28 Jan Recent Decision – Appeal from a determination of the National Native Title Tribunal that a future act (grant of petroleum exploration permit) may be done
On 23 December 2013 Justice Siopis dismissed an appeal from the National Native Title Tribunal. The tribunal had made a determination under section 38(1)(c) of the Native Title Act 1993 (Cth) that a future act may be done subject to conditions. The future act in question was the grant of a petroleum exploration permit located within the Canning Basin of Western Australia.
His Honour rejected the proposition that the Tribunal had erred by making findings in relation to each of the criteria set out in sections 39(1)(a)(i) to 39(1)(a)(v) in isolation rather than evaluating the criteria cumulatively and collectively. His Honour held that the Tribunal had correctly considered each of the criteria individually and then engaged in a ‘weighing process’.
Of more importance was the rejection of proposition that the Tribunal was obliged to apply what is known in the context of environmental law as the “precautionary principle”. It was argued that the Tribunal is required to adopt a cautious approach in assessing whether there was a risk that sites of particular significance were likely to be effected by the grant of a future act, even if the evidence before the Tribunal as to the location of the site was imprecise. Although finding that the Tribunal had in fact adopted a cautious approach in dealing with the native title party’s evidence in relation to the location of the sites of significance, His Honour held that the language of section 39 of the Native Title Act 1993 (Cth) imposes no obligation to adopt the “precautionary principle”. The application of current technology enables an identified site of significance to be precisely located on a map. No evidence had been adduced to that effect. This highlights the importance of sufficient evidence being produced to establish any fact in relation to the criteria set out in section 39.