French J
This case considered the legislative intention of the amendments to s 237 of Native Title Act 1993 (Cth) (‘NTA’). The State of Western Australia gave notice under s 29 of the NTA that it proposed to grant an exploration license to South Coast Metal Pty Ltd. The State also gave notice that it considered the act to be one which attracted the expedited procedure under s 32 of the NTA. An objection to the expedited procedure was lodged by Derrick Smith on behalf of the Gnaala Karla Booja People. The Native Title Tribunal determined that the grant of the licence was an act which attracted the expedited procedure. This appeal concerns the proper construction of s 237 of the Act which defines the scope of the expedited procedure exemption from the right to negotiate regime.
NTA s 237
NTA s 237 provides that a future act is an act attracting the expedited procedure if it is not likely to interfere directly with the community or social activities of the native title holders, sites of particular significance or involve major disturbance to land of waters.
Tribunal’s Reasoning
In interpreting NTA s 237, the Tribunal held that the word 'likely' in 'likely to interfere' or 'likely to involve major disturbance' referred to a ‘real or not remote chance or possibility, regardless of whether it is less or more than 50%.’
The tribunal found that the only relevant community or social activity carried out in the vicinity of the tenement was hunting and camping. The tenement area itself comprised only a small section of the total area used for hunting and camping. The court noted that logging and tourism activities also took place in the area and thus mining would be only one of several reasons that hunting stock (kangaroos) might leave the vicinity. The choice of where to hunt was also limited because of a disease risk area over approximately half of the tenement.
The Tribunal had regard to evidence about the limited area of the tenement in relation to the overall area on which the activities could be carried out, the period and short terms nature of the activities, the activities of third parties, and the impact of the disease risk area. The Tribunal found that the grant of the tenement and the exercise of the rights it created were not likely to interfere directly with the community or social activities of the native title holders.
Court’s Reasoning
‘Likely’
His Honour held that the term ‘likely’ involves a predictive assessment, however, noting the beneficial nature of the NTA, the interference did not need to be established or negated on the balance of probabilities. Consistent with the objects of the NTA, the court was required to exclude from the expedited procedure any proposed which would involve a real chance or risk of interference or major disturbance of the kind contemplated by s 237.
Direct interference with the community activities
The applicant submitted that the Tribunal erred in its application of the word ‘directly’. It was contended that if there if there was any possible collision between the carrying out of any community or social activity and the exercise of the rights under the licence, then there is a direct interference.
The Court held that the notion of direct interference involves a judgment that the act is likely to be a proximate cause of the apprehended interference. Furthermore, that the word ‘interference’ connoted a substantial and not trivial impact upon community or social activities.
French J found that the Tribunal could have regard to constraints imposed by third parties and external regulation when assessing the extent of interference. His Honour ruled that the Tribunal adopted the correct approach.
Interference with physical aspects
This ground of appeal concerned the Tribunal's statement that 'section 237 is concerned with and limited to interference with the physical aspects of the carrying on of community and social activities of the native title holders’. However, given that the applicant was not relying on any non-physical community or social activities, this statement had no bearing upon the outcome.