Albert Little and Others on behalf of the Badimia People/Western Australia/FMG Resources Pty Ltd
[2011] NNTTA 173
•22 September 2011
NATIONAL NATIVE TITLE TRIBUNAL
Albert Little and Others on behalf of the Badimia People/Western Australia/FMG Resources Pty Ltd, [2011] NNTTA 173 (22 September 2011)
Application No: WO10/1569
IN THE MATTER of the Native Title Act 1993 (Cth)
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IN THE MATTER of an inquiry into an expedited procedure objection application
Albert Little and Others on behalf of the Badimia People – (WC96/98) (native title party)
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The State of Western Australia (Government party)
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FMG Resources Pty Ltd (grantee party)
OBJECTION DISMISSED FOR WANT OF JURISDICTION
Tribunal: Daniel O’Dea, Member
Place: Perth
Date: 22 September 2011
Catchwords: Native title – future act – proposed grant of exploration licence – expedited procedure objection application – jurisdiction – adequacy of s 29 notice – notice is invalid by reason of failure to comply with s 29(3) – no jurisdiction – objection dismissed
Legislation:Native Title Act 1993 (Cth), ss 29, 30, 31, 109, 150, 237, 252
Acts Interpretation Act1901 (Cth), s 36(2)
Native Title (Notices) Determination 1998 (Cth) s 6
Native Title (Notices) Determination 2011 (No. 1) (Cth) s 6
Cases:Dann and Others (Amangu People) v State of Western Australia and Another (2006) 208 FLR 357; [2006] NNTTA 126
Dja Dja Wurrung People/Victoria/Highlake Resources Pty Ltd [2008] NNTTA 67
Minister for Planning and Infrastructure, State of Western Australia/Cedric Anderson and Others on behalf of the Ballardong People/S and N Crees and Sons, [2004] NNTTA 78
Project Blue Sky Inc and Others Applicants, Appellants; and Australian Broadcasting Authority Respondent, Respondent (1998) 194 CLR 355; (1998) 153 ALR 490; [1998] HCA 28
Western Australia v Dimer and Others (2000) 163 FLR 426; [2000] NNTTA 290
Wilma Freddie/Western Australia/Stephen Grant Povey [2010] NNTTA 162
Solicitor for the
native title party: Ms Anicia Clarke, Yamatji Marlpa Aboriginal Corporation
Representative of the
native title party: Ms Alissa Lovering, Yamatji Marlpa Aboriginal Corporation
Solicitor for the
Government party: Mr Domhnall McCloskey, State Solicitor’s Office
Representative of the
Government party: Ms Ros Dawson, Department of Mines and Petroleum
Representative of the
grantee party: Ms Denice Johns, Fortescue Metals Group Limited
REASONS FOR DECISION
On 11 August 2010, the Government party gave notice under s 29 (‘s 29 notification’) of the Native Title Act 1993 (Cth) (‘the Act’, ‘NTA’) of its intention to grant exploration licence E59/1279 (‘the proposed tenement’) to FMG Resources Pty Ltd (‘the grantee party’) and included in the notice a statement that it considered the grant attracted the expedited procedure (that is, one which can be done without the normal negotiations required by s 31 of the Act) (‘expedited procedure notification’).
The s 29 notification comprised identical letters sent to the Badimia People (WC96/98) as registered native title claimants for the area, the Yamatji Land and Sea Council as the Native Title Representative Body for the area, and the National Native Title Tribunal, being the arbitral body in relation to the act. These actions were carried out in compliance with s 29(2) of the NTA. The letters attached a table of exploration licences, including the proposed tenement, for the same s 29 notification day and two maps for each exploration licence in the table, the first showing its location within Western Australia as a whole and the second showing its approximate boundaries. The first map showing the location within Western Australia describes the proposed tenement as ‘E52/1279’ with a centroid of Lat 25º13' Long 117º58' located northerly of Meekatharra. The second map showing the approximate boundaries describes the proposed tenement as ‘E59/1279’ which appears to comprise an area of approximately 30 square kilometres with an approximate centroid of Lat 28º30' Long 117º49'. Additionally, the subject heading of the letter, which contained a list of exploration licences for the same s 29 notification day, did not include ‘E59/1279’, but, ‘E52/1279’.
The publication in the West Australian and the Koori Mail on 11 August 2010 comprised the same table of exploration licences. The row in the table of exploration licences which relates to the proposed tenement read as follows:
_______________________________________________________________________________
NO APPLICANT AREA LOCALITY CENTROID SHIRE_______
59/1279 FMG Resources Pty Ltd 161.13km2 160km N’ly of Meekatharra Lat 25o13’ Long 117o58’ Mount Magnet
In that notification, going from the left to right, the tenement number, the applicant and the Shire are accurate, and the area, the locality and the centroid are inaccurate. In particular, the tenement is actually 33.2 square kilometres in the area, not 161.13 square kilometres, and is approximately 30 kilometres to the south of Mt Magnet, and not 161.13 kilometres north of Meekatharra. The actual location of tenement E59/1279, being some 30 kilometres south of Mt Magnet, is consequently some 290 kilometres south of where the table of exploration licences indicated it was located.
On 19 August 2010, Tribunal staff emailed the Government party regarding the proposed tenement and drew to its attention to the ‘conflicting details in the notification documents’. On the same day, Government party staff emailed a brief response: ‘Correct number is E59/1279 (Title to E52/1279 Surrendered in February 1998).’ It appears that the Government party did not address issues other than the incorrect provision of the tenement number. The Tribunal does not appear to have taken the matter any further.
According to geospatial data supplied to the Tribunal by the Government party following s 29 notification, the proposed tenement E59/1279 comprises an area of 33.2 square kilometres with a centroid of Lat 28º30' Long 117º49' and is 100 per cent within the native title claim of the Badimia People (WC96/98 – registered from 4 October 1996) (‘native title party’). On the s 29 notification day, no other registered native title claims overlapped the proposed tenement. By 11 November 2010 (3 months from the s 29 notification day), no other persons had made native title determination applications and there were, therefore, no other persons who had become native title parties by 11 December 2010 (4 months from the notification day) (s 30(1)(a)).
On Monday 13 December 2010, being the first working day following the s 29 closing date (Saturday 11 December 2010), the native title party made an expedited procedure objection application (‘the application’) to the Tribunal in respect of the proposed tenement. The application was deemed to be lodged within time pursuant to s 36(2) of the Acts Interpretation Act1901 (Cth).
On 11 January 2011, President Graeme Neate was appointed Member for the purposes of conducting an inquiry into the application. In accordance with standard practice, the Tribunal gave directions to the parties to provide contentions and documents for an inquiry to determine whether or not the expedited procedure is attracted. These directions allow a four month period, after the s 29 closing date for the lodgement of objections, for parties to discuss the possibility of reaching an agreement which could lead to disposal of the objection by consent. On 2 February 2011, The Hon C J Sumner, Deputy President was appointed Member for the purposes of conducting an inquiry into the application.
Between 25 January 2011 and 15 April 2011, a number of conferences were held at which parties advised they were attempting to negotiate an agreement and sought a number of extensions to directions. Parties then advised that no agreement could be reached, despite s 150 assistance provided by the Tribunal, and in accordance with a final extension to directions, the Government party and the native title party lodged contentions and evidence by 12 May 2011 and 13 June 2011 respectively. The grantee party confirmed via letter of 29 June 2011 that it agreed with and relied upon the Government party’s submissions and ‘will abide all relevant conditions imposed ... and ... as required by law.’
At the Listing Hearing of 23 June 2011, parties advised that all submissions had been lodged and agreed that the inquiry could be heard ‘on the papers’, that is, without holding a further hearing. On 7 August 2011, Deputy President Sumner appointed me as the Member to conduct the determination of the expedited procedure application.
On 16 August 2011, after considering all material before me, I requested parties make submissions on the misdescription in the s 29 notification documents. I did this because, when I came to examine the evidence which had been submitted by the parties, I found it difficult to reconcile the size of the tenement as indicated in the notice, i.e. 161 square kilometres, within the relevant pastoral lease upon which it was located. Similarly, I was confused by the reference to the tenement being 160 kilometres north of Meekatharra, and on the maps that had been provided to me it was patently south of Mt Magnet. On 19 August 2011, the native title party submitted ‘the current section 29 notice is invalid ... [and] should be amended and re-advertised.’ On 30 August 2011, the Government party lodged amended contentions on the matter. The grantee and native title parties were offered a right of reply to the Government party’s contentions, however, disappointingly, no such replies were lodged. The Government party also supplied copies of newspaper advertisements printed in the West Australian and the Koori Mail on the s 29 notification day.
The adequacy of s 29 notification
Before a future act can be done, s 29(1) of the NTA mandates that the Government party must give notice in accordance with that section. As this is a mandatory requirement, if the Government party fails to comply with the section, the Tribunal is deprived of its jurisdiction to conduct the inquiry. The provision of proper notice pursuant to s 29 of the Act is a condition precedent for the Tribunal’s jurisdiction to hear and to determine any application, including one such as this (see Dja Dja Wurrung People/Victoria/Highlake Resources Pty Ltd [2008] NNTTA 67 (‘Dja Dja Wurrung’) at [13]). Once a question of jurisdiction has been raised by a party, it is incumbent upon the Tribunal to satisfy itself that it does in fact possess the necessary jurisdiction to make a determination (see Wilma Freddie/Western Australia/Stephen Grant Povey [2010] NNTTA 162). That inquiry must be undertaken, notwithstanding that the party raising the issue withdraws its assertion (see Dja Dja Wurrung at [13]-[14]). Logically, it follows that if the Tribunal identifies an issue which may go to the question of its jurisdiction to determine a matter, it must satisfy itself that it in fact possesses the requisite jurisdiction before it proceeds. In this matter, the Tribunal has identified the relevant issue as to jurisdiction, and the native title party has subsequently pressed the matter.
In order to satisfy the requirement of s 29(1), the Government party must meet the requirements of notice provided for in ss 29(2), 29(3) and 29(4). Those notices need to be in accordance with the regulations made under s 252, which empower the Commonwealth Minister to determine from time to time the means by which such notices are to be communicated. Those determinations are set out in the Native Title (Notices) Determination 1998 (Cth) (since the notice was given in this matter, that determination has been superseded by Native Title (Notices) Determination 2011 (No. 1) (Cth)).
Under s 29(2) of the NTA, the Government party is required to give notice of the future act. In circumstances where there is no registered native title body corporate, as is the case in this instance, the Government party is required to give notice to:
any registered native title claimant (i.e. the Badimia native title claimant group);
any representative Aboriginal/Torres Strait Islander body for the area (i.e. Yamatji Marlpa Land and Sea Council);
the person who requested or applied for the act to be done (i.e. the grantee party, in this case FMG Resources Ltd); and
the Registrar of the arbitral body, which is the Tribunal.
The Government party clearly notified each of those entities with the material outlined in [2] above. As has been noted, there was confusion in one map, and in the heading of the document, but there was also, in the second map, an accurate description of the tenement intended to be advertised. As the Government party submits in its contentions, at paragraph 8 thereof, it does not appear that either the native title party or representative body was, in fact, confused as to the actual tenement that it was the Government’s intention to notify. The Government party submits that this is evidenced by the fact that the objectors and the native title representative body lodged a Form 4 objection, on or before the appropriate dates, under the correct tenement number, and further that the evidence and submissions that they subsequently lodged with the Tribunal referred specifically to the intended tenement E59/1279, and raised no submission of misdescription until the issue was raised by the Tribunal after all the documents had been lodged in compliance with the directions.
The Government party concedes that there was a misdescription in the material provided to the parties as required by s 29(2) and that, pursuant to s 6(5)(a) of the Native Title (Notices) Determination, any notice provided was required to provide a ‘clear description of the area that may be affected by the act’. The Government party relies on the decision of the Tribunal in Dann and Others (Amangu People) v State of Western Australia and Another (2006) 208 FLR 357; [2006] NNTTA 126 (‘Dann’), where Member Sosso, as he then was, said (at [23]):
‘It is clear that in some of the earlier decisions in the determinations of the proper interpretations of section 29 there is reliance on the mandatory/directory approach to statutory interpretation which was rejected by the High Court in Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355.’
Member Sosso then went on to quote extensively from the judgment of Justices McHugh, Gummow, Kirby and Hayne in that matter (Project Blue Sky Inc and Others Applicants, Appellants; and Australian Broadcasting Authority Respondent, Respondent (1998) 194 CLR 355; (1998) 153 ALR 490; [1998] HCA 28 at 388-391), and then relevantly summarised the position in relation to the statutory interpretation of s 29 of the NTA:
‘Relating that statement of the law to the matter at hand, Parliament imposes a duty on a government party to issue a notice under section 29 for a limited class of future acts. The arrangements or procedures which are required to be followed in fulfilling that statutory duty are mandated by the terms of section 29 and 252 as well as in the Notices Determination. The two issues to be determined by the Tribunal are, first, whether the government party has complied with the notice requirements, and second, if it has not complied with those requirements the consequences of that failure. To resolve those issues the Tribunal must determine the intention of the Parliament by examining the language of the relevant notice provisions in the context of the scope and objects of the Native Title Act as a whole, taking into account the practicalities of complying with the various requirements and the implications that would otherwise flow from non-compliance.’
In an earlier case before the Tribunal (Western Australia v Dimer and Others (2000) 163 FLR 426; [2000] NNTTA 290) the Government party was unable to produce evidence that the s 29 notice was given to the representative body in accordance with s 29(2) of the Act. The Tribunal noted that it ‘ought not to take an unduly technical approach’ but that ‘notice to a representative body is important because the consequences of non-compliance could be to deny a right to negotiate to non-registered claimants, or potential applicants who had not yet lodged a claim’. On this basis the Tribunal concluded that the s 29 notification was inadequate. However, in Dann, the Tribunal came to the view that some of the complaints in relation to the notice could not be sustained, even in circumstances where the information contained was inaccurate, unless the inaccuracy deprived a party, who was owed a duty to be notified, of an opportunity to exercise its rights under the Act. It was further held that it was not parliament’s intention that such inadequacies in the notice, of themselves, would serve to invalidate the notice and deprive the Tribunal of jurisdiction. Specifically in relation to the question of the provision of a clear description, the Tribunal held that what is in fact a clear description will be answered on a case by case basis. The issue is where a putative native title claimant is provided in the public notice with sufficient material to enable that person or persons to make an informed decision whether to file a native title determination application in response to the notice (see [37], [65], [82] of Dann). If the notice fails to contain a clear description, this deficiency is not limited by providing details on how a clear description can be provided (see [45] of Dann). The only issue to be decided is whether the advertisement did or did not clearly describe the area of the proposed tenement (see [49], [51], [73], [82] of Dann). The failure to provide a map of the proposed tenements does not result in it failing to provide a clear description. In that case, it was asserted that the failure to provide a clear description amounted to using three coordinates to identify the area, and describing only two boundaries of the tenement, which allowed for a number of possible shapes to describe the area referred to in the s 29 notice.
The Government party also sought to rely on Minister for Planning and Infrastructure, State of Western Australia/Cedric Anderson and Others on behalf of the Ballardong People/S and N Crees and Sons, [2004] NNTTA 78 (‘Crees’), where the Tribunal noticed that whilst ‘no party has challenged the jurisdiction of the Tribunal’ there was a misdescription in the notice which raised the question of whether the s 29 was adequate. The notice stated the land concerned was situated in the Shire of Lake Grace, when it was in fact in the Shire of Merredin. A unique location number and description was included in the notice which was referred to as the ‘Whole Avon Location 20721 on Land Administration Original Plan Northam 2299, being unallocated Crown land Volume 3011, Folio 1; Area 4.8309 hectares; DOLA Ref: 961704’. On the basis of this unique location ‘which effectively removes any doubt as to the location of the relevant area of land’, the Tribunal concluded that s 29 notification was ‘substantially compliant and validly given’ (at paras 1 and 6-10).
In summary, these determinations inform the Tribunal that it should not take an unduly technical approach to compliance with s 29 provisions because, depending on the circumstances, substantial compliance may be sufficient. Regardless of whether technical non-compliance is raised by a party or by the Tribunal from its own investigations, the fundamental task for the Tribunal is to consider the consequences of that non-compliance, namely, whether the rights of any person were adversely affected as a result.
Despite the discrepancy in the letters and attachments supplied by the Government party to the Tribunal, the Yamatji Land and Sea Council and the native title party, I am satisfied that sufficient documentation was supplied to ensure adequate notice under s 29(2) was given. The Government party rightly contends that because the native title party lodged an objection to the expedited procedure application in relation to the proposed tenement, the letters and attachments were sufficient. The native title party’s rights were not adversely affected by the discrepancies. Consequently, I accept the Government party’s submission that the notice required to be given pursuant to s 29(2) was validly given.
However, the Government party submissions did not directly address the equally mandatory provisions of s 29(3) and the question remains as to whether the required notice under s 29(3) was validly given. Section 29(3) requires notification to the public in the way determined by the Commonwealth Minister (s 252) ‘unless there is a native title registered body corporate in relation to all of the land or waters that will be affected by the act’. When read in conjunction with s 29(4) and s 30(1)(a), the intent and purpose of s 29(3) is clearly to ensure that any other person who wishes to become a native title party has the opportunity to become one prior to the end of the s 29 notification period. The consequences of a failure to give adequate notice to the public (s 29(3)) could be to deny the right to object to potential applicants who had not yet lodged a claim.
At the time of s 29 notification the Minister’s determination stated that notice under s 29(3) must be published by advertisement in one or more newspapers that circulate generally throughout the area to which the notice relates; and in a relevant special interest publication (Native Title (Notices) Determination 1998 s 6(1), since superseded by the Native Title (Notices) Determination 2011 (No.1)). The Minister’s determination states (at 6(5)):
(5) Notice under subsection 29 (3) of the Act must include:
(a) a clear description of the area that may be affected by the act
In this matter, the s 29(3) notice appeared in the West Australian newspaper, which is clearly a newspaper of general circulation, and in the Koori Mail, which I accept qualifies as a special interest publication. The notice comprised only the table of exploration licences without the additional mapping provided in the letters to the native title party, the Yamatji Land and Sea Council and the Tribunal. Therefore, the only information concerning the location of the proposed tenement which was available to any person who might wish to become a native title party was:
_______________________________________________________________________________
NO APPLICANT AREA LOCALITY CENTROID SHIRE_______
59/1279 FMG Resources Pty Ltd 161.13km2 160km N’ly of Meekatharra Lat 25o13’ Long 117o58’ Mount Magnet
As indicated in [3] above, this information was dramatically inaccurate. It gave the wrong centroid, it placed the area some 290 kilometres away from where it actually was and indicated that the size of the tenement was more than five times greater than it, in fact, is. This degree of inaccuracy can be clearly distinguished from the other matters which have been dealt with by the Tribunal in relation to the question of a clear description, such as Dann and Crees. Any person who may have been prompted to lodge a native title claim in response to a notice in relation to the actually affected area of land would have been completely misled by that description in the public notice. Such a person or group could not have possibly known that that notice referred to an area in the Badimia claim. The question of the probability of the existence of such a party or group, who might possibly, having seen such notice or lodged such an application, is irrelevant. It is clear to me that it was Parliament’s intention when enacting the NTA to give an opportunity to a group of prospective native title holders not already registered to make such an application within the time frame and become a party. The inadequacy of this notice has denied that notional group such an opportunity and in my view, in consequence of that, the s 29 notification process has failed and the Tribunal is deprived of its jurisdiction to determine this objection and it must be dismissed.
Finally, I note that parties to this objection application have already employed considerable time and resources in attending conferences, preparing evidence and making submissions to the Tribunal. The Government party lodged its standard submissions regarding the proposed tenement and the native title party representative sought out members of the native title party who speak for the area of the proposed tenement and lodged affidavits from these members. Should the grantee party still wish to pursue the grant of the proposed tenement, then the s 29 notification process will need to be recommenced. Presumably the Government party will again, in accordance with its standard policy, include the expedited procedure statement, the native title party will again lodge an objection application and parties will again employ considerable time and resources in pursuing that application.
In providing the following comments to the parties, I refer to s 109(1) of the Act which requires the Tribunal to carry out its functions in a fair, just, economical, informal and prompt way. I believe it necessary that these comments be made in order to allow the parties to pursue this matter in a manner which will avoid unnecessary wastage of time and resources. Before coming to my conclusion in relation to jurisdiction I had considered the evidence in this matter and (if the Tribunal had jurisdiction to conduct an inquiry) I was inclined to find that, pursuant to s 237(b), the expedited procedure would not apply. In light of Parliament’s clear intention that the Tribunal should carry out its functions in a fair, just, economical, informal and prompt way, I gave serious consideration to providing a full set of reasons for the conclusion that I would have reached on the basis of the evidence and submissions provided to the party in this matter. However, on further consideration, I have decided to merely indicate as I have above, the likely outcome on the basis of the evidence currently before the Tribunal. Part of the reason for approaching the situation in this manner is because it is not beyond the realms of possibility that further or different evidence could be submitted by one or other of the parties to the matter and secondly that the Member charged with the responsibility of the determination may well not be me, and consequently may come to a different conclusion.
Decision
By virtue of the Government party’s failure to comply with the requirements of s 29(3) of the Native Title Act, the Tribunal does not have jurisdiction to conduct an inquiry into the objection application WO10/1569 lodged by the Badimia registered native title claimants (WC96/98) in relation to E59/1279.
Daniel O’Dea
Member
22 September 2011
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