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NNTT revised Guidelines on Acceptance of Expedited Procedure Objection Application (2001)

18
December 2001

Dr William Jonas
AM
Aboriginal and Torres Strait Islander Social Justice Commissioner
Human Rights and Equal Opportunity Commission
GPO Box 5218
SYDNEY NSW 1042

Dear Dr Jonas

NNTT revised Guidelines on
Acceptance of Expedited Procedure Objection Application - issued 16 October
2001

I refer to your letter
of 5 November 2001 and provide the following reply to the concerns you
have expressed about the newly revised Guidelines on Acceptance of Expedited
Procedure Objection Applications issued on 16 October 2001 ('the Guidelines').
I note that you are in possession of the Explanation of the Guidelines
('the Explanation') which sets out the Tribunal's reasons for them.

In your letter you
commented on the effect of the Guidelines on the human rights of Aboriginal
peoples and Torres Strait Islanders. In particular you expressed concerns:

(a) that the Guidelines
attach greater significance to the objection application than to the
more central issue of whether a proposed development attracts the expedited
procedure in any particular case; and

(b) about the degree
of particularity required by the Guidelines.

In respect of the
first concern, you have suggested that:

  • the Guidelines
    do not reflect the purpose or object of the Native Title Act 1993 ('the
    Act');
  • the Guidelines
    do not take account of s 109(3) of the Act; and
  • the principle
    of promptness is emphasised at the expense of other considerations.

Before responding
to each of those concerns, I will describe the circumstances in which
the Guidelines were prepared.

Background to the issue of
the Guidelines

On 3 April 2000,
the Tribunal (Hon EM Franklyn QC, Deputy President) wrote to the Native
Title Representative Bodies in Western Australia drawing their attention
to the requirements of the Act in relation to Form 4. The letter pointed
out that s 76 of the Act provides that an objection application 'must'
be in the prescribed form and 'must' contain such information in relation
to the matters sought to be determined as is prescribed. It continued:

'Having regard
to the amendments effected to s 237 and to Form 4, it is important that
the requirements of paragraphs 7 and 8 of that form be fully completed
with as set out in the Tribunal's required procedures.'

To that point there
had been no challenge in an inquiry to the adequacy of the information
provided in paragraphs 7 and 8 of Form 4.

In Roy Dixon &
Ors/Northern Territory/Ashton Mining Limited & Ors
, NNTT DO00/1
- DO00/7, Hon E M Franklyn QC, 23 April 2001 the Northern Territory Government
argued that the Form 4 did not comply and the Tribunal upheld this argument.
The Tribunal explained its reasons in paragraph [18] which, although long,
I will quote in full.

'[18] Government
party's Objection to Jurisdiction

The Government
party contends that the objections lodged by the Native Title party
are invalid in that they do not comply with the requirements of Form
4 Schedule 1 of the Native Title (Tribunal) Regulations 1993. Section
32(3) of the Act provides for the lodgement by a Native Title Party
of an objection to the inclusion in a s29 notice of the statement
that the Government party considers the proposed act be one attracting
the expedited procedure. The objection is referred to in Section 75
as an application objection. Section 76 provides, inter-alia, that
such an application must be in the prescribed form and must contain
such information in relation to the matters sought to be determined
as is prescribed. Regulation 4 of the Native Title (Tribunal) Regulation
1993 provides that the application objection must be in the form of
Form 4 to those regulations and further provides that such an application
"must contain the information and be accompanied by the documents
as mentioned in the form for the application." Form 4 states
that "the following information and the documents referred to
in this application are provided for the purposes of the objection."
There then follows in Form 4 nine separate paragraphs outlining what
information is to be provided. Paragraph 7 provides for "a statement
why the objector believes that the proposed act is not an act attracting
the expedited procedure that includes a statement of the likely impact
of the act on community or social activities of the native title holders,
areas or sites of particular significance and any land or waters concerned."
Paragraph 8 requires "an outline of the type of evidence that
the objector will produce to the National Native Title Tribunal."

The Government
party contends that each of the objections should be dismissed as
not complying with the requirements of paragraph 7 and 8 of Form 4.
In response to paragraph 7 each Form 4 each states only "See
Attachment A" and, in response to paragraph 8. states only "the
objector intends to produce evidence, including historical, social
and anthropological evidence, to the National Native Title Tribunal.
Attachment A to Form 4 in paragraph 1 lists the rights and interests
claimed by the objectors and in paragraph 2 says "Accordingly
the objector believes that the proposed act is not an act attracting
the expedited procedure as one or more of the paragraphs of s237 of
the Act are not satisfied: viz". Thereafter paragraph 2 sets
out sub paragraphs (a), (b) and (c) of s237 by which "an act
attracting the expedited procedure" is defined. The Government
party describes the reference to the three subsections of s237 in
paragraph 7 of the Attachment as no more than a generic statement
of the likely impact of future act wholly in the abstract and minus
any particulars which does not address the likely impact of the proposed
future act. As to paragraph 8 of the Attachment 4 the Government party
contends that whilst it states the types of evidence intended to be
relied upon, it provides no "outline" of any such evidence.
It describes the information provided as universal and directed neither
to the proposed future act nor the area of the proposed exploration
licence. It contends that the alleged failures to comply are substantive
breaches which may frustrate genuine endeavours to resolve the objection
by negotiating directly on particular alleged impacts as it gives
no knowledge of the nature of the same and the Government party cannot,
by condition or otherwise, make effective efforts to mitigate or avoid
any particular impact.

The Native Title
Party contends that the provisions relating to Form 4 are procedural
only and that the inquiry is the proper place for evidence to be put
and submissions made. In my opinion compliance with paragraph 7 and
8 does not involve the giving of evidence. It states as fact matters
which go to establish the issues and which, in the course of the inquiry,
will need to be supported by evidence. It relies on s25C of the Acts
Interpretation Act 1901 (Cmlth) which provides that "unless the
contrary intention appears, strict compliance with a prescribed form
is not required and that substantial compliance is sufficient",
and contends that no contrary intention appears in the Act. It further
contends that there is no requirement to provide particulars under
paragraphs 7 and 8 and points out that the Tribunal is not bound by
technicality, legal forms or rules of evidence (s109(3)). It also
argues that, in any event, the Tribunal has discretion under s149
of the Act to dismiss or refuse to dismiss an application. I point
out however that s149 can only be invoked by the applicant and is
not pertinent to this issue. It further argues that the objections
should not be dismissed for non-compliance with s76(c) where the objector
is hampered in compliance through lack of resources.

Section 77 of
the Act provides that "if an application complies with s76 the
National Native Title Tribunal must accept the application."
That wording is somewhat peculiar in that it carries the implication
that if the application does not comply with s76 the Tribunal has
discretion whether or not to accept it. The right to object is conferred
by s32(3) of the Act. Section 32(4) provides that when such an objection
is made the Arbitral Body must determine whether the act this one
which attracts the expedited procedure. It seems to me that the effect
of s76 and s77 is to set out conditions which, if fully complied with,
compel the Tribunal to accept the application. The application is
then "lodged" within the meaning of s32(3). Section 77 however
leaves opens to the Tribunal the right to accept or reject an application
which does not fully comply. That, I understand, is how the Tribunal
has acted. It seems to me however that that discretion should only
be exercised if there is shown to be a good reason for non-compliance
with the requirements of Form 4. In my opinion an applicant does not
comply by merely reciting, as in the present case, the provisions
of s237 which define what is an act which attracts the expedited procedure.
That recitation may constitute the objectors belief why the proposed
act is not one which attracts the expedited procedure but it gives
no indication of its impact on the community or social activities
of the native title holders or areas or sites of particular significance
or any land or waters concerned. The reference in paragraph 7 to the
community or social activities of the native title holders makes clear
that the statements to be included must be specific to the objector's
activities and so requires a statement of activities and the likely
impact on them of the future act. As to areas or sites of particular
significance, in my opinion they are required to be identified in
some way. To be of particular significance to the native title holders
they and their significance must be known and so the impact on them
should be capable of statement. This is consistent with the provisions
of s237(a) and (b). If there is an issue of cultural secrecy, that
can be indicated and would be a matter to be taken into account in
the exercise of discretion. In my opinion the requirement of Form
4 is that the activities, areas or sites said to be impacted upon
by the proposed grant need to be identified so that any alleged impact
can be recognised. Such information is necessary to identify the issues
relevant to the objection. These issues are identified in s237 of
the Act. It is also consistent with the obligation of the Tribunal
to act in a fair, just, economical and prompt way and goes to establish
the bona fides of the objectors. It enables the Government party and
the Grantee to make appropriate submissions and provide appropriate
evidence relevant to the ultimate determination and for the inquiry
to proceed from the outset with knowledge of the issues between the
parties. The alternative is to involve the Government party and the
Grantee in proceedings, submissions and the acquisition of evidence
without knowing the issues involved, thereby giving rise to unnecessary
cost and delay in the ultimate determination.

It seems to me
however that if the Form 4 is deficient but is accepted as a matter
of discretion, and the evidence produced at the inquiry is such as
to lead to the conclusion that the act does not meet each of the criteria
of s237(a)(b) and (c), then the Tribunal must find, as a matter of
law, that the act is not one attracting the expedited procedure regardless
of any relevant omission by the objectors of information required
by the Form 4.

As to paragraph
8 of Form 4 it was held by French J (as President of the Tribunal)
in Waanyi Peoples' Native Title Application (1994) 129 ALR 100) in
relation to Form 1 under the old Native Title Act provisions relating
to a claim for native title determination, that an "outline of
the type of evidence" which the applicant will produce to the
Tribunal to support its claim did not require a description of the
content of such evidence but rather "a listing of its categories".
That decision has relevance to an objection contending that a future
act does not attract the expedited procedure. However the "type
of evidence" to be outlined pursuant to paragraph 8 must be evidence
relevant to the issue whether the act is one attracting the expedited
procedure. That is to say it must relate to the respective paragraphs
of s237 which are the only issues relevant to the determination whether
the act attracts the expedited procedure. In my opinion it is not
sufficient compliance as to provide a general list of generic types
of evidence which would appear relevant to establishing a connection
with the land but do not suggest relevance to the issues raised by
s237. In my opinion the relevant outline of the type of evidence to
be produced requires a statement, in general terms, identifying whether
the evidence relates to interference with the carrying on of the relevant
and nominated community or social activities, interference with relevant
areas or sites of particular significance to the holders of native
title and/or likely disturbance to the land concerned and how that
evidence will be given.

I find that the
objections having being accepted by the Tribunal and thereby "lodged"
within the meaning of s32(3) even though they did not comply with
the requirements for compulsory acceptance by the Tribunal, are each
validly before the Tribunal for determination. The application to
dismiss each such objection is consequently dismissed.'

In a subsequent decision,
Dorothy and Thelma Tucker & Ors and Maureen Young & Ors/Western
Australia/Zeedam Enterprises Pty Ltd
, NNTT WO00/381 and WO00/400,
Mr John Sosso, 4 May 2001, the Tribunal in reviewing the decision in Roy
Dixon said (inter alia) (at paras [42]-[50]):

'….

[42] Overall
the Northern Territory contended that the failures to comply with
Form 4 were substantive breaches "which may frustrate genuine
endeavours to resolve the objection by negotiating directly on particular
alleged impacts as it gives no knowledge of the nature of the same
and the Government party cannot, by condition or otherwise, make effective
efforts to mitigate or avoid any particular impact"
see Roy
Dixon para 18 (p.15).

[43] The native
title party contended that the provisions in Form 4 were procedural
only, and that the inquiry conducted by the Tribunal was the proper
place for evidence to be put and submissions made. Reliance was also
placed on section 25C of the Acts Interpretation Act 1901 (Cwth),
which provides: "unless the contrary intention appears, strict
compliance with a prescribed form is not required and that substantial
compliance is sufficient."

….

[48] No challenge
was made by either the State or the grantee to the Form 4 applications
of the objectors in this matter. I do note, however, that if there
had been a challenge the manner in which paragraphs 7 and 8 were completed
in both instances would have been a matter of concern.

[49] In addition,
whether a challenge could be successfully made after lodgement of
a Form 4 which has the defects outlined in the above determination
is a moot point, and one which will, no doubt, arise in the future.
For present purposes I simply refer to the interpretation of Deputy
President Franklyn.

[50] Nonetheless,
it is of importance to all persons having an interest in expedited
procedure matters in Western Australia to have regard to Roy Dixon
and to the findings of the Tribunal. It is especially important to
have regard to the findings about whether formulaic incantations which
in rote fashion paraphrase the provisions of the Act and do not address
the requirements of Form 4, could result in objections not meeting
the requirements of section 76 and not being accepted. It is in the
interests of objectors that this matter be heeded to ensure that a
Form 4 objection is not rejected because the requirements of the legislation
have not been complied with.'

In the light of Deputy
President Franklyn's decision in Roy Dixon, the Tribunal decided
to issue Guidelines to assist parties to comply with the Form 4. These
were issued on 8 May 2001. The Tribunal (as an administrative body) regards
the issuing of Guidelines to assist parties in this way as permissible
and appropriate in the circumstances.

After the Guidelines
were issued, a number of Native Title Representative Bodies expressed
concern about them. As a consequence I conducted a meeting in Perth on
5 July 2001 where I heard their submissions and also agreed to the filing
of written submissions. These included an opinion from Mr Wayne Martin
QC which asserted that s 76 was not mandatory but directory. The Tribunal
considered the cases cited therein and particularly the High Court decision
in Project Blue Sky v ABA (1998) 194 CLR 355. I and certain other
Members of the Tribunal considered the oral and written submissions and
on 16 October 2001 the Tribunal issued the Guidelines and the accompanying
Explanation.

The first thing to
be said is that the Tribunal has given careful consideration to this issue
and the arguments which have been placed before it. The issue to be decided
is quite narrow and involves the proper construction of ss 76 and 77 of
the Act and the Regulations made thereunder. The Tribunal's position is
summarised in the Explanation:

'3. The Tribunal
is of the view that the provisions of s 76 of the Act read with s
75 are mandatory in their application and require that the provisions
of Regulation 4 of the Native Title (Tribunal) Regulations 1993, and
Form 1 of the Schedule thereto be complied with in respect of objections
under s 32(3). It is also of the view that it has no jurisdiction
to accept an expedited procedure objection application (an objection
application) which does not so comply. It has been submitted that
s 76 is not mandatory and that objections need not conform with its
requirements or those of Regulation 4 or Form 1 provided that, as
lodged, it can be seen to be, in general terms, an objection to the
relevant future act. It is suggested that the mere recitation or paraphrasing
of s 237(a), (b) and/or (c) is sufficient. That argument is not accepted
by the Tribunal.'

The issue of concern
to the representative bodies, and raised by you, is in our view properly
characterised as a concern about a section of the Act rather than the
Tribunal's interpretation of it. Parliament could have clearly provided
for a less prescriptive procedure. After taking account of the principles
in the Project Blue Sky case the Tribunal remains of the view that s 76
is mandatory for the reasons expressed above and in the Explanation. A
mandatory interpretation is consistent with the overall purpose of the
right to negotiate provisions of the Act including those governing the
expedited procedure.

Emphasis in the Guidelines

As noted earlier,
you expressed concerns that the Guidelines attach greater significance
to the objection application than to the more central issue of whether
a proposed development attracts the expedited procedure in any particular
case. In particular you have suggested that:

  • the Guidelines
    do not reflect the purpose or object of the Native Title Act
    1993 ('the Act')
  • the Guidelines
    do not take account of s 109(3) of the Act
  • the principle
    of promptness is emphasised at the expense of other considerations.

I now address each
of those matters in light of the background information just provided.

Purpose and
objects of the Act:
The purpose and objects of the Act are found
in the Preamble and the substantive sections. It is clear from the Preamble
that various considerations were taken into account by the Federal Parliament
in enacting the Act. The balancing of the protection (and supplementation)
of native title rights and the need for a fair system for future acts
to occur is reflected, for example, in the following passage:

'It is particularly
important to ensure that native title holders are now able to enjoy
fully their rights and interests. Their rights and interests under
the common law of Australia need to be significantly supplemented.
In future, acts that affect native title should only be able to be
validly done if, typically, they can also be done to freehold land
and if, whenever appropriate, every reasonable effort has been made
to secure the agreement of the native title holders through a special
right to negotiate. It is also important that the broader Australian
community be provided with certainty that such acts may be validly
done.'

More directly, s
3 sets out four main objects of the Act:

(a) to provide
for the recognition and protection of native title; and

(b) to establish
ways in which future dealings affecting native title may proceed and
to set standards for those dealings; and

(c) to establish
a mechanism for determining claims to native title; and

(d) to provide
for, or permit, the validation of past acts, and intermediate period
acts, invalidated because of the existence of native title.

Your letter referred
only to paragraph (a), but paragraphs (a) and (b) are both relevant to
your concerns.

The various objects
are also reflected in s 4(7)(b) which, as part of an overview of the Act,
states that the Tribunal is established with power to:

  • make determinations
    about whether certain future acts can be done and whether certain agreements
    concerning native title are to be covered by the Act; and
  • provide assistance
    or undertake mediation in other matters relating to native title.

The balancing of
interests is evident in the future act provisions. The Tribunal agrees
that the right to negotiate is a significant right and has acknowledged
this in its determinations. However, it is a right which exists in an
Act which makes provision for the future dealings in land and where, if
agreement is not reached about the doing of a particular future act, the
Tribunal is mandated to take into account not only the impact of a proposed
future act on claimants' native title, way of life, culture and traditions
and social, cultural and economic structures etc (s 39(1)(a)(i)-(v)) but
also the economic significance and any public interest in the doing of
the future act (s 39 (1)(c) and (e)).

The Tribunal has
given consideration to the purposes of the Act in relation to the right
to negotiate in a number of determinations. For example, in Western
Australia v Thomas
(1996) 133 FLR 124 (Members Sumner, Neate and O'Neil)
the Tribunal said (at 149-150):

'(ii) The
purpose of the right to negotiate provisions

The Tribunal
accepts that the Act attempts to strike a balance between the native
title rights which were recognised in the Mabo v Queensland
(No. 2) (1992) 175 CLR 1; 107 ALR 1. decision and the interests of
the broader community.

The relevant
objects of the Act are set out in s.3 and are quoted above in that
section of these reasons dealing with statutory interpretation under
the heading 'Substantive provisions of the Act'. The part of the Preamble,
cited above under the heading 'The Right to Negotiate', encapsulates
the purpose of the Act in relation to future acts and the right to
negotiate.

[NOTE: The part of
the Preamble referred to was the passage quoted earlier in this letter.]

These purposes
are reflected in the Prime Minister's Second Reading Speech:

'Generally, governments
may make grants over native title land only if those grants could
be made over freehold title.

This test is
founded directly on a principle of non-discrimination. A government
may not make a freehold or leasehold grant to somebody else over your
or my freehold. If our title is to be extinguished, a government must
acquire it and only for the purpose set down in compulsory acquisition
legislation, and you or I must be given the protection involved. By
contrast, a mining grant can generally be made over your or my freehold.
It will be exactly the same for native title.

This is a clear,
fair test which land managers in all jurisdictions can use. It does
not mean that native title will amount to the equivalent of freehold
in all cases. Where native title has been established, or where there
is a registered claimant in the federal or state systems, the bill
provides a process of negotiation and, if necessary, determination
by the tribunal on whether a proposed grant should proceed. The relevant
minister will be able to override tribunal decisions in the State
or national interest. This emphasis on Aboriginal people having a
right to be asked about actions affecting their land accords with
their deeply felt attachment to land. But it is also squarely in line
with any principle of fair play. It is not a veto.

The time frames
set for notification, negotiation and arbitration are tight but fair.
Provision is made for expedited processes where a particular grant
would not involve major disturbance to land or interference with the
life of Aboriginal communities. Moreover, classes of grant can be
excluded from the negotiation process altogether where they would
have minimal effect on any native title. Certain prospecting and exploration
permits would be likely to fall within this category.

Where native
title has not yet been determined, governments will be able to ascertain
whether there is a credible native title interest in land over which
they wish to make a grant.' Hansard, House of Representatives,
16 November 1993 at 2880.

Later in the speech
the Prime Minister also said:

'Industry gains
a very great deal from this bill because it imposes clear, statutory
rules for land use where the Mabo decision left uncertainty. The bill
does not lock land away. On the contrary, as I have explained, we
are not setting up complicated barriers to mining exploration or operations.'
Ibid at 2881.

We accept that
the legislation was enacted with knowledge of the importance of the
Australian mining and resources industry, and that the right to negotiate
provisions were intended to deal with the ongoing grant of mining
and petroleum titles, which is the largest and most significant aspect
of the future dealings covered by the Act.

…

In general the
Tribunal accepts the importance of achieving certainty for the mining
industry, provided this can be done consistently with giving effect
to the important rights which are now accorded to native title parties.'

Similar views were
expressed by the Tribunal in Re Koara People (1996) 132 FLR 73
(at 80) (Deputy President Paul Seaman QC and Members Smith and McDaniel).
The Tribunal also accepts that a beneficial interpretation should be given
to the Act (Koara at 81).

Both Western Australia
v Thomas
and Re Koara People were treated as test cases on
the principles applicable to future act determination applications made
under s 35 of the NTA. The Tribunal comprised a Full Bench of three Members
in each case. The comments on the purpose of the right to negotiate provisions
are also applicable to the expedited procedure which is part of them.

The Tribunal reached
its conclusions by reference to the relevant objects of the Act (s (3)(a)
and 3(b)), other relevant statutory provisions and the Prime Minister's
speech. The Tribunal's view is that, when considering the right to negotiate
provisions, regard must be had both to the object of protecting native
title and to the ways established by the Act to enable future dealings
to proceed and to set standards for those dealings. The Act provides for
the ongoing grant of mining tenements.

Relevance of
section 109(3):
Section 109 provides:

(1) The Tribunal
must pursue the objective of carrying out its functions in a fair, just,
economical, informal and prompt way.

(2) The Tribunal,
in carrying out its functions, may take account of the cultural and
customary concerns of Aboriginal peoples and Torres Strait Islanders,
but not so as to prejudice unduly any party to any proceedings that
may be involved.

(3) The Tribunal,
in carrying out its functions, is not bound by technicalities, legal
forms or rules of evidence.

Section 109(3) has
received relatively little judicial attention. It has been recognised,
for example, that:

  • the Tribunal
    is not bound by the rules relating to the burden of proof (Ward v
    Western Australia
    (1996) 136 ALR 557 at 569, see also 579);
  • the Tribunal has
    flexibility in deciding what material to use in coming to conclusions
    about matters referred to in s 237 of the Act (Western Australia
    v Ward
    (1996) 141 ALR 753 at 764; see also Risk v Williamson
    (1998) 155 ALR 393 at 415);
  • the person holding
    the relevant office should be permitted to perform the statutory obligations
    that are imposed on the holder of that office with a degree of flexibility
    that is in harmony with the various mandates in section 109 (Northern
    Territory v Lane
    (1995) 138 ALR 544 at 548).

A provision in the
same terms as s 109(3) is fairly common for Australian tribunals. It has
been held, for example, that such a provision in the Veterans' Entitlements
Act
1986 (Cth) is to promote efficiency and informality in the conduct
of reviews by the relevant board, but does not exclude the requirements
of procedural fairness or natural justice which, although essentially
procedural, are not to be excluded as mere technicalities, legal forms
or rules of evidence (Courtney v Peters (1990) 98 ALR 645 at 653).

Gleeson CJ and McHugh
J have observed that such provisions:

'are intended
to be facultative, not restrictive. Their purpose is to free tribunals,
a least to some degree, from constraints otherwise applicable to courts
of law, and regarded as inappropriate to tribunals. The extent to
which they free tribunals from obligations applicable o courts of
law may give rise to dispute in particular cases, but that is another
question.' (Minister for Immigration and multicultural Affairs
v Eshetu
(1999) 197 CLR 611 at 628.)

You say that the
Tribunal has not given sufficient weight to s 109(3). This subsection
contains a general statement of how the Tribunal is to operate but as
a matter of statutory interpretation does not override the specific provisions
of s 76 which, for the reasons already explained, the Tribunal regards
as mandatory (see South Australian Commissioner for Prices and Consumer
Affairs v Charles Moore (Aust) Limited (and others)
1997 138 CLR 449
(per Gibbs J at 462). Requiring compliance with s 76 is not a technicality
but part of the scheme of the Act. Form 4 is a prescribed form under the
Act with a defined purpose and its mandatory effect cannot be avoided
by reference to s 109(3) when the overall object of the right to negotiate
provisions are taken into account.

Emphasis on
promptness:
You also assert that there is an over-emphasis on
'promptness'. The Tribunal's position on the timely disposition of right
to negotiate applications (ie. both future act determination applications
and expedited procedure objection applications) is not determined by use
of the word 'prompt' in s 109(1) but by the substantive statutory provisions
which are discussed in the following passages from the Explanatory Memorandum
to the Procedures under the Right to Negotiate Scheme (Issued 20 April
2000).

'4. The Tribunal
accepts that Parliament intended that proposals to do future acts which
are subject to the right to negotiate provisions of the Act (particularly
the grant of mining tenements) should be dealt with in a timely manner.
This is apparent from:

The Statutory
Provisions. Section 35(1) of the Act provides that a future act determination
application can be made 6 months after the giving of the notice under
s 29 of the Act of the Government party's intention to do the future
act. Section 36 requires the Tribunal to take all reasonable steps
to make a determination as soon as practicable (s 36(1)) and advise
the relevant Commonwealth Minister if it does not do so within 6 months
of the application (s 36(3)). The Minister may request the Tribunal
to make a determination within a specified period (s 36(4)).

The Second Reading
Speech of the Prime Minister on 16 November 1994 (Hansard pp 2880-2881).
The Prime Minister noted that:

- the right to
negotiate was not a veto;
- the timeframes set for notifications negotiation and arbitration
are tight but fair; and
- the Act imposed clear statutory rules for land use and did not set
up complicated barriers to mining exploration and operations.

5. In Western
Australia v Thomas
the Tribunal, when explaining the purpose of
the right to negotiate provisions of the Act, said:
'We accept that the legislation was enacted with knowledge of the importance
of the Australian mining and resources industry, and that the right
to negotiate provisions were intended to deal with the ongoing grant
of mining and petroleum titles, which is the largest and most significant
aspect of the future dealings covered by the Act.

…

In general the
Tribunal accepts the importance of achieving certainty for the mining
industry, provided this can be done consistently with giving effect
to the important rights which are now accorded to native title parties.
(1996) 133 FLR 124 at 149.

6. With respect
to the expedited procedure the Tribunal accepts that, in a procedural
sense, expedited procedure objection applications are also to be dealt
with expeditiously. This is supported by judicial comment in Western
Australia v Ward & Ors where Lee J said:

'The context
of the subdivision suggests that a determination whether "the
expedited procedure" is attracted is to be made as speedily as
possible…' (1996) 70 FCR 265 at 278, 141 ALR 753 at 766.'

The Tribunal accepts
that it must carry out its functions in a fair and just way (s 109(1)).

You also question
the Tribunal's reliance on the Federal Court statement that an expedited
procedure determination is to be made as speedily as possible (Western
Australia v Ward
(1996) 70 FCR 265 at 278; 148 ALR 753 at 766 per
Lee J). In my view you have misinterpreted the Tribunal's partial reliance
on this statement. The statement is relevant because it confirms what
is clear from the statutory provisions and the Prime Minister's speech.
Quite specific time limits ('tight but fair' in the Prime Minister's words)
are imposed on the right to negotiate process generally. It follows that
Parliament intended expedited procedure objections to be processed as
quickly as possible ie. to decide whether the normal right to negotiate
is applicable or whether the grant can be made. As the Tribunal has pointed
out in the Explanation, the mandatory nature of s 76 and the requirement
for information to be provided as prescribed in Form 4 (particularly paragraph
7) are part of the legislative scheme which mandates the timely disposition
of future act matters to which the right to negotiate applies. The provision
of this information assists the other parties to identify the issues and
make an assessment of whether to proceed with the expedited procedure
request or consent to a determination that the expedited procedure is
not attracted. It also assists the Tribunal to identify the issues which
will be before it in an inquiry.

Non-extinguishment
of native title:
You also rely on s 4 which provides that native
title cannot be extinguished contrary to the Act. It is clear, however,
that native title will not be extinguished by the grant of prospecting
or exploration licences. The notice given under s 29 of the Act only asserts
that the expedited procedure is attracted in the case of prospecting and
exploration licences. Where extinguishment of native title is a consequence
of the doing of a future act, the expedited procedure clearly does not
apply and this is accepted by Governments. I acknowledge that native title
may be impaired by the exercise of rights under the grant of prospecting
and exploration licences. In the circumstances set out in s 237, however,
that is sanctioned by the Act on the basis that any impairment is not
likely to be significant.

The degree of particularity
required by the Guidelines

The
Tribunal gave careful consideration to submissions made on the initial
guidelines of 8 May 2001. They have been revised. The Tribunal does not
accept that its Guidelines go beyond what is specified in the Regulations
or Form 4.

The issue of discrimination

The Prime Minister
(at 2880) made it clear that the right to negotiate provisions were based
on the principle of non-discrimination. A mining grant can generally be
made over freehold land and can (subject to the special procedures in
the right to negotiation provisions) be made over native title land. In
this respect the Act is on the face of it non-discriminatory. There may
be, in the case of mining legislation in each of the States and Territories,
some argument about whether the 'special' right to negotiate exceeds or
is less than the rights given to freeholders for mining on their land.
The Tribunal has not carried out a detailed analysis of this and is not
aware of any challenge to the right to negotiate procedures on this basis,
and accepts (in the absence of argument to the contrary) that the Act
is not racially discriminatory in its application to the grant of future
mining tenements.

The Tribunal's decisions
(and Guidelines upon which they are based) about which you complain were
made by the Tribunal in the exercise of its statutory functions under
the Act and were guided by the provisions of the Act. The Act provides
a scheme to determine if certain future acts can be done validly. The
expedited procedure is an exception to that scheme and can be invoked
in specified circumstances. If native title holders or native title applicants
wish to prevent the expedited procedure applying in a particular case
they must lodge an objection. Parliament (in the Act) and the Executive
(in the Regulations) have specified what information that objection must
contain. Compliance with the form and prescribed information is a matter
within a native title party's control. The Tribunal must consider whether
the objection application complies with the requirements of the Act, and
has applied a beneficial interpretation of the provisions. In my view
there is no question of discrimination involved.

Conclusion

I agree that the
objection procedure may be the only safeguard to ensure that the expedited
procedure is exercised according to the Act.

I also acknowledge
that the question of whether s 76 is mandatory or directory is one about
which opinions can legitimately differ. However, the Tribunal went through
a careful process of considering the submissions made on the matter before
confirming its view. In our view, it is an express requirement of the
Act that the Form 4, by which the objection procedure is commenced, must
be completed properly (particularly paragraph 7). Accordingly, if the
procedure can be characterised as favouring non-Indigenous interests over
Indigenous interests, that is a result of the operation of the Act rather
than a discriminatory interpretation of it.

If parties consider
the Tribunal is wrong then the issue should be tested in the Federal Court.
The Tribunal would welcome judicial direction on this issue. Alternatively,
the parties (and you) may consider an approach to the Government to amend
either the Act or Regulations.

I would be happy
to discuss this issue further with you.

Yours sincerely

C J Sumner
Deputy President

 

Last updated 13 June 2002.