Warning: Aboriginal and Torres Strait Islander people are advised that this article may refer to the names of people who are deceased.
In Watson on behalf of Nyikina & Mangala v Backreef Oil Pty Ltd  FCA 1432, the Federal Court of Australia rejected several challenges to the National Native Title Tribunal's approach to determining whether or not interests in land that are subject to the 'right to negotiate' provisions of the Native Title Act 1993 (Cth) should be granted. The decision reinforces that the Tribunal's task is the application of the criteria set out in the Native Title Act 1993 (Cth) to the specific evidence and information brought before it and underscores the need for parties to carefully address those criteria with detailed contentions and supporting materials.
Backreef Oil Pty Ltd and Oil Basins Ltd (together the Proponent) applied for an onshore petroleum exploration permit (Permit) over an area in the Kimberley region of Western Australia, approximately two thirds of which is subject to the Nyikina & Mangala native title claim.
Western Australia applies the 'right to negotiate' provisions of the Native Title Act 1993 (Cth) (NTA) to the grant of Permits, requiring the Proponent to negotiate in good faith with the Nyikina & Mangala people (Native Title Party) with a view to obtaining their agreement to the grant of the Permit.
The Proponent and the Native Title Party engaged in negotiations from early 2008 to May 2012, with mediation assistance from the National Native Title Tribunal (Tribunal) over the final 12 months, but were ultimately unable to reach agreement.1 The Proponent subsequently applied to the Tribunal for a determination as to whether or not the Permit should be granted in the absence of agreement.
The Tribunal determined that the Permit should be granted to the Proponent subject to the imposition of specified 'Aboriginal Heritage Conditions' and a set of 'Extra Conditions' limiting the extent to which the Proponent could restrict the exercise of native title rights in the relevant area, requiring the Proponent to give the Native Title Party copies of certain documents and dealing with assignment of interests in the Permit.2
The Tribunal's determination was made with regard to the applicable criteria set out in the NTA including, relevantly:
- Effect of grant – the effect of the grant of the Permit on the Native Title Party's registered native title rights, way of life, culture and traditions, social, cultural and economic development, freedom of access to land and areas or sites of particular significance
- Native Title Party's wishes – the interests, proposals, opinions or wishes of the Native Title Party in relation to the management, use or control of the area of the Permit in which the Native Title Party has registered native title rights that will be affected by the grant of the Permit, and
- Economic and other significance – the economic or other significance of the grant of the Permit to Australia, Western Australia, the area in which the Permit is located and to Aboriginal and Torres Strait Islander people who live in that area.
In each respect, the Tribunal found that the evidence before it did not support a conclusion that the Permit should not be granted. The Tribunal found, in the absence of specific evidence to the contrary, that the grant of the Permit and the subsequent conduct of petroleum exploration activities:
- would be unlikely to have a significant effect on the Native Title Party's rights to use and enjoy, make decisions about or control access to, use and enjoy resources from the area of the Permit and were unlikely to have any effect on that Native Title Party's rights to maintain, protect and prevent misuse of cultural knowledge
- would have a marginal effect on the Native Title Party's way of life, culture and traditions
- would be likely to have a beneficial effect on the development of the social, cultural and economic structures of the Native title Party
- would have a minimal effect on the Native Title Party's access to the area of the Permit and that conditions could be imposed to further mitigate against any interference, and
- could not be found to have a significant effect on sites of 'particular significance' that may exist within the area of the Permit and that the 'Aboriginal Heritage Conditions' would further mitigate any possible effects.
The Tribunal chose not to accord much weight to the Native Title Party's stated opposition to the grant of the Permit in the context of the Native Title Party's previous conduct, including consent to other petroleum exploration in the past, although it did take into account that previous consent had been predicated on securing an appropriate agreement. The Tribunal also found that expenditure on the proposed petroleum exploration activities was likely to create economic benefits for the local economy, including local Indigenous people.
Native Title Party's application to the Federal Court
The Native Title Party applied to the Federal Court seeking findings to the effect that:
- Failure to weigh – the Tribunal had failed to consider together (ie as opposed to individually) and weigh the criteria, evidence and information in relation to the effect of grant before making its determination
- Failure to account for beliefs – the Tribunal had failed to take into account and give weight to the beliefs of members of the Native Title Party, in accordance with traditional laws and customs, that people may come to harm if sites of cultural and/or traditional significance are damaged
- Failure to account for future dealings – the Tribunal had failed to take into account the future intentions of the Proponent with regard to the Permit, particularly in circumstances where it was known that one of the applicants intended to assign its interest to a third party
- Failure to apply precautionary principle – the Tribunal had failed to apply the 'precautionary principle' (ie the concept, employed in environmental protection regimes, that lack of full scientific certainty should not be used as a reason for postponing cost-effective measures to prevent environmental degradation where there are threats of serious or irreversible damage) to its assessment of the effect that the grant of the Permit would have on areas or sites of particular significance to the Native Title Party, and
- No basis for finding in relation to local benefits – that there was no evidence or information before the Tribunal to support its findings that the grant of the Permit would result in economic benefits for local Indigenous people, including local Aboriginal people.
Federal Court's decision
In each case, the Federal Court declined to accept the Native Title Party's contentions. In particular, the Court found that the Tribunal:
- having considered each of the criteria relating to the effect of grant, expressly engaged in a weighing process in a manner which was 'entirely unexceptional'
- is not required to consider the 'strength of cultural belief of the level of harm that would befall persons consequent upon an interference with sites of significance' as a separate consideration and had properly taken evidence in relation to such matters into account as part of its consideration of both the effect of grant and the Native Title Party's wishes
- is not required to have regard to a proponent's intentions in relation to future dealings with an interest as a separate consideration and, in this case, had relevantly taken the proposed assignment of the interests of one of the applicants for the Permit to a third party into account when considering the effect of grant
- is not required to adopt the 'precautionary principle' in assessing the effect of the grant on areas or sites of particular significance to native title parties (or even to apply the 'cautious approach' to evidence that it had done in this case); and
- had a sufficient evidentiary basis upon which it could base its findings in relation to the economic significance of the grant of the Permit to local Aboriginal people.
The Federal Court's decision in this case confirms the Tribunal's approach to applying the criteria set out in the NTA to the task of determining whether or not interests in land which are subject to the 'right to negotiate' provisions should be granted in the absence of agreement between proponents and native title parties. The decision reinforces that the Tribunal's task is the application of the criteria set out in the NTA to the specific evidence and information brought before it and underscores the need for parties to carefully address those criteria with detailed contentions and supporting materials.
1See Backreef Oil Pty Ltd and Oil Basins
Ltd, John Watson and others on behalf of Nyikina and Mangala,
Western Australia  NNTTA 98.
2See Backreef Oil Pty Ltd and Oil Basins Ltd, JW (name withheld) and others on behalf of Nyikina and Mangala, Western Australia  NNTTA 9.
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