Federal Court of Australia State of Western Australia v Allen on behalf of Nyamal #1 [2021] FCA 574 Appeal from: Kevin Allen and Others on behalf of Nyamal #1 v Mining Equities Pty Ltd [2020] NNTTA 78 File number: WAD 8 of 2021 Judgment of: MCKERRACHER J Date of judgment: 31 May 2021 Catchwords: NATIVE TITLE – right to negotiate provisions – whether a proposed grant of an exploration license should attract the expedited procedure – whether the National Native Title Tribunal erred in finding that it was not unlikely that the act would cause a major disturbance to land or waters – where the Tribunal relied solely on a submission from the grantee party that any major disturbances would be kept to a minimum Legislation: Native Title Act 1993 (Cth) ss 29, 32, 32(3), 32(4), 37, 75, 85A, 108(1), 139, 162(1), 162(2), 169(1), 237, 237(a), 237(b), 237(c) Mining Act 1978 (WA) Cases cited: Cheedy v Western Australia (No 2) (2011) 199 FCR 23; [2011] FCAFC 163 Dann v Western Australia (1997) 74 FCR 391; [1997] FCA 332 FMG Pilbara Pty Ltd v Yindjibarndi Aboriginal Corporation RNTBC (2014) 227 FCR 182; [2014] FCA 1335 Kostas v HIA Insurance Services Pty Ltd (2010) 241 CLR 390; [2010] HCA 32 Little v Oriole Resources Pty Ltd [2005] FCA 506 Little v Oriole Resources Pty Ltd (2005) 146 FCR 576; [2005] FCAFC 243 Parker v Western Australia (2008) 167 FCR 340; [2008] FCAFC 23 Smith (on behalf of the Gnaala Karla Booja People) v Western Australia (2001) 108 FCR 442; [2001] FCA 19 Ward v Western Australia (1996) 69 FCR 208; [1996] FCA 334 Division: General Division Registry: Western Australia National Practice Area: Native Title Number of paragraphs: 25 Date of last submission: 4 May 2021 (the Applicant) Date of hearing: Determined on the papers Counsel for the Applicant: Mr J Misso, State Solicitor's office Counsel for the Respondents: The Respondents submit to any order of the Court ORDERS WAD 8 of 2021 BETWEEN: STATE OF WESTERN AUSTRALIA Applicant AND: KEVIN ALLEN, WILLIE JUMBO, ALICE MITCHELL, TONY TAYLOR AND JEAN WALKER ON BEHALF OF NYAMAL #1 First Respondent MINING EQUITIES PTY LTD Second Respondent order made by: MCKERRACHER J DATE OF ORDER: 31 MAY 2021 THE COURT ORDERS THAT: 1. The appeal be dismissed. 2. There be no order as to costs. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT MCKERRACHER J: INTRODUCTION 1 On 20 March 2020, the applicant (State) gave notice of its intention to grant exploration licence E46/1294 (licence) under the Mining Act 1978 (WA) to Mining Equities Pty Ltd (grantee party), pursuant to s 29 of the Native Title Act 1993 (Cth) (NTA). The notice included a statement that the State considered the act of granting the licence to be an act attracting the expedited procedure under s 32 of the NTA. The first respondent (native title party) lodged an objection to the inclusion of the statement under s 32(3) of the NTA. The objection was made on a number of grounds, including that the native title party 'believes the grant of [the licence] over the area of ground applied for will create rights, the exercise of which will involve major disturbance to the land': Kevin Allen and Others on behalf of Nyamal #1 v Mining Equities Pty Ltd [2020] NNTTA 78 (at [8]). 2 The native title party's claim with respect to the area which includes the proposed tenement remains undetermined. The proposed tenement lies in the north-east of the undetermined area and contains slightly in excess of 35 km². The undetermined area contains 9,238.913 km2. Within the proposed tenement, there is one Registered Aboriginal Site (RAS). It is located in the north-east of the proposed tenement and is about 2¼ km2. The State has provided a certain amount of information concerning the RAS. There are no gender restrictions in connection with it. Its significance is described as 'Artefacts, Scatter, Repository/Cache'. It is said that relevant registered knowledge holders are 'known'. 3 On 16 December 2020, the National Native Title Tribunal determined that the expedited procedure did not apply to the proposed grant of the licence, having concluded that it was not unlikely that there will be major disturbance to land or waters: Nyamal #1 (at [36]-[37]). By this appeal the State contends that the Tribunal erred in law in making this determination because: (a) the Tribunal failed to undertake the predictive assessment required for a determination under s 32(4) of the NTA; and (b) there was no evidence to support the Tribunal's determination that the proposed grant of the licence was not unlikely to involve major disturbance to land or waters. 4 Pursuant to s 169(1) of the NTA, a party to an inquiry relating to a right to negotiate application may appeal to this Court, as of right, on a question of law from any decision or determination of the Tribunal in the proceedings. A 'right to negotiate application' includes an 'expedited procedure objection application': s 75 of the NTA. 5 The native title party and the grantee party are both content to abide the decision of the Court. FUNCTION OF THE TRIBUNAL ON A DETERMINATION UNDER s 32(4) OF THE NTA 6 As the State notes, the Tribunal has the functions in relation to applications, inquiries and determinations given to it by Pt 3 and Div 5 of Pt 6 of the NTA: s 108(1). Section 139 provides that the Tribunal must hold an inquiry into 'a right to negotiate application' which includes an application pursuant to s 32(3): s 75 of the NTA. Subject to s 37 (which is of no relevance in this case), after holding an inquiry in relation to a right to negotiate application, the Tribunal must make a determination about the matters covered by the inquiry: s 162(1) of the NTA. The Tribunal must state in the determination any findings of fact upon which it is based: s 162(2) of the NTA. 7 The term 'act attracting the expedited procedure' is defined in s 237 of the NTA, which refers to three conditions which must be satisfied before a future act can be characterised as 'an act attracting the expedited procedure': Little v Oriole Resources Pty Ltd (2005) 146 FCR 576; [2005] FCAFC 243 (at [41]). The condition created by s 237(c) differs from those created by s 237(a) and s 237(b) in that it requires consideration of the effect of the relevant future act, as well as the effect of any rights created by the future act: Little (at [41]). This was recognized by the Tribunal: Nyamal #1 (at [16]). 8 The Tribunal is required to assess whether, as a matter of fact, the proposed future act is not likely to involve a major disturbance to land or waters. In this context, the word 'likely' requires a risk assessment by the Tribunal that excludes from the expedited procedure any proposed act which would involve a real chance or risk of interference or major disturbance of the kind contemplated by s 237: Smith (on behalf of the Gnaala Karla Booja People) v Western Australia (2001) 108 FCR 442; [2001] FCA 19 (at [23]); Little (at [50]). A determination as to what is likely to occur in the future involves 'speculative though informed appraisal' rather than fact finding about present or past events, although such findings will inform that appraisal: Parker v Western Australia (2008) 167 FCR 340; [2008] FCAFC 23 per Moore J (at [8]). 9 This requires the Tribunal to undertake a 'predictive assessment not confined to a consideration of the legal rights conferred by the grant of the proposed tenement': Smith (at [23]); Little (at [50]). The Tribunal is obliged to consider the detailed factual circumstances of each case in making its determination: FMG Pilbara Pty Ltd v Yindjibarndi Aboriginal Corporation RNTBC (2014) 227 FCR 182; [2014] FCA 1335 per McKerracher J (at [14]) citing Parker per Tamberlin J (at ([67]). 10 Further, the question of whether the future act is likely to involve major disturbance to any land or waters involves a subjective assessment by the Tribunal as to the degree of disturbance. The Tribunal has to consider all of the relevant evidence and decide whether the likely disturbance to land or waters can be properly characterised as 'major': Dann v Western Australia [1997] FCA 332; (1997) 74 FCR 391 per Tamberlin J (at 401). DETERMINATION OF THE TRIBUNAL IN THIS CASE 11 The Tribunal noted that neither the native title party nor the grantee party had submitted any evidence in the inquiry before the Tribunal: Nyamal #1 (at [9]). In relation to the condition in s 237(c) of the NTA, the grantee party (who was not legally represented) submitted to the Tribunal that it was 'fully aware of the responsibilities that any major disturbances to the land and the waters are to be keep [sic] to a minimum and [the grantee party] will always make full disclosure of this to the [native title party]': Nyamal #1 (at [15]). With respect to this submission, the Tribunal commented that the grantee party 'appears to anticipate major disturbance, which major disturbance it will keep to a minimum': Nyamal #1 (at [16]). 12 In its submissions, the native title party asserted that 'disturbance to land and waters is too much disturbance': Nyamal #1 (at [34]). The Tribunal commented that the native title party sought only to engage in a semantic exercise, ignoring the requirements of s 237(c): Nyamal #1 (at [34]). 13 Having found that it was not likely that the proposed grant of the licence: (a) will interfere directly with the conduct of the native title party's community or social activities (s 237(a) of the NTA); and (b) will interfere with areas or sites of particular significance in accordance with the native title party's traditions (s 237(b) of the NTA), the Tribunal commented that nothing in the grantee party's contentions suggested major disturbance, and that the native title party had not asserted any such likelihood in relation to s 237(c): Nyamal #1 (at [36]). 14 In so commenting however, the Tribunal highlighted the grantee party's contention that it was 'fully aware of the responsibilities that any major disturbances are to be keep [sic] to a minimum' and that it must make full disclosure 'of this' to the native title party. The Tribunal proceeded to reach the conclusion under s 237(c) that it was not unlikely that there will be major disturbance to land or waters: Nyamal #1 (at [36]). 15 On this key issue, the Tribunal said (at [35]-[37]): [35] The Native Title Party's failure to lead any evidence concerning the matters identified in s 237 would ordinarily lead to a conclusion that the expedited procedure applies to the proposed grant. However the assertion made by the Proposed Grantee at para 12 of its contentions that major disturbance will be kept to a minimum complicates the position. One might suspect that the Proposed Grantee intended to assert that it would minimize the extent of any disturbance, so that it would not be "major". However, it has not said so. It has rather asserted that it will minimize any major disturbance. At the very least, this statement seems to reflect a misunderstanding of s 237(c). If the Native Title Party bore any burden of proof, such statement might not make up for any deficiency in the Native Title Party's evidence. However it has no such burden. It is my duty to consider the likelihood or otherwise of each of the three matters identified in s 237. I am satisfied that it is not likely that the proposed grant will interfere directly with the conduct of the Native Title Party's community or social activities. I am similarly of the view that it is not likely that the proposed grant will interfere with areas or sites of particular significance in accordance with the Native Title Party's traditions. [36] As to the question of major disturbance to land or waters, nothing in the Proposed Grantee's submissions suggests major disturbance. The Native Title Party has not asserted any such likelihood, other than the rather Delphic assertion that disturbance is too much disturbance. Hence the only suggestion that there may be major disturbance is that found in para 12 of the Proposed Grantee's contentions. Whilst I am tempted to say that the Proposed Grantee cannot have meant that it expected there to be major disturbance to land or waters, it has said that it understands that such major disturbance must be kept to a minimum, and that it must make full disclosure "of this" to the Native Title Party. To that extent, it seems to assert a right to cause major disturbance, provided that it is kept to a minimum. In the face of such an assertion, I cannot but conclude that it is not unlikely that there will be such disturbance to land or waters. [37] I conclude that the expedited procedure does not apply to the proposed grant. (Emphasis added.) Ground of appeal 1 – the Tribunal erred in not undertaking a predictive assessment 16 The Tribunal correctly identified that the native title party did not bear any burden of proof in the inquiry by the Tribunal. No such burden, or any evidential burden of a legal nature, lies on any party to proceedings before the Tribunal inquiring into the matters referred to in s 237: Dann per Tamberlin J (at 403E) and Nicholson J (at 414E-F). 17 However, the State says that faced with a lack of evidence as to whether the grant of the licence was likely to involve major disturbance, or create rights whose exercise was likely to involve major disturbance, the Tribunal was required to apply a 'common sense' approach to the material before it: Ward v Western Australia [1996] FCA 334; (1996) 69 FCR 208 (at 216-218). It is argued that in this case, the Tribunal did not undertake its own assessment as to whether the grant of the licence would involve a real chance or risk of major disturbance, or make any findings of fact that could inform that assessment. 18 It is apparent, the State argues, from the Tribunal's reasons that it did not assess for itself what, if any, disturbance was likely to occur based, for example, on what the grantee party could lawfully do under the proposed licence, the activities it intended to carry out under the licence (Little v Oriole Resources Pty Ltd [2005] FCA 506 at [30], [35] and [36]), and any external regulation or controls which would apply to the intended activities: Smith (at [27]). Further, the Tribunal did not assess for itself whether any disturbance to land or waters would be 'major', which required a subjective assessment by the Tribunal. The State relies on the observations of Wilcox J in Dann (at 395): It is for the Tribunal to determine whether a particular future act will involve a disturbance to land or waters and, if so, whether the disturbance answers the description of being a "major disturbance". Submissions from the parties may assist the Tribunal in reaching conclusions on these matters, but assertion is not enough; the Tribunal must decide. 19 The State contends that the Tribunal drew an inference from what it respectfully submits was a clumsily worded assertion by the grantee party, which was not supported by any other material before the Tribunal. As the Tribunal itself noted, nothing else in the grantee party's submissions suggested major disturbance. In relying solely on the assertion advanced by the grantee party to reach the conclusion that it was not unlikely that the proposed grant of the licence would involve major disturbance to land or waters, the State says the Tribunal did not undertake the predictive assessment which was required in order to determine whether the condition in s 237(c) of the NTA applied. In failing to undertake that predictive assessment, the Tribunal is said to have erred in law. Ground of appeal 2 – the Tribunal's determination was unsupported by any evidence 20 The State contends that it is an error of law to make a finding for which there is no evidence, or to draw inferences in the absence of evidence: Kostas v HIA Insurance Services Pty Ltd [2010] HCA 32; (2010) 241 CLR 390 per Hayne, Heydon, Crennan and Kiefel JJ (at [90]-[91]). Although the Tribunal's task was to make a prediction, the State submits there had to be an evidentiary basis for that prediction; that is, findings of fact which supported the prediction about what disturbance was likely to occur in the future. In order to undertake an informed appraisal, the Tribunal will ordinarily need to make findings (based on evidence) as to, inter alia, the degree of likelihood (or risk) of any disturbance to land or waters, the extent of the disturbance involved and whether it will amount to major disturbance, and the specific land or waters which may be affected. 21 The State says that the Tribunal's determination in this case that the grant of the licence was not unlikely to involve major disturbance was not supported by the evidence before the Tribunal. Further, the assertion in the grantee party's statement of contentions did not, on its express terms, support the Tribunal's determination. The assertion was only that the grantee party was fully aware of 'the responsibilities' that major disturbances are to be kept to a minimum. The State says it does not amount to an express assertion that major disturbances are likely in this case, or disclose any underlying reasoning or evidence for such a contention. Further, the assertion that the grantee party will always make full disclosure 'of this' is ambiguous. The State says it is by no means clear that the grantee party is asserting that it will make full disclosure of 'any major disturbances', thereby asserting a right to cause major disturbances. It is argued that the implication drawn from the grantee party's contention by the Tribunal is contradictory to one of the essential conditions for the operation of the expedited procedure, and accordingly inconsistent with para 13 of the grantee party's contentions, in which it contends that 'Application for E46/1294 (sic) should attract the expedited process'. 22 The State submits that the contention at para 12 of the grantee party's submissions does not comprise evidence or material which supports the determination which was required to be made by the Tribunal under s 32(4) of the NTA. The Tribunal is said to have erred in law by relying solely on this contention to make the determination that it was not unlikely that the proposed grant of the licence would involve major disturbance to land or waters. CONSIDERATION 23 It is convenient to deal with both grounds together as in my view each must fail for essentially the same reason. In the search for evidence or information on which to make a predictive assessment as to a relevant likelihood, it is entirely open to a Tribunal to rely on statements made (in this case by the grantee party) in submissions or contentions which effectively constitute admissions. There was no reason for the Tribunal to dismiss the statements made for the grantee party as simply being 'clumsily worded'. Rather it was very much open to the Tribunal to look to the content of the assurance given by the grantee party in presumably conscientiously and honestly worded submissions. This is particularly so in the present case where the relevant admission was contained in a submission signed by the director of the grantee party, a person who may reasonably be assumed to have an understanding of the types of works that are proposed to be carried out by the grantee party. Of course the Tribunal does not have to treat submissions that way but in an appropriate case is entitled to do so. As observed by French J (as his Honour then was) in Smith ([23]): … The requirement for a predictive assessment however does not mandate that interference or major disturbance of the kind contemplated by the section must be established or negated on the balance of probabilities. The Act is beneficial and the right to negotiate regime is an element of the protection of native title which is one of the main objects of the Act. That protection is not to be narrowly construed. … 24 In this instance the key words were that the grantee party understands that such major disturbance must be kept to a minimum, and that it must make full disclosure 'of this' to the Native Title Party. It cannot be an error of law to rely on this assurance or admission to reach a conclusion that the grantee party 'seems to assert a right to cause major disturbance, provided that it is kept to a minimum'. It was reasonable in those circumstances for the Tribunal to consider that in the face of such an assertion it was not possible to be satisfied that there would not be a likelihood of a relevant major disturbance. To do so cannot be considered an error of law. CONCLUSION 25 For these reasons the appeal will be dismissed. Consistently with s 85A of the NTA, there should be no order as to costs: Cheedy v Western Australia (No 2) [2011] FCAFC 163; (2011) 199 FCR 23 (at [37]-[38]). I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice McKerracher. Associate: Dated: 31 May 2021