FEDERAL COURT OF AUSTRALIA Holt v The Hon. Daryl Manzie [2001] FCA 627 ABORIGINES – native title – future acts – proposal to grant rights to mine – notification of parties affected –inclusion of expedited procedure statement – whether giving notice and including expedited procedure statement are reviewable discussions. ADMINISTRATIVE LAW – judicial review – notice pursuant to s 29 of the Native Title Act – whether giving notice and inclusion of expedited procedure statement are reviewable decisions. Administrative Decisions (Judicial Review) Act 1977 (Cth) Native Title Act 1993 (Cth) Part 2, Division 3, Subdivision P Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 JIMMY HOLT v THE HON. DARYL MANZIE MLA, NORTHERN TERRITORY MINISTER FOR RESOURCE DEVELOPMENT & NORTHERN TERRITORY OF AUSTRALIA N 1271 of 2000 OLNEY J DARWIN 5 JUNE 2001 IN THE FEDERAL COURT OF AUSTRALIA NORTHERN TERRITORY DISTRICT REGISTRY N 1271 OF 2000 BETWEEN: JIMMY HOLT APPLICANT AND: THE HON. DARYL MANZIE MLA, NORTHERN TERRITORY MINISTER FOR RESOURCE DEVELOPMENT FIRST RESPONDENT NORTHERN TERRITORY OF AUSTRALIA SECOND RESPONDENT JUDGE: OLNEY J DATE OF ORDER: 5 JUNE 2001 WHERE MADE: DARWIN THE COURT ORDERS THAT: 1. The application be dismissed. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA NORTHERN TERRITORY N 1271 OF 2000 DISTRICT REGISTRY BETWEEN: JIMMY HOLT APPLICANT AND: THE HON. DARYL MANZIE MLA, NORTHERN TERRITORY MINISTER FOR RESOURCE DEVELOPMENT FIRST RESPONDENT NORTHERN TERRITORY OF AUSTRALIA SECOND RESPONDENT JUDGE: OLNEY J DATE: 5 JUNE 2001 PLACE: DARWIN REASONS FOR JUDGMENT Preface 1 In July 1998, at about the same time as the Australian Parliament was grappling with amendments to the Native Title Act 1993 (the Native Title Act) arising out of the High Court's decision in Wik Peoples v Queensland 187 CLR 1, the Nisga'a people of British Colombia concluded a Final Agreement with the Canadian and British Columbian governments in settlement of a 111 year struggle for recognition of their claim to their traditional land in the Nass Valley B.C. The long and tortuous process which had led to the agreement is recounted by Tom Molloy QC, the Chief Federal Negotiator involved in the negotiations, in his book The World Is Our Witness (Fifth House Ltd, 2000). In discussing the work of a bilateral Canada/British Colombia committee whose task was to establish a legal technique for achieving certainty in the Nisga'a Final Agreement without requiring the surrender of aboriginal rights and title, Molloy says (at pp 62-3) It was one of the most important working groups, since it found a way to achieve certainty as no other process or negotiations had. The term "certainty," though perhaps employed unconventionally in this context, can be defined as any standard dictionary would define it: undoubted, a thing that may be relied on. As the Preamble to the Final Agreement states, "The Parties intend that this Agreement will provide certainty with respect to ownership and use of lands and resources, and the relationship of laws, within the Nass Area." Indeed, as an information sheet produced by the Federal Treaty Negotiation Office in Vancouver makes clear, the Final Agreement "provides all Canadians with certainty as it relates to lands and resources originally claimed by the Nisga'a and to the relationship between federal, provincial and future Nisga'a laws. Unlike their Canadian counterparts, successive Australian governments have not chosen to go down the path of settling indigenous land claims through negotiated comprehensive agreements. Whether or not the Native Title Act provides the most appropriate scheme for dealing with indigenous land claims in the context of Australia's somewhat different history is a matter for debate but whatever view is taken on that question, it may fairly be said that despite the most earnest intentions of our legislators, the Native Title Act does not always deliver certainty. This case provides an example of that deficiency. Future Acts and Native Title 2 Division 3 of Part 2 of the Native Title Act bears the heading "Future acts etc and native title". The initial section of the Division (to the extent that it is presently relevant) provides: 24AA Overview Future acts (1) This Division deals mainly with future acts, which are defined in section 233 . Acts that do not affect native title are not future acts ; therefore this Division does not deal with them (see section 227 for the meaning of acts that affect native title). Validity of future acts (2) Basically, this Division provides that, to the extent that a future act affects native title, it will be valid if covered by certain provisions of the Division, and invalid if not. The definition of the term a future act in s 233 is not without complexity but it can safely be asserted that the granting of a licence, permit or authority to explore for and/or mine minerals or petroleum would constitute a future act to the extent that native title is affected. So much is not in issue between the parties to this proceeding. In a case where there has been a determination that native title exists, and accordingly (as required by s 225(b)) a determination of the nature and extent of the native title rights and interests in relation to the area of land or waters to which the determination applies, it may be possible to predict whether or not a proposed act will affect the native title, and thus some assessment may be made as to whether the act is a future act. But when there has been no determination as to the existence, or the nature and extent, of native title in relation to a particular area, except in the most unambiguous cases of extinguishment, the spectre of invalidity will inevitably be present unless certain statutory procedures are observed. In the present case the relevant procedures are those contained in Subdivision P of Division 3 of Part 2 of the Act (ss 25 to 44) which applies to a future act done by the Commonwealth, a State or a Territory (the Government party) if the future act is, inter alia, the creation of a right to mine, which includes a right to explore or prospect for things that may be mined (s 26(1)(c); s 253). The Right to Negotiate 3 This proceeding has to do with the Subdivision P procedures relating to what the Native Title Act conveniently calls the right to negotiate. Specifically, the matters in issue arise from the intention of the first respondent, in the exercise of his Ministerial functions under the Northern Territory Mining Act, to grant a number of applications for exploration licences, mineral claims and petroleum exploration permits. Central to the issues raised are the provisions of s 29 of the Native Title Act and those of clauses 3, 6 and 7 of the Native Title (Notices) Determination 1998 (the Notices Determination). The relevant parts of those provisions are set out below: Native Title Act 29. (1) Before the act is done, the Government party must give notice of the act in accordance with this section. (2) The Government party 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 (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. (3) Before the act is done, the Government party or the grantee party must also notify the public in the determined way (see section 252) of the act, unless there is a registered native title body corporate in relation to all of the land or waters that will be affected by the act. (4) The notice given under subsection (2) or (3) must: (a) specify a day as the notification day for the act; and (b) contain a statement to the effect that, under section 30, persons have until 3 months after the notification day to take certain steps to become native title parties in relation to the notice; and (c) be accompanied by any prescribed documents and include any prescribed information. (5) Each such notice in relation to the act must specify the same day as the notification day. (6) That day must be a day by which, in the Government party's opinion, it is reasonable to assume that all notices under subsections (2) and (3) in relation to the act will have been received by, or will otherwise have come to the attention of, the persons who must be notified under those subsections. (7) The notices under this section may include a statement that the Government party considers the act is an act attracting the expedited procedure. (8) Notice to the public under subsection (3) of 2 or more acts to which this Subdivision applies may be given in the same notice. [Section 252(1) defines notify the public in the determined way to mean "give notice in the way determined by the Commonwealth Minister for the purposes of the provision in which the expression is used." The Notices Determination was made pursuant to this power on 29 August 1998.] Native Title (Notices) Determination 3. In this determination: Act means the Native Title Act 1993. relevant special-interest publication means a newspaper or magazine that: (a) caters mainly or exclusively for the interests of Aboriginal peoples or Torres Strait Islanders: and (b) circulates in the geographical area that may be affected by the act or, if the area is an offshore place, the geographical area closest to it; and (c) is published at least once a month. …… 6. (1) Notice under a provision of the Act mentioned in subclause (2) must be published: (a) by advertisement in 1 or more newspapers that circulate generally throughout the area to which the notice relates or, if the area is an offshore place, the geographical area closest to it; and (b) in a relevant special-interest publication. (2) The provisions of the Act are: …… (f) subsection 29 (3) (notification of parties affected); …… (5) Notice under subsection 29 (3) of the Act must include: (a) a clear description of the area that may be affected by the act; and (b) a description of the nature of the act; and (c) the name and postal address of the person by whom the act would be done; and (d) a statement of how further information about the act can be obtained. …… 7. (1) In addition to notice being given in accordance with clause 6, notice under a provision of the Act mentioned in subclause 6 (2) may also be given by broadcasting information about the content of the notice by means of a radio broadcasting service or a television transmission service that serves the geographical area within which the land or waters that may be affected by the act or class of acts is located. (2) Notice under subclause (1) must include the following information: …… (c) for a notice under subsection 29 (3) of the Act: (i) identification of the area that may be affected by the act; and (ii) the general nature of the act; and (iii) the name and postal address of the person by whom the act would be done; and (iv) how further information about the act can be obtained; …… 4 Sections 31 and 32 of the Native Title Act deal with the "Normal negotiation procedure" (s 31) and the "Expedited procedure" (s 32). Section 31 applies in circumstances when a notice under s 29 does not include a statement that the Government party considers the act is an act attracting the expedited procedure and sets out certain obligations that are imposed in relation to negotiation. The object of such negotiations is to reach agreement concerning the doing of the act (s 31(1)(b)). Other sections deal with procedures that are open if a negotiated agreement is not forthcoming. Section 32 provides: 32.(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 s 237). (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. (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. (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. (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. (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. (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. Section 237 provides: 237. A future act is an act attracting the expedited procedure if: (a) the act is not likely to interfere directly with the carrying on of the community or social activities of the persons who are the holders (disregarding any trust created under Division 6 of Part 2) of native title in relation to the land or waters concerned; and (b) the act is not likely to interfere with areas or sites of particular significance, in accordance with their traditions, to the persons who are the holders (disregarding any trust created under Division 6 of Part 2) of the native title in relation to the land or waters concerned; and (c) the act is not likely to involve major disturbance to any land or waters concerned or create rights whose exercise is likely to involve major disturbance to any land or waters concerned. 5 The foregoing will assist in better understanding the circumstances which will avoid the occasion for a future act that affects native title being invalid as to which s 28(1) provides: 28.(1) Subject to this Act, an act to which this Subdivision applies is invalid to the extent that it affects native title unless, before it is done, the requirements of one of the following paragraphs are satisfied: (a) by the end of the period of 4 months after the notification day for the act (see subsection 29(4)), there is no native title party in relation to any of the land or waters that will be affected by the act; (b) after the end of that period, but immediately before the act is done, there is no native title party in relation to any of the land or waters that will be affected by the act; (c) subsection 32 (2) (which applies if no objection is made after the giving of a notice that the act attracts the expedited procedure) allows the act to be done; (d) a determination is made under subsection 32(4) that the act is an act attracting the expedited procedure; (e) native title parties have lodged one or more objections in relation to the act under subsection 32(3), but all such objections are withdrawn under subsection 32(6); (f) an agreement of the kind mentioned in paragraph 31(1)(b) is made; (g) a determination is made under sections 36A or 38 that the act may be done, or may be done subject to conditions being complied with; (h) a determination that the act must not be done is declared to be overruled in accordance with section 42. 6 Before entering upon consideration of the issues raised in this application it is worth observed that the Notices Determination appears to have been drafted upon the unstated assumption that at every place in Australia there is in circulation a publication which meets the requirements of the definition of relevant-special interest publication and further it is assumed that throughout the whole country there will always be at least one newspaper in circulation. Such assumptions do not reflect the geographic and demographic reality of vast areas of the continent. As the right to negotiate procedures are dependent upon compliance with the determined notification provisions, the false assumptions upon which those provisions are predicated will in many instances effectively frustrate the operation of s 28(1). The Application 7 The application is brought by the applicant as a representative party pursuant to Part IVA of the Federal Court of Australia Act 1976. The group members to which the proceeding relates are described (in paragraph 2 of the application) as all persons who are, or may be, native title holders as defined in s 224 of the Native Title Act in relation to any of the lands or waters, not being Aboriginal land under the Aboriginal Land Rights (Northern Territory) Act 1976,who may be affected by any application lodged under the Mining Act of the Northern Territory at the date of the application in respect of which Sub-division P of Division 3 of Part 2 of the Native Title Act applies or will apply. The applicant asserts that he and the group members are aggrieved by "the notice decisions" and "the expedited procedure decisions" referred to in paragraph 3 of the application, "because their ability to protect the native title interests in the land or waters referred to in the decisions are (sic) affected by them" 8 In paragraph 3 of the application the applicant claims review of: (a) the decisions set out in Schedule A and conduct of the first respondent by which the first respondent gave notice of his intention to do an act, namely the creation of a right to mine for the purposes of s 26 of the Act referred to in the decisions (the notice decisions); (b) the decisions and conduct of the first and/or second respondents in respect of those applications for exploration licenses set out in Schedule A by which the first respondent determined to include a statement under s 32 of the Act in the said notices that the second respondent considers that the granting of those exploration licenses is an act attracting the expedited procedure defined in s 237 of the Native Title Act (the expedited procedure decisions); (Schedule A to the application sets out in tabular form a list of 122 items. Each item refers to an application under the Mining Act (NT) for the grant of either an exploration licence, a mineral claim or a petroleum exploration permit.) 9 The grounds upon which relief is sought (as expressed in paragraph 4 of the application as amended) are: (1) That procedures that were required by law to be observed in connection with the making of the notice decisions were not observed, in that: (a) s 29(3) of the Act requires that the public be notified in the determined way of the act unless there is a registered native title body corporate in relation to all of the land that will be affected by the act; (b) there was no registered native title body corporate in relation to any of the lands; (c) clause 6(5) of the Native Title (Notices) Determination 1998 requires that such notice must include "a clear description of the area that may be affected by the act"; (d) the published advertisements did not include a description which complied with that requirement; (e) no notice was published in a relevant special-interest publication; (f) notice was not given by broadcasting pursuant to clause 7 of the Native Title (Notices) Determination 1998; and (g) by virtue of s 25(4) of the Act such a failure to comply with procedures invalidates the act to the extent that it affects native title. (2) That the notice decisions were invalid, in that: (e) the decisions incorporated the expedited procedure decisions, which are void for the reasons particularised below. (iii) The procedures that were required by law to be followed in making the expedited procedure decisions were not followed, in that a notice under section 29 of the Act could only include an expedited procedure statement if the first and second respondents had considered whether the act was an act attracting the expedited procedure, and neither the first nor the second respondent had given proper, genuine and realistic consideration to that issue. (iv) The expedited procedure decisions were an improper exercise of the power in that: (aa) the first respondent failed to take relevant considerations into account, namely the matters specified in paragraphs 237 (a), (b) and (c). (b) [At trial counsel for the applicant announced that subparagraph 6(b) was not pressed and accordingly is not reproduced in these reasons] (c) the power was exercised in accordance with a rule or policy that such a statement would be included in all the notice decisions which relate to applications for exploration licences, without regard to the question of whether the particular act is an act attracting the expedited procedure; (i) the decisions were so unreasonable that no reasonable person could have so exercised the power. (The absence of consecutive numbering of the above paragraphs and sub-paragraphs arises from the amendment to the application as originally filed). The applicant invokes the jurisdiction of the Court under: (a) the Administrative Decisions (Judicial Review) Act 1977; (c) s 39B of the Judiciary Act 1903, in that the matter arises under laws made by the Commonwealth Parliament; (d) the associated and accrued jurisdictions; and seeks: (i) a declaration that each decision is void; (ii) an order setting aside each decision; (iii) in the alternative, an order setting aside each expedited procedure decision; (iv) an order restraining the respondents from granting any exploration or mining interest, or making any other determination consequent on the notice decisions or the expedited procedure decisions; (v) such further or other orders as to the Court seems fit; (vi) costs. 10 The respondents have filed a notice of objection to competency in which they object to the jurisdiction of the Court to try the application for an order of review under the Administrative Decisions (Judicial Review)Act 1977 on the grounds that: 1. The applicant is not a "person who is aggrieved" within the meaning of the Administrative Decisions (Judicial Review) Act. 2. All, or in the alternative some, of the group members described in paragraph 2 of the application are not "persons who are aggrieved" within the meaning of the Administrative Decisions (Judicial Review) Act. 3. The "notice decisions" described in paragraph 3 (a) of the application are not decisions to which the Administrative Decisions (Judicial Review) Act applies. 4. The "conduct" described in paragraph 3(a) of the application is not conduct for the purpose of making a decision to which the Administrative Decisions (Judicial Review) Act applies. 5. The "expedited procedure decisions" described in paragraph 3(b) of the application are not decisions to which the Administrative Decisions (Judicial Review) Act applies. 6. The "conduct" described in paragraph 3(b) of the application is not conduct for the purpose of making a decision to which the Administrative Decisions (Judicial Review) Act applies. 11 The proceeding was tried in Darwin on 24 and 26 April 2001. Affidavit evidence was adduced by the applicants and the respondents. In addition, the applicant tendered four volumes of documents as to which only minor objection was taken by the respondents. The only objections to the affidavit evidence were based on the relevance of the materials in question. Much of evidence adduced was rendered irrelevant by reason of successive amendments made to the application as originally filed. The issues which remain for determination by the Court are not dependent upon any contentious question of fact. The Facts 12 The evidence establishes that: (i) On 6 September 2000 and thereafter at fortnightly intervals until 29 November 2000, the first respondent caused to be published in the Northern Territory News and in the Koori Mail, a series of advertisements giving notice of his intention to grant the various applications for exploration licences, mineral claims and petroleum exploration permits identified in Schedule A to the application. (On 1 November 2000 two separate notices were published: one referring only to exploration licence applications, the other to petroleum exploration permit applications). (ii) Omitting the particulars of the applications referred to, each notice advertised in the Northern Territory News in relation to exploration licence applications was in the following form: NOTICE OF PROPOSED GRANT OF EXPLORATION LICENCES MINING ACT (NT) SECTION 163 NATIVE TITLE ACT 1993 (CTH) SECTION 29 The Northern Territory Minister for Resource Development, c/- Department of Mines and Energy, GPO Box 2901 DARWIN, NT 0801, hereby gives notice in accordance with section 163 of the Mining Act (Northern Territory) and section 29 of the Native Title Act 1993(Commonwealth) of his intent to do an act, namely to grant the following exploration licence(s) in accordance with the application(s) made therefor. [Particulars of the applications to which the notice is intended to apply are provided] Nature of act(s): Grant of an exploration licence(s), under the Mining Act which authorises the holder to explore for minerals for a term of 6 years from the date of grant and to seek renewal(s). Further information about the act may be obtained from the Department of Mines and Energy, GPO Box 2901, Darwin NT 0801 or Centrepoint Towers 48 – 50 Smith St, Darwin, telephone (08) 89 995213. Native Title Parties: Any person who is, or becomes a "native title party" within the meaning of the Native Title Act is entitled to the negotiation and/or procedural rights provided in Part 2, Division 3, Subdivision P of the Native Title Act. Under section 30 of the Native Title Act, persons have until 3 months after the notification day to take certain steps to become native title parties in relation to this notice. Enquiries concerning becoming a native title party should be directed to the National Native Title Tribunal, Level 5, NT House, 22 Mitchell Street Darwin NT 0800 or GPO Box 9973, Darwin NT 0801, telephone (08) 89361600. Expedited Procedure: The Northern Territory Government considers that the act(s) is an act(s) attracting the expedited procedure as defined in Section 237 of the Native Title Act. The exploration licence(s) referred to in this notice may be granted unless an objection is made by a native title party to the statement that the act is one which attracts the expedited procedure. Such an objection must be made to the National Native Title Tribunal within 4 months of the notification day. Objection or Comment Section 163 of the Mining Act: The owners or occupiers of land in respect of which the above application(s) are made may, not later than 2 months after the notification day, lodge in writing with the Department of Mines and Energy at the above mentioned address, an objection to the grant of the application(s). Any other person may, within 2 months after the notification day, lodge in writing with the Department comments on the grant. Notification day: [In each case the notification date is the same date as the date of the newspaper] (iii) In the case of the notices advertised in the Koori Mail no reference is made to the Mining Act (NT) and the whole paragraph headed "Objection or Comment Section 163 of the Mining Act" is omitted. (iv) The notices published in respect of applications for mineral claims differ only to the extent that they contain no reference to the expedited procedure and the information following the heading "Nature of act(s)" refers to the nature of a mineral claim. Similar appropriate changes were made to the form of the notice in respect of applications for petroleum exploration permits to accommodate the provision of the Petroleum Act (NT). The expedited procedure statement does not appear in the petroleum permit notices. (v) In no case was there at the relevant time (a) any registered native title body corporate in relation to any of the land or waters that would be affected by any of the applications: (b) any registered native title claimant in relation to any of the land or waters that would be affected by any of the applications. (vi) All of the applications referred to in the notices relate to land or waters within an area for which either the Northern Land Council or the Central Land Council is the representative Aboriginal/Torres Strait Islander body. (vii) In each case notice was given to: (a) either the Northern Land Council or the Central Land Council as the relevant representative Aboriginal/Torres Strait Island body (depending on the location of the land and waters affected by the application); (b) the person or other body who made the application. (viii) The Northern Territory News is a newspaper which circulates generally throughout each of the areas to which each of the published notices relates. (ix) The Koori Mail is a newspaper or magazine that (a) caters mainly or exclusively for the interests of Aboriginal peoples or Torres Strait Islanders; (b) is published at least once a month. (x) Apart from the Koori Mail, there is no other newspaper or magazine that caters mainly or exclusively for the interests of Aboriginal peoples or Torres Strait Islanders and which is published at least once a month circulating in the Northern Territory. (xi) In no case was notice given by broadcasting the information about the content of the notice by means of a radio broadcasting service or a television transmission service. (xii) The national distribution of the Koori Mail is approximately 8000 copies per fortnight, of which approximately 430 copies are distributed in the Northern Territory. There are approximately 140 subscribers in the Northern Territory which account for 165 copies. The regional distribution of the publication is as follows: (a) Darwin: 65 subscriptions, 75 copies (b) Alice Springs: 45 subscriptions (15 in outlying areas), 60 copies. (c) "Top End" centres (Jabiru, Katherine, Nhulunbuy, Batchelor and Tennant Creek): 20 subscriptions, 20 copies. (d) Outlying mainland areas (Yirrkala, Peppimenarti, Numbulwar, Port Keats and Milingimbi): 8 subscriptions, 8 copies. (e) The remainder of the copies distributed in the Northern Territory are distributed to newsagents and stores in Darwin (144 copies), Alice Springs (49 copies), Katherine (15 copies), Nhulunbuy (28 copies) and Tennant Creek (15 copies). (xiii) Each notice contains a description of the area that may be affected by the proposed future acts. The method of describing each such area varies. In most cases only a verbal description is used in which reference is made to a distance from a particular place; in others a sketch is also provided. In each case the geophysical co-ordinates (latitude and longitude) of the "centroid" of each area are provided. The Objection to Competence 13 The Administrative Decisions (Judicial Review) Act 1977 applies to: a decision of an administrative character made, proposed to be made, or required to be made, as the case may be (whether in the exercise of a discretion or not) under an enactment, other than a decision by the Governor-General or a decision included in any of the classes of decisions set out in Schedule 1. (s 3(1)). The Federal Court has jurisdiction to review a decision to which the Act applies upon the application of a person aggrieved by the decision (s 5, s 7). The Court also has jurisdiction to review the conduct of a person who has engaged, is engaged, or proposes to engage, in conduct for the purpose of making such a decision (s 6). In each case the grounds upon which an order of review may be sought are expressed in substantially similar terms and include each of the grounds raised in the application, notably: * that procedures that were required by law to be observed in connection with the making of the decision were not observed (s 5(1)(b)); * that the making of the decision was an improper exercise of the power conferred by the enactment in pursuance of which it was purported to be made (s 5(1)(e)). In respect of the latter ground s 5(2) provides that the reference in s 5(1)(e) to an improper exercise of power shall be construed as including a reference inter alia to · failing to take a relevant consideration into account in the exercise of a power (s 5(2)(b)); · an exercise of a discretionary power in accordance with a rule on policy without regard to the merits of the particular case (s 5(2)(f)); and · an exercise of a power that is so unreasonable that no reasonable person could have so exercised the power (s 5(2)(g)). 14 The Mining Act (NT) authorises the Minister responsible for the administration of the Act to grant, inter alia, applications for exploration licences (s 16) and applications for mineral claims (s 86). A similar power is conferred by s 20 of the Petroleum Act (NT) in respect of applications for petroleum exploration permits. Any decision made by the first respondent to grant any of the applications referred to in Schedule A to the application would not be a decision to which the Administrative Decisions (Judicial Review) Act applies being a decision made under an Act of the Northern Territory Parliament. The Native Title Act is an Act of the Commonwealth Parliament and accordingly any decision of an administrative character made under it is susceptible to review pursuant to the Administrative Decisions (Judicial Review) Act. 15 The question of what amounts to a decision to which the Administrative Decisions (Judicial Review) Act applies has been the subject of numerous judicial decisions, the most authoritative of which is that of the High Court in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321. The Court has frequently been referred to the dictum of Mason CJ at p 337 of the report which is summarised in the headnote in these terms: Per curiam. (1) For a determination to be a reviewable decision it will generally, but not always, entail a decision required by or authorised by a statute which is final or operative and determinative, at least in a practical sense, of the issue of fact falling for consideration. (2) A conclusion reached as a step along the way in a course of reasoning leading to an ultimate decision will not ordinarily be a reviewable decision unless the statute provides for the making of a finding or ruling on that point so that the decision, though an intermediate decision, might accurately be described as a decision under an enactment. Whilst there can be no doubt that the headnote accurately reflects the High Court's view, it is nevertheless helpful to look to the context in which this conclusion was arrived at. In particular I refer to the following extracts from the reasons of Mason CJ at pp 335 – 337. The definition in s 3(1) does not elucidate significantly the meaning of the word "decision" as it is used in the AD(JR) Act. It is clear that a "decision to which this Act applies" must be a decision of an administrative character, that it may be made in the exercise of a discretion, and that is must be made under an enactment. But these characteristics provide little guidance as to the meaning of the word "decision" upon which the definition in s 3(1) is based. …… The fact that the AD(JR) Act is a remedial statute providing for a review of administrative action rather than some form of appeal from final decisions disposing of issues between parties indicates that no narrow view should be taken of the word "decision". In this respect it is significant that s 5 does not speak of "final decision" ……. Nonetheless other considerations point to the word having a relatively limited field of operation. First, the reference in the definition in s 3(1) to "a decision of an administrative character made…under an enactment" indicates that a reviewable decision is a decision which a statute requires or authorizes rather than merely a step taken in the course of reasoning on the way to the making of the ultimate decision. Secondly, the examples of decision listed in the extended definition contained in s 3(2) are also indicative of a decision having the character or quality of finality, an outcome reflecting something in the nature or a determination of an application, inquiry or dispute or, in the words of Deane J., "a determination effectively resolving an actual substantive issue". Thirdly, s 3(3), in extending the concept of "decision" to include "the making of a report or recommendation before a decision is made in the exercise of a power", to that extent qualifies the characteristic of finality. Such a provision would have been unnecessary had the Parliament intended that "decision" comprehend every decision, or every substantive decision, made in the course of reaching a conclusive determination. Finally, s 3(5) suggests that acts done preparatory to the making of a "decision" are not to be regarded as constituting "decisions" for, if they were, there would be little, if any, point in providing for judicial review of "conduct" as well as of a "decision". The relevant policy considerations are competing. On the one hand, the purposes of the AD(JR) Act are to allow persons aggrieved by the administrative decision-making processes of government a convenient and effective means of redress and to enhance those processes. On the other hand, in so far as the ambit of the concept of "decision" is extended, there is a greater risk that the efficient administration of government will be impaired…….To interpret "decision" in a way that would involve a departure from the quality of finality would lead to a fragmentation of the processes of administrative decision-making and set at risk the efficiency of the administrative process. The policy arguments do not, in my opinion, call for an answer different from that dictated by the textual and contextual considerations. That answer is that a reviewable "decision" is one for which provision is made by or under a statute. That will generally, but not always, entail a decision which is final or operative and determinative, at least in a practical sense, of the issue of fact falling for consideration. A conclusion reached as a step along the way in a course or reasoning leading to an ultimate decision would not ordinarily amount to a reviewable decision, unless the stature provided for the making of a finding or ruling on that point so that the decision, though an intermediate decision, might accurately be described as a decision under an enactment. Another essential quality of a reviewable decision is that it be a substantive determination. With the exception of s 3(2)(g), the instances of decision mentioned in s 3 (2) are all substantive in character. Moreover, the provisions in sub-ss (1), (2), (3) and (5) of s 3 point to a substantive determination. In this context the reference in s 3(2)(g) to "doing or refusing to do any other act or thing" (emphasis added) should be read as referring to the exercise or refusal to exercise a substantive power…… If "decision" were to embrace procedural determinations, then there would be little scope for a review of "conduct", a concept which appears to be essentially procedural in character……. 16 The respondents' notice of objection to competency raises three threshold issues namely: · whether the applicant and/or the group members are persons aggrieved by the alleged decisions; · whether the notice decisions are decisions to which the Administrative Decisions (Judicial Review) Act applies; and · whether the expedited procedure decisions (as defined in the application) are decisions to which the Administrative Decisions (Judicial Review) Act applies. The question of whether the applicant and/or the group members are aggrieved persons having standing to make the application is best put to one side until after consideration of the other grounds of objection. Clearly, unless and until a reviewable decision (or reviewable conduct) is identified, there is no context in which it can be determined whether the applicant is aggrieved by the decision or conduct. 17 The applicant's complaints in relation to the notice decisions are that: · The published advertisements did not include a clear description of the area that may be affected by the Act as required by clause 6(5)(a) of the Notices Determination; · No notice was published in a relevant special-interest publication as required by clause 6(1)(b) of the Notices Determination; and · Notice was not given by broadcasting pursuant to clause 7 of the Notices Determination. These matters are said to be procedures that were required to be observed, but were not observed, in connection with the making of the notice decisions. 18 There is no substance in the applicant's complaint that the notices were not given by radio or television broadcasting. Clause 7(1) of the determination clearly states that "in addition to notice being given in accordance with clause 6 notice…may also be given" by radio or television broadcasting (emphasis added). There is nothing about the words used or the context in which they appear to justify reading clause 7(1) as providing either an additional requirement to those specified in clause 6 or an alternative to either or both of those requirements. It is not to the point that clause 7 is in a practical sense without any real function. If it be the case that the drafter's purpose has miscarried it is for the Minister and not the Court to remedy the error. Be that as it may, the failure to give notice by radio or television broadcast cannot be construed as involving either a decision of an administrative character or conduct engaged in for the purpose of making such a decision. 19 Assuming for present purposes that the advertised notices did not include "a clear description of the area that may be affected by the act" and that the Koori Mail was not in the circumstances properly to be regarded as "a relevant special-interest publication", the effect would simply be that the proposed future act, if done, would be invalid to the extent that it affects native title. If notice is not validly given there would be no notification day and it follows that there would be no occasion for any of the requirements paragraphs (a) to (h) of s 28(1) to be satisfied. So much is acknowledged by the applicant in paragraph 4(1)(g) of the application where it is asserted that "by virtue of s 25(4) of the Act such a failure to comply with procedures invalidates the act to the extent that it affects native title". Section 25 provides an "overview" of Subdivision P. Subsection 25 (4) simply states: If the procedures of this subsection are not complied with, the act will be invalid to the extent that it affects native title. Whether or not s 25 is intended to be merely a commentary on the effect of the provisions that follow or to be a substantive enactment, it is clear that the assertion in s 25(4) is entirely consistent with the other provisions of Subdivision P. 20 A failure to give notice "in accordance with" s 29 has its own remedy, namely, that to the extent that the future act affects native title, it will be invalid. A notice that is not in accordance with s 29 cannot affect the native title rights and interests of any actual or potential native title holder or claimant. Whether or not the notices in question have been given in accordance with s 29 does not depend upon any decision, or conduct in relation to a decision, on the part of the first respondent but rather on the form and content of the notices and any factual finding that may be made in relation to the circulation of the Koori Mail. The applicant makes no complaint concerning the "decision" or "conduct" involved in giving and advertising the notices. This is not surprising given that as s 29 is expressed in mandatory terms. Any decision made in relation to that process was made by Parliament and not the first respondent. It necessarily follows that the "notice decisions" are not decisions to which the Administration Decision (Judicial Review) Actapplies. 21 In circumstances where there has been no determination that native title exists in relation to land and waters that may be affected by a proposed future act, the right to negotiate conferred by the Native Title Act is of considerable value. It is a right enjoyed by all relevant native title claimants including claimants who may ultimately be unable to establish any native title rights or interests; and it is a right which is enlivened in the first place by the giving of notice in accordance with s 29. If the notice is not given, or is not in accordance with s 29, and the Government party nevertheless does the act, there is a risk that the act will be invalid if it affects native title, but it will not necessarily be invalid. That will depend upon the nature of the act itself and the nature of any native title rights and interests that may be found to exist. In the present case the Court is unable to determine whether each or any of the notices has been given in accordance with s 29. To do so would involve a consideration of the facts applicable to each of the applications to which the notices relate. Evidence would have to be called touching upon the geographical area that may be affected by each proposed act, the circulation of the Koori Mail in that area, the area that may be affected by the act (assuming this to be different from the geographical area) and the clarity or otherwise of the description of that area. None of these issues have been addressed otherwise in a very general sense by way of submission. Neither the applicant nor any of the parties he claims to represent has given evidence. No-one has sought to demonstrate by evidence (as distinct from submission at the bar table) that any of the descriptions of the areas referred to in the notices are so lacking in clarity as to render it difficult or impossible to identify the location of the areas that would be affected by the granting of the applications. In particular, no evidence has been adduced from either of the representative bodies to that effect. Whatever deficiencies there may be in the form and substance of the notices and the notification process adopted, the giving and advertising of the s 29 notices does not involve any no reviewable decision. 22 I turn now to the arguments advanced concerning the inclusion of the expedited procedure statement in the notices relating to applications for exploration licences. In the applicant's written outline of submissions the case is put in these terms: 8.1 …there are two elements implicit in the inclusion of an expedited procedure statement under s 32. The first is that the Government party "considers" that the act attracts the expedited procedure, that is that it satisfies s 237. The second is that the Government party has made a discretionary determination that it should include the statement. 8.2 Both the language of s 32, and its purpose in the context of the NTA, point to a construction of the section as requiring that the Government party actually give consideration to whether the act is an act attracting the expedited procedure within the terms of s 237. It would be nonsensical if a Government party could include the statement when it did not hold the view that s 237 is satisfied, or when it had not considered that issue. 8.3 It is equally clear that the Government party has a discretion whether to include an expedited procedure statement, and is not bound to include such a statement merely because it holds the view that s 237 is satisfied. 8.4 As the inclusion of an expedited procedure statement requires that the Government party have actually considered whether s 237 is satisfied, including such a statement without considering that matter involves non-observance of procedures that were required by law to be observed in connection with the making of the decision. 23 At the outset it may be observed that the submission seems to suggest that the inclusion of the expedited procedure statement is made pursuant to s 32 of the Native Title Act. This is clearly erroneous. Section 32 deals with the effect of the inclusion of such a statement. The statutory basis for including a statement that the Government party considers the act is an act attracting the expedited procedure is found in s 29(7); and that subsection must be construed in the context in which it appears. 24 Section 29 has ten subsections, eight of which are relevant in the present context and have been quoted earlier in these reasons. Each of the first five subsections is expressed in mandatory terms. Before the act is done the Government party must give notice in accordance with the section (ss (1)); the Government party must give notice to certain specified persons and/or bodies (ss (2)); the Government party or the grantee party must notify the public in the determined way (ss (3)); the notice must specify certain details and be accompanied by any prescribed information (ss (4)); each notice must specify the same day as the notification day (ss (5)). Subsection (6) is also expressed in mandatory terms but it also involves the Government party making an assessment of what is a reasonable assumption as to when the notices will have been received by or come to the attention of all persons notified. Subsections (7) and (8) are however couched in permissive terms and unlike ss (6) do not involve any value judgment being made. The notices may include a statement that the Government party considers the act is an act attracting the expedited procedure (ss (7)); notice to the public under ss (3) of two or more acts may be given in the same notice (ss (8)). (emphasis added) 25 The right to include an expedited procedure statement is not expressed to be conditional. It does not involve the Government party making a reasonable assumption (as in ss (6)) nor does it express a requirement that the Government party has first formed the opinion that the proposed act attracts the expedited procedure as a preliminary step to the inclusion of the statement in a notice. The Government party has the option in every case to include or not include such a statement. The option to include the statement is entirely unfettered. The inclusion of the statement is determinative of nothing. It merely places the onus on the native title parties to consider whether or not to lodge an objection against the inclusion of the statement, a step, if taken, that has the effect of enlivening the function of the arbitral body whose role is to determine whether the act is one which attracts the expedited procedure. The inclusion of the expedited procedure statement in a notice under s 29 does not involve a process of decision making that is in any way determinative, nor does it involve any conduct in relation to a decision to which the Administrative Decisions (Judicial Review) Act applies. 26 Having come to the conclusion that neither the "notice decisions" nor the "expedited procedure decisions" are decisions to which the Administrative Decisions (Judicial Review) Act applies, the question of whether the applicant and those he is said to represent have the standing to seek relief under that Act does not arise, nor is there any occasion for the Court to consider the two further matters raised in argument, namely whether the notices contain a clear description of the respective areas as required by clause 6(5)(a) of the Notices Determination and whether the Koori Mail is, in respect of all or any of the notices, a relevant special-interest publication. 27 It follows from the conclusions expressed above that the respondents' objection to the competency of the Court to try the application for an order of review under the Administrative Decisions (Judicial Review) Act must be upheld. Section 39B of the Judiciary Act 28 The applicant also seeks to invoke the Court's jurisdiction under s 39B of the Judiciary Act on the basis that the matter arises under a Commonwealth statute. The relevant provision, s 39B(1A)(c), confers original jurisdiction on the Federal Court in any matter arising under any laws made by the Parliament, other than a matter in respect of which a criminal prosecution is instituted or any other criminal matter. A matter arising under the Native Title Act is clearly one in which the Court has jurisdiction. The only claim made by the applicant is for review of the decisions identified in the application and no argument has been put to suggest that any different considerations apply to the exercise of the Court's jurisdiction under the Judiciary Act than apply to an application for review under Administrative Decisions (Judicial Review) Act. In the absence of any decision, there can be no review of a decision whatever jurisdictional basis is relied upon. Conclusion 29 The application for an order of review as sought by the applicant will be dismissed. Postscript 30 On the first day of the trial I was informed that on the previous day (23 April 2001) a Deputy President of the National Native Title Tribunal (The Hon. E M Franklyn QC) had delivered a decision in which he determined that the s 29 notices published by the first respondent on 6 September 2000 in relation to seven applications for exploration permits did not conform with the requirements of the Native Title Act and consequently were invalid. It would be inappropriate in these reasons to comment on the reasoning that led the Deputy President to this conclusion except to say that it appears from his reasons that substantially the same evidence and arguments were advanced before the Tribunal as were advanced in this proceeding and that the basis of the Tribunal's decision is a finding that the notices did not provide a clear description of the area that may be affected by the act as required by clause 6(5)(a) of the Notices Determination. My reluctance to comment is twofold: first, as I have concluded that no reviewable decisions were involved in the s 29 process, it has been unnecessary for me to enter upon a consideration of the other questions raised in the application, namely, the adequacy of the description of the relevant areas and the question of whether the Koori Mail is in any particular case a relevant special-interest publication; secondly, I have been informed by counsel appearing for the respondents that an appeal to the Federal Court against the Deputy President's decision is being contemplated. I certify that the preceding thirty (30) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Olney. Associate: Dated: 5 June 2001 Counsel for the Applicant: Mr J Basten QC with Mr N Williams Solicitor for the Applicant: Mr G Carter (Northern Land Council) Counsel for the Respondents Mr V Hughston with Mr J Waters and Ms R Webb Solicitor for the Respondent: Solicitor for the Northern Territory Date of Hearing: 24 and 26 April 2001 Date of Judgment: 5 June 2001