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Court and Tribunal Decisions - Australia
Federal Court of Australia (Heerey, Drummond and Emmett JJ)
11 May 2000
Native title — registered claim including sea claim — part of sea claim area within Great Barrier Reef Marine Park — application by tourist operators and others to Great Barrier Reef Marine Park Authority for permits for tourist activities, scientific research and other activities — notification of applications given by Authority to registered claimants — whether claimants given sufficient information — whether given an ‘opportunity to comment’ — whether notification had to advise the native title claim area that may be affected
The appellants were applicants for native title over an area of sea within the Great Barrier Reef Marine Park. The respondent proposed to issue permits to persons to enter the Marine Park for the purposes or tourism, scientific research and other activities. The appellants obtained a declaration from Keiffel J at first instance that notice given by the respondent of its intention to grant the permits did not comply in some respects with the provisions of s 24HA(7) of the Native Title Act 1993 (Cth).[1]
Both the native title claimants and the Great Barrier Reef Marine Park Authority (the Authority) appealed from the decision at first instance. The native title claimants appealed on the basis that the judge at first instance ought to have ordered that certain information requested by the native title claimants be provided to enable them to have a proper opportunity to comment within s 24HA(7). The Authority appealed on the ground that Keiffel J ought not to have found that the notice given to the claimants did not comply with s 24HA(7).
The appeal by the native title claimants was dismissed. The entitlement to notification and other procedural entitlements under the various provisions of the Native Title Act 1993 were carefully graded. The obligation to notify native title claimants under s 24HA(7) was not intended by the legislature to import a requirement of procedural fairness.
The right under s 24HA(7) is a right to proffer information and argument to the decision-maker that it can make such use of as it considers appropriate. It is not a right to participate in the decision whether to issue the permit or a right that entitles the recipients of the notice to seek further information from the decision-maker necessary to satisfy those interests of concern to them.
The appeal by the Authority was allowed. The ‘land or waters that will be affected by the act’ in s 24HA(7) referred to the area of the proposed permit or authority, and not to the area of the native title claim. Therefore it was not necessary to comply with s 24HA(7) that the notice specify the part of the area of the native title claim to which the proposed permit related.[2]
1. Stewart Harris and Eston Sinclair Harris on behalf of themselves and the Gurubana Gunggandji People of Yarrabah are registered claimants under the Native Title Act 1993 (Cth). We shall refer to them hereafter as ‘the Claimants’. The sea claim component of their claim (about 840 square kilometres) lies off Cairns and incorporates Fitzroy and Little Fitzroy Islands, other islands and some named and unnamed reefs and cays.
2. Under s 24HA(7) of the Native Title Act 1993 the Claimants have a right to be notified and a right to comment on permissions proposed to be granted by the Great Barrier Reef Marine Park Authority (‘the Authority’) under the Great Barrier Reef Marine Park Act 1975 (Cth) (‘the Barrier Reef Act’).
3. These appeals from Keifel J brought by both the Claimants and the Authority raise questions as to the adequacy of the opportunity to comment given to the Claimants.
4. Under ss 30 and 31 of the Barrier Reef Act the Governor-General may declare areas in the Great Barrier Reef Region to be parts of the Great Barrier Reef Marine Park (‘the Park’). Under s 32 the Authority is to prepare zoning plans in respect of areas which become part of the Park. Using or entering a zone other than for a purpose permitted under the zoning plan is prohibited: s 38A. The Great Barrier Reef Marine Park Regulations (Cth) (‘the Regulations’) provide for applications for permissions. Relevantly for present purposes reg 13AC(1) and (2) provide:
13AC. (1) An application to the Authority for a relevant permission shall be in writing unless, for the purpose of giving urgent consideration to the application, the Authority agrees to accept an oral application.
(2) An application for a relevant permission shall specify:
(a) the name and address of the person making the application;
(b) the name assigned to the Section of the Marine Park that is to be used or entered;
(c) the name of the zone and, where appropriate, the name of the designated area that is to be used or entered;
(d) the purposes for which the zone or designated area is to be used or entered;
(e) any prudent and feasible alternatives to the proposed use or entry;
(f) the proposed movement within the zone or designated area of any person proposing to use or enter the zone or designated area;
(g) the location of the use of, or entry into, the zone or designated area, including the name of any shoal, reef or island on or near which such use or entry is proposed;
(h) the period in respect of which the relevant permission is sought;
(i) the means of transport for entry into, use within and departure from the zone or designated area;
(j) the maximum number of person (if any) to whom the applicant intends to give an authority; and
(k) such other information (if any) as the Authority may reasonably require and has requested the applicant to furnish.
5. Sub-regulation (3) provides for further information to be given when the application is for the purposes of research. This includes a description of the sequence and location of fieldwork to be carried out, the amount of living or non-living matter to be taken and the methods to be used. Regulation 13AF(1) provides for the grant or refusal by the Authority of permissions. By reg 13AF(2) permissions may be granted subject to conditions specified by the Authority.
6. Turning to the Native Title Act 1993, s 24HA(2) applies, inter alia, to a ‘future act’ consisting of the grant of a permit or authority under legislation that includes the management or regulation of surface and subterranean water or living aquatic resources: s 24HA(2). It is common ground that a permission under the Barrier Reef Act is a future act for the purposes of s 24HA.
7. Section 24HA(7) provides:
(7) Before an act covered by subsection (2) is done, the person proposing to do the act must:(a) notify, in the way determined in writing by the Commonwealth Minister, any representative Aboriginal/Torres Strait Islander bodies, registered native title bodies corporate and registered native title claimants in relation to the land or waters that will be affected by the act, or acts of that class, that the act, or acts of that class, are to be done; and
(b) give them an opportunity to comment on the act or class of acts.
8. The relevant determination by the Minister for the purposes of s 24HA(7) is contained in s 8 of the Native Title (Notices) Determination 1998 (Cth) (‘the Determination’) which relevantly provides:
(1) Notice under each of the following provisions of the Act must be given by post:
...
(e) paragraph 24HA(7)(a)
...
(2) However notice may be given by a different means if the person to be notified agrees.
(3) A notice under a provision mentioned in paragraph (1) ... (e) ... must include:(a) a clear description of the area that may be affected by the act or class of acts; and
(b) a description of the general nature of the act or class of acts; and
(c) a statement that the person to be notified must be given an opportunity to comment on the act or class of acts within a period specified in the notice; and
(d) the name and postal address of the person to whom comment must be given.
9. Between 10 November 1998 and 2 February 1999, the Claimants received 109 notices of applications for permits and were given 28 days within which to provide comment. The reference to the area involved and the activities to be undertaken on it were in general terms.
10. The majority of the notices provided concerned tourist activities. The ‘Proposed Act Requiring Notification’ identified was the ‘Grant of a permit by the Great Barrier Reef Marine Park Authority pursuant to reg 13AF of the Great Barrier Reef Marine Park Regulations’; the ‘General Nature of Activities Proposed’ in such a case was, by way of example:
Conduct of a tourist program — Activities being fishing and snorkelling, using an un-named vessel (overall vessel length six (6) metres; maximum passenger capacity six (6) and one (1) crew).
Any other purpose — the provision of transport and other services to persons who are not tourists undertaking photography, filming, sound recording, research and/or servicing of facilities, using an unnamed vessel (overall vessel length six (6) metres; maximum passenger capacity six (6) and 1 crew).
and the ‘Area That May be Affected By Activities Proposed’ in most cases was described as:
The permission applies to all zones and locations within the Cairns Section of the Great Barrier Reef Marine park EXCEPT Preservation Zones, Scientific Research Zones and Designated Areas.
11. Other applications concerned activities such as scientific research, the taking of animals, moorings and traditional fishing, hunting and gathering.
12. The identity of the applicant for the permission in each case was not disclosed. A smaller number of notices nominated reefs or waters in a particular location. This was the case where the activities were more site-specific, such as mooring, traditional fishing and hunting and snorkelling. None of the notices purported to identify an area or location within the Claimants’ claim area. The majority of the notices provide little more than a blanket description of areas specifying whole zones in a Section or Sections themselves.
13. We now turn to the issues arising on the appeals.
14. The Claimants contended before the learned primary judge that the refusal of the Authority to provide them with sufficient information denied them ‘an opportunity to comment’ within the meaning of s 24HA(7)(b).
15. In rejecting that contention, her Honour considered that an opportunity to comment did not suggest that detailed submissions were envisaged. Her Honour continued (at par 22):
While a statutory power is required to be exercised in accordance with procedures fair to the individual, those are to be considered in the light of the statutory requirements, the interests affected and the purposes the statute seeks to advance or protect: Kioa v West,[(1985) [1985] HCA 81; 159 CLR 550] at 585. The relevant requirements of the Determination here, that there be ‘a clear description of the area that may be affected by the Act or class of acts’ and ‘a description of the general nature of the act or class of acts’ would not require the provision of the more detailed information which the (Authority) receives in the application for permit.
16. Later her Honour said (at par 24):
The purpose of the notification, it would seem to me, is to allow an opportunity to a native title claimant to bring forward information known to them and to point out any possible adverse affects [sic] upon their native title rights, in the event they are made out. The permit remains valid despite a judgment pronouncing native title rights, although a permit will not extinguish them. What the statute raises for consideration is the possibility of activities being permitted which may, in a practical sense, diminish the native title rights or harm the area over which they are exercised.
17. In our opinion, the Authority has sufficiently complied with its obligations under s 24HA(7) by giving the 109 notifications referred to above and by inviting the appellants native title claimants to comment on the possible grant of the permit the subject of each of those notifications. As will appear, we think the Authority has in fact provided more information to the appellants than the sub-section requires.
18. In this appeal, the only relevant order the learned primary judge made on 5 August 1999 was, in terms, an order in favour of the Claimants, viz, that the Authority provide them with a clear description of any part of their native title sea claim area that may be affected by a grant of a permit the subject of their application for the order of review. However, in her reasons, her Honour rejected the Claimants’ arguments that they were entitled to all the other information they requested before it could be said that the respondent had given them ‘an opportunity to comment’ within the meaning of that term in s 24HA(7)(b). It is these rulings they have challenged by their notice of appeal. The Authority did not take any point about the absence of an appealable order. We think this appeal should be disposed of on the basis that her Honour by this order in effect declared that, apart from the particular deficiency in the information provided by the Authority to the Claimants the subject of the order, the Authority had otherwise complied with its obligations under s 24HA(7). See Landsal Pty Ltd v REI Building Society [1993] FCA 121; (1993) 41 FCR 421 at 429-430.
19. The Claimants contend that s 24HA(7) should be read as obliging the Authority, before determining to grant a permit, to comply with the common law rules of procedural fairness. It is said that these rules, in their application to the present case, give the Claimants a proper opportunity to advance all legitimate arguments to avert a decision that might profoundly affect their interests, an opportunity that in turn requires that they be given a proper notice of the case they have to meet. This, the Claimants say, entitles them to insist on the Authority providing them with extensive information before they can be in a position to respond to the Authority’s proposal to grant the permits.
20. It is necessary, in order to explain our reasons for rejecting these submissions, to identify the operation of s 24HA(7), something that requires an examination of the provisions of the Native Title Act 1993 providing for the validation of future acts, of which s 24HA is a part.
21. Unless a provision of the Native Title Act 1993 provides for validation, a future act in relation to land or waters (which includes an otherwise valid act done after 1 January 1994 that would extinguish or be inconsistent, wholly or partly, with the continued existence of native title) is invalid to the extent that it affects native title (s 24OA). The Act, as amended by Act No 97 of 1998, makes provision in Div 3 of Pt 2 for a range of future acts that affect native title, but which, subject to Div 3, can be validly done.
22. Section 24HA is in Subdivision H of Div 3 of the Act. Like s 24HA(7), various sections of the other Subdivisions of Div 3 make provision for the involvement in the validation process of those with native title interests in the area in which the future act is to be done. Some, eg, s 24GB(9) in Subdivision G, are relevantly the same as s 24HA(7). But others confer different rights of involvement in the validation process.
23. Most of the Subdivisions of Div 3 contain provisions which require notice that certain action is to be taken with respect to lands or waters to be given to persons with native title interests in those lands or waters. These range from persons with judicially established native title to bodies representing in a general way all who may possibly have native title interests. Those entitled to notice include the registered native title body corporate for the area in relation to which the future act is to be done, ie, the body holding native title under a court determination that native title exists in the area in respect of which the body is registered: (see the definition of ‘registered native title body corporate’ in s 253); any registered native title claimants to any part of the land or waters within the area, and any representative Aboriginal/Torres Strait Islander body for the area.
24. A ‘representative Aboriginal/Torres Strait Islander body’ means a body determined by the Commonwealth Minister to be such for a specified area under s 202(1) of the Native Title Act 1993. Its primary function is to facilitate the researching and making of applications for determinations of native title by individuals or groups from among Aboriginal peoples or Torres Strait Islanders and the giving of assistance to such individuals or groups in connection with negotiating indigenous land use agreements (s 202(4)(a) and (c)). A representative body may be established in relation to a particular area, though no determination has been made that native title exists and though no claim to native title, whether registered or not, has been made. A registered native title body corporate will know precisely the boundaries and content of the native title in which it is interested. So will a registered native title claimant. A representative Aboriginal/Torres Strait Islander body designated for a particular area can be expected to have information as to the existence or possible existence of native title rights and interests in its area which will range from precise knowledge of the location and content of those interests to the ability to make inquiries which may yield information as to the possible existence of such rights and interests.
25. Sometimes others, including the public, are also entitled to notice of acts intended to be done that will affect any native title rights.
26. These provisions of Div 3 also give the persons entitled to notice various rights of response: some have a right to object to the action being taken on narrow, specified grounds; others have a right to make submissions with respect to the proposed action and to have those submissions taken into account by the decision-maker; others have a right to be consulted by the decision-maker and others have the right, of which s 24HA(7)(b) is typical, to an opportunity to comment on the proposed action.
27. There is, in our opinion, a discernible legislative intent in these provisions of Div 3, to some of which we will refer in a little more detail later, that shows that, depending upon who is to do the future act and depending on the impact the act will have on established native title rights or on native title rights that may possibly exist in the lands or waters affected by the act, persons with determined or possible native title interests in the land are to have carefully graded rights to be notified beforehand and are also to have carefully graded rights to have attention given by the decision-maker to their views about the doing of the act. These deliberately structured differences between the various entitlements to be notified of and to respond to proposals to do future acts are, to adopt words used in New Zealand Fishing Industry Association Inc v Minister of Agriculture and Fisheries [1988] 1 NZLR 544 at 551, more than mere semantic differences. There, Cooke P agreed with the following statement of the trial judge (who was dealing with a statutory quota management system for commercial fisheries):
Section 107G does not in terms direct ‘consultation’. The word does occur elsewhere in the Fisheries Act 1983, for example in ss 6, 8(5) and 10A(1). The procedural directions given by s 107G(6) are very specific. The Minister ‘shall advise’ the persons concerned ‘of the proposed recommendation and the reasons for it’ and ‘shall invite’ those persons ‘to make submissions’ within not less than 28 days. Under s 107G(7) the Minister ‘shall have regard’ to such submissions. The difference is more than one of semantics. A ‘consultation’, as recognised elsewhere in the Act, may involve one action of inquiry and one of response, but just as easily can invoke an ongoing dialogue over a protracted period. I refer to the remarks of Morris J in Fletcher v Minister of Town and Country Planning [1947] 2 All ER 496, 500:
Consultation may often be a somewhat continuous process and the happenings at one meeting may form the background of a later one.
I have little doubt that s 107G(6) was drawn specifically to avoid that risk. The Minister was tied into a scheme which involved only one variation per fishing year, necessarily before 1 October. He was not to be forced past this deadline by some never-ending ‘consultation’, perhaps deliberately protracted. There would be one notification and one finite opportunity to answer: no more.
28. Where a decision-maker is under a duty to give procedural fairness to a person, it is frequently said, subject always to the particular statutory context modifying the requirement, that the decision-maker must ensure that the person has proper notice of the critical matters adverse to him and a ‘real opportunity to comment’: Romeo v Asher [1991] FCA 201; (1991) 29 FCR 343 at 349, or ‘a fair opportunity to comment on the material taken into account adversely’ to the person: Kelson v Forward [1995] FCA 1584; (1995) 60 FCR 39 at 63. But, contrary to the Claimants’ submission, this does not mean that the use in s 24HA(7) of a similar phrase, viz, ‘an opportunity to comment on the act ...’, should be taken as importing into the section any of the aspects of the audi alteram partem rule of procedural fairness.
29. There is a greater willingness now on the part of the courts to hold that the exercise of a statutory power capable of destroying or prejudicing a person’s rights, interests or legitimate expectations will be regulated by the rules of natural justice: see, eg Annetts v McCann [1990] HCA 57; (1990) 170 CLR 596 at 598. But the feature of the scheme of Div 3 that comprises differing rights to notice and differing rights of response is sufficient, in our opinion, to show that where a provision of one of the Subdivisions gives a person whose determined or claimed native title interests may be affected a right to notice of the proposed action and a right to make a particular kind of response to it, the content of those rights are defined by the statutory provision conferring them: there is no room for adding to the rights so conferred an implied right to any aspect of the rules of procedural fairness. ‘The questions of what natural justice requires, what the legislation provides for, and whether the legislative procedure accords natural justice are irrelevant if it is concluded that a statute manifests a sufficiently clear intention that no more than the statutory procedure is required, perhaps permitted’: Hannay v Brisbane City Council [1999] 2 Qd R 54 at 55.
30. Paragraph 8 of the Determination (the making of which the learned primary judge has held was authorised by s 24HA(7)) is concerned only with the method of communicating the information of which s 24HA(7)(a) requires notice to be given to those entitled to receive it and the terms of the Minister’s determination cannot therefore govern the nature of the opportunity to comment referred to in sub-par (b). For the same reason, the determination cannot fix the range of information of which s 24HA(7)(a) requires notice to be given (though in terms it purports to do that). In Div 3, the draftsman has taken care to identify the content of the notice that the future act is to be done that is required to be given by various of the provisions of the Subdivision. Section 24HA(7)(a) requires notice only that the act or acts of that class are to be done and of the land or waters that will be affected by that act or class of acts. In our opinion, s 24HA(7) can only be read as giving to the designated recipients of notice the right to comment on what is required to be notified and on nothing else.
31. It is appropriate to examine in a little detail the differences between the notices and the responses provided for by some of the Subdivisions of Div 3.
32. The first group of future acts covered by Div 3 is acts done under one of the three classes of indigenous land use agreement provided for by Subdivision B, Subdivision C and Subdivision D. Subdivision B and Subdivision C agreements, but not Subdivision D agreements (s 24DC), may make provision for the consensual extinguishment of native title rights and interests in relation to land or waters in the area the subject of such agreements (s 24BB(e) and s 24CB(ea)). It is registration by the Native Title Registrar in the Register of Indigenous Land Use Agreements of an indigenous land use agreement that ensures that future acts the subject of such an agreement will be valid when done, including acts that consensually extinguish native title: see Subdivision E, s 24EA and s 24EB. Persons who may possibly have native title interests in land the subject of an indigenous land use agreement, but who are not parties to the agreement, have the right to be given a specified but limited range of information about the agreement and a right to object, on very limited grounds, to registration of the agreement, in the case of Subdivision B and Subdivision C agreements, and on more general grounds, in the case of a Subdivision D agreement. See, in relation to the three classes of agreements, ss 24BH and 24BI, 24CH and 24CI and 24DI and 24DJ respectively.
33. The non-extinguishment principle, defined in s 238 applies to most of the future acts covered by Subdivisions G, H, I and J. Though the native title holders cannot prevent the doing of these future acts, they are, in general, entitled to compensation for such acts in accordance with Div 5 and they have certain procedural rights to which effect must be given before the act can validly be done. The procedure provided for by each of these Subdivisions for the involvement in the validation process of those with native title interests in the area in which the future act is to be done is substantially the same. It is convenient to set out, as typical of these provisions, the relevant paragraphs of s 24HA itself:
Leases, licences, etc
(2) This section also applies to a future act consisting of the grant of a lease, licence, permit or authority under legislation that:(a) is valid (including because of this Act); and
(b) relates to the management or regulation of:
(i) surface and subterranean water; or
(ii) living aquatic resources; or
(iii) airspace.
In this paragraph, water means water in all its forms and management or regulation of water includes granting access to water, or taking water.
...
Notification
(7) Before an act covered by subsection (2) is done, the person proposing to do the act must:(a) notify, in the way determined in writing by the Commonwealth Minister, any representative Aboriginal/Torres Strait Islander bodies, registered native title bodies corporate and registered native title claimants in relation to the land or waters that will be affected by the act, or acts of that class, that the act, or acts of that class, are to be done; and
(b) give them an opportunity to comment on the act or class of acts.
34. Subdivision M validates future acts, both legislative and non-legislative such as compulsory acquisitions, that affect native title and pass what is called in the Native Title Act 1993 ‘the freehold test’: if the future act is legislation that applies to native title holders in the same way it would apply to them if they held freehold title or if the land resumed could also be resumed if the native title holders held the freehold to it, then the relevant future act will be valid by force of s 24MD. Non-discriminatory compulsory acquisitions will extinguish native title just as they do non-native title interests: see s 24MD(2). If the future act is the compulsory acquisition of native title rights and interests, for the purpose of conferring rights or interests in relation to the land in question on persons other than resuming government, s 24MD(6B) must be complied with. This requires the resuming government to notify any registered native title claimant, any native title body corporate and any representative Aboriginal/Torres Strait Islander body in relation to the land that the act is to be done (subs (6B)(c)) and any person so notified ‘may object, within two months after the notification, to the doing of the act so far as it affects their registered native title rights and interests’ (subs (6B)(c)). In that event, the resuming government ‘must consult any claimants, and bodies corporate, who object, about ways of minimising the act’s impact on registered native title rights and interests in relation to the land or waters and, if relevant, any access to the land or waters or the way in which anything authorised by the act might be done’ (subs (6B)(e)) and the resuming government must also ‘ensure that the objection is heard by an independent person or body’ (subs (6B)(f)). If the independent person or body ‘hearing any objection ... makes a determination upholding the objection [to acquisition of the native title rights], or that contains conditions about the doing of the act that relate to registered native title rights and interests, the determination must be complied with’ unless the responsible government Minister is consulted and determines that it is in the interests of the relevant government not to comply with the determination, ie, to allow the resumption to proceed.
35. Subdivision P of Div 3 contains the important procedure for validating future acts affecting native title that comprise, among other things, the conferral of certain classes of mining rights. If the ‘right to negotiate’ procedures set out in Subdivision P are not complied with, the act will be invalid to the extent that it affects native title (s 25(4)). Before the act is done, the government with the power to grant the mining right must give notice of the act in accordance with s 29 to the relevant native title parties, viz, any registered native title body corporate, in relation to any of the land or waters that will be affected by the act and, if there is no such body corporate, any registered native title claimant and any representative Aboriginal/Torres Strait Islander body in relation to any such land or waters (s 29(2)). The notice must contain detailed information about the mining right in question: see s 29(4)(b). The government party, the native title parties and the applicant for the mining right are the negotiating parties (s 30A). Before the future act is done, they must negotiate with a view to reaching an agreement about it (s 25(2)) and, if they do not reach agreement, an arbitral body, or a Minister, will make a determination about the act instead (s 25(3) and s 25(4)). The ‘normal negotiation procedure’ is provided for by s 31:
(1) Unless the notice [under s 29] includes a statement that the Government party considers the act attracts the expedited procedure:(a) the Government party must give all native title parties an opportunity to make submissions to it, in writing or orally, regarding the act; and
(b) the negotiation parties must negotiate in good faith with a view to obtaining the agreement of each 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.
36. If, as a result of the negotiations, an agreement within s 31(1)(b) is not reached within a prescribed period, any negotiation party may apply to the arbitral body for a determination under s 38 in relation to the act (s 35(1)) and the arbitral body must thereupon take all reasonable steps to make a determination in relation to the act as soon as practicable (s 36(1)). If the arbitral body’s determination is delayed, the relevant Minister may, subject to this section, make a determination in relation to the future act (s 36A(1)). Before making such a determination, the relevant Minister must give the notice required by s 36B(2) to the arbitral body and must also give notice to the negotiation parties provided for by s 36B(3) as follows:
(3) The relevant Minister must give written notice to each negotiation party that the Minister is considering making the determination and that each negotiation party:(a) may, by the end of the day specified in the notice, give the Minister any submission or other material that the negotiation party wants the Minister to take into account in deciding whether to make the determination and, if so, its terms; and
(b) if the negotiation party does so — must also give each of the other negotiation parties a copy of the submission or other material; and
(c) may, within 7 days after the specified day, in response to any submission or other material given by any other negotiation party or the arbitral body, give the Minister any further submission or other material that the negotiation party wants the Minister to take into account as mentioned in paragraph (a).
37. Section 36B(6) provides:
Material etc taken into account
(6) In making the determination, the relevant Minister:
(a) must take into account:
(i) any submission or material provided by any of the negotiation parties in accordance with subsection (3), but only if the negotiation party has complied with the requirements of paragraph (3)(b); and
(ii) any report provided by the arbitral body; and
(iii) any consultations with the Commonwealth Minister as mentioned in subsection 36A(1A); and
(b) may, but need not, take into account any other matter or thing.
38. The opportunity ‘to comment’ on a proposed act provided for by s 24HA(7)(b) in terms suggests that those with that right have only an entitlement to explain why, in their opinion, the act should not be done at all or only on conditions and to draw to the attention of the decision-maker information which they possess and which they consider the decision-maker should know about before doing the act. The right under s 24HA(7)(b) is, we think, a right to proffer information and argument to the decision-maker that it can make such use of as it considers appropriate. The sub-section does not confer any greater right on the native title interests. It is not a right to participate in the decision whether to issue the permit or a right that entitles the recipients to seek information from the decision-maker necessary to satisfy those interests about matters of concern to them. That this is the narrow scope of the right conferred by s 24HA(7)(b) is, we think, confirmed by comparing this right with the rights conferred on native title interests by some of the other provisions of Div 3.
39. A well-founded objection under Subdivisions B, C or D can prevent registration and thus the effectiveness of an indigenous land use agreement. This form of response provided for by these Subdivisions thus has an operative effect in the validation process not possessed by the s 24HA(7) opportunity to comment, irrespective of how cogently the comment may tell against the doing of the proposed future act.
40. The native title interests who must be notified under s 24MD(6B)(c) of Subdivision M cannot veto a compulsory resumption within subs (2) and such a resumption will extinguish all native title rights that have been determined to exist or which may exist in the land. But they have a right, even so, to insist on the resumption being effected in a way that will minimise its impact on ‘registered native title rights’, ie, rights established by a determination or rights the subject of a registered claim. This right to be consulted may well entitle those with native title interests to be given information by the decision-maker, where that is necessary to enable the persons with native title rights to respond to the decision-maker with their own advice and information in a way that will permit the stated object of consultation to be achieved. This right to be consulted is a more extensive right than the opportunity conferred by s 24HA(7) to comment on future acts that do not extinguish native title and which attract to native title holders a right to compensation for the interference done by those acts to their rights.
41. As is apparent from s 33, the right to negotiate in Subdivision P which is designed to achieve agreement between those with native title interests in the land and the applicant for the mining right is, for native title holders, a right capable of achieving substantial financial benefits for them, even though those interested in native title in the area in respect of which the mining right is conferred cannot bar the grant of the mining right. The opportunities given by ss 31 and 36B to make submissions in aid of the right to negotiate for an agreement capable of conferring both cultural and financial benefits on the native title holders can be seen to be an entitlement to participate closely in the validation process. Subdivision P confers on such persons significantly greater rights to be involved in that process in the form of this ‘right to negotiate’ than those conferred by the other Subdivisions of Div 3, including Subdivision H.
42. There is in the text of s 24HA(7) an indication that the right to notice and the associated opportunity to comment under that sub-section are intended to provide the persons having those rights with no more than an opportunity to proffer to the decision-maker argument and information known to them about their native title interests. Section 24HA(7) recognises that an authority established under Commonwealth, State or Territory law with power to issue a licence or a permit in relation to the management or regulation of waters and airspace, may have power to issue specific classes of licence or permit. The Great Barrier Reef Marine Park Authority has just such powers. For example, in the Cairns Section Zoning Plan, par 6.4 provides for the issue of written permissions by the Authority to use or enter the general use zone for the purposes of:
(a) fishing, collecting or hunting involving:(i) line fishing using more than six hooks per line;
(ii) the conduct of a developmental fishery program;
(iii) traditional fishing and traditional hunting and gathering (other than fishing or collecting specified in clause 6.3);
(iv) collecting other than limited collecting;
(v) mariculture;
(b) camping;
(c) conduct of a tourist program;
(d) research other than limited research;
43. Some of the more self-explanatory terms in this provision of the Zoning Plan are not defined, eg, ‘camping’. However, most (those in emphasis) are further defined, eg, ‘collecting’ means ‘the taking of any animal, plant or marine product’. See par 5 of the Plan.
44. The notification requirements of s 24HA(7), which determine the ambit of the matters which can be the subject of comment, are satisfied if the Authority proposes to grant a number of permits of any one of these classes, and before it does so, notifies the nominated persons who have or may have native title interests in the lands and waters that will be affected by acts of the class in question, ie, by the grant of permits of a particular class, that that is to be done. The ordinary meaning of the phrase ‘or acts of that class’ in s 24HA(7) suggests that it is not necessary for the Authority to give notification to the registered native title claimants that it is proposing to grant each specific permit of a class of permit proposed to be granted. That that is also the intended meaning is confirmed by par 10.20 of the Explanatory Memorandum, to which s 15AB(1)(a) the Acts Interpretation Act 1901 (Cth) permits reference to be made:
10.2 In relation to future acts of this kind, new subsection (7) requires that before the future act is done, the person proposing to do the act notify, in the way determined in writing by the Commonwealth Minister, the persons mentioned in paragraph (7)(a) that the act, or acts of that class, are to be done, and give them an opportunity to comment on the act or class of acts. The reference to ‘acts of that class’ makes it clear that notification need not be given in relation to each particular future act. For example, notification need not be given in relation to each grant of a fishing licence, but may be given in relation to the grant of all licences to fish in particular waters. Failure to notify will not affect the validity of the future act.
45. Here, the Authority intends to grant, among others, numerous permits of a particular class provided for by par 6.4 of the Zoning Plan, viz, permits for the ‘conduct of a tourist program’ of a particular kind. It would be sufficient compliance with s 24HA(7)(a) if, before it grants any one of those permits in that class, the Authority notifies the registered native title claimants that it is proposing to grant a number of permits of that class in relation to the defined area of water the subject of the applications for those particular permits. Since the Authority can meet its obligation under s 24HA(7) by notifying the registered native title claimants that it proposes to grant an unspecified number of permits of a particular class for access to the area defined in the notification that is the area the subject of all those permit applications, there is, in our opinion, no justification for imposing on the Authority the obligation to give the registered native title claimants copies of each of the individual permit applications or all the information provided by each of the permit applicants to the Authority in connection with each application. A general description of the activities comprising the act or class of acts proposed to be done will suffice.
46. So far as the Park is concerned, the notice requirement will be satisfied if the Authority describes the act or class of acts by the term applicable to the act or class of acts that is used in the Barrier Reef Act and the relevant Zoning Plan, expanded by the definition provisions; if that be necessary to better identify the act or class of acts.
47. By giving notification of its proposal to grant each of the 109 permits, though some of them fall into several distinct classes, the Authority has gone beyond the minimum necessary to comply with the section.
48. The descriptions in fact provided by the Authority to the Claimants of the activities covered by the proposed permits, in our opinion, also go beyond the minimum requirements for notice imposed by s 24HA(7)(a) by reason of the extent to which they particularise each of these activities.
49. It is understandable that the notification obligation imposed and the opportunity to comment given by s 24HA(7) (and the corresponding provisions of Subdivisions G, I and J) can be fulfilled by the decision-maker providing to the designated recipient only general information: those recipients have no right to veto the future act or acts. The act or acts, if done under Subdivision H, cannot extinguish any native title rights that may exist and native title holders able to establish their claims have a right to compensation for such detrimental impacts as the future act may have on their native title rights.
50. In view of the clear wording and the limited entitlement conferred, there is no room for implying into s 24HA(7) a requirement that notification must be given to registered native title claimants before the Authority has determined to grant the permit requested: it is enough that notification is given before the act is done, ie, before the permit is actually granted, provided that the Authority, before granting the permit, gives the registered native title claimants an opportunity to comment on the subject of the notification, be it the Authority’s intention to grant a particular permit or its intention to grant a number of permits of a particular class. There is thus nothing in the Native Title Act 1993 to justify a reading of s 24HA(7) that would give native title holders, claimants or bodies with an interest in supporting native title claims any right to be involved in the decision-making process itself.
51. The Authority must have regard to any comment made pursuant to s 24HA(7)(b) before issuing the permit. But s 24HA(7) leaves it entirely to the Authority to decide whether the comment should cause it to change or modify its decision to grant the permit. Unlike s 24MD(6B), by way of example, s 24HA(7) does not impose any obligation on the decision-maker to make any particular use of the information provided by way of comment or to act in a way that will ensure that no harm is done to native title interests or that such harm is minimised, if the decision-maker accepts that such interests do exist. The opportunity to comment affords the persons and bodies entitled to that opportunity a lesser entitlement to have their views on the proposal to grant the permit taken into account by the decision-maker than do the corresponding provisions of ss 24BI, 24CI and 24DJ (which provide for objection) and s 24MD (which provides for consultation), s 31 (which provides for submissions to the government negotiating party) and s 36B (which provides for submissions and submissions in reply to those of other parties).
52. The whole object of s 24HA(7), which is of general application to all persons and entities with power under Commonwealth or State laws to grant leases, licences, permits or authorities in relation to the management or regulation of water and airspace that may affect native title rights, is precautionary only. It is intended to ensure that the possible impact of the grant of the permit on native title rights, whether curially established rights, formally claimed rights or rights that might be thought by an informed person possibly to exist, is not overlooked when the decision-maker makes its final decision to issue the permit. As is to be expected, the Claimants are in a position to achieve this objective: the evidence is that they are well aware of the locations of indigenous significance to them in the areas over which the Authority proposes to grant the permits.
53. Accordingly the appeal Q 221 of 1999 should be dismissed with costs, including reserved costs.
54. The learned primary judge thought that consistent with the statutory purpose the Claimants would need to be alerted to that part of their claim area to which the proposed permission related so that they might make meaningful comments upon its significance or otherwise and as to whether the rights they claim will be impacted upon. The ‘area that may be affected’ in s 8(3)(a) of the Determination referred, in her Honour’s view, to that part of the native title claim area and requires it to be identified.
55. This construction, according to the Authority, creates practical problems. In most cases, particularly with respect to applications involving tourist operations, the Authority was unable to be more specific about the intended route of vessels or where they might moor. For example, applications are commonly sought for permission generally to roam over and between zones.
56. In our view the Determination ought to be construed consistently with the terms of s 24HA(7)(a). In the latter provision ‘the land or waters that will be affected by the act’ must refer to the area the subject of the proposed permit or authority rather than the subject matter of any native title claim. The words following ‘in relation to the land ...’ clearly refer back not only to registered native title claimants, but also to other categories of notice recipients, namely representative Aboriginal/Torres Strait Islander bodies and registered native title bodies corporate. There must be a relationship between such bodies and the land the subject of the proposed act. It would be absurd to think that a permission application in relation to the Cairns area of the Barrier Reef would require notification to be given to representative Aboriginal/Torres Strait Islander bodies in Western Australia or Tasmania.
57. But representative Aboriginal/Torres Strait Islander bodies will not necessarily be native title claimants. Thus, as we have already observed, what s 24HA(7)(a) posits is some relationship between the notice recipients and the land or waters the subject of the future act. Because of that relationship the notice recipient may be able to provide useful comment concerning the proposed permit or authority. Therefore the fact that persons are registered as native title claimants is something which qualifies them as commentors. It does not mean that they are to comment, and comment only, in relation to the land or waters to which their claim relates.
58. This appeal will be allowed. The order made on 5 August 1999 will be set aside. In lieu thereof it will be ordered that the amended application for an Order to Review Q 23 of 1999 be dismissed. There will be orders that the Claimants pay the Authority’s costs of the appeal and of the proceeding at first instance, including reserved costs.
59. The principal judgment of her Honour was given on 5 August 1999. The authority thereupon gave three notifications to the Claimants. The question then arose as to whether the renotifications complied with the judgment of 5 August and in particular whether they provided to the Claimants ‘a clear description of any part of the sea claim areas that may be affected by the grant of a permit’. On 22 October 1999 her Honour held that the renotifications did not, as the judgment required, advise whether there was a part of the sea claim area that may be affected by an activity undertaken pursuant to the permission. Her Honour held that the Authority had not complied with the order and allowed an extension of time of six weeks for it to do so.
60. It follows from our decision in relation to the Authority’s appeal in Q 223 of 1999 that notification of the sea claim area affected is not required and that the order of 22 October 1999 should be set aside. There will be orders that the Claimants pay the Authority’s costs of the Notice of Motion filed on 7 October 1999 and the Authority’s costs of the appeal, including reserved costs.
Counsel for the Applicant:
Mr Sofronoff
Solicitor for the Applicant:
Paul Richards & Associates
Counsel for the Respondent:
Mr Gibson and Mr Flanagan
Solicitor for the Respondent:
Australian Government Solicitor
[1] The headnote for this decision appears in this issue of AILR
[2] The full text of this judgment is available at <http://www.austlii.edu.au/au/cases/cth/federal_ct/2000/603.html> .
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URL: http://www.austlii.edu.au/au/journals/AUIndigLawRpr/2000/26.html