FEDERAL COURT OF AUSTRALIA

Hale on behalf of the Bunuba #2 Native Title Claim Group v State of Western Australia [2015] FCA 560

REFERRAL OF QUESTIONs OF LAW FROM THE NATIONal NATIVE TITLE TRIBUNAL

THE COURT ORDERS THAT:

1.    Referred Question 1 is answered “yes”.

2.    Referred Question 2 is answered as follows: “The scope of the inquiry into the expedited procedure objection is concerned with the area of (a) the grant of E04/2327 being the proposed act specified in the s 29 notice”.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REFERRAL OF QUESTIONs OF LAW FROM THE NATIONal NATIVE TITLE TRIBUNAL

REASONS FOR JUDGMENT

1    The National Native Title Tribunal is presently conducting an “inquiry” in relation to an expedited procedure objection application made by the applicant under s 32(3) of the Native Title Act 1993 (Cth) (NTA).

2    Pursuant to s 145 of the NTA, the Tribunal may, on its own initiative or at the request of a party, refer a question of law arising in an inquiry to the Federal Court for a decision.

3    By “special case” filed in the Court on 16 March 2015, the Tribunal, ultimately on its own initiative, has referred two questions of law arising out of this inquiry.

4    In the inquiry before the Tribunal, the applicant is referred to as the objector. The same description will be used in these reasons. In the inquiry, the State of Western Australia is referred to as the Government party. Here it will simply be referred to as the State. In the inquiry, Mings Mining Resources Pty Ltd is called the grantee party. Here it will simply be called Mings.

5    The questions of law referred to the Court and related matters are set out in the special case, as follows.

Special Case

Facts

6    On 12 June 2013, Mings applied for exploration licence 04/2327 (E04/2327). The area applied for was 30 blocks or 9,850.49 hectares.

7    E04/2327 overlapped the Bunuba #2 registered native title claim (WAD 94 of 2012) by less than 0.1 per cent (an area of 3.48 hectares). The balance of the proposed tenement overlapped the area the subject of the determination of native title made by the Federal Court of Australia in Wurrunmurra v State of Western Australia [2012] FCA 1399 (the determination). The Bunuba Dawangarri Aboriginal Corporation RNTBC (BDAC) is the determined prescribed body corporate for this area.

8    The native title claim group on whose behalf the Bunuba #2 claim is brought is the same as the group comprising the common law native title holders pursuant to the determination, except the Bunuba #2 claim group includes persons descended from one additional apical ancestor (Ginyjiwul).

9    Upon grant, subject to the excision, E04/2327 will only overlap the area of the determination in favour of BDAC. It will not overlap the area of the Bunuba #2 registered claim.

10    The State, acting through the Department of Mines and Petroleum, gave notice of the act, being the grant of E04/2327, pursuant to s 29 of the NTA on or about 6 September 2013. The “notification day” was specified as 11 September 2013. The State gave notice of the act to the Bunuba #2 registered claimant (the objector) and to BDAC under cover of letters dated 6 September 2014.

11    The State’s notice included a statement that the State considers the act is an act attracting the expedited procedure pursuant to s 29(7) of the NTA.

12    On 16 December 2013, the the objector lodged an objection with the Tribunal against the inclusion of the expedited procedure statement pursuant to s 32(3) of the NTA.

13    BDAC did not and has not lodged an objection against the inclusion of the expedited procedure statement.

14    On 18 June 2014, the Tribunal constituted by Member Shurven made directions for the conduct of an inquiry into the objector’s expedited procedure objection application.

15    On 21 August 2014, Mings advised the Tribunal and parties that it intended to request the Bunuba #2 claim area be excised from the area to be granted.

16    On 22 August 2014, the Tribunal held a brief hearing and made amended directions for the conduct of the inquiry.

17    By letter dated 29 August 2014, the State advised the Native Title Registrar that it had received a request from Mings on 21 August 2014 to excise the Bunuba #2 claim area from the area to be granted and that it proposed to grant the tenement subject to the excision on or after 12 September 2014.

18    On 29 August 2014, the Tribunal constituted by Member Shurven made a direction that by 3 September 2014, the objector file any submissions in relation to whether the Tribunal retained jurisdiction to proceed with the inquiry in light of the aforementioned excision.

19    On 3 September 2014, the objector, through its solicitors Roe Legal Services, provided submissions to the Tribunal arguing, inter alia, that the Tribunal “retains jurisdiction and further, must make a determination as to whether s 237 of the NTA applies”.

20    The State undertook not to grant the tenement before 10 October 2014, by which date it proposed to and did lodge responsive submissions. To date, the State has not granted the tenement.

21    The objector provided submissions in reply on 24 October 2014.

22    At a listing hearing at the Tribunal on 3 December 2014, the Tribunal proposed and the parties agreed that the Tribunal should refer questions of law to the Court pursuant to s 145 of the NTA.

23    A hearing was held on 9 January 2015 and parties conferred on a statement of facts, which parties had exchanged and discussed between 3 December 2014 and the hearing. The agreed facts are as outlined in [6]-[22] above.

24    The objector has not agreed to withdraw the expedited procedure objection, under s 32(6) of the NTA, or otherwise.

25    The parties could not agree on the specific questions of law to be put to the Court.

26    The Tribunal determined that, in the circumstances, the questions, as outlined at [29] of those reasons, were the ones to be referred to the Court.

27    The Tribunal’s expedited procedure inquiry is in abeyance pending the Court’s decision on the questions of law referred, as per s 145(4) of the NTA.

Matters going to s 145

28    The presiding member of the Tribunal considers that it would assist the fair, just, economical and prompt determination of this matter if the Court made a decision on the questions of law referred.

Statement of the questions of law

29    In the circumstances set out in [6]-[22] above:

(1)    Is the proposed grant of E04/2327, subject to the excision, an act to which the current s 29 notice applies?

(2)    If the answer to Question 1 is “yes”, is the scope of the inquiry into the expedited procedure objection concerned with the area of:

(a)    the grant of E04/2327 being the proposed act specified in the s 29 notice?

(b)    the grant of E04/2327, subject to the excision of the Bunuba #2 claim overlap area? or

(c)    the Bunuba #2 claim overlap area?

Attachments

30    Attachment A to the special case comprises a map and overlap analysis report.

31    Attachment B comprises letters and notice given under s 29(2) of the NTA, including letters to Kimberley Land Council Aboriginal Corporation, BDAC and Mings.

32    Attachment C comprises the objection to inclusion in an expedited procedure application in the form of a Form 4 under the Native Title (Tribunal) Regulations 1993 (Cth), made by the objector.

33    Attachment D comprises what is called the “Excision Letter” whereby the Executive Director, Mineral Titles Division, Department of Mines and Petroleum for the Government of Western Australia advised the Registrar, National Native Title Tribunal, as follows:

The land applied for as Exploration Licence 04/2327 extends less than 0.1% into the Bunuba #2 claim area, being land the subject of the above-mentioned objection. On 21 August 2014 the [Mings] representative wrote to the Department advising that it wished to excise this portion of land from the area to be granted. Excision only becomes effective upon the grant of an application.

The excision will mean that the proposed future act will not include any of the Bunuba #2 claim area.

As the excision will remove all areas of the tenement affected by the abovementioned objection it is the Department’s intention to grant E04/2327 on or after 12 September 2014.

Question 1: is the proposed grant of e04/2327, subject to the excision, an act to which the current s 29 notice applies?

34    The State (whose submissions Mings adopt) submits that this question raises the issue of the State’s compliance with s 29 of the NTA, the implicit suggestion being that the State’s s 29 notice may be defective for not properly describing the relevant “act”, due to the fact that upon excision the area of the proposed tenement will be reduced in size by 0.1%, as described in the facts at [7] and [17] of this judgment.

35    It is said this question is predicated on the Tribunal’s jurisdiction to carry out an inquiry into an expedited procedure objection application, under ss 75 and 139(b) of the NTA, being conditioned by the State’s compliance with s 29. Dann v Western Australia (2006) 208 FLR 357 at [18]-[19]; [2006] NNTTA 126 is referred to. It is further said there is “no binding” Federal Court authority to this effect, and that Walley v Western Australia (1996) 67 FCR 366 only dealt with s 31 of the NTA, concerning normal negotiation procedure.

36    The State therefore submits that whether or not the Tribunal is correct in asking this question, there is no defect with the s 29 notice, and that the proposed grant of E04/2327, subject to the excision, is an act to which the current s 29 notice applies.

37    The State says that the special case does not refer to any alleged defect in the s 29 notice, the Tribunal did not specify any defect during the inquiry process to date, and no party has alleged any defect. However, because of the reference in Question 1 to “the excision”, the only possible defect with the notice is that it does not take into account the proposed excision from the tenement area. In other words, the only possible defect is that the description of the area covered by the proposed tenement may be slightly inaccurate.

38    The State says the tacit implication is that the State should renotify the proposed act under s 29(3) with a revised description of the area affected.

39    The State submits this “alleged defect” does not deprive the Tribunal of jurisdiction to continue with the inquiry.

40    The State submits that if one has regard to the terms and purpose of s 29, it can be seen that it is designed to avoid existing or potential native title claimants and holders not being notified of an act which may affect their interests.

41    The State says that, in this case, all relevant persons have been notified and that any renotification of an amended grant of a proposed tenement would serve no purpose.

42    The State poses the issue by asking the question whether any other prospective native title claimants might have become native title parties if they knew of the proposed change. The answer, it says, is no.

43    The State submits that, applying this test, a reduction in size of a proposed tenement can never result in a disadvantage to a prospective native title claimant because, provided the location of the tenement is known, the group will know whether their asserted native title rights might be affected.

44    The State acknowledges, however, that the situation may be different where the proposed changes are to the location of the tenement.

45    In this case, the State submits, there is no suggestion that any prospective native title claimant or other party has been disadvantaged by the proposed reduction in the size of the proposed tenement.

46    Thus, the answer to Question 1, the State submits, must be yes.

47    In a similar way, more or less for the reasons given by the State, the objector submits that the Tribunal retains its jurisdiction to conduct an inquiry into its objection application, notwithstanding the proposed excision, upon grant, of the ground to which the tenement would relate.

48    Put shortly, the objector submits that despite the proposed excision, the proposed act remains a future act as defined by s 233 of the NTA.

49    In my view, the parties correctly submit that the answer to Question 1 is yes.

50    What has happened is that, in the course of the Tribunal’s inquiry, the State has indicated that, in light of the objection made, it proposes (with Mings’ consent) to grant the tenement in respect of the proposed area less the “excised” area.

51    Accordingly, there is no presently notified “act” which constitutes a proposal to grant a tenement in respect of an area different from that proposed in the s 29 notice.

52    All that the State and Mings have done is indicate a course of action they propose to adopt, which is designed to obviate the need for the Tribunal to conduct the current inquiry.

53    There is, however, no current excision and no “act” that reflects such an excision; there is only a proposed excision which, on one view, may or may not happen. One may assume that the State under the relevant granting legislation has the power to grant the tenement sought, but in respect of a lesser area than that the subject of the application.

54    Thus, the proposed excision is apt to be a misleading factor when it comes to consideration of the current jurisdiction of the Tribunal to determine the objection application before it. The Tribunal is possessed of the power to conduct the inquiry in relation to the objection application currently before it, regardless of the excision proposal.

55    The more relevant question, perhaps, has to do with the function and powers of the Tribunal, as the arbitral body under the NTA, in circumstances where the State, following the commencement of an inquiry of this nature, proposes, with the grantee party’s consent, to actually do the act in a different manner from that notified. That question would appear to underlie Question 2.

56    The answer to Question 1 is yes.

Question 2: If the answer to question 1 is “yes”, is the scope of the inquiry into the expedited procedure objection concerned with the area of: (a) the grant of E04/2327 being the proposed act specified in the section 29 notice; (b) the grant of E04/2327, subject to the excision of the Bunuba #2 claim overlap area; or (c) the Bunuba #2 claim overlap area?

57    It is this question which agitates the parties much more than Question 1.

58    The parties agree that the differences between them, which have led to the Tribunal stating Question 2 in the way that it has, have to do with the text and operation of the expedited procedure provisions of the NTA. It is appropriate to commence by noting these provisions.

59    The NTA by Div 3 of Pt 2 deals with “future acts”. Section 233 defines a future act. It includes an “act” in relation to land or waters if it is an act that takes place on or after 1 January 1994, is not a past act, and apart from the NTA, either validly affects native title in relation to the land or waters to any extent, or is to any extent invalid, and would be valid to that extent if any native title in relation to the land did not exist, and if it were valid to that extent, would affect the native title.

60    This is a challenging definition. It is not in dispute, however, that the proposed grant of the tenement, in this case, is both an “act” and a “future act” as defined. I accept it is.

61    Subdivision P of Div 3 of Pt 2 of the NTA governs what is called the “right to negotiate”. One might surmise that, if there were no such statutory right, a person or group holding or claiming to hold native title to any land or waters the subject of a future act might have been entitled to vindicate that interest by claiming an injunction preventing its infringement. In many respects the right to negotiate has the effect of replacing such a general law right.

62    By s 25(1)(a), Subdiv P applies to certain conferrals of “mining rights”. The expression “mining rights” is not defined in the NTA. It is used in s 25 by way of an “overview” of how the subdivision operates.

63    The subdivision applies in a number of circumstances, as provided for by s 26, including by subs (1) in relation to the creation of a “right to mine”. The expression “right to mine” is not defined, but the word “mine” is defined by s 253 of the NTA and includes, by para (a), the expression “explore or prospect for things that may be mined”. Thus, the expression “right to mine” includes the proposed grant of the tenement in this case.

64    The State acknowledges that the proposed grant of the tenement in this case involves the conferral of a mining right to which the right to negotiate created by Subdiv P applies. There is no dispute about that. The Court accepts this is so.

65    The right to negotiate arises in the following way. Section 29(1) requires that before the “act is done”, the State must give notice of the act in accordance with s 29.

66    By s 29(2), the State must give notice to:

(a)     any registered native title body corporate (a native title party) in relation to any of the land or waters that will be affected by the act; and

(b)     unless there are one or more registered native title bodies corporate in relation to all of the land or waters that will be affected by the act:

(i)     any registered native title claimant (also a native title party); and

Note: Registered native title claimants are persons whose names appear on the Register of Native Title Claims as applicants in relation to claims to hold native title: see the definition of registered native title claimant in section 253.

(ii)     any representative Aboriginal/Torres Strait Islander body;

in relation to any land or waters that will be affected by the act; and

(c)     if the doing of the act has been requested or applied for by a person (for example, where it is the issue of a licence or the grant of a lease for which the person has applied)—that person (a grantee party); and

(d)     the registrar or other proper officer of the arbitral body in relation to the act.

67    In accordance with those requirements, the objector, as a registered native title claimant in respect of land and waters falling within the land and waters that would be affected by the act, as well as the BDAC, the native title holder body corporate for the balance of the land proposed to be affected by the grant of the tenement, were duly notified.

68    Public notification, it may be assumed, was also given in accordance with s 29(3); that is not in issue.

69    The s 29 notice, by s 29(7) may include a “statement that the Government party considers the act is an act attracting the expedited procedure”.

70    Section 29 notices given in this case, including to the objector, state that the Department of Mines and Petroleum considers that the grant of the tenement attracts the expedited procedure pursuant to s 32(1) of the NTA.

71    Section 32 of the NTA deals specifically with the expedited procedure and its full terms should be noted:

(1)    This section applies if the notice given under section 29 includes a statement that the Government party considers the act is an act attracting the expedited procedure (see section 237).

Act may be done if no objection

(2)     If the native title parties do not lodge an objection with the arbitral body in accordance with subsection (3), the Government party may do the act.

Kinds of objection

(3)     A native title party may, within the period of 4 months after the notification day (see subsection 29(4)), lodge an objection with the arbitral body against the inclusion of the statement.

Objections against inclusion of statement

(4)     If one or more native title parties object against the inclusion of the statement, the arbitral body must determine whether the act is an act attracting the expedited procedure. If the arbitral body determines that it is, the Government party may do the act.

Act not attracting expedited procedure

(5)     If the arbitral body determines that the act is not an act attracting the expedited procedure, subsection 31(1) applies as if the notice did not include a statement that the Government party considers the act attracts the expedited procedure.

Withdrawal of objection

(6)     At any time before the arbitral body makes a determination under subsection (4), a native title party may withdraw his or her objection. If all such objections are withdrawn, the Government party may do the act.

Withdrawal of statement about expedited procedure

(7)     At any time before the arbitral body makes a determination under subsection (4), the Government party may, by giving written notice to the negotiation parties, withdraw its statement that it considers the act is an act attracting the expedited procedure. If it does so, subsection 31(1) applies as if the notice did not include such a statement.

72    Section 237 provides that a future act is an act attracting the expedited procedure if:

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

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

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

73    The objector then filed an objection in the form of Form 4 under the Regulations, which included a statement as to why the objector believes that the proposed act is not an act attracting the expedited procedure.

74    Following a preliminary objection on the ground that the objector did not believe the notice met with the requirements of the NTA, the objection was stated to be made on the following grounds:

The objectors have connections to all the country identified on the map which includes E04/2327. These connections include those maintained through hunting game, collecting bush tucker and medicines, as well as visiting and looking after sites. Exploration activity will scare away bush animals especially when people are drilling and using bulldozers. Drilling activity and costeaning will also destroy plants the objectors use for bush tucker and medicines and may also destroy sites. The grant of E04/2327 will significantly impact on the objecting community’s conduct and enjoyment of these activities.

Under the objectors customary law and beliefs people who are not traditional owners need to ask permission to go out on the country affected by E04/2327. Permission and information about this country is held by elders many of whom cannot read, write or interpret maps. The elders can only properly provide permission or further information when they know the intentions of the party and the exact area that will be affected. The grant of E04/2327 without speaking to elders is against the customary law and beliefs of the objectors.

There are artefact scatters in the area of E04/2327 left by the objectors ancestors. These artefacts are not recorded sites and can only be found by close examination of the area in question. These sites are particularly significant because they record the historic activities and movements of the objectors ancestors. The sites are not easily identifiable and require specialist expertise to identify them. The action of driving across country to get to the area of proposed exploration activity as well as the exploration activity itself is likely to destroy these artefact scatters unless they are properly identified, recorded and protected.

(As in original.)

75    It may be noticed that the objector did not limit the grounds of its objection to matters that were confined to the land and waters the subject of the Bunuba #2 native title claim – which, as it transpires only overlaps with the area the subject of the proposed grant of the tenement to the extent of less than 0.1% – but generally to “all the country identified on the map which includes E04/2327”. This may be considered not all that surprising, however, given most of the individual persons who, in effect, comprise the objector hold native title interests, managed by BDAC, in the adjacent area.

76    On the face of it, the grounds of the objection made by the objector are capable of falling under either or both of paras (a) and (b) of s 237.

77    It was in these circumstances that the inquiry of the arbitral body, the Tribunal, into the application by the objector commenced.

78    At this point, a few additional observations might be made about the inquiry.

79    Nowhere in s 32, dealing with the expedited procedure, is the conduct of an “inquiry” by the arbitral body referred to.

80    As may be seen, subs (4) requires the arbitral body to “determine whether the act is an act attracting the expedited procedure” if one or more native title parties object against the inclusion of the statement in the s 29 notice.

81    By s 29(2)(b)(i), the objector, as a registered native title claimant, had the right to object and is thereby ascribed the status of a native title party.

82    Section 27 of the NTA deals with “Arbitral bodies”.

83    By virtue of the operation of s 27(2)(b), because the law of Western Australia has not established an arbitral body, the Tribunal is the arbitral body in respect of the act here in question.

84    So far as inquiries and determinations by the Tribunal are concerned, Div 5 of Pt 6 of the NTA makes provision. Subdivision A deals with “Special inquiries”. Subdivision AA deals with “Native title application inquiries”. Subdivision B – which would appear to be relevant here – deals with “Inquiries – General”.

85    Section 139, within Subdiv B, then provides, relevantly, that:

The Tribunal must hold an inquiry into:

…

(b)     an application covered by section 75 (a right to negotiate application);

86    Division 2 of Pt 3 deals with right to negotiate applications and s 75 contains a table setting out applications that may be made to the Tribunal under that division and the persons who may make each of those applications. The first kind of application listed is an “Expedited procedure objection application” which is described as an:

Application objecting as mentioned in subsection 32(3) against the inclusion of a statement that an act is an act attracting the expedited procedure.

87    The persons who may make such an application are specified as “A native title party”.

88    Therefore it may be seen that, by this elaborate statutory structure, the Tribunal holds an “inquiry” into an “expedited procedure objection application”.

89    By s 141(2), the “parties to an inquiry” in relation to a right to negotiate application are the Government party, the native title parties and the grantee parties. The latter, of course, includes a party such as Mings, to whom a proposed tenement would be granted.

90    While s 139 requires the Tribunal to hold an inquiry in relation to a right to negotiate application, there is no definition or other description of what an “inquiry” entails.

91    One might say that, obviously enough, there needs to be an inquiry, as generally understood, sufficient to enable the Tribunal, as the arbitral body, to determine under s 32(4) whether the act in question is an act attracting the expedited procedure. Again, obviously enough, it would need to receive or obtain information that will enable it to consider that question by reference to the criteria mentioned in paras (a), (b) and (c) of s 237.

92    The Macquarie Dictionary (4th ed) relevantly defines “inquiry” as follows:

noun … 1. An investigation, as into a matter. 2. The act of inquiring, or seeking information by questioning; interrogation.

The Shorter Oxford English Dictionary (5th ed) relevantly defines “inquiry” as follows:

Noun … 1. Investigation, examination … 2. An investigation, an examination, esp. an official one;

93    The common features of an inquiry under each of these dictionary definitions is an investigation or examination of a matter.

94    An arbitral body, under the NTA, is not a judicial body. In this case, the Tribunal plainly is not a body exercising the judicial power of the Commonwealth. It is an administrative body. It is no doubt subject to general law in the conduct of its functions and the exercise of its powers. Accordingly, it would be bound to act fairly and accord what is usually called “procedural fairness” to parties to the inquiry whose rights might be affected by, for example, the determination it must make on the right to negotiate application/expedited procedure objection application, in a case such as the present. See, for example, the decision of the Tribunal in Western Australia v Thomas (1996) 133 FLR 124 at 162; [1996] NNTTA 30.

95    As to how the arbitral body should otherwise go about conducting a required inquiry, the NTA is silent, and the Court is informed by the parties that there are no relevant regulations or other legislative instruments that provide guidance.

96    Ordinarily, one would have thought, given that in determining an expedited procedure objection application the Tribunal must make a determination by reference to the criteria specified in s 237, that no party carries any “onus” to prove anything (as to which see FMG Pilbara Pty Ltd v Yindjibarndi Aboriginal Corporation RNTBC (2014) 227 FCR 182 at [79]; [2014] FCA 1335; Ward v Western Australia (1996) 69 FCR 208 at 217 and, in another context concerning performance of the functions of the Administrative Appeals Tribunal, McDonald v Director-General of Social Security (1984) 1 FCR 354; [1984] FCA 59). However, any party wishing to influence the outcome of the determination may be expected to put appropriate material and make submissions to the Tribunal, and to have the opportunity to question material and submissions put by any other party in that regard, as part of the inquiry conducted by the Tribunal.

97    Because the arbitral body plainly is administrative in nature and not judicial there is no question of it being bound by the laws of evidence, for example. See s 109(3) of the NTA.

98    As to whether the Tribunal may require the provision of information to it to obtain information that it considers relevant to its inquiry, there would appear to be no reason why a body that is required to undertake such an inquiry should not be able to request parties to its inquiry to provide relevant information. The Tribunal may not be able to compel them to do so but it may at least ask them to provide information, particularly information that is within their power or control, and it may be able to obtain information that is in the public domain. See Thomas at 162.

99    The Tribunal might also expect that parties who have information within their power or control would want to provide any relevant information if it exists, and the Tribunal would perhaps be permitted to draw adverse conclusions if, following a request, the information is not provided. See Walley v Western Australia (2002) 169 FLR 437 at [10]; [2002] NNTTA 24.

100    Generally speaking, unlike bodies such as the Administrative Appeals Tribunal or the Refugee Review Tribunal, which have been held by the High Court of Australia not to labour under a general “duty to inquire” in conducting review applications (see Fraser v Minister for Immigration and Border Protection [2015] FCAFC 48 at [15]; Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594 at [20]; [2011] HCA 1; Minister for Immigration and Citizenship v SZIAI (2009) 111 ALD 15 at [25]; [2009] HCA 39), this arbitral body is set up, on this occasion, with the express obligation to conduct an “inquiry” into the expedited procedure objection application coming before it.

101    All these matters are mentioned because they may be relevant to determining the answer to Question 2 as to the “scope of the inquiry”. They confirm that the Tribunal’s function in an inquiry is not limited.

102    On the face of it, by s 32(4), if a native title party has objected against the inclusion of the s 29(7) statement in the notice, “the arbitral body must determine whether the act is an act attracting the expedited procedure”. The fact that there is only one native title objector to the future act in question here, when there potentially could have been two (noting BDAC was also notified but did not lodge an objection), does not necessarily mean that the inquiry is to be limited to that portion of the land or waters the subject of the s 29 notice to which the objector’s native title claim relates.

103    As may be seen from the grounds of objection provided in this case, the objector has not in fact sought to limit its grounds of objection to any particular portion of land or waters within the proposed tenement area and indeed it appears to relate to the whole.

104    On the face of it, therefore, the answer to Question 2 should not be (c), which the State contends is the right answer.

105    The State contends that because it proposes to grant the tenement subject to the objector’s claim area being excised from the grant area, the Tribunal need not consider the objector’s objection, and as BDAC has not objected, there is no relevant objection and the inquiry should, in effect, be terminated with a determination that the expedited procedure is not attracted.

106    The State observes that the criteria specified in s 237, by which a future act may be determined to be an act attracting the expedited procedure, in each case contemplates the act being one that is not likely to involve the relevant criterion in question either “in relation to the land or waters concerned” or “to any land or waters concerned”.

107    In short, the State contends that because an inquiry by the arbitral body arises, and only arises, because of a particular objector’s objection, the “land or waters concerned”, to which s 237 relates, must necessarily be the “land or waters” which overlap the claim or determined area of an objector.

108    In my view, s 32(4), which is fundamental to the arbitral responsibilities that the Tribunal has in this case, is not amenable to such a construction.

109    In the circumstances of any objection, what matters must be considered having regard to the criteria stated in paras (a), (b) and (c) of s 237, is an evidentiary issue guided by the matters put in issue by the objector.

110    Under s 32(4), once there is an objection by a native title party, as there is here, the Tribunal “must determine whether the act is an act attracting the expedited procedure”. It must hold an inquiry to determine the question.

111    The criteria in s 237(a) require the Tribunal to ask whether the grant of the tenement is likely to interfere directly with the carrying on of the community or social activities of the objector in relation to the land or waters concerned – that is to say the land or waters to which the act in question – the grant of the tenement – relates. The same is to be said of the criteria to be regarded in paras (b) and (c).

112    It is always going to be an evidentiary question as to whether or not an objector, even one who only has a registered native title claim over a portion of the land or waters the subject of the proposed act, will be affected in relevant ways by the act.

113    Just because the objector’s standing to object only arises because it is a registered claimant in relation to a portion of land in the proposed tenement area, does not necessarily mean that the act might not interfere directly with the carrying on of the community or social activities of the objector on the land or waters to which they claim native title; or that the act might not interfere with areas or sites of particular significance to them, which are to be found outside the area to which they claim native title, but within the ground the subject of the proposed tenement. In each case, that is the factual question for inquiry and determination by the arbitral body.

114    It is not the function of this Court, particularly in a special case proceeding of this nature, to inquire into such questions of fact.

115    To put the matter shortly, the fact that, at the inquiry before the Tribunal, the State has indicated to the Tribunal that it would propose to grant the tenement in respect of the land or waters currently the subject of the s 29 notice, less the proposed “excised area”, may arguably be relevant to the inquiry to be conducted by the Tribunal. But that would not make redundant the grounds of objection made in any case if the objector, as here, objects that the future act will affect the objector’s interests elsewhere in the proposed tenement area, outside the area in which native title is claimed.

116    Currently the future act which has attracted the s 29 notice includes the land or waters the subject of the objector’s registered native title claim. If that notice was withdrawn and there was a fresh notification given that did not include that area, then it would appear that no requirement would arise under the NTA to notify the current objector and, in such a case, the objector would have no right to object to the act under the NTA. But that is not the case before the Tribunal or this Court for the purpose of this reference.

117    A subsidiary question, on which neither counsel for the State nor the objectors were able to provide assistance to the Court, may be whether the Tribunal would be entitled, in any event, to make a determination that the act is an act attracting the expedited procedure on the condition that the act to be done will not include the so called overlap area which is the subject of the objector’s registered native title claim.

118    Because that is not a question of law referred to the Court, and no party has made submissions about it, the Court should not attempt to answer it. It is not for this Court to give advisory opinions or indeed advice as to how the Tribunal, or any party or parties should act. The Court should confine itself to answer the two questions asked, and no more.

119    The answer to Question 2 is as follows:

The scope of the inquiry into the expedited procedure objection is concerned with the area of (a) the grant of E04/2327 being the proposed act specified in the s 29 notice.

Associate:

Dated:    5 June 2015