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Federal Court of Australia (Carr J)
9 July 1999
Native title – permissible future acts – obligation on Government party to negotiate in good faith – proposal to grant mining tenements – whether discharge of Government party's obligation to negotiate in good faith is a jurisdictional prerequisite to Tribunal hearing applications for future act determination – whether identity of person making application is of any relevance to that question – Native Title Act 1993 (Cth) ss 29, 31(1)(b), 35, 148. – Native Title Amendment Act 1998 (Cth).
The applicants applied for review under the Administrative Decisions (Judicial Review) Act 1977 (Cth) of a decision of the National Native Title Tribunal (‘the Tribunal’). The Tribunal had dismissed applications made under s.35 of the Native Title Act 1993 (Cth) (‘the Act’) for determinations that certain future acts not be done. The Tribunal decided to dismiss the applications because the Government party had not engaged in any negotiations, and so had not negotiated in good faith as required by s 31 of the Act.
The applicants asserted that the Tribunal had jurisdiction to determine their applications even though the Government party had not negotiated in good faith. They submitted that the Government party ought not to be able to rely on its failure to enter into negotiations to preclude the exercise of jurisdiction by the Tribunal. They also submitted that the jurisdictional precondition of good faith negotiations should not operate to frustrate the applicants ability to take advantage of accrued rights under the right to negotiate provisions as they existed before the Native Title Act Amendment Act 1998.
The language of s 31 was mandatory. The Government party was obliged to negotiate in good faith at the latest from the time at which native title parties were identified after the close of the notification period. If good faith negotiations had not occurred, no party was entitled to apply for a determination concerning the proposed act. The identity of the applicant could not affect the question whether the Tribunal had jurisdiction. Walley v Western Australia [1996] FCA 490; (1996) 67 FCR 366 applied; Risk v Williamson (1998) 155 ALR 393 followed.
The Government party did not obtain an advantage by failing to negotiate in good faith. There was no logical connection between any disadvantage to the native title party and benefit to the Government party. Cases on the exercise of equitable jurisdiction in relation to ‘clean hands’, or considering other statutory contexts were of limited application.
The issue of accrued rights was covered by the conclusion that Walley stated the law on the matter. In any event, the transitional provisions contained in the Native Title Act Amendment Act 1998, and the second reading speech for that Act did not assist in the construction of subdiv B of the Act prior to amendment.
The application for review of the Tribunal’s decision was dismissed.
This is an application under s 5 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) for an order of review of a decision of the National Native Title Tribunal (‘the Tribunal’). The question is whether the Tribunal erred in law when it dismissed the applicants' applications, made under s 35 of the Native Title Act 1993 (Cth) (‘the Act’), for determinations in relation to certain ‘future acts’. The Tribunal dismissed the applications because the first respondent, the State of Western Australia (‘the Government party’), had not negotiated with the native title parties and the grantee parties (the individuals and companies to whom or which the Government party proposes to grant mining tenements) with a view to obtaining the agreement of the former to the proposed grants. The Tribunal held that in those circumstances it did not have jurisdiction to hear the applications. I was informed that there are over 2000 similar applications pending before the Tribunal and that these applications were treated as test cases. The applicants make no secret of the fact that these applications were lodged, shortly before the Native Title Amendment Act 1998 (Cth) (‘the 1998 Amending Act’) came into force, with a view to preserving what were perceived by them to be more beneficial rights under the ‘old right to negotiate provisions’ than under ‘the new right to negotiate provisions’ (the words in italics are defined terms in the Act as so amended). Notice of this application was given to each of the grantee parties, but none of them has elected to take part in these proceedings. The second respondent, the National Native Title Tribunal, has filed a submitting appearance.
On various unspecified dates before October 1998 four individuals and six mining companies (‘the grantee parties’) applied to the Government party for the grant of some fifteen mining leases and other like tenements (‘the mining tenements’). The Government party gave notice, under s 29 of the Act, of its intention to grant those applications. As mentioned below, it was obliged to do this because the proposed grants are ‘permissible future acts’. The applicants in these proceedings were, at the relevant time, registered native title claimants in relation to land or waters which will be affected by the proposed grants. Accordingly, the applicants were ‘native title parties’ so far as these permissible future acts were concerned.
Shortly before 30 September 1998 (which was the operative date for the relevant amendments to the Act worked by the 1998 Amending Act) the applicants, as native title parties, lodged applications under s 35 of the Act seeking orders from the Tribunal that the mining tenements not be granted. I shall refer to those applications as ‘the native title parties' applications’. It is common ground that the grant of the mining tenements would amount to the creation of rights to mine and constitute ‘permissible future acts’ within the meaning of Subdiv B of Div 3 of Pt 2 of the Act (‘Subdiv B’). To the extent that the native title parties' applications are valid, Item 4(1) of Sch 5 to the Act as amended by the 1998 Amending Act operates to cause those ‘old right to negotiate provisions’ (a term defined in Item 32 of Sch 5) to apply to those applications. That is because the native title parties' applications were made before 30 September 1998. On 27 August 1998 the Tribunal held a first preliminary conference in relation to the applications. The question arose (exactly how it arose or who raised it is not absolutely clear) about whether the Government party had negotiated in good faith with the native title parties and the grantee parties as required by s 31(1)(b) of the Act. It was common ground that the Government party had not yet done so. The Tribunal decided to consider, as a preliminary question, whether in those circumstances it had jurisdiction to determine the native title parties' applications. The parties filed written submissions on the point and the Tribunal had at least one affidavit before it (that of Mr Phillip Geoffrey Mirabella sworn on 23 September 1998). The native title parties asserted that the Tribunal had jurisdiction to determine their applications notwithstanding the fact that the Government party had not engaged in good faith negotiations. The Government party asserted that the Tribunal did not have jurisdiction to hear the applications in those circumstances. It further submitted, in the alternative, that the application should be dismissed under s 148 of the Act or as being frivolous and vexatious.
The following is a summary of the relevant portions of the legislative framework, mostly in its unamended form as applicable to these matters. Section 148 is referred to in both its original and amended form, although it was not submitted that the Tribunal erred in applying the section in its amended form. In any event, nothing turns on the point so far as this application is concerned.
Subdivision B (which is entitled ‘Right to negotiate’) of Div 3 of Pt 2 of the Act applies to certain ‘permissible future acts’, a term defined by s 235 of the Act. The proposed grants of the mining tenements fall within that definition because they are acts (other than the making, amendment or repeal of legislation) which could be done in relation to the land concerned if the relevant native title holders instead held ordinary title to that land. Section 26(2) provides that the creation of a right to mine, whether by the grant of a mining lease or otherwise is, subject to s 26(3), one of the permissible future acts to which Subdiv B applies. The exclusions provided for in s 26(3) do not apply to these matters.
Section 29 requires the Government party to give notice of its intention to do the permissible future act. The Government party must give that notice to various persons including any registered native title claimant in relation to any of the land or waters that will be affected by the permissible future act. Such a claimant is described in the relevant provisions as being included within the expression ‘native title party’: see s 29(2). The applicants in these proceedings were thus, as I have described them, native title parties. There are provisions in the Act relating to what is termed ‘the expedited procedure’. These matters do not involve the expedited procedure. In those circumstances, it is necessary to have regard to the following provisions:
Normal negotiation procedure
Government party to negotiate
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.
Arbitral body to assist in negotiations
(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 term ‘negotiation party’ is defined by s.253 as meaning a Government party, a grantee party or a native title party.]
Negotiations to include certain things
33. Without limiting the scope of any negotiations, they may, where relevant, include the possibility of including a condition that has the effect that native title parties are to be entitled to payments worked out by reference to:
(a) the amount of profits made; or
(b) any income derived; or
(c) any things produced;
by any grantee party as a result of doing anything in relation to the land or waters concerned after the act is done.
Parties to give copy of any agreement to arbitral body
34. If, at any time before any determination is made by the arbitral body under s 38, the negotiation parties make an agreement of the kind mentioned in para 31(1)(b) or subs 32(5), they must give a copy to the arbitral body.
Application for determination
35. Any negotiation party may apply to the arbitral body for a determination in relation to the act if there is no such agreement within:
(a) if the act is the grant of a licence to prospect or explore for things that may be mined - the period of 4 months starting when the notice under section 29 is given; or
(b) in any other case - the period of 6 months starting when the notice is given.
Section 75, in its unamended form, described by means of a short table, applications which may be made ‘to the Registrar’ under Div 2 of Pt 3 of the Act. That Division is headed `’Right to negotiate’ applications'. It was common ground that in the present matters the reference ‘to the Registrar’ was intended to be ‘to the Tribunal’. Section 75 has now been amended to reflect that intention. An application under s 35 for a determination by the Tribunal in relation to a future act is one of the two kinds of applications set out in the s 75 table. Section 139 obliges the Tribunal to hold an inquiry into an application covered by s 75. Section 139 and the sections following it govern the procedure to be followed by the Tribunal.
Section 147 confers power on the Tribunal to dismiss an application if, at any stage of an inquiry relating to the application, it is satisfied that the application is frivolous or vexatious. Section 148 (before being amended in 1998) conferred an identical power on the Tribunal if it was satisfied that the applicant was unable to make out a prima facie case in relation to the application. In its amended form, s 148 relevantly provides that the Tribunal may dismiss an application at any stage of an inquiry if it is satisfied that it is not entitled to deal with the application – see s 148(a).
Section 162 requires the Tribunal, after holding an inquiry in relation to a right to negotiate application, to make a determination about the matters covered by the inquiry. Certain time limits are imposed upon the Tribunal by s 36 of the Act. I set out below the text of ss 36 and 37 of the Act:
Determination to be made within specified period
All reasonable steps to be taken
36(1) Subject to s 37, the arbitral body must take all reasonable steps to make a determination in relation to the act within:
(a) if the act is the grant of a licence to prospect or explore for things that may be mined - the period of 4 months starting when the application is made; or
(b) in any other case - the period of 6 months starting when the application is made.
Report to Commonwealth Minister
(2) If the arbitral body is the NNTT and it does not make the determination within the period, it must, as soon as is reasonably practicable after the end of the period, advise the Commonwealth Minister in writing of the reason for it not doing so.
No determination if agreement
37. If, before it makes a determination, the arbitral body is given a copy of an agreement in accordance with s 34, it must not make the determination.
Section 38(1) provides that an arbitral body must make a determination that the act must not be done, or may be done, or may be done subject to conditions. Section 38(2) provides that the arbitral body must not determine a condition which would have the effect that native title parties became entitled to payments worked out by reference to the amount of profits made or any income derived or any things produced by any grantee party as a result of doing anything in relation to the land or waters concerned after the act is done. This is to be contrasted with s 33 (see above), which provides that such a condition may be included in negotiations. Section 39 sets out various matters which the arbitral body must take into account in making its determination. These include ‘... any other matter that the arbitral body considers relevant’.
The uncontradicted evidence before the Tribunal was that:
The evidence before the Tribunal also showed that none of the native title parties had initiated or invited the Government party to commence such negotiations.
The Tribunal held that it was bound by my decision in Walley v Western Australia [1996] FCA 490; (1996) 67 FCR 366 to hold that failure by the Government party to comply with the obligation to negotiate in good faith as expressed in s 31(1)(b) of the Act precluded the making by any party of an application to the Tribunal under s 35. In Walley I held that the Tribunal erred in law when it decided that it did not have power to dismiss an application, made under s 35 of the Act, on the ground that the Government party had not negotiated in good faith in accordance with s 31(1)(b) of the Act. The Tribunal in this matter declined the applicants' invitation to distinguish Walley on the basis that in that case it was the Government party which had lodged the s 35 application, whereas in these matters the native title parties had done so. The Tribunal said (at p 5 of its reasons):
The question of whether negotiation in good faith by the Government Party is a jurisdictional pre-condition may be seen as a question which is, by its very nature, not sensitive to the question of who makes the application.
The Tribunal then referred to the decision of O'Loughlin J in Risk v Williamson (1998) 155 ALR 393 at 398 where his Honour agreed with the view which I expressed in Walley that if the Government party has not complied with its obligation to negotiate in good faith with the other negotiation parties then none of the parties may move to the next stage of making an application under s 35 for a determination.
The Tribunal considered whether it should apply s 148 of the Act in its form prior to the 1998 amendments or in its present form. The Tribunal found that Parliament intended s 148 in its present form to apply to all applications whether made before or after the commencement of the 1998 Amending Act. The Tribunal then dismissed the applications under s 148(a) of the Act.
The applicants' contentions can be shortly stated. First, the applicants say that the Government party was under a ‘mandatory statutory duty’ to negotiate in good faith. That seems to be common ground between the parties. The applicants say that the Government party's duty operated from the time when it issued the notices under s 29.
Secondly, the applicants say that the Government party should not, by placing in issue the jurisdiction of the Tribunal, seek to derive an advantage from its own breach of that mandatory statutory duty. They say that the Act ‘ ... should not be interpreted to give effect to such a wrong’ citing Meyers v Casey [1913] HCA 50; (1913) 17 CLR 90 at 124; Holden v Nuttall [1945] VicLawRp 29; [1945] VLR 171 at 178 and Cook v Crawford (1982) 43 ALR 83 at 161. Thirdly, the applicants argue that reliance upon the ‘jurisdictional pre-condition’ explained in Walley is misconceived. The purpose of that pre-condition is, so it is put, to protect the right to negotiate. The applicants argue that that purpose is not achieved in the present factual circumstances. The legislative intent to preserve accrued rights pursuant to the transitional provisions is, so it is argued, frustrated and the right to negotiate, accrued at 30 September 1998, is given no effect if jurisdiction is denied.
The Government party accepts that it is under an obligation to negotiate in good faith, but only in the sense that such negotiations must take place at some time before an agreement or determination application can be made. The Government party's point is that there is no reference to a mandatory commencement time for those negotiations. The Government party says that there was never any invitation to it from the applicants initiating or inviting the commencement of negotiations. The Government party argues that its obligation to negotiate in good faith could only be enforced, for example by way of prerogative relief, if some proposed future activity was about to occur which might interfere with the status quo. The Government party denies that it had ever sought deliberately to obstruct the statutory process. The Government party points out that it did not bring the application for future act determinations, nor did it raise the jurisdictional question. It was not seeking to derive any advantage.
It may well be that the ratio decidendi in Walley is confined to a holding that the Tribunal lacks jurisdiction to hear and determine an application by a Government party under s 35 if the Government party has not negotiated in good faith with the other negotiation parties as required by s 31(1)(b). However, in the course of reaching that decision I expressed the view that in those circumstances (ie. no compliance with s 31(1)(b)) the Tribunal lacked jurisdiction to hear and determine an application under s 35 brought by any negotiation party. I did so because (see 378 in the report of Walley) all of the respondents argued that it would be wrong to preclude a native title party or a grantee party from making an application under s 35 simply because of default by the Government party in respect of its obligation to negotiate in good faith. I do not have to decide whether that aspect of my reasoning in Walley was part of the ratio decidendi or merely obiter dictum. That is because I adhere to all of the views which I expressed in Walley. In doing so, I am fortified by the agreement with my views expressed by O'Loughlin J in Risk v Williamson at 398.
The language of s 31(1) is the language of a mandate, in the sense of a command:
... the Government party must:
(a) ... 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.
In Walley I expressed the view that Parliament had, by using the word ‘must’, dictated in the clearest mandatory terms that a certain process or activity (negotiations in good faith) should take place as part of the procedure leading to the possible doing of a future act. There are specific provisions (see s 31(1)(b) itself, ss 32(5) and 34) which contemplate that such negotiations may result in an agreement. If not, there may then be the next stage of the procedure, namely an application under s 35 to the Tribunal in accordance with the time limits expressed in that section. I reject the Government party's submission that its obligation to negotiate in good faith does not have a commencement date. I think it does. I think that the obligation probably arises, at the latest, at the expiration of the period of two months from the giving of the notice under s 29, because at that time all of the native title parties will have been identified – see s 30. The obligation may arise forthwith upon the giving of the s 29 notice to the extent that native title parties are already identifiable at that stage. Whether prerogative relief would be granted to compel the Government party to carry out its statutory obligation at any particular time would depend on the circumstances. For example, were there good reasons why, as a matter of discretion, mandatory orders should not be made? I think that there are sufficient indications in Subdiv B of Parliament's intention that the Tribunal's function of making a binding determination was not to be enlivened by any party until the Government party had negotiated in good faith with the native title parties and the grantee parties. Such a construction underscores the importance of the right to negotiate which the High Court of Australia stressed in Fejo v Northern Territory [1998] HCA 58; (1998) 156 ALR 721 at 731.
The matter of discerning Parliament's intention may be approached slightly differently. Supposing a grantee party applied to the Tribunal under s 35 for a determination before there had been any negotiations in good faith? It seems to me that a finding that the Tribunal had jurisdiction in those circumstances to determine the application would not only fly in the face of Parliament's command that there be such negotiations, but would also undermine the importance of the right to negotiate. If it was Parliament's intention, as I think it was, to preclude the Government party and the grantee party from approaching the Tribunal with an application under s 35 until there had been negotiations in good faith, was it likely that Parliament intended that a native title party might be permitted to do so? I think that the answer to that question is no. I can see no basis for any other conclusion. Parliament clearly intended that such negotiations had to take place. Even if a native title party were totally opposed at the outset to entering into negotiations, experience shows that, once the negotiating process starts, apparently entrenched positions can change. Parliament can, I think, be taken to be aware of that when it made it so clear that there had to be negotiations in good faith.
If I was correct in holding in Walley that compliance with that command is a jurisdictional pre-condition to a determination by the Tribunal under s 35 of the Act, then, in my opinion, it does not matter who approaches the Tribunal for such a determination. The Tribunal either has jurisdiction or it does not have jurisdiction. The identity of the party invoking the jurisdiction cannot, in my view, affect that question. The Tribunal was correct in its holding in that regard.
I turn next to the applicants' contention that the Government party should not, by placing in issue the jurisdiction of the Tribunal, seek to derive an advantage from what the applicants describe as its own breach of the mandatory statutory duty to negotiate in good faith. I think that their reliance on the three cases cited is misplaced. Meyers v Casey concerned, among other things, whether misconduct by the plaintiff, as the owner of a racehorse, precluded him from obtaining equitable relief under the principle that a person must come into a Court of equity with clean hands. That aspect of the case (on which the applicants rely) had no bearing on any jurisdictional point. Holden v Nuttall (a protected tenancy case) involved factual and legal circumstances which were very different from those of the present matter. The applicants rely on the passage in Herring CJ's reasons for judgment at 178 which reads:
The regulations were not made to enable injustice to be perpetrated in this way. And the word ‘hardship’ should if necessary be limited as a matter of construction so as to avoid attributing to the regulation-maker the intention of bringing about an injustice or allowing a man to benefit from his own wrong. It is certainly most undesirable that people should be encouraged to make use of the regulations for the purpose of acquiring benefits for themselves at the expense of the legitimate rights of others.
I think that there is a strong argument that what the Chief Justice said in the above passage was obiter dictum. Secondly, his Honour was not purporting to lay down a general principle of construction, but, in the context of the use of the word ‘hardship’, was construing that term by reference to the imputed intention of the maker of the National Security (Landlord and Tenant) Regulations. I do not regard it as being in any way persuasive in resolving the jurisdictional question in this matter. Finally, the applicants rely on Cook v Crawford at 161. A careful reading of that portion of Sheppard J's reasons for judgment will show that his Honour was concerned with whether the equitable doctrine of clean hands was decisive of whether the discretion conferred by s 141 of the Conciliation and Arbitration Act 1904 (Cth) should be exercised. Again I do not think that that decision assists in resolving the question posed in this matter.
The applicants submitted that, when construing the provisions of Subdiv B, I should not allow the Government party to be in a position where it derives advantage from its own breach of a mandatory statutory duty. I was urged to take into account the transitional provisions in the Act as amended. Counsel contended that it was obvious that the native title parties would be disadvantaged if they were confined to whatever rights were conferred under the new right to negotiate provisions. There are several observations which I will make in relation to that contention. First, the argument assumes that any disadvantage to the native title parties must amount to a benefit to the Government party. This does not follow as a matter of logic. Nor was I taken to any evidence or other matter which would demonstrate any advantage to the Government party in this matter. Secondly, I doubt very much whether such a factor (even if established) should be taken into account unless the relevant statutory provisions were ambiguous. Thirdly, I do not consider that the statutory provisions (by that I include the transitional provisions) are ambiguous.
I turn next to the applicants' third contention. The applicants say that the right to negotiate is central to the Native Title Act, that the intention of Parliament when the Act was amended was not to disturb that right other than in specified circumstances which are set out in the transitional provisions. One of those circumstances in which the old right to negotiate was retained, was there being an application under s 35 on foot. The applicants say that, as native title parties, they should not suffer the loss of that ‘accrued right’ (the right to negotiate) simply by the failure of the Government party to commence negotiations and that they should have ‘the benefit of the transitional provisions’ allowed to them by Parliament. The applicants argue, (correctly in my opinion, in view of the observations in the main judgment of the High Court of Australia in North Ganalanja Aboriginal Corporation v Queensland [1996] HCA 2; (1996) 185 CLR 595 at 616) that the purpose of the old right to negotiate provisions is to maintain the status quo. From that proposition they contend that the status quo would not be maintained if s 35 were interpreted in such a way as to deny the Tribunal jurisdiction in the present circumstances. Rather, so it is put, there would be a loss of rights. At this point, I should state that, in my view, the applicants misunderstand the nature of the status quo referred to in cases such as North Ganalanja. The status quo is that the future acts are not done. The status quo to which the applicants referred me was the extent and content of their rights under the old right to negotiate provisions, which they perceive as being less valuable than under the new right to negotiate provisions.
As I have mentioned, the applicants also rely on the terms of the transitional provisions incorporated into the Act by the 1998 Amendment Act. I was taken to Item 4 in Part 2 of Schedule 5 which relevantly provides:
4. Transitional – old Act s 29 notices etc.
Old Act s 29 notices – s 28 satisfied or arbitral body application
1. If, before the commencement of the new ‘right to negotiate’ provisions:
(a) a notice was given in relation to a future act under s 29 of the old Act; and
(b) apart from this subitem, the new ‘right to negotiate’ provisions would apply in relation to the future act after the commencement of this Act; and
(c) either:
(i) ... ; or
(ii) an application was made under s 35 of the old Act to an arbitral body and had not been withdrawn;
then, after the commencement of this Act, the old ‘right to negotiate’ provisions continue to apply, despite the amendments made by this Act, in relation to the future act.
Counsel for the applicants conceded that if I maintained the views which I expressed in Walley, ie. that the conduct of negotiations in good faith was a condition precedent to the jurisdiction of the Tribunal to hear and determine an application by any negotiation party under s 35, then this item would not assist her clients. Reliance was placed on Item 4(1), the transitional provisions as a whole and certain observations of the Attorney-General in his second reading speech in support of the construction contended for by the applicants. Counsel argued that if the applications are not struck out, but are treated as being applications made prior to 30 September 1998 and not being withdrawn at that date, then the old right to negotiate may still apply, if the construction for which the applicants contend is applied ie. that the fact that it was not the Government party's application to the Tribunal (and the other contentions summarised above) meant that the Tribunal had jurisdiction notwithstanding the Government party's failure to comply with s 31(1)(b). In view of my decision to adhere to the views which I expressed in Walley, it is not strictly necessary to consider these submissions. However, in deference to counsel, I shall make a few brief observations. The task in hand is to construe the old right to negotiate provisions in Subdiv B. They were enacted in 1993. I do not think that either the 1998 transitional provisions or the Attorney-General's speech in Parliament on 9 March 1998 assist in the construction of Subdiv B. Item 4 of the transitional provisions simply continues the application of Subdiv B in certain circumstances. I think that counsel sought to read too much into the Attorney-General's speech. I see the reference (in that speech) to some 2186 mineral tenements in Western Australia having become subject to ‘the full right to negotiate’ as simply a statement reflecting the legal situation which had developed as a result of the then applicability of Subdiv B to the factual circumstances. Item 4 spells out, in my view quite clearly, the circumstances in which Subdiv B is to continue to apply to such permissible future act matters. Nor do I consider that, as the applicants contend, Item 11(11) of the transitional provisions assists the applicants' case. The reference in that item to ‘as the case requires’ can be seen as simply a reference to whichever alternative applies by reason of the operation of Item 4(1). Counsel for the applicant made written and oral submissions challenging the interpretation placed on Item 11(11) by the Tribunal in another matter known as ‘the Anaconda determination’, Anaconda Nickel Ltd being the grantee party (National Native Title Tribunal Application No. WF 98/7 19 March 1999). In my view, this is not the place to canvass the merits or otherwise of that determination. Nor do I find it of any assistance in deciding the construction points which arise in this application.
For the foregoing reasons I hold that the Tribunal was correct in dismissing the native title parties' applications on the basis that it was not entitled to deal with them. It is not necessary to consider whether it was correct in deciding to apply s 148 in its amended form. The matter was not the subject of argument before me, probably because the result would have been the same whether s 148 was applied in its unamended form or its amended form. Accordingly the application will be dismissed.
1. The application be dismissed.
2. The applicants pay the first respondent's costs.
Counsel for the Applicant: Ms A M Sheehan
Solicitor for the Applicant: Aboriginal Legal Service of Western Australia (Inc)
Counsel for the First Respondent: Mr T A Creewel
Solicitor for the First Respondent: Crown Solicitor for the State of Western Australia
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