FEDERAL COURT OF AUSTRALIA

Little v Oriole Resources Pty Ltd [2005] FCA 506

NATIVE TITLE – appeal from National Native Title Tribunal - expedited procedure – future act – proposed grant of miscellaneous licence – objection application to Tribunal relying on lack of likelihood of major disturbance – whether second limb of s 237(c) of the Native Title Act 1993 (Cth) requires predictive assessment only of rights created without further reference to evidence – whether Tribunal erred in application of first limb of s 237(c) in not concluding right to create a mining camp necessarily involved a major disturbance – whether Tribunal erred in reference which it made to the history of mining and exploration in the general area of the future act – whether Tribunal erred in weight it placed on evidence of concerns of Aboriginal people

Native Title Act 1993 (Cth) s 29, 31, 32, 32(4), 169, 237, 237(c)

Native Title Amendment Act 1998 (Cth) (No.97 of 1998)

Mining Act 1978 (WA) s 91(3)(b)

Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 considered

Dann v Western Australia (1997) 74 FCR 391 applied

Linda Champion on behalf of the Central West Goldfields People/Western Australia/Vosperton Resources Pty Ltd [2005] NNTTA 1 cited

Little v State of Western Australia [2001] FCA 1706 applied

Minister for Immigration & Multicultural Affairs v Eshetu (1999) 197 CLR 611 cited

Minister for Immigration & Multicultural Affairs, Re; Ex Parte Applicant S20/2002 (2003) 198 ALR 59 cited

R v Ministry of Defence; Ex parte Smith [1996] QB 517 cited

R v Secretary of State for the Home Department; Ex parte Daly [2001] 2 AC 532 cited

R v Secretary of State for the Home Department; Ex parte Simms [2000] 2 AC 115 cited

Silver v Northern Territory of Australia (2002) 169 FLR 1 cited

Smith on behalf of Gnaala Karla Booja People v State of Western Australia (2001) 108 FCR 442 applied

Western Australia v Smith (2000) 163 FLR 32 applied

Young v Western Australia (2001) 164 FLR 1 cited

ALBERT LITTLE AND OTHERS ON BEHALF OF THE BADIMIA PEOPLE v ORIOLE RESOURCES PTY LTD and STATE OF WESTERN AUSTRALIA AND OTHERS

WAD 122 of 2004

NICHOLSON J

29 APRIL 2005

PERTH

THE COURT ORDERS THAT:

1.                  The appeal be dismissed.

2.                  There be no order as to costs.

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

REASONS FOR JUDGMENT

1                     This is an appeal from a determination of the National Native Title Tribunal (‘the Tribunal’) constituted by the Hon EM Franklyn QC, Deputy President and given on 3 June 2004.  The Tribunal decided pursuant to s 32(4) of the Native Title Act 1993 (Cth) (‘the NT Act’) that a proposed grant of Miscellaneous Licence L59/53 (‘the Licence’) under the Mining Act 1978 (WA) (‘the Mining Act’) to the first respondent (‘Oriole’) was an act attracting the expedited procedure under s 32 of the NT Act.  The appeal is brought pursuant to s 169 of the NT Act.  Oriole agreed to abide by the decision of the Court and did not appear at the hearing.

background circumstances

2                     The background circumstances appear in the reasons of the Tribunal as follows.  On 21 May 2003, the second respondent (‘the State’) gave notice under s 29 of the NT Act of a future act, namely, the granting under the Mining Act of the Licence.  The Licence was said to be for ‘mine site accommodation and associated facilities’ comprising 119.96 hectares to Oriole.  The notice included a statement that the State considered the act to be an act attracting the expedited procedure (that is, one which can be done without the normal negotiations required by s 31 of the NT Act). 

3                     An objection to the application of the expedited procedure in relation to the Licence was lodged on behalf of the applicants on 8 July 2003.  The applicants’ application for determination of native title had been registered by the Tribunal on 4 October 1996.  The land encompassed by the Licence is situated wholly within that claim area.  The objection revealed that the applicants as objectors were relying only upon s 237(c) of the NT Act and that it would produce historical, anthropological, archaeological, genealogical, linguistic and environmental evidence in support of the objection.  The objection was accepted by the Tribunal on 29 July 2003. 

principal relevant statutory provision

4                     Section 237(c) of the NT Act is to be read in the context of s 237, which reads:

‘237     A future act is an act attracting the expedited procedure if:

(a)               the act is not likely to interfere directly with the carrying on of the community or social activities of the persons who are the holders (disregarding any trust created under Division 6 of Part 2) of native title in relation to the land or waters concerned; and

(b)               the act is not likely to interfere with areas or sites of particular significance, in accordance with their traditions, to the persons who are the holders (disregarding any trust created under Division 6 of Part 2) of the native title in relation to the land or waters concerned; and

(c)                the act is not likely to involve major disturbance to any land or waters concerned or create rights whose exercise is likely to involve major disturbance to any land or waters concerned.’

the licence application

5                     In Oriole’s statement of contentions in support of the application for the Licence, the circumstances of the application for the Licence were described as follows:

‘2.        On 12 January 2000 Oriole lodged the Licence Application in respect of an area of 120.00 hectares for the purposes of Minesite Accommodation & Associated Facilities prescribed under Regulation 43B (n) of the Mining Regulations 1981 (as amended).

3.                  Mt Gibson Gold Pty Ltd (“Mt Gibson”) a wholly owned subsidiary of Oroya Mining Limited – owner and operator of the Mount Gibson Gold Project – is beneficial owner of the Licence Application applied for by Oriole, a related entity of Pacmin Mining Corporation Limited (“Pacmin”)

4.                  On 4 February 2000 Pacmin filed a statement with the Mining Registrar at Mount Magnet in compliance with Regulation 37(3) of the Mining Regulations and in support of the Licence Application stating that:

(a)          The licence once granted will be for the sole purpose the mining camp infrastructure associated with the Mount Gibson Gold Mine;

(b)          This campsite consists of transportable unit accommodation structures, transportable house structures and associated facilities;

(c)          These facilities have been in place for a number of years and associated with the Mount Gibson Gold Mine operations.

5.                  Reference in the Regulation 37(3) statement by Pacmin to the existing facilities having been in place for a number of years is a reference to the land the subject of Miscellaneous Licence 59/12 comprising 8.75 hectares, granted on 26 August 1986 for the purposes of Minesite Accommodation & Associated Facilities and currently registered in the name of Mt Gibson.

6.                  The ground applied for the subject of the Licence Application includes the whole of the land the subject of granted Miscellaneous Licence 59/12.

7.                  Miscellaneous Licence 59/12 contains the substantive mining camp and accommodation facilities to support recommissioning of operations within the existing defined resource areas the subject of previous mining operations.  Current in situ facilities shall be adequate and will accommodate up to 106 personnel.’

The same statement described the usage of the Licence as follows:

‘8.        The Licence application is required for the purposes of associated support infrastructure including a possible powerline easement, access tracks for construction of adequate protective fire break protection in compliance with the Bushfires Act 1954 and rubbish disposal in compliance with Health Act 1911 and planning By-laws of the Local Authority.

…

10.       Mt Gibson does not propose construction of any further substantive infrastructure or other works within the boundaries of the Licence Application other than those works particularised in paragraph 8 above.

…’

6                     The proposed endorsements to the Licence include the following:

‘…

4.                  Development and operations, as approved by the Inspector, being carried out in such a manner so as to create the minimum practicable disturbance to the existing vegetation and natural landform

5.                  On completion of the life of the mining operations in relation to this licence the holder shall:

(a)               remove all installations constructed pursuant to this licence;

(b)               cover all wells and holes in the ground to such degree of safety as shall be determined by the Inspector: and

(c)                on such areas cleared of natural growth by the holder or any of its agents, the holder shall plant trees and/or shrubs and/or any other plant as shall conform to the general pattern and type of growth in the area and as directed by the Inspector and properly maintain same until the Inspector advises regrowth is self supporting;

unless the warden or Minister for Mines orders or consents otherwise.

6.                  The rubbish dump site being operated in accordance with the recommended standards published by the Department of Environmental Protection in the Code of Practice for Rural Landfill Management, or other such conditions as directed by the Inspector in consultation with the Department of Environment Protection, Waste Management Division.’

7                     The application for the Licence is made on the basis that Oriole would surrender Miscellaneous Licence L59/12.  The proposed new Licence covers an area of almost 120 hectares, whereas the existing licence covers an area of 8.75 hectares.  It is not in dispute that, despite Oriole’s statement of intention, the legal effect of the grant of Licence L59/53 would be to allow it to build a mining camp of the kind it already has throughout the area of the new Licence.  The applicants say it is significant that the limited statement of intentions appeared before the Tribunal was not in affidavit form.  That, however, is not a point taken by the grounds of appeal.

tribunal reasons

8                     The reasons of the Tribunal commenced by reviewing the material provided by the State, the applicants as the objector native title party and Oriole as the grantee party.

9                     It described as follows the material received from the State:

‘[17]   The material provided by the State pursuant to the Directions reveals, inter alia, the Licence to be situated within the Mt Gibson pastoral lease (PL398/616) vested in Australian Wildlife Conservancy.  The Licence also overlaps a General Lease (GE1288242) that is also vested in Australian Wildlife Conservancy, and unvested reserve land designated as a Common (Res 17367).  The material also reveals that no Aboriginal community is located in the vicinity that there are no sites registered under the Aboriginal Heritage Act or reports of sites identified in respect of the land the subject of the Licence and that the following tenements have been applied for or granted preciously over all or part of the Licence:

·               Exploration Licence 59/876; applied for on 27 March 1998 and listed as “Pending”;

·               Exploration Licence 59/1038; applied for on 24 November 2000 and listed as “Pending”;

·               Miscellaneous Licence L59/12; application granted on 16 April 1986;

·               Miscellaneous Licence L59/45; application granted on 27 February 1997;

·               Exploration Licence L59/517; application granted on 25 November 1993 and surrendered on 23 November 2000; and

·               Exploration Licence 59/856; application withdrawn prior to grant on 21 May 1998.’

10                  The Tribunal made the following observations concerning the information provided by the State:

‘[18]   The topographical map provided by the State pursuant to the Directions shows that, to the geographic limits of the mapping provided, virtually all available land north, south and east of the Licence lies within past, current or pending mining and exploration tenements.  Unfortunately, apart from those tenements detailed above, the information provided by the State does not distinguish between applications which were never granted and licences which have expired or been surrendered.  However, the information does reveal a considerable history of exploration and mining in and surrounding the area of the Licence.  It also reveals that land the land (sic) the subject of “Pending” Exploration Licence 59/1038 was formerly the subject of an Exploration Licence Application E59/517 granted in November 1993 and surrendered on 23 November 2000, which tenement overlapped the whole of the Licence as does pending Exploration Licence 59/1038 and that, the land to the East, North West and South West of the Licence has been or is the subject of granted and pending tenements and tenements either expired, surrendered or withdrawn.’

11                  In relation to material provided by the applicants as the objector native title party, the Tribunal stated:

‘[21]   The only evidence produced by the objector in support of its objection is an Affidavit of Mr Cedric Davies, a geologist employed by the YLSC, sworn 14 February 2004, the contents of which are set out hereunder.  Mr Davies deposed to his qualifications as a geologist, that he has experience in mining and minerals exploration at named areas in Western Australia and experience in engineering geology and environmental geology in Britain and Western Australia.  He deposes to having resided at various mine site accommodation facilities associated with mining operations, commonly known as “mining camps” and lists the facilities included at each such mining camp.  He annexes photographs of an unnamed mining camp where he has worked showing the mining camp, a donga where the staff stay and a recreational cricket facility, which photographs are from a public document entitled “The Big Bell Story” produced by ACM Gold Mines Pty Ltd and Placer Pacific Ltd.’

12                  In relation to material provided by Oriole as the grantee party, the Tribunal stated:

‘[22]   The Grantee’s Contentions state that the beneficial owner of the grantee’s application is Mt Gibson Gold Pty Ltd, a wholly owned subsidiary of Oroya Mining Limited, the owner and operator of the Mt Gibson Gold Project.  It says that the grantee is a “related entity” of Pacmin Mining Corporation (“Pacmin”) and that in support of the application for the Licence Pacmin has filed a Statement with the Mining Registrar that the Licence will be for the sole purpose of “mining camps infrastructure associated with Mount Gibson Gold Mine”, that the campsite consists of transportable unit accommodation structures, transportable house structures and associated facilities which facilities have been in place for a number of years and associated with the Mount Gibson Gold Mine operation.  The Grantee states that those existing facilities are and for some years have been on land the subject of Miscellaneous Licence 59/12 comprising 8.75 hectares, granted on 26 August 1986, currently registered in the name of Mt Gibson, and that the land the subject of the Licence application includes the whole of the land the subject of the Miscellaneous Licence 59/12.  Its (sic) says that Miscellaneous Licence 59/12 contains the substantive mining camps and accommodation to support the reconditioning of operations within the existing defined resource areas the subject of previous mining operations and will accommodate up to 106 personnel.  The Licence is required for associated support infrastructure including a possible powerline easement, access tracks for construction of protective fire breaks in compliance with the Bushfire Act 1954 and rubbish disposal in compliance with the Health Act 1911 and the Local Authorities By Laws.  It states that Mt Gibson does not propose construction of any further substantive infrastructure or other works within the boundaries of the Licence other than those referred to above and that it intends to surrender Miscellaneous Licence 59/12 on grant of the Licence and for that reason requires the Licence to be for the purposes sought, pointing out that under s 94B the Mining Act, on surrender of Miscellaneous Licence 59/12 the 8.75 hectares over which it is granted will continue to be subject of the Licence and so available for the purposes of mine site accommodation and associated facilities, as it presently is.  The grantee further contends that, contrary to the objector’s submission, it is not possible to generalise regarding the extent of likely disturbance at a particular mine site from experience at others, as each project is unique.  Lastly, the grantee contends that the decision of the native title party not to submit anthropological, archaeological or ethnographic evidence in support of the objection application represents a fundamental flaw in the construction of their contentions and renders the arguments advanced purely academic.’

The Tribunal stated that, in support of these contentions, the grantee relied on an affidavit of Mr Coats, executive director of Oroya Mining Limited. 

13                  In its reasons, the Tribunal stated that the meaning of ‘major disturbance’ in s 237(c) of the NT Act had been considered in Dann v Western Australia (1997) 74 FCR 391.  It decided that the question of whether there is a likelihood of major disturbance is to be determined by the Tribunal from the viewpoint of the general community but taking into account the views and concerns of the local community as disclosed by the evidence.  Referring to s 237(c), the Tribunal member said (at [25]):

‘…  In my opinion the reference to a major disturbance giving rise to a major disturbance adds nothing and is unhelpful.  If it is intended to refer to authorised activities which are not likely to cause major disturbance to the land or waters but which may cause disturbance to people by way of perception, in my opinion it is not the subject of s 237(c).’

The applicants say that their case as objectors was not made in terms of this latter sentence. 

14                  In the first segment of its reasoning on this evidence the Tribunal said:

‘[26]   The objectors have produced no evidence as to the views or concerns of the Aboriginal people in respect of the land the subject of the proposed licence as to the exercise of rights created by its grant.  Nor have they produced any such evidence in respect of any tenement, past or present, in the area as to the exercise of rights conferred by its grant.  There is no evidence of any use of, or customs or traditions relating to, the land.  There is evidence that there are no Aboriginal communities on or in the vicinity of the Licence and no evidence of the existence of any areas or sites on the land the subject thereof, of “particular” significance or otherwise.  There is no evidence to lead to an inference on reasonable grounds that any disturbance which may result from the grant and the exercise of rights thereunder is or would be considered by them as a major disturbance.  There is no evidence of what the impact of the exercise of any such rights may have on them or as to concern as to any impact.  The grantee contends that the Licence is required for “associated support infrastructure” including a possible powerline easement, access tracks for construction of adequate protective fire breaks and rubbish disposal and that it does not propose construction of any further substantive infrastructure.  It is clear however that the Licence, if granted, will increase very considerably the areas available for “mine site accommodation and associated facilities”, which at present is limited to the 8.75 hectares the subject of Licence 59/12, and in respect of the enlarged area will permit it “to do such matters and things as are specified in the licence”.  (Mining Act 1978 s 91(B)(b)).  It follows that the grant will create rights whose exercise may involve major disturbance. …’

15                  Turning to whether the evidence supported that likelihood, the Tribunal said further (at [26]):

‘ … There is however no evidence of any concern on the part of the Aboriginal people in respect thereof other than the assertions in the contentions.  In my opinion such assertions, in the absence of supporting evidence, do not establish the matters asserted.  It is of some significance that there is no evidence to suggest that the construction and use of the existing mining camp, accommodation and associated facilities on Miscellaneous Licence 59/12, or any thing else done under its authority, are considered by the Aboriginal people to be a “major disturbance” or that they have any concerns whatever about the same.  The evidence produced by the State reveals the proposed Licence to be within an area where there has been, and is, considerable mining and exploration activity and that the whole of the proposed Licence was formerly the subject of Exploration Licence E59/517 granted in November 1993 and surrendered 11 November 2000 and is presently the subject of “pending” Exploration Licence E59/108.’

16                  Turning to the interests of the Australian community, the Tribunal concluded as follows:

‘[27]   On the available evidence I am satisfied that the Australian community as a whole, in the absence of any evidence of the concerns (if any) and views of the Aboriginal people in the locality, would consider the grant of the Licence and the exercise of the rights created thereby to be no more than another aspect of the conduct of the Mining and Exploration Industry in an area, presently and over many years the subject of considerable mining and exploration activity and that whilst the exercise of such rights will result in or involve disturbance to the land, in all of the circumstances it is not likely to involve “major” disturbance or to create rights whose exercise is likely to involve major disturbance in the ordinary meaning of that expression.’

failure to take into account a relevant consideration:  interpretation of s 237(c)

17                  The first ground of appeal raises the issue of the interpretation of s 237(c) of the NT Act.  It contends that the Tribunal erred in law because it failed to take into account a relevant consideration, namely, that it found that the grant of the Licence would create rights whose exercise was likely to involve major disturbance to the land or waters concerned. 

18                  The applicants contend that the second limb of s 237(c) is to be understood as attaching the predictive element to the creation of rights but not to the exercise of them.  It is submitted that the paragraph requires reference only to rights that, if exercised, are likely to involve major disturbance.  The applicants do not dispute that there is an element of predictive assessment associated with the second limb but argue that such assessment is required to be applied only to the issue of the creation of rights rather than their exercise.  It is submitted that such being the case and because the Licence would create rights to building a mining camp, the exercise of such rights must necessarily have been found by the Tribunal to be likely to involve major disturbance.

19                  In making this submission, the applicants accept that the Tribunal should have considered the rights created in the context of any applicable regulations or conditions minimising issues of disturbance to the land or waters concerned:  Western Australia v Smith (2000) 163 FLR 32at 47, at [26].  Nevertheless, it is submitted that the right to build a mining camp, even when subject to such regulations or conditions, is likely to cause a major disturbance so that the Tribunal was bound to make a finding to that effect.  Furthermore, the applicants submit that there is no authoritative determination of the manner in which the second limb of s 237(c) should operate and that to the extent that the authorities comment on the limb, they are not decisive of that issue.  The authorities will be referred to below. 

20                  The approach which the Tribunal should have taken to the question of rights is said by the applicants to still be governed by similar principles to those set out by the Full Court of the Federal Court in Dann so far as the reference to the nature of the rights granted is concerned.

21                  In Dann the Full Court accepted that the words of the section as it then read (with the words ‘does not’ appearing in place of the words ‘is not likely to’) precluded the application of the predictive assessment approach.  The consequence was that Parliament in the Native Title Amendment Act 1998 (Cth) (No.97 of 1998) amended the paragraph by the insertion of the words ‘is not likely to’ in substitution of ‘does not’, thereby clearly favouring application of the predictive assessment in both limbs of s 237(c). 

22                  The first case to come before the Tribunal following that amendment was Smith 163 FLR 32.  It was heard by the same Tribunal member as constituted the Tribunal on the occasion presently under appeal.  The Tribunal in Smith said (at [30]) of the construction now advanced by the applicants that:

‘… whilst on its face arguably open on a reading of the second limb in isolation, causes great difficulty in construction.  First it ignores any conditions imposed on and the statutory regime which applies to the exercise of the rights created by the grant which reduce the ambit and so the extent of what counsel refers to as “the bare right”.  Secondly, at least in the circumstances of this case, it is inconsistent with the interpretation of the words “the act” in pars (a), (b) and (c) as determined in Dann the correctness of which is not challenged.  Each member of the Full Court accepted the conclusion of Lee J in Western Australia v Bropho (unreported, Federal Court of Australia, Lee J, No WAG 6008 of 1996, 18 November 1996) that the expression “the act does” as used in the old s 237(a), (b) and (c) required the Tribunal to examine what the future act does according to the nature of the rights it creates but in the context of the terms and conditions and the statutory rights and obligations that arise on the grant and those that affect the exercise of the rights it creates.  The judgment of Carr J in Ward v Western Australia was given on that same basis.  In that case (at 214) his Honour observed that the Tribunal inquiries and the appeals then before him were conducted on the basis that “the relevant future act was not simply the grant of each exploration licence but included the activities authorised by the licence notwithstanding the distinction drawn in s 237(c)” (emphasis added).  The amendments to s 237, in my opinion, do nothing to lead to a conclusion other than that the nature and meaning of the words “the act” as used in s 237(a), (b) and (c), at least in the case of a grant, is to be determined in the light of the rights which “the act” creates and in the context of the terms and conditions of the statutory rights and obligations which arise on the grant and those that affect the exercise of the rights it creates.  Dann, Bropho and Ward, like the present case, were each concerned with the proposed grant of an exploration licence and the judgments should be understood in that light.  But the definition of “future act” (s 233 read with s 226(2)) encompasses many other and different kinds of future acts.  In the case of an exploration licence, the second limb of s 237(c) appears to add nothing to the first limb and so to have no function.  The point was not argued but the fact that par (c) poses two questions may provide a meaning and function, in the appropriate case, for the second limb.  The first question is whether the act is not likely to involve major disturbance?; the second, whether the act is not likely to create rights whose exercise is likely to involve major disturbance?  Consistently with Dann, the first is concerned with the rights created by and at the time of the grant.  The second suggest rights to come into existence (if at all) subsequent to the future act.’

23                  Although the Tribunal decision in Smith went on appeal, that approach was not put in issue on the appeal. 

24                  The State therefore contends that the correct approach to s 237(c) is that a predictive assessment must be undertaken, under either limb, having regard to the rights which are created at the time of the grant.  The State submits that if the second limb had a different operation to the first limb in that respect, the first limb would become redundant because it would (as the applicants contend here) become sufficient simply to apply the second limb to rights created without any predictive assessment.  It is also submitted that there is work left for the second limb to do in respect of future acts which may involve the subsequent creation of rights as, for example, an act constituted by the grant of an exploration licence which contains within it a right to the grant of a miscellaneous licence.  The State also submits that the consequence of adopting the applicants’ contention on the interpretation of the second limb of s 237(c) would be to throw that limb back into the type of test which was accepted in Dann and amended by Parliament by the introduction of the words ‘is likely to’. 

25                  Support for this submission of the State is found in Smith v Western Australia(2001) 108 FCR 442 at 449, at [23] where French J said:

‘…  It is submitted that the amendment to s 237 reflected a legislative intention to require a predictive assessment of the effects of the proposed future act in accordance with the approach taken by Carr J in the Ward case, rather than that adopted by the Full Court in Dann.  In my opinion, that is the plain intention behind the amendments to s 237 and that intention is effected by the language that has been used.  The Tribunal is therefore required to assess whether, as a matter of fact, the proposed future act is likely to give rise to the interference or disturbance referred to in pars (a), (b) and (c) of s 237.  that involves a predictive assessment not confined to a consideration of the legal rights conferred by the grant of the proposed tenement. …’

26                  In Little v State of Western Australia [2001] FCA 1706 at [69], I said:

‘ …  I agree with French J in Smith on behalf of the Gnaala Karla Booja People v State of Western Australia [2001] FCA 19 at [23] that the effect of the amending act is that the Tribunal is required to assess whether, as a matter of fact, the proposed future act is likely to give rise to the interference or disturbance referred to in pars (a), (b) and (c) of s 237 so that a predictive assessment is involved being one not confined to a consideration of the legal rights conferred by the grant of the proposed tenement.’

27                  Accordingly, I do not consider the approach to interpretation of the second limb of s 237(c) contended for by the applicants can be accepted.  There is nothing in the applicants’ submissions or in the statutory language in issue to answer the issues raised and reasoning followed by the Tribunal in Smith 169 FLR 1.  The statements in Smith 108 FCR 442 and Little support the correctness of it.  Applying the second limb in the manner contended for by the State still leaves that limb with a function.  I therefore do not consider this ground of appeal is made out.

ERROR OF LAW IN MISCONSTRUCTION OF FIRST LIMB OF s 237(c)

28                  In the ninth ground of appeal, the applicants contend that in finding that the act of granting the Licence satisfied s 237(c) of the NT Act, the Tribunal erred in law in the interpretation of the word ‘major disturbance’ in that on a proper interpretation of those words, the construction of a mining camp would involve a ‘major disturbance’ of any land or waters concerned.  This ground is directed, on the applicants’ understanding of the paragraph, to the manner of application of the first limb of the paragraph. 

29                  The applicants contend the grant of the miscellaneous licence will clearly create rights to build mine site accommodation and associated infrastructure throughout the Licence area, including the expanded area.  The evidence of typical mine site accommodations is a set out in the photographs in the affidavits of the applicants and Oriole.  The Licence gives right to build numerous buildings and other constructions.  Such accommodation could be in place for the life of the mine, that is, potentially over a significant period of time.  It is submitted by the applicants that such activities are likely to cause a disturbance to the land and waters concerned that would be considered ‘major’ by the standards of the general community.  It is submitted that therefore the grant of the Licence then will create rights whose exercise is likely to involve a major disturbance, by anyone’s standards. 

30                  In making the predictive assessment, the applicants accept that the word ‘likely’ requires a risk assessment by the Tribunal that will exclude from the expedited procedure any proposed act which would involve a real chance or risk of interference or major disturbance of the kind contemplated by s 237:  see Smith on behalf of Gnaala Karla Booja People v State of Western Australia (2001) 108 FCR 442 at 449, at [23] per French J.  Likewise the applicants accept that evidence of a grantee party’s intention is relevant to the predictive assessment that is to be made under the section.  It is said that a statement of intention is relevant to likelihood, although the weight to be attached to it will be variable:  see Smith 163 FLR 32 at 51, at [35]; Young v Western Australia (2001) 164 FLR 1 at 5, at [20].  Such weight, it is submitted, would in most circumstances be negligible and the emphasis should be on what can lawfully be carried out under the proposed mining tenement:  Young at [18] – [21].  Turning to the evidence which was before the Tribunal, the applicants submit that the Licence is for the purpose of ‘mine site accommodation and associated facilities’ which on the face of it must raise a likelihood that the whole of the Licence area will be used for mine site accommodation.  It is submitted that the only evidence that it would not be so likely was in the statement of contentions by the grantee party.  However, there was no undertaking or commitment given to this effect.  The applicants accept that in the absence of any evidence of intention, the Tribunal would be at liberty to assume that a grantee will fully exercise the rights conferred by the tenement:  Silver v Northern Territory of Australia (2002) 169 FLR 1 at 16, at [30] – [32].

31                  It is also submitted that even if the Tribunal accepted that the activities in the expanded area were to be only for ‘the purposes of associated support infrastructure including a possible powerline easement, access tracks for construction of adequate protective firebreak protection and rubbish disposal’ those are matters that in themselves are likely to involve major disturbance to the land and waters. 

32                  In Dann at 395, Wilcox J said that ‘[t]he word “major” is an adjective of degree and the tribunal must make a value judgement’.

33                  In Dann at 401, Tamberlin J said:

‘The function of the Tribunal is to consider all the relevant evidence placed before it and then to determine whether any disturbance to land or waters can be properly characterised as “major”.’

34                  In Smith 108 FCR 442 at 451, at [27], French J said:

‘The evaluation is contextual.  The extent of interference and the proximity of its causal connection to the future act proposed should not be considered in isolation.’

Although French J was referring to s 237(a), there is no reason why that is not an accurate description of the manner of approach to s 237(c). 

35                  These decisions support the conclusion previously expressed in relation to ground one that the application of the first limb of s 237(c) requires the Court not only to examine the rights created by the act but also to make a predictive assessment in relation to those rights and all the circumstances of the matter. 

36                  Such an approach does not mean that the Tribunal was not required to have regard to the rights created.  As the Tribunal’s reasons state at [26], the Licence would permit it in respect of the enlarged area which it would encompass ‘to do such matters and things as are specified in the licence’ and authorised by the Mining Act, s 91(3)(b).  The Tribunal concluded that the grant would therefore create rights ‘whose exercise may involve major disturbance’.  It is clear beyond any doubt, therefore, that the Tribunal had regard to the rights which were created.  However, as it was required to do, the Tribunal went further and embarked on making the predictive assessment in the circumstances of the particular case. 

37                  Turning then to ground nine in that context, it cannot be the case that the fact that the Licence may authorise a construction of a mining camp necessarily entails that it is likely to involve a major disturbance.  The predictive assessment must be made of that fact in the context of all the evidence before the Tribunal.  The decisions make apparent that the Tribunal is not operating in a vacuum isolated from the evidence before it.  The Tribunal would have fallen into error of law if, having reached the view that the Licence authorised the construction of a mining camp, it did not make a predictive assessment as to whether it was likely to involve major disturbance.  That necessarily required it to go to the evidence and not simply to the dictionary definition of ‘mining camp’ or, indeed, to the evidence alone of the nature of the existing mining camp.  If the Tribunal approached the first limb in that way it would necessarily be isolated from relevant evidence and would fall into error or law by failing to have regard to that evidence.  It would isolate it as much as the applicants’ proposed interpretation of the second limb of s 237(c), which would confine the Tribunal only to the examination in terms of predictive assessment of the rights created. 

38                  In my opinion the applicants’ case does not make out either grounds one or nine in relation to the interpretation and the associated application of s 237(c).

wrong test and irrelevant consideration:  history of mining and exploration in the general area

39                  Grounds four, five and six raise the issue of the appropriateness of the Tribunal’s reference to the history of mining and exploration in the general area of the land and waters concerned.  Ground four contends the Tribunal fell into error of law by taking into account the irrelevant consideration of such history without taking into account the lack of any evidence of actual past use of the land or waters concerned and the extent of past disturbance of the land in question.  Grounds five and six address the issue of the reference to history of mining and exploration in the general area in the context of the views of the Australian community. 

40                  The applicants contend that the Tribunal’s reliance on the history of mining and exploration in the general area involved it in error of law because it made an assumption that it must mean that further mining and exploration would not amount to a major disturbance.  Also the applicants submit there was in fact no evidence of actual mining and exploration activity or the nature of those activities in the areas referred to in the reasons. 

41                  These submissions are supported by reference to the list of other mining tenements in the area in the reasons of the Tribunal at [17] and to the fact that some of these are pending, surrendered or withdrawn. 

42                  The applicants also submitted that past activity is irrelevant.  Additionally, it is said that it is not established that all of the tenements referred to relate to the land and waters concerned here and that the Tribunal would have been in error of law in having regard to neighbouring mining activities. 

43                  It is not correct that there was no evidence before the Tribunal of actual usage.  In addition to maps showing the location of mining activity in the region of the tenement in issue (the Licence), the Tribunal had before it in the contentions put in by the grantee party a statement in relation to the activity on the leases constituting the Mt Gibson Project area where it was said there had been extensive ground disturbance in the course of mining operations dating back to 1986 which was situated within less than a kilometre east of the existing mine site accommodation on Miscellaneous Licence 59/12.  While this was not contained in affidavit evidence, the Tribunal was entitled to inform itself in the way it thought fit and was not bound by the laws of evidence.  No issue is made on this appeal of the source of this evidence.  Also in evidence before the Tribunal was the prospectus in relation to the Mt Gibson Gold Project which stated ‘most of this gold was mined from a series of 14 open pits which are on three separate trends with a combined total strike length exceeding 10 kilometres’. 

44                  Reference to par [18] of the Tribunal’s reasons shows that it did consider the limitations in the list of mining tenements in par [17] of its reasons.  There is no contest that there was evidence before the Tribunal upon which the Tribunal founded par [18].  It was appropriate for the Tribunal in the course of its predictive assessment to have regard to the context of the act.  Consequently, it was required to have regard to that evidence.  It was not in error of law in doing so, either as an aspect of the predictive assessment or as an aspect of forming a view in relation to the Australian community.

irrelevant consideration:  views of local aboriginal people

45                  Grounds two, three and seven address the contention that the Tribunal was in error of law in having regard to the absence of views of local Aboriginal people.  Ground two addresses the issue of whether the Tribunal required the disturbance to be considered major by those people.  Ground three addressed the issue of whether the Tribunal acquired evidence of the impact on Aboriginal people.  Ground seven relates to the Tribunal’s reference to absence of evidence of concerns by the local Aboriginal people. 

The applicants’ submit that in the case before the Tribunal reliance was placed by them on the ordinary definition of the words ‘major disturbance’ and not on concerns they held in relation to the future act. 

46                  The applicants also contend that the lodging of the objection itself is evidence of concern.  In this respect reliance is placed on a decision of Linda Champion on behalf of the Central West Goldfields People/Western Australia/Vosperton Resources Pty Ltd [2005] NNTTA 1 at [64] where Deputy President Sumner said:

‘ … the concerns of claimant groups in the area are evidenced by objections lodged in relation to those acts’. 

See however, Dann at 395 where Wilcox J said assertion alone of disturbance was not enough.

47                  The applicants submit that as the objectors’ case was purely that the physical disturbance that a mining camp would cause was major by anyone’s standard, the emphasis placed by the Tribunal on lack of evidence from them about the particular concerns was irrelevant and therefore in error of law. 

48                  It is apparent that the Tribunal was aware of the way in which the Full Court in Dann had addressed the matters touching on this present issue.  As appears from par [20] of the Tribunal’s reasons:

‘[20]   In Dann v WA (1997) 144 ALR 1 the Full Court of the Federal Court held that the expression “major disturbance” in s 237(c) must be given its ordinary English meaning.  Wilcox J pointed out that “major” is an adjective of degree in respect of which the Tribunal must make a value judgment, considering the matter of degree from the viewpoint of the community generally.  The effect of the disturbance on local people is particularly important.  If it will have a significant impact on Aboriginals who live or use the affected area, that might be significant to warrant a finding that it will constitute a major disturbance (Wilcox J at 4-5).  Tamberlin J pointed out that it is the degree of disturbance authorised by the legal act of granting the licence that is the relevant issue.  He concluded that in applying the words to the facts of any particular case, it is the function of the Tribunal to consider all of the relevant evidence placed before it and then to determine whether any disturbance can be properly characterised as “major”; that the proper course is to take into account the concerns of the Aboriginal community including matters such as community life, customs, traditions and cultural concerns, but that the importance and weight to be assigned to the views and concerns of native title holders will vary according to the circumstances and evidence adduced (Tamberlin J at 10-11).  Nicholson J found that it is the existence of rights having the potential to involve major disturbance in which s 237(c) is directed, that the expression is to be given its ordinary meaning as understood by the whole Australian community including Aboriginal people.  He went on to say “There is nothing in the section to preclude Aboriginal people raising under this paragraph matters which they consider touch on the issue of major disturbance….”, (Nicholson J at 21-22).’

49                  Later in its reasons (at [25]), the Tribunal said of this:

‘[25]   As already mentioned the meaning of ‘major disturbance” in s.237(c) was considered in Dann v Western Australia 144 ALR 1 and74 FCR 391.  The question of whether there is a likelihood of major disturbance is to be determined by the Tribunal from the viewpoint of the general community but taking into account the views and concerns of the local community as disclosed by the evidence. …’

50                  It is clear, therefore, that the Tribunal understood that the views and concerns of the local community was a relevant consideration to which it should have regard.  It therefore fell to the Tribunal to consider the extent and weight of any such evidence.

51                  Furthermore, as the appeal book discloses, there was before the Tribunal ‘Supplementary Submissions of Objectors in response to the Grantee Party’s Contentions’ in which it was stated (at [10]):

‘… the Objectors are relying on major physical disturbance judged by the standards of the broader community, not upon any different or unique concept or disturbance to the Aboriginal community.  If s 237(c) is not satisfied, then the act does not attract the expedited procedure, regardless of whether the Objectors’ native title rights are disturbed as well or not.’

The case that was therefore put to the Tribunal was that it was not a relevant consideration to consider the disturbance to the Aboriginal community. 

52                  The applicants cannot therefore succeed on this ground which involves a complaint that the Tribunal proceeded as the applicants asserted.

53                  In any event, the Tribunal did proceed having regard to all evidence properly (and not irrelevantly) before it.

unreasonableness

54                  Ground eight contends that the finding and determination of the Tribunal was manifestly unreasonable or so unreasonable that no reasonable tribunal could have arrived at it:  Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 at 234.  The English courts now use a proportionality review in preference to Wednesbury unreasonableness standard:  R v Ministry of Defence; Ex parte Smith [1996] QB 517; R v Secretary of State for the Home Department; Ex parte Simms [2000] 2 AC 115; R v Secretary of State for the Home Department; Ex parte Daly [2001] 2 AC 532.  In R v Secretary of State for the Home Department; Ex parte Daly at 547 – 548, Lord Steyn defined the proportionality test as follows:

‘… in determining whether a limitation (by an act, rule or decision) is arbitrary or excessive the court should ask itself:

            “whether: (i) the legislative objective is sufficiently important to justify limiting a fundamental right; (ii) the measures designed to meet the legislative objective are rationally connect to it; and (iii) the means used to impair the right or freedom are no more necessary than is necessary to accomplish the objective.”’

For the purposes of the submission on this ground, however, the applicants rely on the traditional statement of the Wednesbury test, given that there has been no acceptance by the High Court of Australia or the Federal Court of the English developments. 

55                  The applicants advance three submissions in support of this ground.  The first is that it was an unreasonable conclusion for the Tribunal to find that a mining camp is not likely to be a major disturbance to any land concerned.  It is said that the rights created by the Licence would give the right to construct a mining camp through the whole expanded area of the Licence and for the Tribunal to find that such a construction is not a major disturbance is manifestly unreasonable.  Alternatively, it is submitted that the Tribunal has misunderstood the word ‘major’. 

56                  The second limb to the applicants’ submission is that the conclusion was unreasonable in the light of ‘earlier comments and findings’ about the rights created under the miscellaneous licence.  It is submitted that those findings led inevitably to a conclusion that the rights created, if exercised, were likely to result in a major disturbance.  It is said that the only difference between the finding of the Tribunal that ‘the grant will create rights whose exercise may involve major disturbance’ and its ultimate conclusion is the word ‘may’ instead of the words ‘are not likely to’.  It is submitted that the nature of the rights is such that it is illogical for the Tribunal to have reached the latter conclusion. 

57                  The third limb of the applicants’ submission is directed to the references to mining in the vicinity of the Licence area.  The applicants say that this is unreasonable because the disturbance should relate only to the land or waters concerned.  Therefore it is submitted that the Tribunal would have misconstrued s 237(c) if it reached a view that activity within the land or waters concerned was not a major disturbance because of activity on areas outside the land and waters concerned.

58                  It is apparent from the recitation in this general way of the thrust of the applicants’ arguments under this ground that they seek to rerun all the arguments addressed under the other grounds.  It may be sufficient to dispose of them by saying that it is patent from the above consideration of the grounds of appeal that there was no irrationality or illogicality in the way in which the Tribunal reached its decision.  The case which the applicants seek to run under this ground again is fundamentally based on the assumption that the rights created must carry the day in the application of s 237(c), a matter which I have found to be not the law. 

59                  More fundamentally, however, the Wednesbury unreasonableness principle is confined to cases involving the exercise of a statutory discretion:  Minister for Immigration & Multicultural Affairs v Eshetu (1999) 197 CLR 611 at [39] – [45] per Gleeson CJ and McHugh J, at [124] – [127] per Gummow J, Hayne J at [159], and Callinan J at [183] – [187] not deciding, and cf. Gaudron and Kirby JJ at [100].  See also Re Minister for Immigration & Multicultural Affairs; Ex Parte Applicant S20/2002 (2003) 198 ALR 59 at [67] – [69] per McHugh and Gummow JJ, and at [142] per Kirby J.  This case does not involve the exercise of a statutory discretion so that the principle of unreasonableness has no role to play.  It is incapable of raising a question of law. 

conclusion

60                  It is important that it be understood that the grounds of appeal are required by s 169 of the NT Act to bring to this Court a question of law.  It is only if the Tribunal is in error of law that this Court can interfere with the conclusion which it reached.  It is for the Tribunal to find the facts and to weigh those facts as found.  In the absence of error of law, it is not for this Court to substitute its view for the view of the Tribunal, provided the Tribunal did not fall into error of law and in particular took into account relevant considerations and did not take into account irrelevant considerations. 

61                  For the reasons set out above, I do not consider that the Tribunal has fallen into error of law in terms of any of the grounds of appeal.  Accordingly, the appeal must be dismissed.

Associate:

Dated:              29 April 2005