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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:

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:

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:

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:

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.