FEDERAL COURT OF AUSTRALIA

Cheedy on behalf of the Yindjibarndi People v State of Western Australia [2010] FCA 690

FEDERAL COURT OF AUSTRALIA

Cheedy on behalf of the Yindjibarndi People v State of Western Australia [2010] FCA 690

CORRIGENDUM

1.         At [19] and [20], where Western Australia v Thomas (1996) 133 FLR 124 (Waljen) is referred to as a decision of the Court, it is to be referred to as a decision of the Tribunal.

Associate:

Dated:  6 July 2010

THE COURT ORDERS THAT:

1.                  The appeal is dismissed.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using Federal Law Search on the Court’s website.

THE COURT ORDERS THAT:

1.                   The appeal is dismissed. 

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using Federal Law Search on the Court’s website.

REASONS FOR JUDGMENT

INTRODUCTION

1                                             The appellant (the Yindjibarndi) appeals pursuant to s 169 of the Native Title Act 1993 (Cth) (NTA) from two determinations of the National Native Title Tribunal (Tribunal).  The two determinations and the appeals from them give rise to similar issues.  The appeals from each of the determinations were heard together. 

2                                             The area of land covered by the Yindjibarndi application includes various areas of unallocated Crown land on which there is no history of mining or exploration activity other than the exploration activities carried out by the second respondent, FMG Pilbara Pty Ltd (FMG).  This has occurred since June 2007 pursuant to exploration licences E47/1333, E47/1334 and E47/1447. 

3                                             The area of land adjoins land which was the subject of native title determination made in favour of the Yindjibarndi People by Nicholson J in Daniel v State of Western Australia [2005] FCA 536 (Daniel).  The native title group is comprised of the same Yindjibarndi People who were found by Nicholson J in Daniel to constitute a society in the sense defined by the High Court in Members of the Yorta Yorta Aboriginal Community v Victoria (2002) 214 CLR 422 (at [50]).  The society has continued to exist since before sovereignty as a body united in and by its acknowledgement and observance of a traditional system of normative laws and customs. 

4                                             Relevant history is set out in the amended determinations made by the Tribunal in FMG Pilbara Pty Ltd/Ned Cheedy and Others on behalf of the Yindjibarndi People/Western Australia, [2009] NNTTA 91 (13 August 2009) (WF08/31) and also FMG Pilbara Pty/Wintawari Guruma Aboriginal Corporation/Ned Cheedy and Others on behalf of the Yindjibarndi People/Western Australia, [2009] NNTTA 99 (27 August 2009) (WF09/1). 

5                                             In relation to the land the subject of the Exploration Licences, FMG sought a determination from the Tribunal permitting the future acts of granting to FMG corresponding Mining Leases.  The State supported such a determination on certain terms and conditions.

6                                             In each instance the Tribunal concluded in substance that the future acts may be done, subject to certain conditions of a standard nature.

7                                             The Tribunal ruled the act, namely the grant of mining lease M47/1413 to [FMG] may be done, subject to the imposition of the extra conditions.  Those conditions were:

1.                  Any right of the native title party (as defined in s 29 and s 30 NTA) to access or use the land the subject of the mining lease is not to be restricted except in relation to those parts of the land which are used for exploration or mining operations or for safety or security reasons relating to those activities.

2.                  If the grantee party gives a notice to the Aboriginal Cultural Material Committee under s 18 of the Aboriginal Heritage Act 1972 (WA) (the AHA) it shall at the same time serve a copy of that notice, together with copies of all documents submitted by the grantee party to the Aboriginal Cultural Material Committee in support of the application (exclusive of sensitive commercial and cultural data), on the native title party.

3.                  Where the grantee party submits to the State Mining Engineer a proposal to undertake developmental/productive mining or construction activity, the grantee party must give to the native title party a copy of the proposal, excluding sensitive commercial data, and a plan showing the location of the proposed mining operations and related infrastructure, including proposed access routes.

4.                  Upon assignment of the mining lease the assignee shall be bound by these conditions.

8                                             As to those conditions, the Tribunal also noted that it had addressed the circumstances of the imposition of these extra conditions recently in FMG Pilbara Pty Ltd/Flinders Mines Limited/Wintawari Guruma Aboriginal Corporation/Western Australia, NNTT WF08/32 and 33, [2009] NNTTA 69 (8 July 2009) at [23]-[24] and adopted the same approach here as it did in that matter.  

9                                             The Yindjibarndi strenuously opposed the determinations and now appeals from each of them.

BACKGROUND

10                                          On 8 August 2003, a delegate of the native title registrar determined that the Yindjibarndi People hold 56 registered native title rights and interests (RNTRI) in the area of the unallocated crown land relevant to these proceedings including, for example, the right to possess, occupy, use and enjoy the area as against the world and the right to control access of others to the area and the right to take, use and enjoy the resources of the area other than minerals and petroleum for various purposes including for cultural, religious, spiritual, ceremonial and/or ritual purposes. 

11                                          In May 2008, FMG wrote to the Yindjibarndi to advise that FMG had applied for three mining leases.  The leases were M47/1409, M47/1411 and M47/1413 (the MLAs).  FMG enclosed a Mining Statement for each of the MLAs.  The Statement for each MLA described in similar terms the scope and nature of the mining activities proposed to be carried out on the land the subject of the three MLAs.

12                                          In the same month, the Department of Industry and Resources for the State of Western Australia (DOIR) also wrote to the Yindjibarndi and invited them to make submissions setting out their views as to the likely effect the proposed grant of mining leases would have on the enjoyment of their RNTRI; their way of life, culture and traditions; the development of their social, cultural and economic structures; their freedom to access and use the land to carry out rites, ceremonies or other activities of cultural significance in accordance with their traditions; and any areas or sites of particular significance. 

13                                          In October 2008, the Yindjibarndi responded to the invitation of DOIR with a set of submissions addressing the scope and nature of the proposed project by FMG on the Yindjibarndi country.  That response set out the Yindjibarndi views as to how the grant of the MLAs would probably affect the enjoyment of their RNTRI and their way of life, culture and traditions.  Negotiations then ensued in an effort to reach an agreement under which the Yindjibarndi would consent to the grant of the MLAs.  No agreement was reached.

14                                          On 28 November 2008, FMG submitted an application to the Tribunal under s 35 NTA for a determination in relation to the grant under the Mining Act 1978 (WA) (the Mining Act) of one of the MLAs, M47/1413. 

15                                          In January 2009, FMG submitted a further application to the Tribunal under s 35 NTA for a determination in relation to the grant under the Mining Act of MLA M47/1409 and MLA M47/1411. 

THE NATURE OF THE TRIBUNAL’S TASK

16                                          On receipt of an application under s 35 NTA, the Tribunal is required by s 38 NTA to make a determination either that the act the subject of the application must not be done or that it may be done either unconditionally or with conditions to be complied with by any of the parties.  Section 38 NTA provides:

38        Kinds of arbitral body determinations

(1)        Except where section 37 applies, the arbitral body must make one of the following determinations:

(a)        a determination that the act must not be done;

(b)        a determination that the act may be done;

(c)        a determination that the act may be done subject to conditions to be complied with by any of the parties.

Determinations may cover other matters

(1A)     A determination may, with the agreement of the negotiation parties, provide that a particular matter that:

(a)        is not reasonably capable of being determined when the determination is made; and

(b)        is not directly relevant to the doing of the act;

is to be the subject of further negotiations or to be determined in a specified manner.

Example:                 The arbitral body could determine that a mining lease may be granted subject to site clearance procedures to be determined by a third person.

Matters to be determined by arbitration

(1B)     If:

(a)        the manner specified is arbitration (other than by the arbitral body); and

(b)        the negotiation parties do not agree about the manner in which the arbitration is to take place;

the arbitral body must determine the matter at an appropriate time.

Profit-sharing conditions not to be determined

(2)        The arbitral body must not determine a condition under paragraph (1)(c) that has the effect that native title parties are to be entitled to payments worked out by reference to:

(a)        the amount of profits made; or

(b)        any income derived; or

(c)        any things produced;

by any grantee party as a result of doing anything in relation to the land or waters concerned after the act is done.

17                                          In the course of making out its determination, the Tribunal must (under s 39 NTA) take into account:

(a)        the effect of the act on:

(i)         the enjoyment by the native title parties of their RNTRI;

(ii)        the way of life, culture and traditions of any of those parties;

(iii)       the development of the social, cultural and economic structures of any of those parties;

(iv)       the freedom of access by any of those parties to the land or waters concerned and their freedom to carry out rites, ceremonies or other activities of cultural significance on the land or waters in accordance with their traditions; and

(v)        any area or site, on the land or waters concerned, of particular significance to the native title parties in accordance with their traditions;

(b)        the interests, proposals, opinions or wishes of the native title parties in relation to the management, use or control of land or waters in relation to which there are RNTRI, of the native title parties, that will be affected by the act;

(c)        the economic or other significance of the act to Australia, the State or Territory concerned, the area in which the land or waters concerned are located and Aboriginal peoples and Torres Strait Islanders who live in that area;

(e)        any public interest in the doing of the act; and

(f)         any other matter that the arbitral body considers relevant.

18                                          In determining the effect of the act as mentioned in para (1)(a), the Tribunal must take into account the nature and extent of:

(a)        existing non native title rights and interests in relation to the land or waters concerned; and

(b)        existing use of the land or waters concerned by persons other than the native title parties.

19                                          In Western Australia v Thomas (1996) 133 FLR 124 (Waljen) (at 162-163), the Court set out the approach required to be taken by the Tribunal to its task as follows:

(1)        The Tribunal's determination must be based on logically probative evidence and by application of the law.

(2)        The Act recognises the interests of the negotiation parties in the outcome of the inquiry and gives them various procedural rights, including a reasonable opportunity to present their case.

(3)        There is no onus of proof as such but there is a commonsense approach to evidence which in practical terms means that parties will produce evidence to support their contentions, especially when the facts are peculiarly within their own knowledge. Ordinarily the parties have the primary responsibility for presenting evidence and, in general, if they fail to do so, they cannot complain if the Tribunal gives little or no weight to their contentions.

(4)        Although the Tribunal may conduct its own inquiries and obtain evidence itself, it is not generally required to do so and, as a matter of general practice where parties are represented before the Tribunal, would not do so. In other words, the Tribunal is not required as a matter of general practice to make out a party's case for it where that party chooses not to produce relevant evidence.

(5)        The Tribunal is able to suggest to the parties other evidence which might be obtained and the consequences of not doing so.

(6)        There may be circumstances in which the Tribunal is obliged to obtain relevant evidence of which it becomes aware, particularly where it is readily available and centrally relevant to the case.

(7)        Where the Tribunal makes its own inquiries in the absence of the parties, and intends to rely on evidence so obtained, it should advise the parties of this and give them an opportunity to make submissions on it. This should occur whether the hearing has concluded or not.

(8)        While these principles are ordinarily applicable, there may be circumstances where the Tribunal would consider it appropriate to be more active than normal and decide to conduct its own inquiries and appoint counsel to assist it. This could occur because of the requirements of justice or the complexity of the case.

(9)        In determining what to do in any particular case the Tribunal must follow the provisions of s 109 as to its way of operating.

20                                          The court in Waljen (at 165-166) spoke of the discretionary nature of a s 39 NTA determination, saying it:

… involves weighing the various criteria by giving proper consideration to them on the basis of evidence before us. The weighing process gives effect to the purpose of the Act in achieving an accommodation between the desire of the community to pursue mining and the interests of the Aboriginal people concerned.

The criteria involve not just a consideration of native title but other matters relevant to Aboriginal people and to the broader community. There is no common thread running through them, and it is apparent that we are required to take into account quite diverse and what may sometimes be conflicting interests in coming to our determination. Our consideration is not limited only to the specified criteria. We are enabled by virtue of s 39(1)(f) to take into account any other matter we consider relevant.

The Act does not direct that greater weight be given to some criteria over others. The weight to be given to them will depend on the evidence.

STATUTORY FRAMEWORK

21                                          This appeal proceeds pursuant to s 169 NTA which relevantly provides:

169      Appeals to Federal Court from decisions and determinations of the Tribunal

Appeal from Tribunal determination or decision—right to negotiate applications

(1)        A party to an inquiry relating to a right to negotiate application before the Tribunal may appeal to the Federal Court, on a question of law, from any decision or determination of the Tribunal in that proceeding.

…

Jurisdiction of Federal Court

(5)        The Court has jurisdiction to hear and determine appeals instituted in the Court in accordance with this section and that jurisdiction may be exercised by the Court constituted as a Full Court.

Court to make order

(6)        The Court must hear and determine the appeal and may make such order as it thinks appropriate by reason of its decision.

Orders

(7)        Without limiting subsection (6), the orders that may be made by the Court on an appeal include:

(a)        an order affirming or setting aside the decision or determination of the Tribunal; or

(b)        an order remitting the case to be heard and decided again, either with or without the hearing of further evidence, by the Tribunal in accordance with the directions of the Court.

22                                          An important issue raised by the appeal is the applicability of s 116 of the Constitution which provides as follows:

116      Commonwealth not to legislate in respect of religion

The Commonwealth shall not make any law for establishing any religion, or for imposing any religious observance, or for prohibiting the free exercise of any religion, and no religious test shall be required as a qualification for any office or public trust under the Commonwealth.

JURISDICTION

23                                          The Yindjibarndi contend that s 169 NTA is comparable both in its terms and in effect to s 44(1) of the Administrative Appeals Tribunal Act 1975 (Cth).  There is support for this submission in Parker v Western Australia (2008) 167 FCR 340 per Branson J (at [26]).

24                                          Shortly put, a decision of the Tribunal cannot be made the subject of an appeal unless in making it the Tribunal has acted otherwise than in accordance with law:  Repatriation Commission v Hill (2002) 69 ALD 581 per Black CJ, Drummond and Kenny JJ (at [59]).  An error of law of the relevant kind will occur if the Tribunal identifies a wrong issue, asks itself a wrong question, ignores relevant material or relies on irrelevant material (Craig v South Australia (1995) 184 CLR 163 (at 179).  Erroneous findings may be the subject of an appeal on a ground of law where the Tribunal reaches a mistaken conclusion, fails to give adequate weight to a factor of great importance or gives excessive weight to a factor of no great importance in circumstances where to do so was ‘manifestly unreasonable’:  Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 per Mason CJ (at 41).  Similarly, if a Tribunal fails to address a submission which relates to a matter of substance, and if accepted has the capacity to affect the outcome of a case, there will be an error of law (Comcare Australia v Rowe [2002] FCA 1034 per Merkel J (at [11]-[12])).

25                                          For the proposition that the Tribunal should in some circumstances look at issues that do not arise directly, the Yindjibarndi rely on Riordan v Australian Sports Drug Agency (2002) 120 FCR 424 per Gray J (at [50]).

MATERIALS BEFORE THE TRIBUNAL

26                                          It is desirable to set out in a little detail the nature and extent of the material before the Tribunal on which the matter was argued. 

27                                          As might be expected, the Yindjibarndi accompanied its submissions to the Tribunal in both matters with a wide range of evidentiary material and submissions on the topics which formed the basis of the Tribunal’s inquiries of the Yindjibarndi including:

·                    a background paper by Toohey J which explained the meaning of the term ‘law’ when used in the context of Aboriginal societies;

·                    a case study by Dr Kathryn Trees presenting a socioeconomic picture of the Yindjibarndi residing in Roebourne;

·                    an anthropological study prepared for the Yindjibarndi and submitted to the State’s Office of Native Title for the purpose of ongoing mediation in respect of the Yindjibarndi No 1 application;

·                    a report on an archaeological survey that had been conducted in the vicinity of the land covered by the MLAs which demonstrates the richness of the archaeological and demographic record in the area.

28                                          The Yindjibarndi also relied upon:

·                    a list of the RNTRI;

·                    a copy of the submissions that had been sent on behalf of the Yindjibarndi to DOIR;

·                    an affidavit sworn by the last named member of the Yindjibarndi group, Mr Michael Woodley;

·                    a second affidavit by Mr Woodley.

29                                          Neither the State nor FMG opposed or disputed any aspect of the evidence provided by the Yindjibarndi.

30                                          The State also gave evidence in relation to both matters establishing:

·                    the underlying tenure of the proposed mining lease being on unallocated Crown land with the exception of Mt Florence pastoral lease held by the Department of Environment and Conservation overlapping M47/1409 by 14.9% and the Millstream Water Reserve 9, vested in the Department of Water and the Department of Environment and Conservation which overlapped M47/1411 by 85.5%;

·                    the absence of any prior history of mining activities in the area of the proposed MLAs other than the exploration activities carried out by FMG pursuant to three exploration licences held since mid-2007 which overlapped the proposed MLAs and miscellaneous licence L47/302 held since 5 June 2009 for the purpose of a road, powerline and pipeline.   This overlapped M47/1409 by .01%; and

·                    the existence of four Aboriginal sites within or in the vicinity of M47/1409 as six Aboriginal sites within or in the vicinity of M47/1411 ‘registered’ under the AHA within or in the  vicinity of the proposed MLAs.

31                                          The State’s evidence also established that each of the MLAs would be subject to standard conditions including:

·                    requirements as to survey;

·                    requirements that all surface holes drilled for the purpose of exploration be capped, filled or otherwise made safe immediately after completion;

·                    requirements that all costeans and other disturbances to the surface of the land made as a result of exploration including drill pads, gridlines and access tracks being backfilled and rehabilitated to the satisfaction of the environmental officer, DOIR.  Backfilling and rehabilitation being required no later than six months after excavation unless otherwise approved in writing by the environmental officer, DOIR;

·                    requirements that all waste materials, rubbish and plastic sample bags, abandoned equipment and temporary buildings be removed from the mining tenement prior to or at the termination of the exploration program;

·                    requirements that unless the written approval of the environmental officer, DOIR was first obtained, the use of drilling rigs and other machinery would be prohibited.  Following approval, all topsoil was to be removed ahead of mining operation and separately stockpiled for replacement after backfilling and/or completion of operations; and

·                    requirements that the lessee submit a plan of proposed operations and measures to safeguard the environment to the Director of Environment, DOIR for his assessment and written approval prior to commencing any development or productive mining or construction activity.

32                                          The State also proposed various endorsements and conditions on the grant of the proposed MLAs.  For M47/1413, the lessee’s attention was to be drawn to the provisions of the AHA and any regulations thereunder; the lessee’s attention was to be drawn to the Environmental Protection Act 1986 (WA) and the Environmental Protection (Clearing of Native Vegetation) Regulations 2004 (WA) which provides for the protection of all native vegetation from damage unless prior permission has been obtained; and, the mining lease would not authorise the mining of uranium ore or iron, unless specifically authorised.  Similar but not precisely identical conditions applied to M47/1409 and M47/1411.

33                                          The State also proposed additional conditions to two of the proposed MLAs, namely, for M47/1409:

·                    a requirement to notify the holder of any underlying pastoral or grazing lease prior to undertaking activities and advising the holder of any transfer;

·                    the rights of ingress to and egress from miscellaneous licence L47/302 being at all times preserved and no interference with the purpose or installations connected to the licence;

·                    a requirement that there be no interference with Geodetic Survey Station SSM-JM 49 and mining within 15 metres thereof being confined to the lower depth of 15 metres from the natural surface;

·                    mining on any road, road verge or road reserve was to be confined to the lower depth of 15 metres from the natural surface; and

·                    no activities was to be carried out in the proposed railway corridors (designated FMA 1738 and 8038) that interfere with or restrict any rail route investigation activities being undertaken. 

34                                          For M47/1411 that:

·                    some 24 conditions were proposed in respect of Millstream Water Reserve relating to Department of Water requirements for notification of activities, approval to disturb any significant waterway, wetland, fringing vegetation, public drinking water source, reservoir, well, dam, area below the water level and restrictions on the storage and disposal of domestic and industrial waste and hazardous substances; and

·                    there was to be no interference with Geodetic Survey Station SSM-JM 48 and mining within 15 metres or being confined to the lower depth of 15 metres from the natural surface.

35                                          FMG produced two preliminary reports of archaeological surveys which had been carried out for the purpose of work program clearances on the grantee party’s underlying exploration licences, E47/1447 and E47/1334.  Also supplied was an archaeological site survey report on a survey conducted within the area of the proposed MLA M47/1413 identifying six archaeological sites described as rockshelters with stone arrangements or caches which may contain further evidence of occupation.  The latter report advised the grantee party to ‘apply for and be granted consent to disturb the rockshelter sites from the Minister for Indigenous Affairs under Section 18 [of the AHA] prior to the commencement of any disturbance’. 

36                                          The documentation from FMG included a map showing the location of 13 sites identified in the reports.  Those sites are located within the proposed MLA M47/1413.

37                                          Within the proposed MLAs, M47/1409 and M47/1411, FMG’s evidence also comprised two preliminary reports relating to the surveys which had been carried out for the purpose of work program clearances, FMG’s underlying exploration licences M47/1447 and E47/1334 together with four archaeological site survey reports on surveys conducted within the area of the proposed MLAs.  The latter report advised FMG to ‘apply for and be granted consent to disturb the [six identified] rockshelter sites from the Minister for Indigenous Affairs under section 18 [of the AHA] prior to the commencement of any disturbance’. 

38                                          FMG also included a map showing the location of 46 sites within the area of proposed MLA M47/1409 and 22 sites within the area of proposed MLA M47/1411. 

THE DETERMINATIONS

39                                          On 31 July 2009, the Tribunal made the determination referred to above in WF08/31 but included a condition that FMG not interfere with the four ochre sites identified in one of the reports without the consent of the Yindjibarndi and not to deny access to those sites except where the reasonable requirements of certainty precludes such access.

40                                          On 13 August 2009, the Tribunal then amended the determination (the WF08/31 determination) by deleting the condition concerning the ochre sites. 

41                                          Annexed to the WF08/31 amended determination was a Tribunal memorandum sent by internal email between Tribunal officers on 13 August 2009 which advised that the four ochre sites initially mentioned ‘do not fall within the external boundary of tenement M47/1413’.  This memorandum stated that the finding was based on spatial data sourced from the Department of Mines and Petroleum WA in August 2009. 

42                                          There were further exchanges referable to proposed MLA M47/1409 and MLA M47/1411.  These exchanges occurred between an officer of the Tribunal and an officer of the Department of Mines and Petroleum seeking updated documents which were provided on behalf of the State. 

GROUNDS OF APPEAL AND NOTICE OF CONTENTION

43                                          The grounds of appeal in WAD 161 of 2009 (relating to MLA M47/1413) are as follows:

1.         The Tribunal erred in law in determining that sections 38 and 39 of the Native Title Act 1993 do not have the intention, design, purpose or effect of prohibiting or seeking to prohibit the free exercise of the applicant’s religion, contrary to section 116 of The Constitution. 

2.         The Tribunal erred in law in determining that international instruments were not relevant to its inquiry because there is no relevant ambiguity in section 39 of the Native Title Act 1993.

3.         The Tribunal the Tribunal (sic) failed to consider submissions of substance, as to the relevance of international instruments to the Tribunal’s inquiry which, if accepted, were capable of affecting the outcome of the case. 

4.         The Tribunal by its determination under section 38 of the Native Tile (sic‑Title) Act effected a compulsory acquisition of traditional rights and interests held by the applicant in land and water the subject of the determination which cannot be replaced nor compensated for by the payment of money. 

5.         The Tribunal erred in law by drawing erroneous inferences without evidence; namely:

a.         that the destruction of, or interference with, sacred stones was highly unlikely, given the finding in 6(b) below

b.         that the requirement to obtain sacred stones for particular family groups from particular parts of the applicants’ traditional country associated with those family groups, negated an inference that the sacred stones located with the proposed mining lease and associated with a particular family group could not be obtained from elsewhere in the traditional country of that family group.

c.         that the ochre sites seemed largely to be located in the cliffs above the riverbed and that that was not an area the grantee party could utilise for mining. 

6.         The Tribunal erred in law by making erroneous finding, namely:

a.         that the grantee party had conducted comprehensive surveys of the land in respect of Aboriginal sites and artefacts, when the evidence demonstrated only that specific drill lines had been investigated to ensure that the grantee party’s exploratory drilling did not impact upon the applicant’s sites or artefacts;

b.         that places where sacred stones are found should have been identified in at least one of the three report (sic-reports) conducted by the archaeological consultants on behalf of the grantee party, when the very nature of those reports precluded such possibility;

c.         that there was no evidence that it is mandatory to use ochre from ochre quaries (sic-quarries) situated within the area of the proposed mining lease for a particular ceremony conducted at a nearby Thalu site when that was the undisputed evidence of the applicant;

d.         that any sites of significance that are subsequently identified in the proposed lease are could (sic) be protected under the Aboriginal Heritage Act, when the Tribunal knows or ought reasonably (sic-to) know that the Department of Indigenous (sic) has stated it is incapable of fulfilling its statutory responsibility to protect Aboriginal sites under the Act. 

7.         The Tribunal denied the applicant procedural fairness in that it failed to afford an opportunity for the applicant to precisely identify the location of sites of significance within the proposed lease area. 

44                                          In WAD 168 of 2009 (relating to MLAs M47/1409 and M47/1411), the grounds of appeal were:

1.         The Tribunal erred in law in determining that sections 38 and 39 of the Native Title Act 1993 do not have the intention, design, purpose or effect of prohibiting or seeking to prohibit the free exercise of the applicant’s religion, contrary to section 116 of The Constitution. 

2.         The Tribunal erred in law in determining that international instruments were not relevant to its inquiry because there is no relevant ambiguity in section 39 of the Native Title Act 1993.

3.         The Tribunal the Tribunal (sic) erred in law by failing to consider submissions of substance, as to the relevance of international instruments to the Tribunal’s inquiry which, if accepted, were capable of affecting the outcome of the case.

4.         The Tribunal erred in law by failing to take into account the effect of the act upon the traditional right of the Yindjibarndi people, individually and in community with each other, to freely exercise their religious beliefs and to freely perform their religious obligations and observances through the possession, occupation, use, employment and management of sacred sites and areas of religious and cultural significance, situated in the relevant land and waters, in accordance with their traditional laws, customs and religious beliefs. 

5.         The Tribunal by its determination under section 38 of the Native Tile (sic‑Title) Act effected a compulsory acquisition of traditional rights and interests upon terms which, having regard to the sacred and religious character of those rights and interests, were unjust and contrary to section 51(31) (sic‑51(xxxi)) of the Constitution, since what was acquired cannot be replaced, nor readily compensated for by the payment of money. 

6.         The Tribunal erred in law by making erroneous findings, namely:

a.         that the loss of the right of Yindjibarndi people to freely exercise their religious beliefs and to freely perform their religious obligations and observances through the possession, occupation, use, enjoyment and management of sacred sites and areas of religious and cultural significance, in accordance with their traditional laws, customs and religious beliefs, would not cause any real or tangible interference with the way of life, culture and traditions of the Yindjibarndi People;

b.         that, with the exception of some disruption or effect upon the Yindjibarndi’s view of the potency and strength of its culture and traditions, the loss of the right of Yindjibarndi people to freely exercise their religious beliefs and to freely perform their religious obligations and observances through the possession, occupation, use, enjoyment and management of sacred sites and areas of religious  and cultural significance, in accordance with their traditional laws, customs and religious beliefs, would impact only upon the Yindjibarndi’s perception of their capacity to impose those aspects of what is required of them under their traditional law and culture upon those who also seek to utilise land within Yindjibarndi country;

c.         that the grantee party had conducted comprehensive surveys of the land in respect of Aboriginal sites and artefacts, when the evidence demonstrated only that specific drill lines had been investigated to ensure that the grantee party’s exploratory drilling did not impact upon the Applicant’s sites or artefacts;

d.         that the Aboriginal Heritage Act, and the knowledge that the grantee party has of both registered sites and other sites identified within its surveys, and the information it has been provided with in relation to the ochre site during the course of this proceedings (sic), together with the four extra conditions, which the Government party intends to impose, will have a significant protective effect on the capacity of the Yindjibarndi native title party to conduct ceremonies and protect sites of particular significance, despite the grant of the proposed leases to the grantee party.

7.         The Tribunal denied the Applicant procedural fairness in that, having afforded an opportunity for the Government Party to provide updated information as to some underlying tenure and draft tenement endorsements and conditions that had apparently changed, after the filing of the Government Party’s contentions; the Tribunal failed to afford an equivalent opportunity for the Yindjibarndi to provide updated information about the location of a particular ochre quarry which the Tribunal stated, had it been so located, would have resulted in a determination that the quarry not be interfered with without the consent of the Yindjibarndi.

NOTICES OF CONTENTION

45                                          In both appeals, both the State and FMG have filed notices of contention pursuant to O 52 r 22(3) of the Federal Court Rules.  The grounds on which each of the respondents contend that the judgment should be affirmed, in addition to those relied upon by the Tribunal, are, in substance, as follows:

1.         Sections 38 and 39 NTA contrary to section 116 Constitution (Appellant’s ground 1)

If (which is denied) the learned Tribunal Member erred in law in determining that sections 38 and 39 of the Native Title Act 1993 (Cth) do not have the intention, design, purpose or effect of prohibiting or seeking to prohibit the free exercise of the applicant’s religion, contrary to section 116 of the Constitution, then the First Respondent contends that the learned Tribunal Member was nevertheless correct in finding that sections 38 and 39 do not contravene section 116 of the Constitution because:

(1)        The test for inconsistency between Commonwealth legislation and section 116 of the Constitution is whether or not the legislation in question has the purpose of prohibiting the free exercise of religion; and

(2)        Sections 38 and 39 do not have that purpose; and

(3)        The learned Tribunal Member found, in substance, that sections 38 and 39 do not have that purpose.

(4)        The making of a decision by the Tribunal is not an act which prohibits or affects the free exercise of the Appellant’s religion; and

(5)        If any act is capable of having the effects contended for by the Appellant it could only be the grant, pursuant to the Mining Act 1978 (WA) of the mining lease the subject of the determination; and

(6)        Section 116 of the Constitution does not apply to State legislation or administrative acts done thereunder. 

NOTICE OF A CONSTITUTIONAL MATTER

46                                          In both appeals, notices of a constitutional matter under s 78B of the Judiciary Act 1903 (Cth) were also served on the State and Commonwealth Attorneys in substantially the following terms:

The Nature of the Matter

…

2.         The matter concerns an appeal to the Federal Court of Australia, pursuant to s 169 of the Native Title Act 1993 (“NTA”), against a determination of the National Native Title Tribunal (“Tribunal”) under s 38 of the NTA, which allows the First Respondent to grant two mining leases (M47/1409 and M47/1411) to the Second Respondent, in the traditional country of the Applicant pursuant to compensation as provided for in Division 5 of Part 2 of the NTA. 

The facts which show that the matter is one to which s 78B of the Judiciary Act 1903 applies:

3.         The undisputed evidence of the Applicant, which was accepted by the Tribunal, was that the Yindjibarndi People currently possess, occupy, use and enjoy the relevant land and waters in accordance with their traditional laws, customs and religious beliefs; and that, pursuant to their traditional laws, customs and religious beliefs, the Yindjibarndi People have, respectively, both a right and a religious obligation to:

a.                 possess, occupy, use and enjoy the land and waters in accordance with their religious beliefs;

b.                 perform religious ceremonies and rituals in, and in relation to, the relevant land and waters;

b. (sic-c.)      protect the sacred sites and areas of significance situated therein; and

c.                 manage and control access to, and the use of, the relevant land and waters by others, and to share the resources thereof with such others in accordance with the principle of reciprocity enshrined in the religious beliefs of the Yindjibarndi.

4.         The Applicant contends that the Tribunal erred in law by finding, inter alia, that s 38 of the NTA or a determination made under that provision did not have the effect of prohibiting the free exercise by the Applicant, in community with other members of the Yindjibarndi People, to practice their religion through the proper performance of their religious obligations and observances. 

5.         The Applicant further contends that the Tribunal, by its determination under section 38 of the NTA effected a compulsory acquisition of traditional rights and interests upon terms which, having regard to the sacred and religious character of those rights and interests, was unjust and contrary to section 51(xxxi) of the Constitution, since what was acquired cannot be replaced, nor readily compensated for by the payment of money under Division 5 of Part 2 of the NTA. 

47                                          No appearance or other intervention was sought by the Commonwealth or the State or Territories in respect of the constitutional matter.

Ground 1 – s 116 of the Constitution

48                                          The issue advanced in the first ground of appeal was also argued before and considered by the Tribunal in its reasons where it said (at [9]):

Interpretation of s 38 and 39 of the Act in light of the native title party’s evidence

[9]        The native title party filed two parcels of submissions in relation to three proposed mining leases, one the subject of the Application and two the subject of another application lodged by the grantee party (designated NNTT WF09/1). The first is headed ‘Contentions of the Native Title Party in Relation to Section 39 Criteria’ on 26 May 2009 and the second being ‘Further Contentions of the Native Title Party in Reply to Government Party’s Responsive Contentions’ on 24 June 2009. In the interim the Government party had filed some submissions headed the ‘Government Party’s Responsive Contentions’ dated 3 June 2009. Amongst other things, the native title party’s contentions argued that the evidence demonstrated that the grant of the proposed mining leases for both applications would prevent the native title party from exercising and enjoying their registered native title rights. The native title party also asserted that as they were pursuing their religious beliefs and performing their religious obligations, the Tribunal should construe s 39 of the Act so as to ‘avoid the possibility of invalidity by reason of s 116’ of the Australian Constitution (‘Constitution’). In the view of the native title party a determination under s 38, that the acts may be done without condition, would prevent ‘the Yindjibarndi People from exercising their religion.’ The native title party submitted that if the Tribunal determined that the future acts could be done, a condition should be imposed requiring an agreement to be reached between the grantee party and the native title party before the grantee party could conduct activities in any of the proposed mining lease areas.

49                                          The Tribunal went onto consider the submission accepting that:

… the spiritual beliefs and cultural practices of aboriginal people which arise from, and are a given expression in, their traditional laws and customs, may well constitute a religion for the purposes of s 116.

50                                          However it concluded (at [12]) that:

Whether the requirement that Yindjibarndi must enter into agreement with outsiders before those outsiders can enter Yindjibarndi land is a religious belief or practice is not an issue [for determination by the Tribunal] unless [the Tribunal decides] that the implementation of ss 38 or 39 of the Act, through a decision of the Tribunal, might offend s 116 of the Constitution.

51                                          The Tribunal (at [21]) concluded that the central issue was whether or not s 38 or s 39 NTA were passed with the intention, design, purpose or effect of prohibiting the free exercise of the religion of the native title party.  The Tribunal concluded that a decision by it to the effect that an act may be done without conditions or with conditions which do not require agreement of a native title party was not one which would have the intention, design, purpose or effect of interfering with the free exercise of the native title party’s religious beliefs.  The Tribunal reasoned that the asserted religious beliefs were characterised by the requirement that the native title party enter into an agreement with other parties before those parties could enter onto the land of which they had been given custody by their ancestors and by their law.  ‘The onus is on the native title party to do their best to attempt to realise that religious stipulation’.  The mere fact that a religion seeks to have people behave in a particular manner does not mean that non-believers should be compelled to observe those religious requirements.  Further, if the expression ‘traditional laws and customs’ which underpins native title rights and interests were to be construed as the exercise of religious freedom, then the effect of s 116 of the Constitution would be likely to make it impossible for the Commonwealth to regulate native title rights and interests at all. 

52                                          Exception was taken by the Yindjibarndi to the Tribunal’s reference to their asserted religious beliefs and the subsequent characterisation of those beliefs being directed solely towards ‘compelling a non-believer to accept the religious beliefs of a believer or to abide by the consequent proscriptions imposed upon a believer’.  The Yindjibarndi contend that this approach disposed of the s 116 issue prior to proper consideration of the affidavit evidence of Mr Woodley, a Yindjibarndi senior lawman with authority to speak on behalf of the native title party, even though the Tribunal noted (at [48]) that Mr Woodley gave eloquent testimony to the sincerity and depth of the attachment of the Yindjibarndi to the country including the area of the proposed MLAs. 

53                                          However, the Tribunal did record almost the entirety of the two affidavits sworn by Mr Woodley which, in a comprehensive manner, detailed the foundation of the Yindjibarndi’s ownership of Yindjibarndi country telling some of the stories which led to the creation of the country and recounting the laws which are imposed upon the Yindjibarndi in the maintenance of their religious obligations to the creation spirits (Marrga), the sun god (Minkala) and their ancestors. 

54                                          The Yindjibarndi complain that there was no proper consideration given to the particular religious observances to which specific reference was made in the Yindjibarndi evidence and submissions.  In those submissions, the Yindjibarndi noted that the religious charter of the Yindjibarndi required the Yindjibarndi to ‘speak for’ Yindjibarndi country, as ‘the voice for what he thinks best for Yindjibarndi’ and to carry out prescribed religious ceremonies and rituals.  The Yindjibarndi were required in respect of the land in issue to:

i.                     speak for the land and to manage and control its use in accordance with Birdarra;

ii.                   to ensure that strangers do not enter in the absence of an agreement which incorporates the reciprocal rights and responsibilities set out in the Galharra rules of the Birdarra;

iii.                  annually obtain ochre from the ochre quarry located within M47/1409 in order to ‘work’ the nearby Maliya (honey) Thalu;

iv.                 annually obtain sacred stones from the riverbed located in M47/1413;

v.                   protect the sacred site located in M47/1411; and

vi.                 annually sing the songs associated with that area.

(the religious observances)

55                                          Shortly put, the Yindjibarndi submits that the Tribunal erred in confining its consideration of the s 116 issue to the question of whether a decision by the Tribunal to the effect that the act may be done without conditions or conditions which do not require the agreement of the native title party was one which should have the actual intention, design, purpose or effect of interfering with the free exercise of the native title party’s religious beliefs.  By focussing solely on this aspect of the religious beliefs of the Yindjibarndi, they argue that the Tribunal overlooked the effect this decision would have on particular religious observances most directly associated with the three areas in question. 

56                                          In particular, the Yindjibarndi submit that the evidence in the Tribunal demonstrated that the ‘effect’ or ‘result’ of application of s 38 and s 39 NTA by the Tribunal would be that the Yindjibarndi would be prevented from carrying out, not only their religious obligations to manage and control the land and to ensure strangers do not enter without an agreement but also the particular religious observances identified and defined as the religious observances. 

57                                          The Yindjibarndi rely on Minister for Immigration and Ethnic Affairs v Lebanese Moslem Association (1987) 17 FCR 373 at 388, where Jackson J with whom Fox J agreed said:

Assuming that the "purpose" of … a law is to be gathered from its "effect" or the "result" which it achieves, and that if the law has the effect proscribed by s 116, it would be impossible to deny that the "purpose" of it was otherwise (that is, to say that it was not a law "for prohibiting the free exercise of any religion"), it is necessary to see what effect the decisions in question have...

58                                          In Halliday v The Commonwealth of Australia [2000] FCA 950, Sundberg J said (at [21]):

The GST laws (including the withholding provisions) do not prohibit the doing of acts in the practice of religion any more than did the military service law in Krygger v Williams.  At most they may require a person to do an act that his religion forbids.  But that is not within s 116.  If the matter be approached by asking whether the law is a law "for prohibiting the free exercise of any religion", in the sense that it is designed to prohibit or has the purpose of prohibiting  that free exercise, the answer must be in the negative.  It is plainly a law of general application with respect to taxation.  There is no hint of a legislative purpose to interfere with the free exercise of a Muslim's or anyone else's religion.  Nor is it a law that has the result or effect of prohibiting the free exercise of any religion.  A person professing the Muslim faith can avoid committing the sin of acting as a tax collector by ensuring that he deals only with suppliers who quote an ABN.  On the view espoused in Lee, the importance of maintaining a sound tax system is of such a high order that religious belief in conflict with the withholding of GST tax is not protected by s 116.  When Latham CJ asked whether freedom of religion has been unduly infringed by a law, he was in my view asking a similar question to that posed by Lee.  There is no undue interference here.  Especially is this so when a person can avoid acting as a tax collector by dealing only with suppliers who quote an ABN.  I have canvassed the various "tests" that can be distilled from the cases.  But the essential point, in my view, is that the withholding tax provisions do not prohibit the doing of any act in the practice of religion.  The claim that the GST law offends s 116 has no prospect of success.

59                                          The Yindjibarndi emphasise the conclusion of the Tribunal in its reasons (at [59]) with regard to the proposed MLA M47/1413 that:

… notwithstanding the significant religious or spiritual enjoyment of the area that will be disrupted by the grant of the proposed lease, there will indeed be a significant physical interruption to access and enjoyment of the area and their exclusion from a substantial part of it for a significant period of time. Setting aside the matters I need to address in relation to s 39(1)(a)(ii) – (v) which will be dealt with below, the evidence before the Tribunal is that the native title party visit the area of the proposed lease on an annual basis, largely for the purpose of collecting the Gandi and ochre and to conduct Wuthurru ceremonies. The evidence of this access and use is sketchy and general compared to the evidence given by Mr Woodley relating to the cultural affront and religious offence the Yindjibarndi feel because of the access and use of the area without their sanction. I do accept that the first of the extra conditions proposed by the Government party will mitigate the impact of the interruption to the exercise of native title rights, but that interruption will be substantial.  (emphasis added)

60                                          The Yindjibarndi stresses that as the weight of judicial opinion is that s 116 operates as a ‘constitutional guarantee’, it follows that it should be given a ‘liberal construction appropriate to such a constitutional provision’ (ICM Agriculture Pty Ltd v Commonwealth (2009) 240 CLR 140 per French CJ, Gummow and Crennan JJ (at [43])).  It requires looking beyond ‘matters of legal form and to the practical effect of the law in question’ to ensure there is no ‘circuitous advice’ (ICM at [44]). 

61                                          The Preamble to the NTA states that:

…

The people of Australia intend:

(a)        to rectify the consequences of past injustices...; and,

(b)        ensure that Aboriginal peoples... receive the full recognition and status within the Australian nation to which history, their prior rights and interests, and their rich and diverse culture, fully entitle them to aspire.

62                                          The Yindjibarndi submit, as it did to the Tribunal, that the protection afforded to these religious beliefs and religious observances, by s 116, should have been taken into account by the Tribunal in its inquiry with respect to s 39(1)(e) NTA, on the grounds that there is a public interest in upholding the constitutional guarantee of religious freedom; and, its inquiry with respect to s 39(1)(f) NTA, on the grounds that the protection of the right of Yindjibarndi to freely practice their religious beliefs, and their religious observances, is a relevant consideration in determining whether or not, and if so under what conditions, a future act may be done.

63                                          The Tribunal, the Yindjibarndi argues, did not give s 116 a liberal construction as required by law but adopted a narrow construction, the effect of which will prevent the Yindjibarndi from freely exercising their right to carry out their religious observances on the land for a significant period of time.  The Yindjibarndi noted that although the Tribunal’s decision does not of its own force bring about this result, it nevertheless satisfies a condition precedent to the exercise of power which will in turn bring about that result.

64                                          Essentially under this ground in each appeal, two errors have been asserted:

1.                  The Tribunal wrongly characterised the religious beliefs of the Yindjibarndi in a way that ‘did not do justice to the evidence’, allegedly by focussing upon religious obligations or beliefs relating to the need for strangers to gain an agreement with the Yindjibarndi before entering Yindjibarndi country but not also upon other particular religious observances (observances argument); and

2.                  The ‘effect’ or ‘result’ of the Tribunal’s decision is that the Yindjibarndi is prevented from meeting its religious obligations and carrying out its religious observances, for which reason the decision, or the sections of the NTA which authorised the decision, is or are invalid for inconsistency with s 116 of the Constitution (effect argument).

The observances argument

65                                          The observances argument is in reality a complaint about the weight given to certain of the evidence before the Tribunal.  Whether the reasons ‘do justice’ to the evidence about the Yindjibarndi’s religious beliefs and observances is not the subject of the appeal.  Appeals under s 169 NTA are limited to questions of law.  It would not be appropriate to seek to overturn or disapprove findings of fact made by the Tribunal.  

66                                          It is not an error of law that the Tribunal reached one conclusion on the facts when another was open.  The appeal is not a merits review.  As to the complaint that the Tribunal ‘disposed of the s 116 issue prior to its consideration of the affidavit evidence of Michael Woodley’, this appears to rely on the fact that the passage of the Tribunal’s reasons containing the detailed discussion of that evidence follows the passage in which the s 116 argument was assessed.  However, this does not mean the evidence was not taken into account in relation to that argument.  It seems clear that it was considered from the discussion at [21] of the reasons.

67                                          The Yindjibarndi says, in effect, that the Tribunal erred in law because it was required to consider the effect of making a determination under s 38 NTA on particular religious observances of the Yindjibarndi and it failed to do so.

68                                          The Tribunal did not decide that the religious observances are observed.  It concluded that even if the asserted rights constitute a religious observance protected by s 116 of the Constitution, s 38 NTA ‘does not have the effect, design, purpose or effect’ of prohibiting that observance.  The reason why a determination did not have that effect was explained by the Tribunal. 

69                                          The Tribunal considered all of the ‘observances’ which the Yindjibarndi contends were ignored.  It characterised the obligations to ‘speak for’ the country and ensure strangers do not enter it without agreement as aspects of the Yindjibarndi’s religious beliefs.  It dealt with them in that context.  The evidence was considered in relation to the other identified observances.  The Tribunal assessed the extent to which that evidence demonstrated that there were activities of the Yindjibarndi which would be affected by the grant of the proposed MLAs.  The Tribunal found that some of the activities were not proven to relate to areas within the proposed tenement area, that others (such as collecting stones) were not limited to that area, and that others would be protected by the conditions attached to the grant of the proposed tenement, including the application of the AHA (see [69]-[76] of the reasons in WF08/31).  

70                                          The aspect of ground 1 is not made out. 

The effect argument

71                                          The Yindjibarndi submits that the ‘effect’ or ‘result’ of the Tribunal's application of s 38 and s 39 NTA is that the Yindjibarndi will be prevented from carrying out their religious obligations to manage and control the land and to ensure strangers do not enter without agreement and other identified religious observances.

72                                          In my view, this argument relies on the wrong test for inconsistency between s 38 and s 39 NTA and s 116 of the Constitution.

73                                          The ‘effect’ or ‘result’ of a statute is not the primary test for assessing whether that statute is consistent with s 116.  Section 116 directs attention primarily to the purpose of the impugned law, rather than to its ‘effect’ or ‘result’.  It may be that the effect of the law, in some circumstances, could assist in construing its purpose but the effect of the law is not the starting point. 

74                                          There is no indication at all that the purpose of s 38 or s 39 NTA is ‘for’ prohibiting the free exercise of religion. 

75                                          In Kruger v The Commonwealth (1997) 190 CLR 1, the High Court considered the validity of a Northern Territory Ordinance which authorised the removal of Aboriginal children from their families and communities.  It was challenged on a number of grounds, including inconsistency with s 116 of the Constitution.  The plurality rejected the argument, confirming that the use of the word ‘for’ in the expression in s 116 ‘for prohibiting the free exercise of any religion’ (emphasis added) means that it is the objective or purpose of the legislation to which attention must be directed.

76                                          Gummow J (with whom Dawson J and, it seems, McHugh J agreed) noted (at 160) that:

Purpose’ refers not to the underlying motive but to the end or object the legislation serves.

77                                          Brennan CJ said (at 40):

… none of the impugned laws on its proper construction can be seen as a law for prohibiting the free exercise of a religion ... To attract invalidity under s 116, a law must have the purpose of achieving an object which s 116 forbids. None of the impugned laws has such a purpose…

78                                          Toohey J took (at 86) the same view, while noting that there may be more than one purpose, one of which must be to prohibit the free exercise of religion in order to found invalidity under s 116 of the Constitution.

79                                          In relation to effect he said:

It may well be that an effect of the Ordinance was to impair, even prohibit the spiritual beliefs and practices of the Aboriginal people in the Northern Territory, …  But I am unable to discern in the language of the Ordinance such a purpose.

80                                          At 132, Gaudron J stated:

The use of the word "for" indicates that purpose is the criterion and the sole criterion selected by s 116 for invalidity. Thus, purpose must be taken into account. Further, it is the only matter to be taken into account in determining whether a law infringes s 116.

81                                          To the extent that any question of law did arise on this issue, it was a conclusion of law consistent with the authorities on s 116 of the Constitution.  Laws may have disruptive or limiting effects upon religious freedom without contravening the prohibition in s 116, they are necessary for the preservation and protection of society. 

82                                          This approach is clear from The Church of the New Faith v Commissioner of Pay-Roll Tax (Vic.) (1983) 154 CLR 120 at 135-136, where Mason ACJ and Brennan J considered the extent of the legal protection of persons acting in accordance with their religious beliefs and obligations, observing (footnotes omitted):

But the area of legal immunity marked out by the concept of religion cannot extend to all conduct in which a person may engage in giving effect to his faith in the supernatural. The freedom to act in accordance with one's religious beliefs is not as inviolate as the freedom to believe, for general laws to preserve and protect society are not defeated by a plea of religious obligation to breach them: cf. Cantwell v. Connecticut, at p. 1218. Religious conviction is not a solvent of legal obligation. Thus, in Jehovah's Witnesses Inc. a prohibition against subversion of the war effort was not circumvented by the pacifist ideals of the Jehovah's Witnesses, and this Court rejected their challenge to the validity of the National Security (Subversive Associations) Regulations, even though s. 116 protects both freedom of religious opinion and the free exercise of religion. In the United States, where similar constitutional guarantees are to be found in the First Amendment, the free exercise clause was held not to exempt the Mormons from the law forbidding polygamy, though they deemed it to be a religious duty, circumstances permitting, to practice polygamy. In Reynolds v. United States, the Supreme Court held that to excuse polygamy on religious grounds would "make the professed doctrines of religious belief superior to the law of the land, and in effect ... permit every citizen to become a law unto himself. Government could exist only in name under such circumstances." Conduct in which a person engages in giving effect to his faith in the supernatural is religious, but it is excluded from the area of legal immunity marked out by the concept of religion if it offends against the ordinary laws, i.e. if it offends against laws which do not discriminate against religion generally or against particular religions or against conduct of a kind which is characteristic only of a religion.

We would therefore hold that, for the purposes of the law, the criteria of religion are twofold: first, belief in a supernatural Being, Thing or Principle; and second, the acceptance of canons of conduct in order to give effect to that belief, though canons of conduct which offend against the ordinary laws are outside the area of any immunity, privilege or right conferred on the grounds of religion. Those criteria may vary in their comparative importance, and there may be a different intensity of belief or of acceptance of canons of conduct among religions or among the adherents to a religion. The tenets of a religion may give primacy to one particular belief or to one particular canon of conduct. Variations in emphasis may distinguish one religion from other religions, but they are irrelevant to the determination of an individual's or a group's freedom to profess and exercise the religion of his, or their, choice.  (emphasis added)

83                                          A further difficulty with the s 116 argument for the Yindjibarndi is that s 116 is directed at Commonwealth legislation.  The complaint of the Yindjibarndi seems not to be against the enactment or content of s 38 or s 39 NTA, but rather against the decision made by the Tribunal.  The Yindjibarndi contends that s 116 acts to modify the effect of s 38 and s 39 NTA by limiting the kinds of determinations the Tribunal may make to only those which do not impair religious freedom.  Section 116 is directed to the making of Commonwealth laws, not with their administration or with executive acts done pursuant to those laws.  Section 116 is not capable of regulating or invalidating the Tribunal’s decision.  The relevant enquiry is whether the Commonwealth may enact s 38 and s 39 NTA.

84                                          A law that authorises administrative acts or decisions which prohibit the free exercise of religion will only be a law for ‘prohibiting the free exercise of religion’ and invalid pursuant to s 116 if the purposive content of the law is established. 

85                                          Neither s 38 and s 39 NTA, nor the Tribunal’s determinations, prohibit religious freedom because they do not prohibit anything.  If any act did, it would be the grant of the MLAs the subject of the Tribunal proceedings.  That grant is a separate administrative act and subject to separate considerations and controls.  Any such grant would be made under the Mining Actwhich, being State legislation, is not subject to s 116 of the Constitution.

86                                          If the relevant religious obligation of the Yindjibarndi is to ensure the non-access of strangers onto Yindjibarndi country without agreement, then there is no prohibition or impairment of the fulfilment of that obligation which arises from the Tribunal's determination or from any other effect of s 38 and s 39 NTA.  Until the relevant MLAs are granted, there is nothing to prevent the Yindjibarndi from reaching an agreement for their grant. 

87                                          If the Tribunal did identify the relevant test as one of ‘intention, design, purpose or effect’ giving the widest possible interpretation of the test rather than confining the question to the purpose of the legislation, the respondents argued that had the Tribunal applied the more confined test, the same result would have ensued and in fact been more likely. 

88                                          The further difficulty with ground 1 is that the relevant finding by the Tribunal - that the grant of the proposed MLA, subject to conditions, will not interfere with the religious freedom of the Yindjibarndi - is a finding of fact.  On the evidence before it, the Tribunal found that the religious beliefs and observances of the Yindjibarndi, like the religious beliefs and observances of others, do not need to be fully realised in order to achieve compliance with the religious system or orthodoxy of the Yindjibarndi.  Appeals under s 169 NTA are limited to questions of law.  There is no error of law disclosed in this respect.  The relevant finding of fact was made having regard to the evidence led before the Tribunal.  The finding was open. 

89                                          I am unable to accept either that the Tribunal paid no regard to the evidence and submissions on this topic or that the primary focus at law for the purposes of s 116 of the Constitution is on ‘effect’ rather than ‘purpose’. 

90                                          The ground cannot succeed. 

INTERNATIONAL INSTRUMENTS

Grounds 2 and 3 in each matter

91                                          Grounds 2 and 3 are linked, and I will address them together.  In ground 2, the appellant contends that the Tribunal erred in law in determining that international instruments were not relevant to its inquiry because there is no ambiguity in s 38 and s 39 NTA.  In ground 3, it is contended that the Tribunal ‘erred in law’ in failing to consider the appellant’s submissions on the relevance of international instruments to the Tribunal’s inquiry which, if accepted, were capable of affecting the outcome of the case.

92                                          Ground 3 could only arise if ground 2 were a submission of substance and if accepted was capable of affecting the outcome of the case.

93                                          In relation to ground 2 the Yindjibarndi contend that s 38 and s 39 NTA should be construed in such a way as to ensure that the outcome of the Tribunal’s determination accords with the standards set out in Art 19 and Art 27 of the International Covenant on Civil and Political Rights (the ICCPR) and with those set out in the United Nations Declaration on the Rights of Indigenous Peoples (the UN Declaration). 

94                                          As contended before the Tribunal, the Yindjibarndi argued that the guarantee of religious freedom enshrined in s 116 of the Constitution, is also enshrined in Art 18 and Art 27 of the ICCPR.  Pursuant to those entitlements, Mr Woodley has the right in community with other members of his group to enjoy his own culture, practise his own religion and manifest his religious beliefs, observances and practices.  Article 18 further provides that the freedom to manifest one’s religion or beliefs may be subject only to such limitations as are necessary to protect public safety, order, health, morals or the fundamental rights and freedoms of others. 

95                                          The Yindjibarndi argue that Mr Woodley’s right to freely practise his religion in community with the other members of the Yindjibarndi had recently been reaffirmed by the Commonwealth Government’s endorsement of the UN Declaration.  Article 12 declares indigenous people have the right to manifest, practise, develop and teach their spiritual and religious traditions, customs and ceremonies; the right to maintain, protect, and have access in privacy to their religious and cultural sites; the right to the use and control of their ceremonial objects; and the right to the repatriation of their human remains.  Article 25 of the UN Declaration declares that indigenous people have the right to maintain and strengthen their distinctive spiritual relationship with their traditionally owned or otherwise occupied and used lands, territories, waters and coastal seas and other resources and to uphold their responsibilities to future generations in this regard.

96                                          The State and FMG, however, argued in the Tribunal that reliance on international instruments was misplaced as none of them had been enacted into Australian law.  Further, no ambiguity existed in s 38 and s 39 NTA that may be required to call upon the international instruments as an aide to interpretation.

97                                          The Tribunal agreed (at [25]) saying:

In relation to the submissions made by the native title party in relation to the use of international instruments applicable to the rights of Indigenous people in the interpretation of ss 38 and 39, I agree and adopt the findings of Deputy President Sumner in Western Desert Lands Aboriginal Corporation (Jamukurnu-Yapalikunu)/Western Australia/Holocene Pty Ltd, NNTT WF08/27, [2009] NNTTA 49 (27 May 2009) at [46]. In particular, I agree with his view that there is no relevant ambiguity in s 39 of the NTA. Thus those international instruments do not directly impact on the Tribunal’s deliberation in this enquiry.

98                                          The actual observations of the Deputy President referred to by the Tribunal in the paragraph above was as follows:

The native title party contentions are not entirely clear about the use it says the Tribunal can make of the various positive statements in international instruments applicable to the rights of indigenous people. The general proposition is that international instruments cannot be relied upon unless they have been enacted into the domestic law. This has been the case for instance with the RDA which gives effect to International Covenant on the Elimination of all Forms of Racial Discrimination. While the Declaration on the Rights of Indigenous Peoples is now endorsed by the Australian Government, there is no specific legislation which gives effect to it. The Tribunal is of the view that the use which can be made of international instruments is as an aid to the interpretation of statutes where the terms of the statute are ambiguous. It is, however, generally inappropriate to rely upon an international instrument for such a purpose when the relevant instrument had not been ratified by or entered into by Australia or such acts were not in contemplation by Australia at the time when the provisions in question were enacted. In any case there is no relevant ambiguity in s 39 of the NTA and thus these are not matters which can directly impact on the Tribunal’s deliberations in this inquiry.

99                                          Before the Tribunal the Yindjibarndi pointed to the fact that the word ‘ambiguous’ according to the Macquarie Dictionary (Revised 3^rd ed) means ‘open to various interpretations’.  As an example, the Yindjibarndi draw on the fact that a number of High Court Judges have taken a different view of the meaning of the word ‘for’ in the context of s 116 of the Constitution.  Similarly, the Yindjibarndi argue that within s 39 NTA there are words and phrases that are open to various interpretations.  For example, the Tribunal (in Re; Holocene Pty Ltd [2009] NNTTA 49) accepted (at [182]) that what constitutes ‘public interest’ under s 39(1)(c) NTA is open to various interpretations depending on circumstances such as the size, economic potential and location of the mine. 

100                                       It is correct that the fact that an international instrument such as the ICCPR has not been incorporated into Australian domestic law does not necessarily mean that its ratification holds no significance for Australian law.  In Minister of State for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273, Mason CJ and Deane J said (at 286-287) (footnotes omitted):

It is well established that the provisions of an international treaty to which Australia is a party do not form part of Australian law unless those provisions have been validly incorporated into our municipal law by statute. This principle has its foundation in the proposition that in our constitutional system the making and ratification of treaties fall within the province of the Executive in the exercise of its prerogative power whereas the making and the alteration of the law fall within the province of Parliament, not the Executive. So, a treaty which has not been incorporated into our municipal law cannot operate as a direct source of individual rights and obligations under that law. In this case, it is common ground that the provisions of the Convention have not been incorporated in this way. It is not suggested that the declaration made pursuant to s 47(1) of the Human Rights and Equal Opportunity Commission Act has this effect.

But the fact that the Convention has not been incorporated into Australian law does not mean that its ratification holds no significance for Australian law. Where a statute or subordinate legislation is ambiguous, the courts should favour that construction which accords with Australia's obligations under a treaty or international convention to which Australia is a party, at least in those cases in which the legislation is enacted after, or in contemplation of, entry into, or ratification of, the relevant international instrument. That is because Parliament, prima facie, intends to give effect to Australia's obligations under international law.

101                                       Similarly, in Mabo v Queensland [No 2] (1992) 175 CLR 1, Brennan J observed (at 42):

The opening up of international remedies to individuals pursuant to Australia's accession to the Optional Protocol to the International Covenant on Civil and Political Rights brings to bear on the common law the powerful influence of the Covenant and the international standards it imports. The common law does not necessarily conform with international law, but international law is a legitimate and important influence on the development of the common law, especially when international law declares the existence of universal human rights.

102                                       Mason CJ and Deane J continued in Teoh (at 287-288) (footnotes omitted):

Where a statute or subordinate legislation is ambiguous, the courts should favour that construction which accords with Australia's obligations under a treaty or international convention to which Australia is a party, at least in those cases in which the legislation is enacted after, or in contemplation of, entry into, or ratification of, the relevant international instrument. That is because Parliament, prima facie, intends to give effect to Australia's obligations under international law.

…

It is accepted that a statute is to be interpreted and applied, as far as its language permits, so that it is in conformity and not in conflict with the established rules of international law. The form in which this principle has been expressed might be thought to lend support to the view that the proposition enunciated in the preceding paragraph should be stated so as to require the courts to favour a construction, as far as the language of the legislation permits, that is in conformity and not in conflict with Australia's international obligations. That indeed is how we would regard the proposition as stated in the preceding paragraph. In this context, there are strong reasons for rejecting a narrow conception of ambiguity. If the language of the legislation is susceptible of a construction which is consistent with the terms of the international instrument and the obligations which it imposes on Australia, then that construction should prevail. So expressed, the principle is no more than a canon of construction and does not import the terms of the treaty or convention into our municipal law as a source of individual rights and obligations.

103                                       More recently in Kartinyeri v Commonwealth (1998) 195 CLR 337 (Hindmarsh Island Bridge Act Case), Gummow and Hayne JJ (at [97]) also accepted the principle that:

… a statute of the Commonwealth or of a State is to be interpreted and applied, as far as its language permits, so that it is in conformity and not in conflict with the established rules of international law.

104                                       This approach, as those authorities note, accords with the well established principle that a court will interpret the laws of the Parliament on the basis of a presumption that Parliament did not intend to abrogate human rights and fundamental freedoms unless Parliament makes unmistakably clear its intention to abrogate or suspend such rights and freedoms:  Coco v The Queen (1994) 179 CLR 427 (at 437):

The insistence on express authorization of an abrogation or curtailment of a fundamental right, freedom or immunity must be understood as a requirement for some manifestation or indication that the legislature has not only directed its attention to the question of the abrogation or curtailment of such basic rights, freedoms or immunities but has also determined upon abrogation or curtailment of them. The courts should not impute to the legislature an intention to interfere with fundamental rights. Such an intention must be clearly manifested by unmistakable and unambiguous language. General words will rarely be sufficient for that purpose if they do not specifically deal with the question because, in the context in which they appear, they will often be ambiguous on the aspect of interference with fundamental rights.

105                                       From this it follows, according to the Yindjibarndi, that in the absence of any provisions in the NTA expressly authorising abrogation or curtailment of the fundamental rights and freedoms enshrined in Art 18 and Art 27 of the ICCPR, the Tribunal erred in law by adopting a construction of s 39 NTA that precluded consideration of Mr Woodley’s right in community with other members of the Yindjibarndi to practise his own religion and manifest his religious beliefs and the observances and practises set out above. 

106                                       It is correct, as argued by the Yindjibarndi, that if a statute contains a relevant ambiguity with two or more competing interpretations, a court or administrative decision-maker should favour the interpretation which most accords with (amongst other things) Australia’s obligations under international instruments.

107                                       The difficulty for the appellant is that no ambiguity has been identified.  In the absence of a relevant ambiguity, there can be no scope for considering the relevance of any international instrument such as the ICCPR.  

108                                       Further, assuming some unidentified ambiguity existed, the Yindjibarndi have not articulated how the interpretation adopted by the Tribunal (assuming it adopted an interpretation) was inconsistent with the ICCPR.

109                                       It follows that ground 2 was not a submission of substance which, if accepted, could have affected the outcome and ground 3 falls away.  In any case, the Tribunal does generally address the submission (at [25]) in its reasons and the detail in the reasons would rather support the impression that all of the arguments raised were considered. 

110                                       Grounds 2 and 3 of the appeals fail. 

Ground 4 in WAD 168 of 2009

111                                       The Yindjibarndi have not pursued this ground.

Ground 4 in WAD 161 of 2009 and Ground 5 in WAD 168 of 2009 – Compulsory acquisition

112                                       On the compulsory acquisition ground, the Yindjibarndi contend that if allowed to stand, the effect of the Tribunal’s determination will be that the Commonwealth will, through the operation of s 38 and s 39 NTA, effect a compulsory acquisition of traditional rights and interests on terms which, having regard to the sacred and religious character of those rights and interests, is unjust and contrary to s 51(xxxi) of the Constitution. 

113                                       The Yindjibarndi argue that the principles of liberal construction applicable to s 116 of the Constitution apply equally to s 51(xxxi).  The Yindjibarndi contend that the construction of s 51(xxxi) accordingly involves ‘looking beyond matters of legal form and to the practical effect of the law in question’, to ensure there is no ‘circuitous device’ (such as that observed by Dixon J in Bank of New South Wales v Commonwealth (1948) 76 CLR 1 at 349) where ‘the effect of the federal law was that the banks and their shareholders, in a real sense, albeit not formally, were stripped of the possession and control of their entire undertaking, without compliance with section 51 (xxxi)’: see: ICM per French CJ, Gummow and Crennan JJ at [44] and the cases cited therein. 

114                                       The Yindjibarndi submits that provisions of the NTA, pursuant to which the Tribunal made its decision, and the application of the ‘non-extinguishment principle’ constitute a ‘circuitous device’, pursuant to which, if allowed to stand, the determination of the Tribunal will effectively strip the Yindjibarndi of their right to manage the land, their right to manage the sites on the land, and their right to freely exercise their right to carry out their religious observances.

115                                       Although, it is argued, Pt 2 Div 5 of the NTA sets up a scheme for compensation, the acquisition of such rights as are identified in the religious observances cannot be replaced nor readily compensated by the payment of money and would therefore constitute a breach of s 51(xxxi) of the Constitution.  The Yindjibarndi refer to Wurridjal v Commonwealth (2009) 237 CLR 309 (at [307]-[308]) where Kirby J observed (footnotes omitted):

[307]    At least arguably, "just terms" imports a wider inquiry into fairness than the provision of "just compensation" alone. The latter, measured in monetary value, is objectively ascertainable in most cases. Identifying the "terms" required for an acquisition of property to be "just" invites a broader inquiry. It is one that could cut both ways. Take, for example, acquisition of property during wartime. The acquisition of an interest in property might be essential, temporary and involve very limited federal interference. Such property interests might be controlled by the Commonwealth briefly, for the defence of the nation. So long as proper procedures were instituted and observed and the property owners duly informed and quickly restored to full rights once the danger had passed, "just terms" might require little or no monetary compensation.

[308]    By contrast, however, an acquisition of legal interests in property belonging to traditional Aboriginals, even if only temporary, is not of such a character. Such interests are, or may be, essential to the identity, culture and spirituality of the Aboriginal people concerned. The evidence might ultimately show in this case that they do indeed love their traditional "property" interests in a way that conventional "property" is rarely if ever cherished in the general Australian community. This might oblige a much more careful consultation and participation procedure, far beyond what appears to have occurred here. As stated by Dixon J, the "terms" which s 51(xxxi) guarantees are "concerned with fairness" and potentially the inquiry is a wide one. It is enlivened by the type of Aboriginal "property" affected in consequence of the impugned legislation. As such, the "just terms" requirement of the Constitution arises for consideration. Its application would depend upon evidence, including evidence as to the way the Commonwealth went about the process of "acquisition". Such evidence could only be considered at trial. It is not met by a statutory obligation to pay monetary compensation. Demurrer is not a procedure apt to resolving the resulting question.

116                                       However, it is to be noted that the judgment of Kirby J was in dissent.  While there may be force in what his Honour said, it cannot be regarded as part of the ratio of the decision.  This appears to be acknowledged by the Yindjibarndi in its submissions, noting that Heydon J expressed the view (at [314]) that a submission to the effect that ‘traditional Aboriginal rights and interests in land cannot be readily replaced, nor readily compensated for by the payment of money’ would ‘prima facie have considerable force where the relevant rights and interests were related to spiritual matters, for example use of sacred sites’.  His Honour observed that such a submission appeared to:

…constitute a platform for the contention that since the impugned legislation did not replace the rights and interests allegedly affected with comparable rights and interests, and since money did not adequately compensate their owners, the legislation [would be] invalid without further analysis of the just terms question.

117                                       Heydon J was simply commenting on what appeared to be a submission.  His Honour expressly did not examine the contention. 

118                                       It may be accepted that the Yindjibarndi has RNTRI within the area of the proposed MLAs.  However, the fact of registration of these rights does not establish the existence of the rights (Lardil Peoples v Queensland (2001) 108 FCR 453).  There has not yet been a determination whether native title exists or does not exist in relation to the area and so the fact of the existence of the rights has not been established.  (It is not to the point that the Tribunal assumed at first instance, as it is required to, that the RNTRI exist for the purposes of the inquiry). 

119                                       The Yindjibarndi is now asserting that their rights and interests have been compulsorily acquired as a matter of fact.  For that to have occurred, they must exist as a matter of fact.  That has not been established.

120                                       However, even if that is wrong and it be assumed that the Yindjibarndi hold, as a matter of fact, native title rights and interests or other rights and interests in the relevant areas, there has not yet been any effect on those rights and interests.  Any rights and interests the Yindjibarndi may hold have not been extinguished, diminished or affected in any way.  The only act which will affect those interests would arise when the mining licence is granted.  That effect is, in any event, not a taking of the rights and interests but merely the application of the ‘non-extinguishment principle’.  The application of that principle will not amount to a ‘compulsory acquisition’.

121                                       The grant of the mining leases, if and when it occurs, may ‘affect’ native title if native title exists in the area of the mining lease (which has yet to be determined).  As the proposed MLAs have not yet been granted there has, to date, been no effect on native title associated with proposed MLAs. 

122                                       Further, the grant of the mining leases will be covered by Subdivision M Div 3 of the NTA dealing with acts that could be done in relation to the land concerned if the native title holders instead held ordinary title to it (the freehold test).  No previous subdivision applies to the grant of the mining leases, and the freehold test will be satisfied.  As such, the grant of the mining leases will be ‘valid’, subject only to compliance as necessary with subdivision P which prescribes the negotiation regime: s 24MD(l).

123                                       Subdivision P prescribes additional criteria that must be satisfied for acts to which the subdivision applies to be validated by s 24MD(1).  Subdivision P applies to the grant of the mining lease because it involves the creation of a ‘right to mine’: s 26(1)(c)(i).  To be valid, the grant of the mining lease must therefore comply with the procedures and requirements of Subdivision P: s 25(4) and s 28(1).

124                                       One of the ways of complying with subdivision P is to have a determination under s 38 NTA that the act may be done, with or without conditions: s 28(l)(g).  By itself, a determination has no effect on native title, though if the act in question is done the effect of the determination will be to engage s 24MD(l) so as to ensure the validity of the act.  A determination therefore provides a mechanism for the State to grant a mining lease of full force and effect notwithstanding the protection given to native title by the NTA, especially s 11(1).  A determination, however, does not affect the legislative power of the States in any way.

125                                       A determination, of itself, has no effect on native title.  A determination cannot therefore contravene s 51 (xxxi) of the Constitution.  For a Commonwealth law to contravene this provision, some form of 'property’ or property rights must be ‘acquired’ on other than 'just terms’.  Assuming that native title rights and interests are a form of 'property’ that can be ‘acquired’ within the meaning of s 51(xxxi), there has been no acquisition of any nature here.  In particular, the native title rights and interests (if indeed they exist and are held by the Yindjibarndi) have not been extinguished, adversely affected, or in any way transferred to the Commonwealth or to any other person

126                                       The NTA is not directed towards compulsory acquisition and so is not affected by s 51(xxxi) of the Constitution.

Ground 5 and ground 6 in WAD 161 of 2009 and ground 6 in WAD 168 of 2009

127                                       For each of the appeals, the Yindjibarndi submit that the Tribunal erred in law by drawing erroneous inferences from erroneous findings. 

128                                       In ground 5(a) of WAD 161 of 2009, the Yindjibarndi submit that the Tribunal erred in law in finding that the destruction or interference with sacred stones was highly unlikely. 

129                                       What the Tribunal said on this topic (at [68], [69] and [72]) was as follows:

[68]      The grantee party has provided, in its documents GP57 – GP59 three reports for archaeological surveys of the area which were conducted with the assistance of the Yindjibarndi People. I have read those reports carefully and I do not believe that there is any reference within them to the Gandi talked about in Mr Woodley’s affidavits. It might well be argued it is not surprising that no reference has been made to the stones in those reports, as the Gandi Mr Woodley refers to appear to be scattered at random across the landscape and the Yindjibarndi People participating may not have been required to volunteer all information about areas that they were not specifically requested to address. It also might well be argued that as the purpose of the reports were archaeological rather than ethnographic, the Yindjibarndi’s current use of the area may have been beyond the scope of the reports. The reports do identify a significant number of areas which are both of archaeological and ethnographic importance and recommend that certain sites be avoided or to the extent that they are to be interfered with, that prior consultation take place between the Yindjibarndi and the grantee party. Significantly, a map produced by the grantee party outlining areas where Aboriginal heritage has been identified, has been attached to material provided by the grantee party (GP61). A further report discussed below deals with other sites within the proposed lease area which is the subject of consideration in relation to sites of particular significance later in this determination, being ‘ACHM Project Advice’ dated 21 May 2009 (NTP9).

[69]      The Government party contends that there is little evidence provided by the native title party to the effect that there will be an impact on freedom of access and the conduct of ceremonies. It again refers to the native title party document, NTP4, being the s 31 submission to the Government party, where at 9.1 it is suggested

‘the grant of the mining leases without a negotiated agreement concerning the terms of access by a stranger to their religious domain, will prevent the Yindjibarndi People from carrying out their religious obligations and will thus undermine the sacred principle of reciprocity.’

The Government party contends that even if this did establish that there was some affect on the freedom of access and interference with the conduct of ceremonies, there is no specific evidence in relation to that impact on the area of the proposed lease. The Government party also contends that the first of the extra conditions will ensure that the Yindjibarndi will be able to continue to maintain access to the area of the proposed lease, except insofar as it interferes directly with mining operations. My impression of the evidence from the native title party is that Gandi can be found throughout Yindjibarndi country, including those areas within the proposed lease, but by no means limited to that area. If the Gandi were to be destroyed or interfered with there may well be impact on the capacity of the native title party to conduct ceremonies. However, in my view such destruction or interference is highly unlikely. I have come to that view because the grantee party has conducted comprehensive surveys of the land which has resulted in a considerable amount of information relating to the location of sites and artifacts within the area of the proposed lease and which recommends that no interference could occur without compliance with the AHA requirements and in consultation with the Yindjibarndi. I have been provided with no evidence to suggest that the grantee party will not continue to ensure that it abides by the recommendations that have previously been provided to it, including the need for further consultation with the Yindjibarndi before any mining activities are undertaken. The discussion below relating to s 39(1)(a)(v) is, in my view, directly linked to the question of access for ceremonial purposes and needs to be considered before I can reach conclusions about the extent of the impact of the grant of the proposed lease. 

…

[72]      The caves, as well as a number of other sites and archaeological scatters, have been identified in the three reports that have been provided by the grantee party in its documents (GP57, GP58 and GP59). The place where the Gandi stones are collected has not been documented in those reports. Mr Woodley, in his first affidavit, says at 3.12

‘One of the places where we go each year to collect Gandi is in the area that will be affected by the M47/1413 Tenement that FMG wants’

If there is a specific place where the Gandi stones are found, that place should have been identified in at least one of the three reports conducted by the archaeological consultants on behalf of the grantee party and with participation from members of the native title party. If it was not, it should be in the future and, presumably, it will be protected. As I have said earlier, it appears that the Gandi are found across the Yindjibarndi land. It is not clear to me whether they are scattered randomly across that country, or found in individual localised pockets which can be identified and protected. If it is the former, there may be significant difficulties for the grantee party in overcoming the requirements of the AHA. However, the evidence before me currently, specifically in relation to the proposed lease, is that there is one place within that area where the Gandi are collected. I am concerned about the anomaly created by Mr Woodley’s evidence of the collection of the Gandi on various areas, including the proposed lease, but there being no mention of Gandi in any of the reports. I am prepared to conclude that the numerous caves that Mr Woodley talks about are sites of particular significance to the native title party. The evidence in relation to the Gandi on the proposed lease is insufficiently specific for me to make a determination one way or the other as to their locality, albeit that I accept that if there are Gandi in the vicinity, they are no doubt of particular significance to the Yindjibarndi.  (emphasis added)

130                                       The Yindjibarndi also assert that the Tribunal erred in law by making an erroneous finding:

that the grantee party had conducted comprehensive surveys of the land in respect of Aboriginal sites and artefacts, when the evidence demonstrated that only specific drill lines had been investigated to ensure that FMG’s exploratory drilling did not impact upon the Applicant's sites or artefacts. 

131                                       The Yindjibarndi focuses on the word ‘comprehensive’. 

132                                       The Yindjibarndi object to the inference said to be drawn that the sacred stones ‘appear to be scattered at random across the landscape’.  It is submitted that there was no evidence on which the Tribunal could reasonably draw the inference that if there is a specific place where the Gandi stones are found, that place should have been identified in, at least, one of the three reports conducted by the archaeological consultants on behalf of FMG and with participation from members of the native title party.  The first two archaeological reports were, as the Tribunal noted, reports on Work Program Clearances and the third was a report on a block survey in which, contrary to the finding of the Tribunal, there were no Yindjibarndi participants. 

133                                       Accordingly, the Yindjibarndi submission is that the Tribunal erred when it rejected a submission to the effect that when Mr Woodley states that stones have to be collected annually from specific areas for specific purposes, he implicitly states that they are required to be collected from those areas and no other areas.  The Tribunal rejected that submission on the basis that Mr Woodley had stated in his affidavit evidence that ‘one of the places where we go each year to collect Gandi is in the area that will be affected by the M47/14113’.  The Yindjibarndi consider that the Tribunal erred in rejecting that submission in light of evidence from Mr Woodley concerning the Galharra which was uncontested and which was to the effect that:

… every year before we put our boys through the Birdarra initiation ceremonies, I and other Lawmen must travel to various Ngurra (kin places) in Yindjibarndi country to collect Gandi (sacred stones).  These stones were put in the country by Minkala and the Marrga told us that these are the only stones we can use in the ceremonies.  There are four songs that we sing, to get permission from the Marrga to find, take and use the Gandi.  Those particular songs are secret so I can’t write them down.

One of the places where we go each year to collect Gandi is in the area that will be affected by the M47/1413 Tenement that FMG wants and if FMG is allowed to mine that tenement in the way it says it will destroy the Gandi that are located there.  The important point I want to make is that, even though that is our country, we can’t just go and dig up the Gandi; we must first get permission from the Marrga. 

134                                       Mr Woodley went onto explain that Ganyjingarringunha is a river that runs through Gambulanha and Ganyjingarringunha Yaayu is the eastern part of this river which runs straight through the middle of the proposed MLA M47/1413.  He observed that the particular area of the Ganyjingarringunha Yaayu Wundu ‘is where, each year, we collect the sacred Gandi for use in our Birdarra Law ceremonies’.

135                                       The Yindjibarndi also raised submissions concerning the Tribunal’s inferences in respect of ochre sites but abandoned these on appeal. 

136                                       Ground 6(d) refers to findings reached in respect of the future protection of Aboriginal sites.  The first finding (at [76]) was to the effect that the AHA operates in such a way as to provide for the protection and preservation of a wide range of Aboriginal sites and objects.  At [76], the Tribunal said:

The Tribunal has, on numerous occasions, considered the protective provisions of the AHA. I adopt the Tribunal’s findings in Waljen on this topic (at 209-211). I also adopt the findings of the Tribunal in Maitland Parker and Others on behalf of Martu Idja Banyjima/Western Australia/Derek Noel Ammon, NNTT WO05/753, [2006] NNTTA 65 (2 June 2006), Hon C J Sumner at [33]-[38], [40]-[41] and other cases referred to therein which describe the regulatory regime for the protection of sites. In summary, the AHA provides for the protection and preservation of a wide range of Aboriginal sites (s 5) and objects (s 6). It is an offence to excavate, destroy, damage, conceal, or in any way alter any Aboriginal site (whether on the Register or not) (s 17) without authorisation (s 18), and that offence is punishable by fine, imprisonment, or both. If Ministerial consent to disturb a site is sought under s 18 of the AHA, the Aboriginal Cultural Materials Committee (‘ACMC’) requires the applicant to outline the nature and extent of consultation with key Indigenous stakeholder groups (which include native title parties), outline strategies to minimise impacts on sites and complete a declaration that it has read and understood any heritage survey report tendered in support of the application. Applications will not be considered by the ACMC until sufficient information has been submitted by the applicant.

137                                       As against this, the Yindjibarndi point to the fact that in June 2006, the Department of Indigenous Affairs (DIA) publicly declared that as a result of the human and financial resources within DIA being focussed on the Government priority of progressing applications through the s 18 development approvals process, it was unable to effectively monitor or enforce the State’s heritage protection regime.  This was said to have created the risk of important heritage sites being damaged or destroyed.

138                                       The Yindjibarndi contend that because these documents are part of the public record, the Tribunal ought reasonably know of their contents and therefore the first finding that the risk of danger to the sites was minimal was unreasonable. 

139                                       A further finding attacked was the acceptance by the Tribunal that FMG would understand its obligations under the AHA and that it has complied with them to date.  The Tribunal went on to say (at [78]) that it was satisfied that FMG would continue to do so and take whatever action was necessary to avoid interference with sites of particular significance to the Yindjibarndi in accordance with their traditions.  This finding was also said to be manifestly unreasonable because at the time when the Tribunal made its finding it held it had been given a letter from the Yindjibarndi Aboriginal Corporation to FMG which referred to the unauthorised incursions made by FMG when they bulldozed a significant Aboriginal site which had been surveyed by the Yindjibarndi heritage team who had directed FMG not to disturb the site. 

140                                       As a starting point in relation to these grounds, the power to make orders under s 169(6) NTA is broad, but an ‘appeal’ may be on a question of law only.  Subject to any specific legislative provision authorising the Court to make factual findings, where the subject matter of the appeal is a question or questions of law the Court is not authorised to determine any matter of fact for itself.  The nature of the statutory right of appeal indicates a legislative intention that the final arbiter of factual disputes should be the primary decision making tribunal or body so it would be to usurp the functions vested by Parliament in the Tribunal if the Court were to review a determination by the Tribunal on the ground of the weight given to certain items of evidence.

141                                       ‘Erroneous inferences’ and ‘erroneous findings’ can constitute an ‘error of law’.  But this is only in limited circumstances.  Mason CJ in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 (at 355-356) said (footnotes omitted):

The question whether there is any evidence of a particular fact is a question of law ... Likewise, the question whether a particular inference can be drawn from facts found or agreed is a question of law ... This is because, before the inference is drawn, there is the preliminary question whether the evidence reasonably admits of different conclusions ... So, in the context of judicial review it has been accepted that the making of findings and the drawing of inferences in the absence of evidence is an error of law.

…

But it is said that ‘[t]here is no error of law simply in making a wrong finding of fact’ ... Thus, at common law according to the Australian authorities, want of logic is not synonymous with error of law So long as there is some basis for an inference - in other words, the particular inference is reasonably open - even if that inference appears to have been drawn as a result of illogical reasoning, there is no place for judicial review because no error of law has taken place.

142                                       None of the ‘erroneous findings’ in either matter is expressed in terms of a finding made without evidence.  Ground 6 simply asks the Court to weigh evidence.  This is not permissible on an appeal on a question of law. 

143                                       In relation to the comprehensive survey complaint, what the Tribunal was satisfied of the ‘considerable amount of information’ resulting from the surveys, and the recommendations of the surveys.  This finding was open. 

144                                       FMG did commission multiple surveys over the relevant areas.  At least some of these surveys involved representatives of the Yindjibarndi.  Evidence was available on which the conclusion could properly and reasonably have been based.  If the Tribunal gave undue weight to the evidence, that does not constitute an error of law.

145                                       In relation to the complaint the Tribunal erred when it made the finding that the AHA would have a protective effect, the Tribunal did not find that ‘any sites that are subsequently identified in the proposed lease could be protected under the Aboriginal Heritage Act’.  Rather, it took into account the protective regime consisting of the AHA and other Government measures.  This was entirely appropriate. 

146                                       The Yindjibarndi say this finding was ‘unreasonable’ because of the existence of a document entitled ‘Submissions of the Department of Indigenous Affairs (‘DIA') to the Functional Review Committee established to review DIA, dated June 2006 at 58,107 and certain decisions of the Supreme Court.

147                                       The argument as to ‘unreasonableness’ cannot be accepted.  The Yindjibarndi have not demonstrated any ‘irrationality or illogicality’ in the way in which the Tribunal reached its decision.  The document referred to by the Yindjibarndi was not in evidence before the Tribunal. 

148                                       This ground is not made out. 

Other ‘evidentiary error’

149                                       Ground 5(b) in WAD 161 of 2009 is not pressed by the Yindjibarndi.

150                                       In relation to ground 6(a) in WAD 168 of 2009, the Yindjibarndi stated only ‘this finding [of the Tribunal] was unreasonable and against the weight of the evidence given of Mr Woodley when considered in its entirety’.  This argument does not disclose an error of law.

151                                       In WF09/1118 (at [37]), the Tribunal said, in the context of s 39(1)(a)(ii) NTA (concerning the effect of the act on the way of life, culture and traditions of the native title parties):

I adopt the reasons and findings in [the determination in WF08/31 ] at [60] - [62]. In this circumstance, it is my view that the evidence suggests that there will be some disruption or effect upon the Yindjibarndi's view of the potency and strength of its culture and traditions, but there will be no real or tangible interference with the way of life of the Yindjibarndi native title party.

152                                       The determination in WF08/31119 (at [60]-[62]) discloses evidence upon which the Tribunal could have reached its conclusion.  There was no irrationality or illogicality in the way in which the Tribunal reached its decision.

153                                       In support of the ‘erroneous finding’ identified in ground 6(b) of WAD 168 of 2009, the Yindjibarndi relies on its submissions relating to s 116 of the Constitution and not to an argument of ‘no evidence’. 

154                                       The grounds fail. 

Ground 7 – in WAD 161 of 2009 and WAD 168 of 2009

155                                       In the amended determination, WF08/31, the Tribunal withdrew the initial condition relating to the protection of the four ochre sites.  The Tribunal noted that after requesting its geospatial unit to use the data contained in the document on which the four ochre sites were identified in order to map the sites, it became apparent that all four of the sites were located outside and to the south of the proposed MLAs. 

156                                       The Yindjibarndi suggest that the Tribunal when making its amended determination confused the evidence it had been given by Mr Woodley about the ‘numerous Yamararra (caves) that overlooked the riverbed’ on proposed MLA M47/1413 with the ochre quarries and rockshelters, the subject of another report which the Tribunal assumed (at [73]) were located on the area of proposed MLA M47/1413.  The Tribunal was ‘prepared to conclude that the numerous caves that Mr Woodley talks about are sites of particular significance to the native title party’ (at [72]).  In the original unamended determination, WF08/31, the Tribunal had ‘no doubt that the areas where the ochre quarries and Gandi are located are within the proposed lease and are areas of particular significance’ (at [74]).  Further, the Tribunal observed that although ‘they are unidentified it would seem, if the areas where Gandi are collected within the proposed lease can be identified, they could be protected also’ (at [74]). 

157                                       The Yindjibarndi observe, however, that at no time in either of the applications was the native title party afforded an opportunity to precisely locate the position of the Gandi or the Yamararra in the area of the proposed MLA M47/1413 area; the ochre quarries in the proposed MLA M47/1409 area; or the sacred site in the proposed MLA M47/1411 area.  The Yindjibarndi complain that notwithstanding an opportunity was afforded to the State to clear up an uncertainty as to the underlying tenure and the proposed tenement endorsements, no such opportunity was given to the Yindjibarndi.  Had the opportunity been afforded to the native title party, it may well have resulted in similar conditions as were attached by the Tribunal to the original WF08/31 determination in respect of the four ochre sites also being attached to these equally important sites. 

158                                       The Tribunal in its amended determination summarised the position as follows (at [79]-[80]):

[79]      Notwithstanding my satisfaction as to the likelihood of the grantee party continuing to abide by its obligations at law, on the face of the uncontested, and in the case of the Government party conceded, evidence it did appear to me appropriate to impose a specific condition relating to the protection of the four ochre sites identified in document NTP9 and referred to in [73]. The reason I was inclined to make such a condition was because of my conclusion on the evidence that interference with those four sites, or denial of access to them, would have a particularly injurious effect on the native title party’s capacity to continue to practice its traditional laws and customs and religious obligations. In addition, it appeared from the evidence that those sites were precisely located within the proposed lease area and from what I could glean from the evidence of the grantee party’s intentions, was not likely to interfere with the grantee’s proposed operations. In those circumstances I considered that it was appropriate to impose a condition which would require the grantee party to forbear from any interference with those four sites without the consent of the native title party and to ensure that they were capable of being accessed at all times, save when the safety of the native title party or the grantee, or its employees would be imperilled by permitting such access. However, after requesting the Tribunal’s geospatial unit to use the data contained in NTP9 to map the sites, it became apparent that all four of the sites were located outside and to the south of the proposed lease area. I attach a copy of the memo and map from the Tribunal geospatial unit at Annexure 1.

[80]      The location of these sites outside the area of the proposed lease has two consequences. Firstly, I do not have the power to impose such a condition in relation to the grant of the proposed lease area and secondly, the existence of those particular sites, as identified in NTP9, is only of peripheral relevance to my consideration as to whether the proposed lease should be granted. As a result of the mapping information, I am now quite unclear as to whether, in his affidavits, Mr Woodley is referring to the four particular sites identified in NTP9 or some other ochre sites which have not been identified, which may exist within the area of the proposed lease. There may be ochre sites within the proposed lease area but they are not the sites identified in NTP9. I am not prepared, in any event, to make specific conditions in relation to sites within a proposed lease area which are not precisely located. The additional conditions proposed by the Government party will assist the native title party in ensuring that any such area is protected.

159                                       The Yindjibarndi contends that the Tribunal should, as a matter of procedural fairness, have been given it the opportunity to provide further information concerning:

(a)        the precise location of sites of significance on the proposed lease area in WAD 161 of 2009 (M47/113), namely ‘Gandi or the Yamararra’, and a sacred site; and

(b)        the precise location of ochre quarries on the proposed lease area in WAD 168 of 2009 (M47/1409).

160                                       The State and FMG contend that in both determinations the Yindjibarndi was given ample opportunity to provide evidence and submissions, prior to the determinations being made on the papers, to identify the precise locations of the sites referred to in the previous paragraph, had it wished to do so.  None of the evidence or submissions of the Yindjibarndi identified the precise locations of the sites.

161                                       This opportunity was provided by means of the Tribunal's ‘standard directions’, which were made on 15 December 2008 in the case of WF08/31, and on 16 February 2009 in the case of WF09/1 (together, the Directions).  By those Directions:

(1)        The State and FMG were given an opportunity to provide to the Tribunal and to the Yindjibarndi a ‘statement of contentions’, in particular addressing the criteria relevant to them in s 39 NTA, and a list of all documents or evidence intended to be produced (with copies of the documents being made available to the Tribunal, and, where practicable, the other parties).

(2)        Following the provision of documents by the State and FMG, the Yindjibarndi was to provide to the Tribunal and to the State and FMG, a ‘statement of the effect (if any) of the grant of the proposed mining lease’ upon each of the factors identified in s 39(1)(a) NTA, as well as a statement and any evidence relevant to any of the other factors in s 39(1).

162                                       The State and FMG complied with the relevant direction and provided statements of contentions and documents in support of their contentions to the Tribunal and to the Yindjibarndi.  The contentions and evidence provided are referred to by the Tribunal in its reasons for the determination. The Yindjibarndi complied with the direction applicable to it as follows:

(1)        On or about 26 May 2009 the Yindjibarndi filed a statement of contentions, accompanied by an affidavit of Mr Woodley sworn on 25 May 2009 and eight other annexures.

(2)        Following provision of ‘responsive contentions’ by the State on 3 June 2009, the Yindjibarndi provided, on 24 June 2009, a document entitled ‘Further Contentions of the Native Title Party in reply to the Government Party's Responsive Contentions’.

163                                       At [6.1] of the Yindjibarndi's contentions provided on 26 May 2009, the Yindjibarndi stated that:

It is not proposed, in these contentions, to canvass the affidavit evidence of Michael Woodley ‘in NTP2') about the effect that the Proposed Tenements will have on the exercise and enjoyment of the NTP's native title rights and interests the other [sic] NTA s 39 matters he deposes to in his affidavit. There are two reasons for this: firstly, because the NTP currently wishes to provide further oral evidence on country; secondly, the evidence of Mr Woodley speaks for itself in terms of how Mr Woodley and the NTP view the effects of the Proposed Tenements.

164                                       In an e-mail dated 4 June 2009 the solicitors for the Yindjibarndi provided to the Tribunal and to the parties a further affidavit of Mr Woodley, sworn on 3 June 2009.  The covering e-mail stated:

The enclosed affidavit, with one exception, contains the substance of the evidence that [the Yindjibarndi] sought to give as evidence on country.  The exception relates to the wish of the native title party to demonstrate the current economic, social and living conditions at the local communities of Cheeditha and Ngurrwanna and the village in Roebourne.

165                                       It was decided that the matter would be decided ‘on the papers’ without an ‘on-country hearing’  This was apparently on the basis that the other parties were prepared to concede the gravity of the living conditions of the inhabitants of the said locations at or near Roebourne.  Nothing now turns on this.

166                                       The Yindjibarndi relied on the affidavit of Mr Woodley sworn 3 June 2009.  This affidavit did not contain any information about the specific location of significant sites.  The Yindjibarndi did not pursue the opportunity to provide more detailed information about the location of sites.  At no point did the Yindjibarndi request a further opportunity to provide more detailed information about the location of sites even though this was at all times a part of its ‘case’. 

167                                       It was not necessary for the Tribunal to identify the precise location of the sites.  Having found that the sites did, or were likely to exist on the respective tenement areas, the Tribunal made determinations that the tenements may be granted, subject to conditions designed to avoid or mitigate any impact on those sites.

168                                       In these circumstances it became irrelevant that the Tribunal, in WF09/1, requested clarification from the State about some of the underlying tenure and draft tenement endorsements for M47/1409 and M47/1411.  The State was not given an opportunity to provide extra information that was denied to the Yindjibarndi.  

169                                       It was not the duty of the Tribunal to indicate to the Yindjibarndi any particular flaws or weaknesses in its evidence (assuming the Tribunal was aware of any such weaknesses).  The Tribunal was required only to consider each party's case on the evidence provided (which it did).  It was for the Yindjibarndi to provide and support its case.  There was no denial of procedural fairness.

170                                       Even if the Yindjibarndi were correct in their assertions that it was denied procedural fairness, it is not clear that the outcome would have been any different.  What may have changed is that the Tribunal may have reverted to the original conditions although that is by no means clear, given the Tribunal’s conclusion that any interference with sacred sites would be unlikely.

171                                       It might be said with the benefit of hindsight that if the Tribunal was, in effect to consider amending its determination by removing a condition which, on the correct evidence, did not need to be imposed, the better course would have been to notify all parties in advance and to offer the opportunity to be heard on that course.  However there had been ample opportunity to put a detailed case covering the very issues which may have given rise to the need or otherwise for the imposition of conditions.  Given that the Tribunal is always in a position to seek its own evidence, it would not be every instance in which it did so that a further opportunity to be heard would be necessary in order to afford procedural fairness.  Even if that be the preferable course, in this instance, the substantive outcome would not have been affected in light of the Tribunal’s satisfaction that the risks of which the Yindjibarndi complained were remote in prospect.

172                                       This ground as with all others must fail.

CONCLUSION

173                                       Section 39 NTA expressly requires the Tribunal, in making a determination, to take into account a wide range of matters, including ‘any other matter that the [Tribunal] considers relevant’ (s 39(1)(f)).  In both determinations the Tribunal weighed the evidence in light of the submissions of each of the parties, against each of the statutory criteria in s 39 NTA.  Having done so, the Tribunal determined that the tenements may be granted, subject to conditions designed to avoid or mitigate the effect of the grant of the tenements on the Yindjibarndi’s traditional laws, customs and religious beliefs.

174                                       The Yindjibarndi has not established any basis on which the Tribunal erred on any question of law, in either determination.

175                                       The appeals will be dismissed.

Associate:

Dated:         2 July 2010