McKerracher J
In this matter, McKerracher J dismissed appeals brought by FMG Pilbara Pty Ltd (FMG) and the State of Western Australia (State) against a decision of the National Native Title Tribunal (Tribunal) that an expedited procedure should not apply in relation to two proposed exploration licences (see Yindjibarndi Aboriginal Corporation RNTBC v FMG Pilbara Pty Ltd and Another [2014] NNTTA 14).
The primary issue was the degree and extent to which the Tribunal is required to expose details of its reasoning process in arriving at what has been described as a ‘predictive assessment’ and the meaning of interference in s 237(b) of the Native Title Act 1993 (Cth) (NTA).
Background
On 13 February 2006, FMG applied for the grant of E47/1666 and E47/1667.
On 30 November 2012, the State gave notice of its intention to grant six exploration licences to FMG with a statement that it considered the exploration licences could be granted by way of an expedited procedure under s 237 NTA. That is, without having to undertake future act negotiations required by s 31 NTA.
The Yindjibarndi Aboriginal Corporation (YAC) objected and the Tribunal was required to determine whether the grant of each of the exploration licences was an act which attracted the expedited procedure.
Expedited Procedure - s 237 NTA
Under s 237 NTA, a Future Act will attract 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 of native title; 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 of the native title; 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.
The Tribunal acknowledged the evidence given by YAC was that there are five sites found to be of particular significance and determined that the expedited procedure would apply to four of the licences but two licences did not satisfy s 237(b) NTA.
In reaching its decision the Tribunal considered FMG's attitude to heritage and the State's regulatory regime but concluded that, given the nature of the sites, inadvertent interference may occur without future act negotiations and the expedited procedure did not apply to E47/1666 and E47/1667.
Assessment of Appeal - FMG
FMG’s appeal was run on several grounds. However, McKerracher J, at [30] stated:
FMG’s basic complaint is that ‘we don’t know why we lost’. FMG contends the Tribunal has not given reasons as to why the granting of two exploration licences will interfere in the sense discussed in s 237(b) NTA.
FMG also claimed the Tribunal was at fault in failing to make findings of fact as to the type, nature and quality (including whether physical) of interference to each of the five sites which was likely to occur by the grant of exploration licences.
McKerracher J did not accept this argument, stating at [52] that:
…the Tribunal has considered the nature of the proposed exploration, including all the preventative measures and has considered the nature of the particular sites. It has published its findings in relation to all of those facts. In my view, it does not need to go further to say why a particular piece of exploration activity is likely to interfere with a particular site in the sense for which FMG contends.
Assessment of Appeal – the State
McKerracher J summarised the State’s primary argument as, the Tribunal failed to carry out a ‘predictive assessment’ and misinterpreted the word ‘interfere’ and consequently there was no actual assessment of the risk of interference with areas or sites as required.
The Court considered the focus of s 237(b) NTA on areas of sites of 'particular significance' in accordance with the native title party’s traditions and concluded that this required an evaluation of the extent of the particular significance of the site.
McKerracher J held that the Tribunal's finding that there was a real risk or chance of interference was based on its findings that inadvertent interference may occur which, in turn, was based upon the evidence and material before it.
From these findings the Tribunal reached its predictive assessment. The Tribunal was not required to state its findings on exactly what action would be likely to constitute interference.