(c)) and a description of the native title rights and interests claimed including any activities in exercise of those rights and interests (s 62(2)(e)).  It is also required that there be set out in the application a general description of the factual basis on which it is asserted that the native title rights and claims exist (s 62(2)(e)), details of activity currently carried on by any of the native title claim group (s 62(2)(f)), details of other applications in relation to a whole or a part of the area covered (s 62(2)(g)) and details of any notices under s 29 or corresponding provisions of a law of a State or Territory of which the applicant is aware that have been given and that relate to the whole or a part of the area (s 62(2)(h)). 

16                  Upon an application being filed in the Federal Court under s 61, the Registrar of the Federal Court must, as soon as practicable, give a copy of the application to the Native Title Registrar together with any affidavits and prescribed documents accompanying it (s 63).  Whenever the Native Title Registrar is given a copy of an application under s 63, the Registrar must comply with the requirements of s 66 which require notice to be given of the application as soon as reasonably practicable to the relevant State or Territory Minister and representative bodies in the area covered by the application.  There is also provision under s 66(3) for the Registrar to give notice containing details of the application to categories of interested parties or bodies including persons holding proprietary interests in relation to any of the area covered by the application which is registered in a public register of interests and the public generally.  However notice is not to be given under subs 66(3) until the Registrar has decided whether or not to accept the claim made in the application for registration (s 66(6)). 

17                  The registration process referred to is the inclusion in the Register of Native Title Claims of details of claims contained in an application.  Under s 190 the Native Title Registrar must, as soon as practicable, include in the Register details of any claims accepted for registration under s 190A.  Section 190A imposes a duty on the Registrar to consider claimant applications for registration.  Section 190A(6) requires the Registrar to accept a claim for registration if the claim satisfies all of the conditions in s 190B, which deals mainly with the merits of the claim, and s 190C which deals with procedural and other matters (s 190A(6)).  Conditions relating to the merits of the claim to be satisfied under s 190B require identification of the area subject to native title, identification of the relevant native title claim group and of the claimed native title, satisfaction of the Registrar that there is a factual basis for the claimed native title and satisfaction of the Registrar that prima facie at least some of the native title rights and interests claimed can be established.  The Registrar must also be satisfied that at least one member of the native title group currently has or previously had a traditional physical connection with part of the land or waters covered by the application or would reasonably have been expected to do so but for things done by the Crown or a statutory authority or a leaseholder. 

18                  The application and accompanying documents must not disclose, and the Registrar must not otherwise be aware, that the application should not have been made by virtue of s 61A.  Section 190C requires as a condition of registration that the application contain all details and other information and is accompanied by any affidavit or other documents required by ss 61 and 62.  Other procedural conditions under s 190C relate to the absence of any common membership in overlapping claims, the definition of the identity of claimed native title holders and how the Registrar is to be satisfied that an application has been authorised where authorisation has not been certified by a representative body.

19                  As with the Act prior to the amendments, inclusion of details of a native title claim in the Register of Native Title Claims is a condition of the right of the applicants to attract the right to negotiate under the new Act.    

20                  The new Act, unlike the old, makes specific provision in s 64 for the amendment of applications.  An application may, at any time, be amended to reduce the area of land or waters it covers (s 64(1)).  This does not by implication limit the amendment of applications in any other way which can be done under the ordinary rules of Court.  Where an application is amended by the Federal Court, the Registrar of the Court is required by s 64(4) to give a copy of the amended application to the Native Title Registrar.  The Native Title Registrar must consider the claims made in the application under s 190A (s 190A(1)).  And by virtue of s 190(3), if the claim is accepted for registration under s 190A, the Register must be amended to reflect the amendment to the application.  If the claim is not accepted for registration under s 190A, the Registrar must amend the Register to remove any entry relating to the claim.

21                  Transitional provisions concerning the registration of claims are found in Part 4 of Schedule 5 of the Native Title Amendment Act 1998.  That Schedule comprises one item, 11, which has a number of sub-items.  Relevantly they are as follows:

“11(1)This item sets out the consequences of the commencement of this Act in relation to a claim made in an application that was given to the Native Title Registrar as mentioned in section 61 of the old Act if, when this Act commenced, an entry recording details of the claim was on the Register of Native Title Claims.

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   (3)    If:

            (a)        the application was made before 27 June 1996; and

            (b)        a notice is given under section 29 of the new Act, or a corresponding provision of a law of a State or Territory covered by a determination under subsection 43(1) of the new Act or old Act, in relation to an act affecting any of the land or waters covered by the claim; and

            (c)        no such notice has previously been given in relation to an act affecting any of the land or waters covered by the claim;

            the Registrar must:

            (d)        consider the claim under section 190A of the new Act; and

            (e)        use his or her best endeavours to finish doing so by the end of 4 months after the notice is given.

            If he or she does not do so by that time, he or she must consider the claim under that section as soon as reasonably practicable afterwards.

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   (8)    In considering a claim in accordance with subitems (3) to (7), the Registrar must:

            (a)        in addition to having regard to information in accordance with subsection 190A(3) of the new Act, also have regard to any information provided by the applicant after the application was made; and

            (b)        apply section 190A of the new Act as if the conditions in sections 190B and 190C requiring that the application;

                        (i)         contain or be accompanied by certain information or

                                    other things; or

                        (ii)        be certified or have other things done in relation to it;

                        also allowed the information or other things to be provided, or the certification or other things to be done, by the applicant or another person after the application is made; and

            (c)        for the purposes of paragraphs (a) and (b) of this subitem, advise the applicant that the Registrar is considering the claim, and allow the applicant a reasonable opportunity to provide any further information or other things, or to have any things done, in relation to the application.

   (9)    If the claim does not satisfy all of the conditions in sections 190B and 190C of the new Act:

            (a)        the Registrar must remove the details of the claim from the Register and give written notice as required by subsection 190D(1); and

            (b)        the other provisions of sections 190A to 190D apply as if the notice mentioned in paragraph (a) were given under subsection 190D(1); and

            (c)        after the Registrar has complied with subitems (3) to (8) and this subitem (in so far as they are applicable), he or she is taken to have complied with section 190A.

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  (11)   If:

            (a)        the application was made before 27 June 1996; and

            (b)        under subitem (9) or (10), the Registrar removes the details of the claim from the Register;

            then the new “right to negotiate” provisions (including as modified by Part 2 of this Schedule) or the old “right to negotiate” provisions, as the case requires, apply in relation to any act of which notice was given under section 29 of the old Act, or a provision of a law of a State or Territory that is equivalent to that section, as if the details of the claim had not been removed from the Register.

  (12)   If:

            (a)        the application was made on or after 27 June 1996; and

            (b)        under subitem (9) or (10), the Registrar removes the details of the claim from the Register;

            then the new “right to negotiate” provisions (including as modified by Part 2 of this Schedule) or the old “right to negotiate” provisions, as the case requires, apply in relation to:

            (c)        any act of which notice was given under section 29 of the old Act, or a provision of a law of a State or Territory that is equivalent to that section; and

            (d)        any act of which notice was given under section 29 of the new Act, or a provision of a law of a State or Territory that is equivalent to that section, before the removal of the details;

            as if the details had never been entered in the Register.”

The terms “new right to negotiate” and “old right to negotiate” are dealt with in Item 32 in Schedule 5 which provides:

“(1)     The new “right to negotiate” provisions are the provisions in Subdivision P of Division 3 of Part 2 of the new Act.

(2)       The old “right to negotiate” provisions are the provisions in Subdivision B of Division 3 of Part 2 of the old Act.”

The terms “new Act” and “old Act” are also defined for the purposes of the transitional provisions in Item 31 as follows:

“(1)     The new Act is the Native Title Act 1993, as amended at the commencement of this Act.

(2)       The old Act is the Native Title Act 1993, as in force immediately before the commencement of this Act (including as it applies in accordance with item 3).”

Reference should also be made to Part 2 of Schedule 5 dealing with the application of the future act amendments.  As a general proposition the new Act applies to future acts taking place after the commencement of the new Act.  This is subject to the provisions of the Schedule (Item 2).  Item 4 provides:

“(1)     If, before the commencement of the new “right to negotiate” provisions:

            (a)        a notice was given in relation to a future act under section 29 of the old Act; and

            (b)        apart from this subitem, the new “right to negotiate” provisions would apply in relation to the future act after the commencement of this Act; and

            (c)        either:

                       (i)         the requirements of any of paragraphs 28(1)(a) to (f) of the old Act were satisfied; or

                       (ii)        an application was made under section 35 of the old Act to an arbitral body and had not been withdrawn;

            then, after the commencement of this Act, the old “right to negotiate” provisions continue to apply, despite the amendments made by this Act, in relation to the future act.

(2)       If:

            (a)       a notice under section 29 of the old Act was given in relation to a future act at least 2 months before the commencement of the new “right to negotiate” provisions; and

            (b)       apart from this subitem, the new “right to negotiate” provisions would apply in relation to the future act after the commencement of this Act; and

            (c)        subitem (1) does not apply to the future act;

            then, after the commencement of this Act, the new “right to negotiate” provisions apply in relation to the future act as if:

            (d)       the only persons who were native title parties were those who were native title parties under the old Act; and

            (e)        the requirements of section 29 of the new Act had been complied with.”

Factual Background

22                  On or about 6 June 1996, Thomas William Bullen lodged with the Native Title Registrar a native title determination application in respect of land and waters adjacent to the south coast of Western Australia.  The area covered by the application ran from Mason Point on the south coast to Israelite Bay encompassing the Recherche Archipelago and waters south to Termination Island.  The land area extended northward to Salmon Gums and beyond to Lake Gilmour.   The application was expressed to be made “…on behalf of the Noongar people with traditional rights and interests in the area…”.  The application excluded, from the area under claim,  “freehold lands alienated prior to 1 January 1994”.  Upon lodgment, details of the claims contained in the application were included in the Register of Native Title Claims pursuant to s 190 of the Native Title Act 1993, as it then stood. 

23                  On 16 September 1996 a notice was sent to the applicants’ representative, the Aboriginal Legal Service of Western Australia (Inc) (“the ALS”), pursuant to s 29 of the Native Title Act.  The notice stated the State of Western Australia proposed to grant mineral exploration licences E74/196, E74/197 and E74/198 to Mount Burgess Gold Mining Co NL on lands within the area covered by the application.  On 27 October 1997 a further notice, delivered to the applicants’ representative, set out the proposal of the State of Western Australia to grant exploration licences E74/232, E74/233, E74/234, E74/236 and E74/237 to Morning Star Resources NL over land within the area covered by the application.  Each of the notices contained a statement by the State of Western Australia that it considered the proposed grant of the licences attracted the expedited procedure under s 237 of the Act as the grant would not:

1.         Directly interfere with the community life of any native title holders.

2.         Interfere with areas or sites of particular significance.

3.         Involve major disturbance to any land or waters concerned.

24                  Objections to the inclusion of the statements were lodged by the applicants with the National Native Title Tribunal under s 31(3) of the Act in respect of both the Mount Burgess and the Morning Star tenements.  On 12 December 1996, the Tribunal made a determination by consent that the proposed grants of the Mount Burgess tenements were not acts attracting the expedited procedure.  This determination was made pursuant to s 31(4) of the Act as it then stood.  A similar determination in relation to the Morning Star tenements was made by consent on 12 March 1998.  As a result of the determinations, which were routinely made by consent if an objection were lodged, the National Native Title Tribunal was required, under s 32(5) to:

(a)        Request the Government party and the grantee parties to negotiate in good faith with the native title parties with a view to obtaining their agreement to :

            (i)         the doing of the act; or

            (ii)        the doing of the act subject to conditions to be complied with by any of the parties; and

(b)       offer to mediate among the negotiation parties to assist in obtaining their agreement.

25                  Following the determinations discussions were held between the ALS and representatives of the two mining companies.  A draft agreement was prepared by the ALS and forwarded to Mount Burgess Gold Mining Co NL.  However on 30 September 1997 the company wrote to the ALS indicating that it had just become aware of the existence of at least another five claims covering the area of the proposed tenements.  The company was only prepared to proceed with negotiations if all the claimant parties negotiated at the same time on a consolidated basis.  Correspondence ensued between the ALS and the Department of Minerals and Energy.  On 18 November 1997 the Department invited the applicants to attend an initial meeting with the Government representatives involving other parties in the week commencing 8 December 1997.  The Department further indicated that if it did not receive advice that the applicants were willing to proceed with negotiations by 28 November 1997 the Department would contact them and attempt to resolve any difficulties and if unable to progress the matter further, would refer it to the National Native Title Tribunal for mediation assistance.  This letter did not lead to a reply from the ALS until 23 January 1998, which confirmed receipt of the letter, confirmed that the ALS acted for the claimants and awaited further advice from the Department.  They assert the Department did not respond further and took no further steps to facilitate the negotiations.  In relation to the Morning Star tenements, a draft agreement was prepared by the ALS on 5 November 1998 and forwarded to the company.  No response to that draft agreement was received.

26                  The application which is the subject of the present proceedings was lodged with the Tribunal more than two years before the amendments came into force.  By reason of transitional provisions to be found in Part 3 of Schedule 5 of the Native Title Amendment Act 1998 it is taken, as of 30 September 1998, to have been made to the Federal Court.

27                  On 11 December 1998 the applicants filed a motion seeking leave to amend the application in terms of a minute of amended application filed with the motion.  The amended application was in the form prescribed under the Native Title (Federal Court) Regulations 1998 which supplanted the form previously prescribed under the National Native Title Tribunal Regulations.  Those regulations had governed the forms of application to be lodged with the Tribunal under the Native Title Act prior to the amendments.  The names of the applicants were changed, they being the persons who are named as applicants in these proceedings, namely “Malcolm John Bullen and James Edward Dimer on behalf of the Esperance Nyungar People”. 

28                  The native title claim group was described somewhat more fulsomely as follows:

“The Esperance Nyungar people include Gail Jamieson, Malcolm Bullen, James Dimer, Jean Newman, Alan Graham, Ronald Reynolds, and other people who are descended from traditional owners of the land and waters claimed at the time of sovereignty, including those considered within the native title claim group by way of birth, adoption, marriage or other traditionally recognised method of inclusion who today identify themselves as an Esperance Nyungar and who are recognised as such by the Esperance Nyungar Native Title Working Group.”

The description of the external boundary of the area covered by the application was expressed with much greater precision and detail than in the original application.  Excluded were “private freehold land where there are no reservations and roads that have been lawfully  Gazetted and used for a permanent public work for which the road was Gazetted.”

29                  In the original application the native title rights and interests claimed were said to include “the possession, occupation, use and enjoyment of the whole of the area covered by the application”.  The amendment broke that general formulation down into a list of thirteen native title rights and interests as follows:

“(a)     the right to possess the land and waters claimed;

(b)       the right to occupy the land and waters claimed;

(c)        the right to use and enjoy the land and waters claimed;

(d)       the right to make decisions about the use and enjoyment of the land and waters claimed;

(e)        the right of free access to the land and waters claimed;

(f)        the right to control the access of others to the land and waters claimed;

(g)       the right to use and enjoy the resources of the land and waters claimed;

(h)       the right to control the use and enjoyment of others to the resources of the land and waters claimed;

(i)        the right to trade in the resources of the land and waters claimed;

(j)        the right to receive a portion of any resources taken by others from the land or waters claimed;

(k)       the right to maintain and protect places of importance on the land and in the waters claimed;

(l)        the right to maintain, protect and prevent the misuse of cultural knowledge associated with the land and waters claimed;

(m)      the right to identify mutual membership of the Esperance Nyungar Group.”

Ten overlapping applications were identified and ninety seven proposed tenements the subject of s 29 notices issued prior to 30 September 1998 were listed.  Thirteen mining and other proposed dealings with land, the subject of s 29 notices, issued after 30 September were also set out. 

30                  The amendment to the application was allowed by order of the District Registrar made on 18 December 1998.  A further amendment to the application was made on 2 March 1999.  The second amendment altered the description of the native title group which it now identified as the biological descendants of a number of persons named in Schedule A to the application and one particular person, Jean MacKenzie, who it was said:

“…has historical and cultural connections to country included in the claim area, and who is accepted as a member by the claimants….”

There were some changes in the description of the external boundaries by way of reference to an additional Department of Land Administration cadastral map, the insertion of references to cadastral maps and a wider range of exclusions of areas within the boundaries.  Areas now excluded included those affected by valid Category A Past Acts, Category A Intermediate Acts and previous exclusive possession acts as variously defined under the Native Title Act.  Also excluded were areas in relation to which all native title rights and interests were otherwise extinguished. These exclusions were subject to areas affected by the provisions of ss 47, 47A and 47B of the Native Title Act which cover various circumstances under which prior extinguishment is to be disregarded.  The range of native title rights and interests claimed remained the same. 

31                   As the application covered land the subject of s 29 notices issued after 30 September 1998 as well as before, the Registrar was required, by Item 11(3) of Part 4 in Schedule 5 of the Amendment Act, to consider the claim under s 190A of the new Act.  He was also required to use his best endeavours to finish doing so by the end of four months after the notices had been given.  If the claim did not satisfy all of the conditions in ss 190B and 190C of the new Act, the Registrar was required to remove details of the claim from the Register (Item 11(9)).  The amendments to the application were necessary in order that it could comply with the requirements for registration under the new Act.

32                  The Registrar considered the amended claim and on 17 March 1999 decided that it was not accepted for registration.  Details of the claim were therefore removed from the Register of Native Title Claims.  The bases upon which the application was found not to meet the requirements of registration were:

1.         Failure to comply with s 190C(2) in respect of the provision of information required under s 62.

2.         Failure to comply with s 190B(2) which requires that the information and maps contained in the application are sufficient for it to be said with reasonable certainty whether native title rights and interests are claimed in relation to particular land or waters.

3.         Failure to satisfy the Registrar under s 190B(6) that prima facie at least some of the native title rights and interests claimed in the application can be established.

4.         Failure to meet the requirement under s 190B(9) that the application and accompanying documents must not disclose, and the Registrar must not otherwise be aware, that the native title rights and interests have otherwise been extinguished.

The application was amended yet again to overcome the difficulties referred to and was accepted for registration on 16 July 1999.

33                  On 29 September 1999, the solicitor for the State of Western Australia and the Minister for Mines advised the applicants that it was intended to grant the Mount Burgess and Morning Star tenements after 5pm on Wednesday 13 October.  It is common ground that the State of Western Australia has never completed negotiations in good faith with the applicants with a view to obtaining their agreement to the grant of the tenements.  It is also common ground that the tenements relate to land covered by the application in its original and in its amended forms. 

34                  The applicants contend that even though they had failed the registration test they retained the right to negotiate in relation to the s 29 notices issued prior to 30 September 1998.

The Present Proceedings

35                  By an application filed on 6 October 1999 the applicants sought declarations that they were at all material times registered native title claimants and entitled to the benefit of the right to negotiate provisions of the Act and that the grant of the exploration licence “is” (sic) invalid under s 28 of the Native Title Act 1993 to the extent that they affect native title.  A permanent injunction was also sought restraining the grant of the exploration licences. Interlocutory relief was claimed but when the matter came on for directions on 8 October it was set down for final hearing on 15 October on undertakings by the respondents not to proceed with the grant of the licences pending the hearing and determination of the application. 

Whether the Applicants are Native Title Parties?

36                  The ultimate question for determination in this case is whether the applicants are native title parties for the purpose of the proposed grant of the Mount Burgess and Morning Star tenements.   This is what underlies the question whether they continue to enjoy the right to negotiate.

37                  It is desirable to bear in mind the content of the term “right to negotiate”.  While the overall effect of the relevant subdivisions of the old and new Acts may be described, in broad terms, as amounting to a right to negotiate, no such right is expressly conferred.  Rather, the relevant provisions are structured so that the validity of the proposed acts is conditioned by s 28 upon an agreement being reached with any native title parties under which the grant can be made or a determination made by the arbitral body to that effect.  The reference in the transitional provisions to the “new” and “old” right to negotiate is shorthand for the provisions of Subdivision P of Division 3 of Part 2 of the new Act and Subdivision B of Division 3 of Part 2 of the old Act respectively.

38                  Subitem 4(1) in Schedule 5 continues the old right to negotiate provisions where s 29 notices were given under the old Act and, prior to the new Act, one of the conditions of validity imposed by s 28 of the old Act was satisfied or an application for an arbitral determination had been made under the old Act.  None of these conditions has been met in this case because the negotiation process had not been concluded and no application for an arbitral determination had been made.  It being common ground that the State had not completed good faith negotiation, the Tribunal would, in any event, have lacked jurisdiction to entertain an application for arbitral determination under s 35. 

39                  The issue of the new Act s 29 notices gave rise to an obligation on the Registrar under Item 11(3), to consider the claim under s 190A of the new Act.  The existence of those notices is disclosed in the amended application and was not in dispute in these proceedings.  It is a condition of the existence of the obligation that “no such notice has previously been given in relation to an act affecting any of the land or waters covered by the claim”.  This derives from par (c) of Item 11(3).  The “such notice” referred to here is “a notice…given under section 29 of the new Act…”.  So when the Registrar proceeded to consider the application in this case under s 190A it was a consideration mandated by Item 11(3) of Schedule 5.

40                  It was necessary in order to meet the new Act requirements for registration imposed in particular by ss 190B and 190C that the application be amended and that was done as outlined earlier.  The State contends that Item 11 does not apply to amended applications.  The transitional provisions have, it is said, no relevance to the case where the Registrar considers an amended application under s 190A and removes entries relating to the claim from the Register pursuant to that consideration.  The State’s position is, in effect, that subitem 11(11) operates to continue the right to negotiate where an application made before 27 June 1996 is removed from the Register under subitems 11(9) or 11(10).  Removal under subitem 11(9), which is the relevant subitem for present purposes, is removal pursuant to a consideration of the application under s 190A where that consideration is mandated by subitem 11(3) following upon the issue of new s 29 notices.  So subitem 11(11), it is said, does not operate when removal from the Register is occasioned by the requirement imposed under s 190A(1) of the new Act, rather than by the transitional provisions of the Amendment Act, to consider the amended application.

41                  The vice of this construction is that it appears to be informed by no coherent or intelligible policy.  In order to meet the more stringent requirements of the new registration test which is applied because of the issue of new s 29 notices, the applicants amended the application.  On the State’s construction, in taking that step, they lost the transitional protection which Item 11 would have provided had they taken no step to amend the application and simply allowed it to go forward unamended and almost inevitably fail the test.

42                  In my opinion the resolution of this case turns on a narrow question of construction.  Where the Native Title Registrar is required to consider a claim under s 190A of the new Act by virtue of the issue of new s 29 notices and the operation of subitem 11(3) and the application is amended before that consideration is concluded, is his removal of the details of the claim from the Register, where the claim fails to pass the registration test, still able to be described as removal “under subitem (9)”?.  If it is, then the condition for the operation of subitem 11(11) which is imposed by par (b) of that subitem is satisfied.  Paragraph (a) is also satisfied as the application was made before 27 June 1996. 

43                  The obligation imposed by subitem 11(3) to consider the application under s 190A in this case is the relevant obligation.  The obligation to consider the application under s 190A by virtue of amendment under s 64(4) is subsumed by it.  On this construction it is open to amend an application in order to meet the requirements of the new registration test when it is to be applied because of the issue of new s 29 notices without losing the protection of the transitional provisions.  Specifically, in such a case where the Registrar removes the details of the claim from the Register, the removal is a removal under subitem (9).

44                  I do not accept that amendment of an application which defines with greater precision the native title claim group and the rights and interests they assert and reduces the geographical area by excluding land and waters which in any event must be excluded under the Act, somehow transforms the application into a new application so that the transitional provisions are incapable of operating with respect to it.  It is to be noted that on the State’s argument any amendment, however minor, will have that effect and deprive the applicants of the protection of the transitional provisions.  Nor do I accept that in the present case the amendments which were made have somehow transformed the original application into one qualitatively different.  Neither does the substitution of the two named applicants for the original applicant who has died.  The recognition of native title is recognition of rights and interests arising out of communal traditional laws and customs.  The construction of the statute must not be undertaken in disregard of that important underlying reality which is recognised by the new requirements for applicants to be authorised by all the members of the native title claim group.  For these reasons, in my opinion, the transitional protection provided by subitem 11(11) does apply in this case notwithstanding the removal of details of the claim from the Register. 

45                  The remaining question is whether the new or old right to negotiate provisions apply.  The State submits that it is the new right to negotiate provisions which apply.  Item 4(1), which continues the old right to negotiate provisions in certain cases, does not apply in this case, as already noted, because none of the requirements of par 28(1)(a) to (f) of the old Act were satisfied and no application had been made under s 35 of the old Act to an arbitral body.  This leaves subitem 4(2), the conditions of which are satisfied for present purposes.

46                  The State submitted that if the new right to negotiate provisions apply they will have the following consequences:

(a)        after 17 March 1999, by virtue of Item 11(12), the position was as if the applicants’ details had never been entered on the Register;

(b)        therefore there were no native title parties at the end of the period of four months after the notification day for the future act;

(c)        accordingly the mining tenements could be validly granted from that point on due to s 28(1)(b) of the new Act.

47                  It is difficult to follow the relevance of subitem 11(12) because that applies to a case in which an application was made on or after 27 June 1996.  The present application was made on 6 June 1996.  In the circumstances the new right to negotiate will apply as though the applicants are native title parties for the purpose of those provisions.

48                  In my opinion, it is sufficient to dispose of this case if a declaration is made of the application of the new right to negotiate provisions to the applicants and their entitlement to the benefit of those provisions.  I will allow time for the parties to make submissions on whether injunctive relief is necessary.

Associate:

Dated:              28 October 1999