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Australian Indigenous Law Reporter |
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10 June 1998
Native title -- Compulsory acquisition of native title rights and interests -- Purpose of acquisition -- "Compulsory Acquisition Act" -- Negotiation in good faith.
Facts:
The Northern Territory Government gave notice under s 29 of the Native Title Act 1993 (Cth) (the "NTA") of its intention to compulsorily acquire 4440 ha of Crown Land, mostly comprising mudflats and mangrove swamps at Wickham Point near Darwin with the intention that it be used for industrial development. An intending developer had requested a grant of 100 acres of the land for a liquefied natural gas plant.
The Larrakia People, and other native title parties, responded to the s. 29 notice and participated in negotiations pursuant to s. 31(1) of the NTA.
Held:
1. Section 50A of the Lands Acquisition Act 1978 (NT) (the
"LAANT") qualified as a "Compulsory Acquisition Act" under the
NTA, because para. (c) of the definition of "Compulsory Acquisition Act"
in the NTA required only that the LAANT have provisions enabling
a request for non-monetary compensation of the acquiring party and not that
there be negotiations involving
third parties (which are covered by Pt 3 and
s. 72 of the NTA).
2. The Government party is not obliged, at the time of giving notice in accordance with NTA ss. 26 and 29, to identify the third party or parties upon whom it will be conferring rights or interests in relation to the land concerned.
3. It is not necessary for the Government party to divest itself of the entirety of the land acquired. Retention of areas dedicated to purposes identified as adjuncts to the main purpose would not constitute a failure to meet the test in para. 26(2)(d) of the NTA.
4. The National Native Title Tribunal (the "NNTT") fell into error in concluding that the acquisition of the buffer zone (comprising 4440 ha, less the 600 ha to be used for industrial purposes) was a purpose that was ancillary to the main purpose of the compulsory acquisition, because there was no evidence to justify the making of that decision.
5. Given the steps which had been taken, the compulsory acquisition could not now be treated as though it was under NTA s. 23.
6. Nothing less than complete acquisition and extinguishment of native title could be the subject of the negotiations to which s. 31 of the NTA relates.
7. There must be factual findings that will sustain the submission that "good faith" is lacking.
8. The public utterances of some ministers are not to be treated as the official and actual view of the Government.
9. The NNTT has power to summons a person to produce documents under NTA ss. 156(2) and 109 where the applicants make out a case for so doing, and where fairness or justice required it to do so.
10. The Government party is entitled to compulsorily acquire for its own purposes under s. 23. In such a case the non-extinguishment principle exists and native title rights and interests are not automatically extinguished. This will only occur if and when the Government party transfers its interests to a third party.
11. On the other hand the Government party may propose implementation of the act of acquisition under para. 26(2)(d) of the NTA. The identified purpose of that acquisition is limited to the conferring of "rights or interests in relation to the land or waters concerned on persons other than the Government party". If that purpose is established then, absent agreement between the parties, the right to negotiate provisions can be attracted and ultimately, it may be that complete extinguishment of native title will occur.
12. Where a proposed acquisition by a Government party is not for that purpose or where it is for that purpose and another or other purposes, it cannot be an act to which s. 26 of the NTA applies. In such a case, the relevant act of acquisition cannot be the subject of a notice by the Government party or any other party under s. 35 of that Act.
O'Loughlin J:
The application before the Court in this proceeding has been brought, in the first instance, pursuant to the provisions of the Administrative Decisions (Judicial Review) Act (Cth) ("the ADJR Act"). The applicant, Mr Bill Risk, who filed the application on behalf of the Larrakia People, seeks a review of a decision and a review of the conduct of the first respondent, Professor Douglas Williamson QC, in his capacity as a Member of the second respondent, the National Native Title Tribunal ("the Tribunal"). Matching relief by way of declaratory and injunctive orders are also sought under s. 39B of the Judiciary Act 1903 (Cth). Professor Williamson and the Tribunal have both filed submitting appearances, save only as to costs.
The third respondent is the Northern Territory of Australia ("the Government party") and the fourth respondent is Phillips Oil Company Australia ("Phillips"); they both appeared and opposed Mr Risk's application.
The action concerns an application that the Government party made to the Tribunal arising out of the proposal of the Government party that it compulsorily acquire all native title rights and interests in certain lands and waters at Wickham Point in the Northern Territory of Australia. The applicant claims that the Tribunal should have dismissed the Government party's application to the Tribunal and seeks a review of its failure to do so ("the decision"); Mr Risk also complains of Professor Williamson's conduct in refusing to issue a summons to the Government party requiring it to produce certain documents.
I do not understand there to be any dispute about the background facts and the history of this matter. What follows therefore, by way of a statement of the relevant facts, has been extrapolated from the written reasons of the Tribunal.
Wickham Point is about five km south-east from the nearest part of the commercial and administrative centre of Darwin, directly across Darwin Harbour. It is at the tip of a peninsula that separates the Middle Arm from the East Arm of the Harbour. The nearest major community by road is Palmerston; it is about 12 km to the East, but due to the nature of the intervening terrain and water, the distance by road is about 25 km. The land at Wickam Point is Crown Land; it is low lying and is mostly mud flats and mangrove swamps.
Timothy Joyce is the Senior Policy Officer with the Department of the Chief Minister for the Northern Territory of Australia. In his affidavit that was sworn on 6 November 1997, Mr Joyce gave some of the history of Wickham Point. He said that the area had been identified as being suitable for industrial development because of its separation from residential areas and its proximity to deep water. He said that the intention to use the land for this purpose had been identified in the Darwin Regional Structure Plan of 1984 and formally adopted as planning policy of the Northern Territory Government with the publication of the 1990 Darwin Regional Land Use Structure Plan.
In a letter dated 24 July 1996, Phillips had written to the Hon. Mike Reed MLA, the Minister for Lands, Planning and Environment, enclosing a cheque for $1000, being the application fee "for a direct sale of Crown Land". A second letter of the same date from Phillips to the Minister identified the land at Wickham Point as the intended site for a liquefied natural gas plant ("the LNG plant"). In an accompanying statement, Phillips nominated approximately 100 acres as the area of land that it would require for the LNG plant and for expansion in the future. It proposed that development would commence in December 1997 and that construction would take approximately three years. The Department of Lands, Planning and Environment replied to Phillips by letter dated 2 August 1996. The Department said that Phillip's application was in the course of being circulated to interested Government departments and that upon receipt of advice from those Departments, an assessment would be made of the application. The letter said:
The subject area is currently vacant Crown land and will also be subject to investigation of the Native Title implications which came into effect in January 1994.
The Larrakia People lodged an application with the Tribunal for the determination of native title over certain land and waters, including the land and waters that are covered by these proceedings. That application was lodged on 6 December 1996, a rival application covering the same land and waters having earlier been lodged on 21 October 1996 by Tibby Quall on behalf of the Danggalaba clan.
On 29 November 1996, in between the lodgment of the two native title applications, the Government party gave notice of its intention to do a proposed act that it regarded as a "permissible future act"; in so doing, the Government party was purporting to act under the provisions of ss. 26 and 29 of the Native Title Act 1993 (Cth) (the "NTA"). Subsection 26(1) of the NTA provides as follows:
26(1) This Subdivision applies if the Commonwealth, a State or Territory (the "Government party") proposes, at any time after the commencement of this Subdivision, to do any permissible future act covered by subsection (2) in relation to an onshore place.
Subsection 26(2), so far as it is relevant to this action then states:
Subject to subsection (3), the acts are as follows:
(a) ...
(b) ...
(c) ...
(d) the compulsory acquisition of native title rights and interests under a Compulsory Acquisition Act, where the purpose of the acquisition is to confer rights or interests in relation to the land or waters concerned on persons other than the Government Party.
(e) ...
Section 29 requires the Government party to give notice of its intention to do the act; it also identifies the parties to whom that notice must be given. Those parties are listed in subs. 29(2):
29(2) The Government party must give notice to:
(a) any registered native title body corporate (a "native title party") in relation to any of the land or waters that will be affected by the act; and
(b) any registered native title claimant (also a "native title party") in relation to any of the land or waters that will be affected by the act; and
(c) any representative Aboriginal/Torres Strait Islander body in relation to any of the land or waters that will be affected by the act; and
(d) if the act is to be done at the request of, or on application by, a person (for example, where it is the issue of a licence or the grant of a lease for which the person has applied) -- that person (a "grantee party"); and
(e) the arbitral body in relation to the act.
In addition, s. 29(3) requires the Government party to notify the public "in the determined way of its intention to do the act". It has not been suggested that the Government party failed to comply with the requirements of s. 29; Phillips was served as a grantee party and the Tribunal is the arbitral body in relation to the act.
The notice that the Government party gave pursuant to s. 29 described the proposed act in the following terms:
... the Northern Territory intends to do an "act" under that Act [i.e., the Native Title Act 1978], namely that it proposes to compulsorily acquire, under and in accordance with the Lands Acquisition Act, any native title rights and interests that may exist in land, and in so far as the area includes "waters" as defined by section 253 of the Native Title Act, to compulsorily acquire any native title rights and interests that may exist in those waters, in that area as described as follows ...
There then followed a detailed description of the relevant land and waters. Henceforth, as a matter of convenience, the word "land" will be used, on occasions, to include, where appropriate, "waters".
Several native title parties responded to the s. 29 notice and participated in the s. 31(1) negotiations to which reference is made hereafter. They included Bill Risk, the present applicant, on behalf of the Larrakia People, and Tibby Quall on behalf of the Danggalaba Clan.
The area that was the subject of the s. 29 notice comprises about 4440 ha, but because of the low lying nature of the land only a small portion of it is available for development. Minutes of a meeting between the negotiation parties that was held on 4 April 1997 record that a Government party representative at the meeting stated that only 600 ha of the proposed acquisition area would be suitable for development; the proposal of the Government party was to the effect that the balance of the acquired land would remain as a buffer zone.
It is not clear whether Phillips might have changed its request from 100 acres to 100 ha or whether a mistake has been made in some of the papers: both areas are mentioned on different occasions. But it does not really matter: at this stage, Phillips is the only identified third party as an intended grantee of part of the land that is to be acquired and, whether it be a 100 acres or a 100 hectares, the area of land intended for Phillips is only a small percentage of 4440 ha. If the project comes to fruition, Phillips' plan is that natural gas will be brought to the LNG plant by sub-sea pipeline from the Bayu-Undan gas field in the Zone of Co-operation in the Timor Sea. After processing, the LNG will be transferred via a loading jetty to tankers for shipment to market.
Section 31 of the NTA is an important provision. It states that:
31(1) Except where the notice includes a statement that the Government party considers the act attracts the expedited procedure, the Government party must:
(a) give all native title parties an opportunity to make submissions to it, in writing or orally, regarding the act; and
(b) negotiate in good faith with the native title parties and the grantee parties with a view to obtaining the agreement of the native title parties to:
(i) the doing of the act; or
(ii) the doing of the act subject to conditions to be complied with by any of the parties.
(2) If any of the negotiation parties requests the arbitral body to do so, the arbitral body must mediate among the parties to assist in obtaining their agreement.
The negotiations to which subs. 31(1) refers, can extend to the incorporation of a condition that has the effect that native title parties are to be entitled to payments worked out by reference to the profits or income or produce enjoyed by any grantee party from the land: see s. 33 of the NTA. But if a negotiation party applies under s. 35 of the NTA to the Tribunal, as the arbitral body, for a determination in relation to the act, s. 38, while empowering the arbitral body to make a determination, prohibits it from incorporating such a condition in its determination. In the case that is now before the Court, those negotiations did take place pursuant to s. 31, but they were unsuccessful.
It is not disputed that the Government party gave all interested parties notice of its intention to make the compulsory acquisition; nor is it disputed that the Government party gave "all native title parties an opportunity to make submissions to it ..." as required by para. 31(1)(a) of the NTA. However, one of the complaints of the applicant is that the Government party did not "negotiate in good faith with the native title parties": see para. 31(1)(b) of the NTA.
The requirement to negotiate in good faith is a paramount issue. Without it, s. 35 cannot be called in aid. In Walley v Western Australia [1996] FCA 490; (1996) 67 FCR 366 Carr J said:
... I have come to the conclusion that if the government party has not complied with its obligation under s. 31(1)(b) to negotiate in good faith with the other negotiation parties (a matter which has not yet been decided) then none of the parties may move to the next stage of making an application under s. 35 for a determination. Accordingly, in my opinion the Tribunal erred in law in deciding that it did not have power to dismiss such an application on the ground that the government party had not negotiated in good faith.
I respectfully agree with his Honour's views.
The allegation that it did not negotiate in good faith has been denied by the Government party; it maintains that it had, at all times, negotiated in good faith and, having failed to reach any agreement within the period of six months that is referred to in s. 35 of the NTA, it applied under that section to the Tribunal as the arbitral body, "for a determination in relation to the act ...".
The sections of the NTA to which reference has thus far been made are to be found in Subdiv. B of Div. 3 of Pt. 2. Pt. 2 is entitled "Native Title", Div. 3 relates to "Future Acts and Native Title" and Subdiv. B is headed "Right to Negotiate".
Part 3 of the NTA deals with "Applications" and Division 2 of that Part is entitled "Right to Negotiate Applications". Section 75, the first of the sections in Div. 2, then identifies a "Future Act Determination Application" as an application that may be made under Div. 2 and further nominates any negotiation party as one who may make the application. In other words, s. 75 of the NTA authorised the Government party, as one of the negotiation parties, to make an application under s. 35 for a determination in relation to a future act. The next section to which reference must be made is s. 139; it is the provision that states that the Tribunal "must hold an inquiry" into various applications -- one of which is a "right to negotiate application" -- unless the parties earlier arrive at a negotiated agreement: see para. 31(1)(b), s. 32(5), 34 and 37. The Tribunal, after holding an inquiry in relation to a right to negotiate application, must make a determination about the matters covered by the inquiry: s. 162(1). The determination that must be made can only be one of the three identified determinations in s. 38(1):
38(1) Except where section 37 applies, the arbitral body must make one of the following determinations:
(a) a determination that the act must not be done;
(b) a determination that the act may be done;
(c) a determination that the act may be done subject to conditions to be complied with by any of the parties.
It was within this framework of the legislation that the Government party, by application dated 25 September 1997, applied under s. 35 of the NTA to the Tribunal for a determination in relation to its proposed act of compulsory acquisition. When an application is lodged with the Tribunal (as the arbitral body), the Tribunal must act with expedition. Except for applications for the grant of a licence to prospect or explore for things that may be mined (which must be determined within four months), the Tribunal must take all reasonable steps to make a determination in relation to the act within a period of six months from the making of the application.
At this stage it is timely to pause for the purpose of identifying the circumstances that must exist before a negotiation party can approach the Tribunal under s. 35 of the NTA. Those circumstances are as follows: where the permissible future act is said to be the compulsory acquisition of native title rights and interests, the identified purpose of that acquisition is limited in para. 26(2)(d) to the conferring of "rights or interests in relation to the land or waters concerned on persons other than the Government party". Where a proposed acquisition by a Government party is not for that purpose or where it is for that purpose and another or other purposes, it cannot be an act to which s. 26 of the NTA applies. In such a case, the relevant act of acquisition cannot be the subject of a notice by the Government party under s. 29 of the NTA nor can it be the subject of an application by the Government party or any other party under s. 35 of that Act. The Government party, relying on para. 26(2)(d) gave its notice under s. 29 and involved itself in negotiations pursuant to s. 31.
The Tribunal found that subsequent to the notice that the Government party gave on 29 November 1996 under s. 29 of the NTA and prior to its application on 25 September 1997 to the Tribunal under s. 35:
... discussions and correspondence took place and other material exchanged between the Government party, the native title parties and the grantee party. Nine meetings between representatives of all of the parties took place between 26 February 1997 and
23 September 1997... In that time no agreement in terms of s. 31(1)(b) was reached. At the meeting on 23 September 1997 the Government party announced its intention to apply to the Tribunal for a determination under s. 35 of the Act.
That finding is accepted by all parties.
On 24 October 1997, the Tribunal conducted a directions hearing. That hearing
related to the inquiry that the Tribunal was about
to undertake (as required by
para. 139(b)) into the "right to negotiate application". The native title
parties gave notice at that
hearing that they proposed to allege that the
Government party had not, during the course of the nine meetings to which
reference
has been made, negotiated in good faith as required by para. 31(1)(b)
of the NTA. The native title parties also challenged the jurisdiction of
the Tribunal to proceed with an inquiry under s. 139 and to make a
determination under s. 162 on the ground that the Government party did not have
"the purpose" that is referred to in
para. 26(2)(d); they also later sought
(on 14 November) procedural orders (initially in the nature of an order for
discovery) against
the Government party and Phillips. These challenges
culminated in a submission by the native title parties to the Tribunal that the
Tribunal should exercise its powers under s. 148 of the NTA to dismiss
the Government party's application. That section provides as follows:
148. The Tribunal may dismiss an application, at any stage of the inquiry relating to the application, if it is satisfied that the applicant is unable to make out a prima facie case in relation to the application.
The Tribunal heard argument between 24 and 27 November 1997 and published its decision on 22 December.
All challenges were unsuccessful. The Tribunal made the following findings:
(a) The proposed act referred to in the s. 29 notice wholly falls within s. 26(2)(d) of the Act, and attracts the right to negotiate procedures of Pt 2 Div. 3 Subdiv. B of the Act. In particular, this finding applies both to the identification of the relevant land and waters and the purpose of the proposed acquisition.
(b) The notice given under s. 29 operates to commence a right to negotiate procedure in relation to all of the land and waters the subject of the notice.
(c) The Government party has satisfied its obligation to negotiate in good faith with the native title parties and the grantee party within the meaning of s. 31(1)(b) of the Act.
(d) The Government party has satisfied the jurisdictional preconditions to the conduct of an inquiry under s. 139 of the Act, and the making of a determination under s. 35.
In addition, the Tribunal refused to exercise its powers under subs. 156(2), as requested by the native title parties. That subsection empowers the Tribunal to summon the production of documents. Detailed reasons for its decision were published by the Tribunal on 9 February 1998.
In the amended application for an order of review, the applicant has addressed various matters which can be conveniently grouped in the following fashion:
If any of these grounds are made out, then, so the applicant submitted, it would follow that the Government party's notice under s. 29 would not be valid and it would not have been appropriate for the Tribunal to proceed with its inquiry under s. 139 and to make a determination under s. 162 of the NTA. I turn now to consider the first of the applicant's submissions.
The permissible future act to which s. 26 of the NTA refers is not the mere act of compulsory acquisition: it is more. It must be the compulsory acquisition of native title rights and interests, it must be for the necessary purpose and it must be implemented through a "Compulsory Acquisition Act", a term that is defined in s. 253 of the NTA in the following terms:
"Compulsory Acquisition Act", in relation to the Commonwealth, a State or a Territory, means a law of the Commonwealth, the State or the Territory that:
(a) permits both:
(i) the compulsory acquisition by the Commonwealth, the State or the Territory of native title rights and interests; and
(ii) the compulsory acquisition by the Commonwealth, the State or the Territory of other interests in relation to land or waters; and
(b) provides for compensation for the acquisition of any native title rights and interests; and
(c) contains provisions to the same effect as section 79 in relation to the determination of the compensation;
other than a law declared by the regulations not to be a Compulsory Acquisition Act;
It is common ground that before the Tribunal the Government party was claiming to operate under the Territory's Acquisition Act 1993. Subject to an alternative argument that was developed during the course of argument, that was also the opening position of the Government party in these proceedings. Therefore, to satisfy the requirements of the definition of "Compulsory Acquisition Act" it is necessary to find in the Northern Territory's Acquisition Act:
The applicant does not challenge the first three factors, but he does challenge the fourth.
Section 79 of the NTA deals with requests for non-monetary compensation. It is in the following terms:
79(1) If, during negotiations in relation to an application under this Part (whether or not during a conference under section 72), a person or persons who may be entitled to compensation request that the whole or part of the compensation should be in a form other than money, the other person or persons involved in the negotiations:
(a) must consider the request; and
(b) must negotiate in good faith in relation to the request.
(2) The transfer of property or the provision of goods or services are examples of compensation in a form other than money.
Section 79 of the NTA has two objectives. First, it enables the native
title parties, during negotiations in relation to
Pt. 3 applications (which
include "right to negotiate applications"), to request that "the whole or part
of the compensation should
be in a form other than money". Second, it directs
that, in the event of such a request being made, "the other person or persons
involved in the negotiations" must consider the request and must negotiate in
good faith in relation to the request. The reference
to "the other person or
persons" is obviously directed to the Government party and any grantee.
The Acquisition Act contains Pt. IXA, entitled "Special Provisions Relating to Native Title Rights and Interests"; that Pt comprises five sections, ss. 88A-88E. None of them contains a reference to s. 79 of the NTA nor do any of them contain language that is the same as or similar to the language of s. 79. In particular there is no reference to the subject of non-monetary compensation and there is no requirement to consider any request and to negotiate in good faith in relation to the request. However, these subjects are covered in s. 50A of the Acquisition Act. It provides as follows:
Without limiting the generality of section 50, where an interest in land in respect of which compensation is otherwise payable under this Act comprises native title rights or interests and the purpose of the acquisition is to confer rights or interests in relation to the land on a person or persons other than the Territory, the person or persons who may be entitled to compensation may request that the compensation should be in a form other than money, and the Minister --
(a) must consider the request; and
(b) must negotiate in good faith in relation to the request.
It was submitted on behalf of the applicant that the combined effect of the definition of "Compulsory Acquisition Act" and s. 79 of the NTA was such that the Acquisition Act could only qualify as a "Compulsory Acquisition Act" if it enabled the native title claimants who may be entitled to compensation, to request non-monetary compensation from each or any of the bodies or persons who are parties to the negotiations; it was submitted that the Acquisition Act does not contain any such provision. But this submission overlooks the fact that the definition of "Compulsory Acquisition Act" is qualified by the words in para. (c) "in relation to the determination of the compensation".
If the definition of "Compulsory Acquisition Act" intended the Commonwealth, State or Territory legislation to contain the mirror image of s. 79 of the NTA, para. (c) the definition need only have read:
(c) contains provisions to the same effect as section 79.
The additional words "in relation to the determination of the compensation" would not have been needed; some meaning must therefore be given to their presence.
The view that I take is that it was necessary for the legislature to add the words "in relation to the determination of the compensation" because, without them -- leaving para. (c) to read "contains provisions to the same effect as section 79" -- would mean that the "Compulsory Acquisition Act" would have to include provisions that referred to negotiations under Pt. 3 of the NTA and s. 72 of NTA for they are matters that are included in s. 79. Obviously that would be meaningless; hence the qualifying words have made it clear that the "Compulsory Acquisition Act" need only have provisions enabling the relevant person or persons, who may be entitled to compensation, to request that the whole or part of the compensation should be in a form other than money. Because of my finding that there is no need to include any reference to negotiations, there is no need to bring into the equation any reference to any third parties. However, it is essential that the Government party, as the acquiring party, must consider any request and negotiate in good faith in relation to such a request. After all, that is part of the compensation process. Hence, it is my opinion that each of the requisite provisions are to be found in s. 50A of the Acquisition Act, thereby making it a "Compulsory Acquisition Act."
Notwithstanding that the Government party has argued (successfully in my opinion) that its Acquisition Act is a "Compulsory Acquisition Act" as defined by the NTA, it must have had some misgivings.
On 1 May 1998, after the application in this matter had been filed, but before the application came on for hearing, the Administrator of the Northern Territory of Australia assented to the Lands Acquisition Amendment Act (No 31 of 1998); it amended the Acquisition Act by inserting s. 5A which reads as follows:
If, but for this section, this Act is not a Compulsory Acquisition Act as defined in section 253 of the Native Title Act of the Commonwealth, provisions to the same effect as section 79 of the Act in relation to the determination of the compensation are incorporated into and are to be taken to form part of this Act.
Mr Robertson, counsel for the applicant, submitted that the Government party could not call s. 5A in aid; he submitted that there is nothing in the amending Act that would suggest that it had a retrospective effect.
I do not consider that this is a case of retrospective legislation. The reference in para. 26(2)(d) of the NTA to a Compulsory Acquisition Act, is, in effect, the legislature's way of ensuring that if a Government party exercises rights of compulsory acquisition, the native title parties will have the measure of the protection that is afforded by s. 79 of the NTA in relation to the determination of the compensation. But the act of compulsory acquisition has not yet taken place; nor will it take place unless the Tribunal determines under s. 38 of the NTA that it may be done -- either with or without conditions. That is the point of time at which the Tribunal must be satisfied that the Acquisition Act is one that complies with the definition of a Compulsory Acquisition Act. At this stage, because of the challenges that have been mounted by the applicant, there is nothing more than a proposal to do a permissible future act; it may transpire that the Tribunal will permit that act; if it does, it is proposed that it will then be the compulsory acquisition of native title rights and interests under a "Compulsory Acquisition Act".
If it be assumed that the introduction of s. 5A was necessary because of some deficiency in the Acquisition Act, the contrary argument, that the Acquisition Act should have complied with the definition, both at the time when the s. 29 notice was given and at the time when the s. 35 application was filed has some appeal. But it seems to me that nothing would be gained by following that path. That would necessitate a fresh notice, fresh negotiations (and there is nothing to suggest that fresh negotiations would bring the parties together) and a fresh application under s. 35. It would be against the interests of all parties to delay this matter in such an unnecessary way. I have concluded that s. 5A was not necessary; but if I am wrong, then s. 5A has cured any deficiency.
Counsel for the applicant submitted that the Government party had failed to establish that its proposed compulsory acquisition of native title rights and interests was accompanied by the necessary purpose of acquisition. Counsel relied upon the words of the paragraph that state: "where the purpose of the acquisition is to confer rights or interests in relation to the land or waters concerned on persons other than the Government Party". It must be recognised at the outset that those words cannot be applied literally; Mr Robertson acknowledged that fact. To do so would prevent a Government party from compulsorily acquiring a parcel of land with the intention of subdividing it for industrial, commercial or residential purposes for in any such subdivision it would be most likely that some land would be retained by the Government party or reserved to the Crown for uses such as roads, footpaths and reserves. Mr Robertson conceded that such obvious adjuncts to a plan of subdivision would not affect the main "purpose of the acquisition" that is referred to in para. 26(2)(d). However, Mr Robertson submitted that the established facts of the present case amounted to a failure on the part of the Government party to stay within the boundaries of the meaning of the word "purpose".
First, he submitted that a Government party could not utilise the provisions of para. 26(2)(d) and, therefore, could not call in aid the "right to negotiate" provisions of the NTA unless the Government party had first identified in its s. 29 notice each person (other than the Government party) upon whom rights or interests in relation to the land were to be conferred. Second, Mr Robertson submitted that, although the word "purpose" should not be interpreted as meaning "exclusive purpose", nevertheless, the facts of this case could not amount to a compliance with the provisions of the paragraph. He submitted that an intention to acquire compulsorily native title rights and interests in 4440 ha of land so that up to 600 ha, but no more, could be used for industrial and commercial purposes -- and of which only 100 ha (or acres) have presently been identified as intended for any grantee -- does not amount to the necessary "purpose".
In support of his submission that the Government party must first identify the third parties who will be acquiring rights or interests, Mr Robertson relied upon a combination of the provisions of ss. 31 and 33. A party such as Phillips being, as it was conceded, a "grantee party", a failure to identify other interested third parties would deprive the native title applicants of the opportunity of negotiating with those other "grantees" (s. 31); in particular, such a failure would deprive them of the opportunity of obtaining conditions under s. 33 entitling them to payments worked out by reference to the amount of profits made or the income derived or the things produced by other grantee parties.
In answer to the proposition that the native title claimants would be entitled to full compensation and that, if they did not obtain it from a grantee party (because no such party had been identified), then they would obtain it from the Government party, counsel for the applicant made the submission that, because of the beneficial nature of the legislation, the native title claimants were entitled to more than full compensation: they were entitled to full compensation from the Government party plus such additional benefits as they may be able to extract from a grantee party. Such a proposition need only be stated to be rejected. Counsel referred to some remarks of McHugh J, in support of the proposition that he was advocating. In North Ganalanja Aboriginal Corporation (for and on behalf of the Waanji People) v Queensland [1996] HCA 2; (1996) 135 ALR 225 at 253 McHugh J alluded to a circumstance whereby a native title claimant might be successful at the negotiation table even though he or she ultimately fails to prove native title. His Honour said:
In furtherance of this purpose, the effect of the Act is that, irrespective of whether a claimant has native title as claimed, as long as the claimant has a prima facie claim of title, he or she obtains the right to negotiate with interested parties once the Registrar accepts the claim: ss. 26-42, 72. Those rights of negotiation are valuable rights. They enable an applicant to protect his or her claim against "permissible future acts": s. 26(2). They may also result in the applicant obtaining a commercially beneficial settlement of a doubtful or even non-existent claim.
That passage does not however, support a proposition that a native title claimant may, as a matter of law, be entitled to receive more than his or her just entitlement in the ultimate resolution of the compensation process.
But there are other reasons for rejecting the proposition that there is a need or a prerequisite to nominate interested third parties.
A party will only be classed as a "grantee party" if he, she or it comes within the definition of that term. That definition is found in para. 29(2)(d) of the NTA, the provision that requires the Government party to give notice to:
(a) ...
(b) ...
(c) ...
(d) if the act is to be done at the request of, or on application by, a person (for example, where it is the issue of a licence or the grant of a lease for which the person has applied) -- that person (a "grantee party").
It is quite clear that a "grantee party" will only come into existence for the purpose of the legislation if that party has made the necessary request or the necessary application. The opening words -- "if the act is to be done at the request of" -- point to the fact that the act might be done otherwise than at the request of such a party. This then leads to a progression whereby it can be said that the "persons" referred to in para. 26(2)(d) do not have to be in existence or identified at the time of the notice of intended acquisition. If they exist and make the necessary application then they will be "grantees". But nowhere does the legislation contemplate that any such person must exist at or prior to the time of the notice. In my opinion, in the case of a compulsory acquisition, such a conclusion is eminently practicable. It enables a Government party to proceed in an orderly manner with the development of Government business whilst affording to native title claimants full rights of compensation through the "right to negotiate" provisions.
Thus, I have concluded that a Government party is not obliged, at the time of giving notice in accordance with ss. 29 and 26, to identify the third party or parties upon whom it will be conferring rights or interests in relation to the land concerned. A contrary interpretation would place the Government party in a straightjacket. In my opinion, it is open to a Government party to make a decision in principle that an identified area of land is to be earmarked for (say) an industrial subdivision. If, as would have to be the case, it was not part of the Government party's intention to retain any substantial part of the land, the Government party would be able to proceed to acquire compulsorily such native title rights and interest as may exist. I also believe that it is not necessary, in a case such as that postulated, for the Government party to divest itself of the entirety of the land. Retention of title in roads, areas dedicated to utilities such as power and water utilities or to facilities such as parks and gardens -- if they can properly be identified as adjuncts to the main purpose -- would not mean that the Government party's purpose had failed to meet the test in para. 26(2)(d).
If grantee parties exist they can be brought into the negotiations. Their absence would not mean that the native title claimants would be irreversibly deprived of the particular benefits that are identified in s. 33. Those benefits could be negotiated with the Government party under s. 31 and entrenched through an encumbrance or a charge on the relevant parcel of land prior to its disposal by the Government party.
Mr Robertson further submitted that a failure to identify the intended third parties, robbed the native title claimants of opportunities to negotiate. If they did not know to what use the land would be put by a grantee, if they did not know whether their waters and fishing grounds would or would not be polluted or destroyed, if they did not know the future of their hunting grounds, they did not know how to negotiate. There is a short sharp answer to this submission. The act of compulsory acquisition will take away all these rights; hence the native title claimants have no need to know of these matters for all their native title rights and interests will be lost to them forever because of the act of compulsory acquisition. That is the base upon which they can commence to negotiate: a base of total loss.
I turn now to Mr Robertson's submission that the evidence before the Tribunal showed that the intended use of the land did not accord with the purpose that is referred to para. 26(2)(d) of the NTA.
In support of this submission, counsel pointed out that if the compulsory acquisition proceeds according to existing plans, there will be a substantial government infrastructure involving, not only normal subdivisional activities such as roads, footpaths, power and water provisions, but also extending to more unusual facilities such as port facilities including a jetty and an under-sea pipeline ("the port complex"). Added to these features, there is the intended large buffer zone, of which the Tribunal made the following finding:
Further, there would be a buffer zone around the industrial and commercial sites. It is not clear from the evidence how the buffer zone would be configured, or whether it would be owned by the Government party or third parties.
The s. 29 notice addressed the "purpose" of the acquisition; it said:
The purpose of the acquisition is to confer estates in leasehold and/or in fee simple in all or part of the land or waters acquired on persons other than the Northern Territory, in order to make all or part of the land or waters available for development for industrial, commercial and other non-Government purposes, and for ancillary or incidental purposes thereto, by persons other than the Northern Territory, including a grant to Phillips Oil Company Australia (ARBN 061 917 459) or its nominee to establish a Liquefied Natural Gas Plant on part of the land and waters.It is intended that the acquisition of the land (including the acquisition of native title rights and interests, if any), the grant of estates in leasehold and/or fee simple, and the commencement of development in respect of the land, will take place as soon as practicable following compliance with the requirements of the Native Title Act and Lands Acquisition Act, and that the use of the land for industrial, commercial and other non-Government purposes, and for ancillary or incidental purposes will take place thereafter and continue for the term or terms of any grant of an estate in leasehold or any renewal or extension thereof, or during any grant of an estate in fee simple, and including any later grant of an estate in leasehold or in fee simple.
Disturbance to the land will result from construction and use of the land and waters for industrial, commercial and other non-Government purposes (including a Liquefied Natural Gas Plant), and for ancillary or incidental purposes.
In considering the contents of this notice, the Tribunal noted that counsel for the applicant had submitted that native title rights and interests would be acquired for the impermissible purposes of the extended Government infrastructure, that is, the port complex, and the buffer zone. As to this the Tribunal said:
In my view the statement in the notice that estates are to be conferred in relation to all or any part of the land or waters on persons other than the Northern Territory does not necessarily signify that the estates in total will relate to less than all of the acquisition area. It simply points to the fact that if there are multiple "persons" then an estate may be conferred upon each of them in relation to that person's own separate part of the land or waters.
Unaided by evidence, there is no doubt that this statement could accurately reflect the facts in a hypothetical situation. But in this case the evidence was clear that there would be a huge buffer zone and the evidence did not establish "whether it would be owned by the Government party or third parties". Added to this uncertainty, is the question of the ultimate port complex and whether it will be owned by the Government party or by one or more third parties. As to that, and in the absence of evidence to the contrary, it would be permissible to accept the contents of the s. 29 notice and assume that its reference to conferring estates in leasehold and/or in fee simple "on persons other than the Northern Territory" extended to the port complex. But the same assumption cannot be made with respect to the buffer zone because of the express finding by the Tribunal that the evidence did not establish its ultimate intended ownership.
Although counsel for the applicant did not suggest that the purpose that is referred to in para. 26(2)(d) of the NTA must be an exclusive purpose, he did point to the use of the definite article; the legislation is concerned with "the" purpose of the Government party -- not merely "a" purpose. This points, in my opinion, to the conclusion that the relevant purpose of acquisition, being to confer rights or interests in relation to the land concerned on persons other than the Government party, must be the main purpose. There cannot be any second, independent purpose, although there can be other uses that are adjuncts to the main purpose.
Counsel for the applicant relied on the decision of the Court of Appeal in Gard v Cmrs of Sewers of the City of London (1885) 28 Ch D 486 as support for his proposition; that was a decision dealing with compulsory acquisition of land for identifiable purposes that were set out in the legislation. Those purposes included street widening. It was an admitted fact that the Commissioners only need to acquire five feet or so for the street widening program but they elected to serve a notice of intention to acquire an entire property. This was held to be in excess of their powers. As Bowen LJ said, in a passage that was quoted with approval by the High Court in Thompson v Randwick Corp [1950] HCA 33; (1950) 81 CLR 87 at 105:
... (the Commissioners) must show that on the fair construction of the Act of Parliament they had the right to take the whole of the land when really they only wanted a small part.
In my opinion, Gard's case emphasises that the "purpose" of the acquisition must be examined and tested by the fact finding tribunal.
Proceeding upon the premise that only 600 ha out of a possible 4440 ha are to be the subject of industrial and commercial development by parties other than the Government party, it means that only 13.5 per cent or thereabouts of the surface area is intended for such development. Indeed, as I understand the position, the remainder (most, if not all of which, will be the buffer zone) is incapable of any development. But the Tribunal accepted the proposition that, notwithstanding that a large area of the acquired land was to be reserved for unspecified future uses, nonetheless the proposed act of acquisition was an acquisition that accorded with the statutory purpose contained in para. 26(2)(d). The Tribunal concluded that the purpose of acquisition for the conferring of third party rights and interests was the "substantial purpose" whilst the establishment and retention of the buffer zone was an ancillary purpose. The Tribunal concluded its deliberations on the subject in this way:
Assuming that the terms of the notice may be construed by reference to external evidence, there is the point that the "real" purpose, as revealed by the evidence, is something more than simply granting estates to third parties. It includes the use of some of the area for Government or public purposes. The question is whether the provisions of s. 26(2)(d) accommodate a situation where the substantial purpose of the acquisition is to confer third party rights or interests, but there is also an ancillary purpose, being the provision of facilities and services essential to development by third parties (roads, power, water, port facilities) or at least reasonably appropriate to the development (buffer zone).In my opinion it is proper, in the full context of the provision, to take a broad view of s. 26(2)(d) and consequently the notice itself. The section is designed to facilitate the provision of land for non-government use. However, the conferring of rights or interests to enable third party development would be an empty gesture under the scheme if it were not possible for the Government to provide the essential framework within which development may take place. An industrial site without public services may be useless. A limit to this approach may be reached if the essential purpose is overtaken by other factors, so that the essential character of the acquisition becomes something different. That will involve a question of balance.
In the present matter, the low-lying nature of the land, the present lack of public facilities, the nature of the particular use proposed by Phillips as to a significant part of the developable land, and the proposal for development by others persons as well, all point to the need for Government infrastructure, and the appropriateness of a buffer zone. The latter features would facilitate and enhance the principal purpose of conferring rights and interests to enable non-Government development, rather than detract from it.
In my view, an acquisition of native title rights and interests in an area of land and waters for the purpose of conferring rights or interests on third parties "in relation to" that land and waters does not undergo a change of character or purpose as an acquisition simply because the Government party proposes to use part of the land and waters for Government purposes directed to enabling and facilitating the taking up of rights or interests in the area by third parties.
With respect I believe that there is a fallacy in this statement and that it has been brought about because of an assumption that it was necessary for the Government party to compulsorily acquire the buffer zone -- as if the project for development could not proceed without it being compulsorily acquired. There was no finding to that effect and no party suggested in submissions that there was any evidence, one way or the other, on the subject. Yet in my opinion, it is vital to the whole issue. Why was it necessary to acquire native title rights and interests over the buffer zone? The land is vacant Crown land and is quite capable of being used, as such, as a buffer zone. There is a second area in which I find myself in disagreement with the Tribunal. In saying that "there is also an ancillary purpose being the provision of facilities and services ... at least reasonably appropriate to the development (buffer zone)" the Tribunal was using the word "ancillary" in the sense of a "second" purpose. My view is that a secondary use can be "ancillary" to the main purpose but that there cannot be a secondary purpose that is independent of it.
Counsel for the Government party submitted that the findings of fact that were made by the Tribunal were all supported by evidence and were arrived at, as the reasons reveal, cognisant of the matters put forward by the applicant. In particular, so it was submitted, the Tribunal was well aware that the applicant contended that the relative smallness of the area actually available for development and the area to be acquired was said to reveal some ulterior motive. He acknowledged that only a very small amount of the land that is the subject of the proposed acquisition is useable; apparently only a small amount is above the high water mark. But he added that it is necessary for an industry such as a LNG plant to be removed from habitation and so it became necessary that there be a large buffer zone. These are issues of fact with which this Court is not to be concerned but there is, within that statement of fact, a legal issue; it is this. Accepting that there must be a large buffer zone, why cannot that buffer zone remain in its present legal state as vacant crown land with such native title rights in it (if any) as presently exist? Why, as a matter of law, must the intended buffer zone be the subject of compulsory acquisition?
That question was not addressed by the Tribunal in its reasons, save to say, as counsel for the Government party emphasised, that it was found to be an ancillary purpose in respect of the intended industrial use of the land. The submission of the Government party was that the Tribunal operated within reasonable bounds and its decision was not therefore reviewable.
To determine whether the Tribunal fell into error in treating the buffer zone as a mere ancillary purpose to the main purpose of acquisition, it is necessary to question whether it was an error of law or an error of fact. The observations of Mason CJ in Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 at 355 are the starting point:
In addition to these propositions, it is also relevant to note that a failure to take a relevant matter into account in the exercise of a power is an error of law and is also reviewable under s. 5 of the ADJR Act: see Sean Investments Pty Ltd v MacKellor [1981] FCA 191; (1981) 38 ALR 363 at 374-5 per Deane J.
But, as his Honour pointed out:
This does not, however, mean that a party affected by a decision is entitled to make an exhaustive list of all the matters which the decision-maker might conceivably regard as relevant and then attack the decision on the ground that a particular one of them was not specifically taken into account.
Deane J then proceeded to quote with approval from the UK Court of Appeal (Megaw, James and Geoffrey Lane L JJ) in Elliott v Southwark London Borough Council [1976] 2 All ER 781:
It is clear that the matters which the local authority should consider ... vary from case to case. It is not for the court to prescribe a list of matters which must always be considered or to prescribe which factors should be given more weight than others. It is worth repeating that the function of the court, where such issues are raised, is not to substitute its own opinion or decision on matters which Parliament has left to the judgment of the local authority but to decide whether the local authority in reaching its decision has acted in accordance with the statutory provisions.
In Minister for Immigration and Ethnic Affairs v Wu Shan [1996] HCA 6; (1996) 136 ALR 481 at 490-91, Brennan CJ discussed the role of a review Court when considering the reasons of a tribunal or (as in that case) a delegate. His Honour noted that the Full Court of this Court in the case under appeal had held that the reasons of the delegate were entitled to a "beneficial construction". As to this he said:
When the Full Court referred to "beneficial construction", it sought to adopt an approach mandated by a long series of cases, the best exemplar of which is Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280; 115 ALR 1. In that case, a Full Court of the Federal Court (Neaves, French and Cooper JJ) collected authorities for various propositions as to the practical restraints on judicial review. It was said that a court should not be "concerned with looseness in the language ... nor with unhappy phrasing" of the reasons of an administrative decision-maker: at 287. The court continued (at 287): "The reasons for the decision under review are not to be construed minutely and finely with an eye keenly attuned to the perception of error."These propositions are well settled. They recognise the reality that the reasons of an administrative decision-maker are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed. See McAuliffe v Secretary, Department of Social Security (1992) 28 ALD 609 at 616.
Turning back to the facts of this case, it seems to me that the appropriate identification of the buffer zone is a matter of fundamental importance, going to the heart of the Tribunal's decision. If the Tribunal has erred in its treatment of this proposal, it cannot be explained away as "looseness in language" or "unhappy phrasing":
If such an administrative tribunal falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the tribunal's exercise or purported exercise of power is thereby affected, it exceeds its authority or powers. Such an error of law is jurisdictional error which will invalidate any order or decision of the tribunal which reflects it.(Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163 at 179.)
The role of this Court, where the Tribunal's decision is challenged on the ground of lack of jurisdiction, was discussed by Carr J in Mineralogy Pty Ltd v National Native Title Tribunal [1997] FCA 1404; (1997) 150 ALR 467 at 473. His Honour noted that the principles had earlier been explained by Barton J in the High Court in Federal Engine-Drivers and Firemen's Assn of Australasia v Broken Hill Pty Co. Ltd [1911] HCA 31; (1911) 12 CLR 398 at 428, where his Honour had said of the primary tribunal that it would have been:
... as wrong to accept jurisdiction without sufficient inquiry as to refuse it with precipitancy. Where the jurisdiction is disputed, adequate and careful inquiry is still the duty of the court of first instance, just as it may become the duty of the superior court.On the other hand, where the jurisdiction is not contested by the party defending, very slight inquiry may be adequate, and many cases will, to the mind of the tribunal be so plainly within its competence that it will rightly forego inquiry unless the objection is taken, and the objector tenders proof of facts in its support.
Latham CJ in R v Blakeley; Ex parte Assn of Architects, Engineers, Surveyors and Draughtsmen of Australia [1950] HCA 40; (1950) 82 CLR 54 at 70 addressed the subject this way:
But the Commissioner cannot conclusively determine the question of the existence of a dispute. He cannot give himself jurisdiction by wrongly deciding this question of fact. The actual existence of a dispute is a condition of the exercise by the Commissioner of his power to determine a dispute.
Carr J in the Mineralogy case, in applying the principles set out in these decisions said:
In my view, when, as in this matter, a party to proceedings before the tribunal challenges its jurisdiction or authority, it is the duty of the tribunal to make due inquiry about whether it has that jurisdiction or authority. Similarly, it is the function of this court, on review, to decide that matter for itself.
Applying those principles, the conclusion that I have reached is that the Tribunal fell into error in concluding that the acquisition of the buffer zone was a purpose that was ancillary to the main purpose of the compulsory acquisition. The Tribunal could have only reached its decision to refuse to dismiss the Government party's application by treating the buffer zone in that manner. But there was no evidence or other material (including facts of which the Tribunal was entitled to take notice) from which the Tribunal could reasonably be so satisfied: see para. 5(3)(a) of the ADJR Act. In other words, the Tribunal lacked jurisdiction because there was no evidence or other material to justify the making of the decision.
Counsel for the Government party submitted that if the Court came to this
conclusion, it was not an end to the matter; the Court
could and should
thereupon view the whole of the exercise as a proposal by the Government party
to compulsorily acquire the same
native title rights and interests pursuant to
s. 23 of the NTA. I think that it is too late to embark on such a
contradictory approach. The notice that issued was identified as a notice under
s. 29 of the NTA, negotiations were conducted under s. 31, the
Government party made an application to the Tribunal under s. 35, argument
proceeded
before the Tribunal upon the basis that the future permissible act
was a compulsory acquisition to which
para. 26(2)(d) applied and, finally,
the Tribunal gave its decision independently of the provisions in s. 23. None
of the steps that
have just been mentioned would be taken in the event of an
acquisition under s. 23 of the NTA.
I reject the Government party's submission that this court should, in some unspecified manner, declare that the Government party is proposing a compulsory acquisition under s. 23 of the NTA.
The conclusion that has been reached with respect to the Government party's purposes concludes this application. However, the issues that the case has raised are important, and, in the event that the matter should go on appeal, I will now proceed to consider the further grounds of review that were argued on behalf of the applicant.
The Tribunal, in its reasons, found that there was little difference, if any, between the parties in their evidence and submissions with respect to the basic events that were common to them during the negotiation period. The contentious area rested in the inferences to be drawn from the objective events. And the most important issue was whether or not an inference could be drawn from the objective facts that the Government party had the subjective intention of not negotiating in good faith.
Counsel for the applicant claimed in his submissions that he did not seek to challenge the course of fact-finding by the Tribunal. Rather, he submitted that it was the applicant's case that the Tribunal misconstrued s. 31 of the NTA and, effectively, asked the wrong question when considering the issue of good faith and whether it was present in the negotiations.
The first argument that the applicant submitted was based upon s. 23 and the
non-extinguishment principle; using this argument the
applicant said that the
Tribunal fell into error in concluding that the Government party was entitled
to refuse to negotiate on proposals
other than actual acquisition. The
applicant acknowledged in his written submissions that the Larrakia People
wished to negotiate
under s. 31 of the NTA about the conditions upon
which native title could be suppressed but not extinguished, or in the
alternative, whereby native title
could continue to exist subject to the
conduct of the proposed activities that would be, or would form part of, the
permissible future
act. But the Government party rejected these overtures, and
the Tribunal upheld the stand that had been taken by the Government party.
In
my opinion, the Tribunal was correct in arriving at that decision; I will later
set out my reasons for concluding that the applicant's
submission with respect
to s. 23 must be rejected. Nothing less than complete acquisition and
extinguishment of native title rights
and interests could be the subject of the
negotiations to which
s. 31 of the NTA relates. Section 31 is only
enlivened (in the circumstances of this case) because of the Government party's
proposal to implement
a compulsory acquisition of native title rights and
interests. To accuse the Government party of failing to negotiate in good faith
because of its refusal to consider these alternative proposals is therefore
without foundation.
The second submission that was advanced on the applicant's behalf was to this effect: the Tribunal erred in law in holding that there should not be any inquiry into matters that went beyond the course of the parties' negotiations; in particular the Tribunal was wrong in refusing to inquire into the conduct of those instructing the representatives of the Government party at the negotiating table. The applicant complains that the Tribunal was incorrect in refusing the native title parties permission to go behind (what the applicant called) "the negotiating facade". Counsel pointed to public statements that had been made by members of the Government party including Ministers of the Crown (whom he incorrectly described as "the Government") that, so it was claimed, amounted to a steadfast refusal to recognise "the moral, legal or factual legitimacy of the claim" (that is, of the Larrakia People). It must be acknowledged that certain Ministers made statements, in the House and elsewhere, that were antagonistic to the applicant's claims. However, such statements, even though they may reveal the personal attitude of an individual, are not to be confused with and identified as the official attitude of the Government party to its statutory responsibility to comply with all the provisions of the NTA. In any event, as the Tribunal noted, it was not put to Mr Joyce, during the course of his lengthy cross-examination, that the conduct of the Government party and its negotiating team had been merely a facade; nor was it put to Mr Joyce that he lacked authority to reach a negotiated settlement.
The term "good faith" is found in other areas of the law such as the bankruptcy legislation. In that jurisdiction it has been held that good faith will be negatived if there is "existence of knowledge or suspicion of an inability to pay debts as they fall due": Downs Distributing Co Pty Ltd v Associated Blue Star Stores Pty Ltd (in liq) [1948] HCA 14; (1948) 76 CLR 463 at 472. In Re Hyams; Official Receiver v Hyams (1970) 19 FLR 232 at 256 it was held that it meant "without knowledge that any fraud or preference contrary to the statute is intended". These and other authorities on the term "good faith" have been collected in the judgment of the Full Court in Official Trustee in Bankruptcy v Mitchell [1992] FCA 521; (1992) 38 FCR 364 at 372. Mid Density Developments Pty Ltd v Rockdale Municipal Council [1993] FCA 408; (1993) 44 FCR 290 was a case of negligent misstatement. Relevant legislation protected local government bodies in terms that: "A council shall not incur any liability in respect of any advice [provided] in good faith". An employee of the respondent council honestly but mistakenly issued three certificates dealing with information concerning risks of flooding to certain properties. The Full Court came to the conclusion that the negligence of the respondents' employee negatived good faith; it said:
"Good faith" in some contexts identifies an actual state of mind, irrespective of the quality or character of its inducing causes; something will be done or omitted in good faith if the party was honest, albeit careless: see, for example, Smith v Morrison [1974] 1 WLR 659. (Abstinence from inquiry which amounts to a wilful shutting of the eyes may be a circumstance from which dishonesty may be inferred: Jones v Gordon (1877) 2 App Cas 616 at 625; English and Scottish Mercantile Investment Co Ltd v Brunton [1892] 2 QB 700 at 707-708; The Zamora No 2 [1921] 1 AC 801 at 803, 812.) On the other hand, "good faith" may require that exercise of caution and diligence to be expected of an honest person of ordinary prudence. This, counsel urged, was what was required by the present statutory context. The appellant then submitted that there was a plain absence of good faith in this sense on the part of the respondent.
It is apparent, even from a brief mention of these few cases, that there must be factual findings that will sustain the submission that "good faith" is lacking. In the present case, I cannot imagine that anything short of "knowledge" would be sufficient. In other words, it would have been necessary to place before the Tribunal facts that would justify a finding that the Government party's negotiating team, or those instructing the team, knew that it was the intention of the Government party not to negotiate with a view to obtaining the agreement of the native title parties.
My assessment of the manner in which the Tribunal came to its conclusion is that Professor Williamson determined, upon the facts before him, that it was not appropriate to allow the issue of good faith to be taken any further. In reaching the conclusion that the Government party had negotiated in good faith, the Tribunal made a finding of fact that was available to it on the evidence. It was not part of the applicant's submissions in this Court that such a finding could not be sustained on the evidence. In these circumstances, no reviewable error of law has been demonstrated. In coming to that decision the Tribunal was, in my opinion, exercising a discretionary power that was open to it in all the circumstances; it would not be appropriate for this Court to intervene.
In my opinion the Tribunal was quite correct in concluding that there was no
evidence pointing to an absence of good faith. To suggest
that the public
utterances of some ministers should be treated as the official and actual view
of the Government party is, really,
quite untenable. It was the Government
party who initiated the whole process by giving the
s. 29 notice. It would
be foolhardy to think that the Government party was not therefore aware of all
likely consequences of the giving
of that notice. In particular, it is clear
that the Government party would have been aware of the existence of
s. 31
with its good faith provisions. What would be achieved by the Government party
sabotaging the s. 31 provisions when it is the
initiating party who is seeking
to implement a compulsory acquisition exercise? It is not in the interests of
the Government party
to prolong the exercise. It is in its interests to obtain
an expedited conclusion. Absence concrete evidence to the contrary, the
most
likely inference is that the Government party would be anxious to negotiate
pursuant to s. 31 in the hope of achieving a settlement.
The claim that the Government party failed to negotiate in good faith has not been made out.
Before leaving this topic, I consider that it may be of assistance to comment upon a submission that appeared in the written material that was handed up by counsel for the applicant during the hearing. The particular passage reads as follows:
Objectively, the negotiations were frustrated because the [Government party] refused to make an offer which exceeded the existing legal rights of the applicants. There was therefore a breach of the good faith negotiations duty by the [Government party].
This submission hearkens back to an earlier observation that I made to the effect that counsel seems to be of the opinion that native title claimants have an entitlement to compensation over and above that which is laid down by law. I do not understand the source of this submission and no authority was quoted to support it. I know of no provision in the NTA or elsewhere that would justify an adviser informing a native title claimant that he or she is entitled to expect something that would exceed his or her legal right.
Subsection 156(2) of the NTA invests certain powers in the Tribunal to summons a person to give evidence and to produce documents. The subsection reads as follows:
156 ...
(2) A member of the Tribunal may summon a person to appear before the Tribunal to give evidence and to produce such documents (if any) as are referred to in the summons.
On 14 November 1997, the applicant orally requested the Tribunal to use its powers under the subsection to order the Government party to produce certain documents that the applicant had nominated. The Tribunal refused to do so, claiming that the application was an application for discovery and that the Tribunal did not have either an express or an implied power to order discovery. That part of the Tribunal's decision has not been challenged.
The Tribunal then considered whether it should make any orders, either under s. 109, which deals with the Tribunal's way of operating, or under subs. 156(2). In considering this issue the Tribunal had regard to the contents of para. 49 of Mr Joyce's affidavit in which he deposed:
On 22 September 1997 the Northern Territory was instructed to apply to the National Native Title Tribunal for a future act determination in relation to the Wickham Point compulsory acquisition but to continue with negotiations.
The Tribunal requested the Government party to make available to the Tribunal and to the other parties "any document that records the instruction to apply to the Tribunal for a future act determination but to continue with negotiations". The Government party supplied those documents to the Tribunal and to the other parties. Subject to that matter, the Tribunal refused to give directions for production of documents under either s. 109 or s. 156.
Section 109 of the NTA provides as follows:
109 (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 conducting inquiries, must take account of the cultural and customary concerns of Aboriginal peoples and Torres Strait Islanders.
(3) The Tribunal, in conducting an inquiry, is not bound by technicalities, legal forms or rules of evidence.
The Tribunal, in its reasons, referred to and relied upon two earlier decisions of the Tribunal (differently constituted). In each case the Tribunal had declined to order production of documents under either s. 109 or subs. 156(2). A summary of the views that have been formed by the Tribunal in the three decisions may be stated thus:
Operating within those parameters the Tribunal received written submissions from the parties but concluded that the applicant had not made out a case under either s. 109 or subs. 156(2) that would warrant interference by the Tribunal. However, on p. 20 of its reasons the Tribunal was careful to inject a note of caution with which I respectfully agree:
Having said all that, the possibility remains that if it appears from material properly before the Tribunal that fairness or justice requires that particular documents should be produced by a party to enable a correct decision to be made, then the Tribunal could if necessary issue a summons under s. 156(2): Bushell v Repatriation Commission [1992] HCA 47; (1992) 175 CLR 408 at 425. In the present matter however, at the hearing on 14 November 1997 nothing arose that in my view justified making the directions or taking the steps sought in relation to documents ...
In my opinion, the decision of the Tribunal was an exercise of a discretionary power which, in the circumstances of the case, was quite reasonable. Nothing has been put before this Court that would justify interfering with the decision.
Counsel for the applicant developed an additional argument that was based upon the provisions contained in s. 23 of the NTA. That section, so far as it is relevant, is as follows:
(1) This section applies if an act is a permissible future act, other than one to which section 24 or 25 applies.
(2) Subject to Subdivision B (which deals with the right to negotiate), the act is valid.
(3) If the act is the acquisition, under a Compulsory Acquisition Act, of the whole or part of any native title rights and interests:
(a) the non-extinguishment principle applies to the acquisition; and
(b) nothing in this Act prevents any act that is done in giving effect to the purpose of the acquisition from extinguishing the native title rights and interests; and
(c) if the Compulsory Acquisition Act does not provide for compensation on just terms to the native title holders for the acquisition, they are entitled to compensation for the acquisition in accordance with Division 5.
(4) In the case of any other act to which this section applies:
(a) the non-extinguishment principle applies to the act; and
(b) either:
(i) the native title concerned relates to an offshore place and the act is not a low impact future act; or
(ii) the native title concerned relates to an onshore place and the following conditions are satisfied:
(A) the act is not a low impact future act; and
(B) the similar compensable interest test is satisfied in relation to the act; and
(C) the law mentioned in section 240 (which defines "similar compensable interest test") does not provide for compensation to the native title holders for the act; the native title holders are entitled to compensation for the act in accordance with Division 5.
Notwithstanding that the Government party's act that is the subject of this proceeding is the intended acquisition of the whole of the native title rights and interests in the 4440 ha of land and waters, the applicant claims that "the non-extinguishment principle" applies to the acquisition: see para. 23(3)(a) of the NTA. Section 238 of that Act explains "the non-extinguishment principle" in some detail. Broadly speaking, its effect is three-fold: first, notwithstanding an acquisition, the native title rights and interests continue to exist but they have no effect in relation to the act of acquisition; second, despite the acquisition, the traditional owners of the rights and interests continue to be the native title holders; third, if the act of acquisition or its effects are later wholly removed or otherwise wholly cease to operate, the native title rights and interests will again have full effect.
Like s. 26, s. 23 of the NTA applies to a future permissible act, a term which is defined in s. 235. It may be either a legislative act or a non legislative act in relation to onshore places. As legislative acts are directed to the making, amending or repeal of legislation, the Government party's proposed compulsory acquisition of Wickham Point falls within the category of non-legislative acts. Subsection 235(5) of the NTA then provides as follows:
... (5) A future act in relation to an onshore place is also a "permissible future act" if:
(a) it is an act other than the making, amendment or repeal of legislation; and
(b) either:
(i) the act could be done in relation to the land concerned if the native title holders concerned instead held ordinary title to it; or
(ii) the act could be done in relation to the waters concerned if the native title holders concerned held ordinary title to the land adjoining, or surrounding, the waters.
Thus it can be seen that the Government party's proposed compulsory acquisition fits the description appearing in subpara. 235(5)(b)(i).
Subsection 23(3) of the NTA having stated that "the non-extinguishment principle" can apply to an act of compulsory acquisition, para. 23(3)(b) then proceeds to recognise that there will be circumstances when there will be an extinguishment of native title. The relevant provision is as follows:
... (3) If the act is the acquisition, under a Compulsory Acquisition Act, of the whole or part of any native title rights and interests:
(a) ...
(b) nothing in this Act prevents any act that is done in giving effect to the purpose of the acquisition
from extinguishing the native title rights and interests; and
(c) ...
Counsel for the applicant submitted that s. 23 of the NTA must be read with the provisions of s. 26. It was submitted that the purpose of the acquisition can only be, as stated in para. 26(2)(d), the conferring of "rights or interests in relation to the land or waters concerned on persons other than the Government party". Thus, when the Government party, having compulsorily acquired the relevant land and waters, thereafter transfers to or vests in a third party a parcel in pursuance of the legislative purpose, that act of transfer or divestment will extinguish native title in that particular parcel of land. But the balance of the acquired land will remain, until divestment, affected by the non-extinguishment principle. If therefore, the ultimate outcome of the development of Wickham Point is the retention of title by the Government party of the buffer zone, native title in respect of those areas will only have been subordinated and not extinguished. Should this be correct, it would become a matter of the utmost importance to the native title parties to know the intended uses of the land so that they may know the likely effect that those uses might have on their native title.
Counsel for the applicant has submitted that the Tribunal fell into error by failing to recognise the effect of the provisions of s. 23. I disagree. The view that I take is that s. 23 and para. 26(2)(d) allow for two independent positions. On the one hand, the Government party may implement the act of acquisition under s. 23; in such a case, it is not necessary to have the limiting purpose that is referred to in para. 26(2)(d); the Government party is entitled to compulsorily acquire for its own purposes. But in the case of a s. 23 acquisition, the non-extinguishment principle exists and native title rights and interests are not automatically extinguished; that will only occur if and when the Government party transfers its interests to a third party. On the other hand the Government party may propose implementation of the act of acquisition under para. 26(2)(d). Although that is not an empowering provisions, it recognises an identifiable purpose for the acquisition. If that purpose is established then, absent agreement between the parties, the right to negotiate provisions can be attracted and ultimately, it may be that complete extinguishment of native title will occur. I see these provisions in ss. 23 and 26 as alternatives; I do not see them as inter-related. These were the views of the Tribunal. On p. 21 of his reasons, Professor Williamson said:
It is the purpose which distinguishes an acquisition under s. 26(2)(d) from one made under s. 23(3) of the Act, which attracts different procedures and consequences.
I therefore conclude that s. 23 of the NTA has no part to play in the determination of the application before the Tribunal.
The powers of the Court in respect of an application for an order of review are set out in s. 16 of the ADJR Act. It would not be appropriate to set aside the whole of the Tribunal's decision for, in my assessment, it has withstood all but one challenge. Therefore the order of the Court is that the part of the Tribunal's decision that held that the intended buffer zone was ancillary to the main purpose of the acquisition be set aside from 9 February 1998 and that the matter be referred back to the Tribunal for further consideration in terms consistent with these reasons. I see no need to resort to the provisions of the Judiciary Act for further orders.
Having regard to the fact that the applicant's success was limited, he should only have 50 per cent of his costs. There will be a further order that the Government party and Phillips pay such costs which are to be taxed in default of agreement.
Counsel for the applicant: Mr T Robertson
Solicitor for the applicant: Northern Land Council
No appearance for and on behalf of the first and second respondents
Solicitor for the first and second respondents: Australian Government Solicitor
Counsel for the third respondent: Mr T Pauling QC
Solicitor for the third respondent: Northern Territory of Australia
Counsel for the fourth respondent: Mr H Fraser QC
Solicitor for the fourth respondent: Clayton Utz
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URL: http://www.austlii.edu.au/au/journals/AUIndigLawRpr/1998/36.html