Angelina Cox and Others on behalf of Puutu Kunti Kurrama & Pinikura People/Western Australia/Globe Uranium Ltd

Case •

[2007] NNTTA 95

•

27 September 2007

NATIONAL NATIVE TITLE TRIBUNAL

Angelina Cox and Others on behalf of Puutu Kunti Kurrama & Pinikura People/Western Australia/Globe Uranium Ltd, [2007] NNTTA 95 (27 September 2007)

Application No:        WO07/42

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

Angelina Cox and Others on behalf of Puutu Kunti Kurrama & Pinikura People (WC05/4) (native title party)

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The State of Western Australia (Government party)

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Globe Uranium Ltd (grantee party)

DECISION ON WHETHER THE TRIBUNAL HAS JURISDICTION TO CONDUCT AN INQUIRY

DECISION TO DISMISS OBJECTION APPLICATION

Tribunal:  Hon C J Sumner, Deputy President

Place:  Perth
Date of Decision:             17 September 2007
Date of Reasons:             2 November 2007

Catchwords:  Native title – future act – proposed grant of exploration licence – expedited procedure objection application – expedited procedure objection application withdrawn in error – Tribunal jurisdiction to reinstate objection application – objection application reinstated – failure to comply with directions – objection application dismissed.

Legislation:  Native Title Act 1993 (Cth), ss 29, 109, 148(b), 149A

Administrative Appeals Tribunal Act 1975 (Cth), s 42A(1B)

Cases:Little v Western Australia [2001] FCA 1706 (6 December 2001); (2001) 6(4) AILR 67

Martin v Native Title Registrar [2001] FCA 16

Michael Page/Northern Territory/Norman Sydney McCleary, NNTT DO01/78, [2001] NNTTA 72 (3 May 2002), John Sosso

Richard Evans/Western Australia/Australian Gold Resources Ltd, NNTT WO99/660, [2000] NNTTA 84 (28 February 2000), Hon C J Sumner

Ruby Saltmere (Indjilandji/ Dithannoi)/Queensland/Savannah Resources Pty Ltd, NNTT QO04/94, [2005] NNTTA 54 (5 August 2005), John Sosso

Teelow v Page [2001] NNTTA 107; (2001) 166 FLR 266

Western Australia v Ward [1996] 993 FCA 1; (1996) 70 FCR 265

Champion v Western Australia [2005] NNTTA 1; (2005) FLR 362 at 369 [24].

Wilma Freddie and Others on behalf of the Wiluna Native Title Claimants/Western Australia/Globe Uranium Ltd, NNTT WO06/338, [2007] NNTTA 37 (14 May 2007)

Representative of the      Mr Dennis Jacobs, Yamatji Marlpa Barna Baba Maaja Aboriginal
native title party:             Corporation

Solicitor for the               Mr Shahzad Rind, Yamatji Marlpa Barna Baba Maaja Aboriginal

native title party:             Corporation

Representative of the      Mr Greg Abbott, Department of Industry and Resources

Government party:         Mr Phil Mirabella, Department of Industry and Resources

Counsel for the               

Government party:         Mr Trevor Creewel, State Solicitor’s Office

Representative of the      
grantee party:                 Mr Shannon McMahon, McMahon Mining Title Services Pty Ltd

REASONS FOR DECISIONS

Background

  1. On 27 September 2006, the Government party gave notice under s 29 of the Native Title Act 1993 (Cth) (‘the Act’) of its intention to grant exploration licence E08/1561 (‘the proposed licence’) to Globe Uranium 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).

  2. On 11 January 2007, an expedited procedure objection application was lodged with the Tribunal by Angelina Cox and Others on behalf of Puutu Kunti Kurrama & Pinikura People (Native Title Claim No WC05/4 – registered from 15 August 2006) (‘the native title party’).  

  3. The proposed licence comprises an area of 132.53 square kilometres, is located 148 kilometres southerly of Onslow in the Shire of Ashburton and is 12.01 percent overlapped by the registered claim of the native title party.

  4. On 24 April 2007 the Tribunal received notice from the Yamatji Marlpa Barna Baba Maaja Aboriginal Corporation (‘YMBBMAC’) - (the recognised representative body for the area) acting for the native title party that the objection application was withdrawn on the basis that an agreement between parties was then in place.  The objection withdrawal was processed promptly in accordance with the Tribunal’s service standards and parties notified.  Subsequent to notification of the withdrawal, personnel from YMBBMAC advised all parties and the Tribunal in writing that the objection withdrawal had been made in error and requested that the objection application be reinstated.  Failure to seek instructions from the native title party in relation to exploration for uranium was cited as the reason for the reinstatement request.

  5. On 25 May 2007, Mr Shannon McMahon, representative of the grantee party, wrote to the Tribunal advising that a Regional Standard Heritage Agreement (‘RSHA’) had been executed by the grantee party and forwarded to YMBBMAC on 27 March 2007, and that the representative for the native title party had agreed during a Tribunal preliminary conference convened on 27 February 2007 that the objection would be withdrawn on receipt of such an agreement.  Mr McMahon observed that at no time were any concerns raised regarding uranium exploration and requested a hearing before the Tribunal with respect to the reinstatement request on the basis of the above facts.

  6. On 30 May 2007 the Tribunal received correspondence from Mr Trevor Creewel, State Solicitor’s Office, on behalf of the Government party, advising that in its view, the Tribunal was functus officio and no longer had jurisdiction in this manner and therefore had no power to make further orders affecting the objection application.

  7. On 2 July 2007 I convened a Directions Hearing for the purpose of considering parties’ submissions regarding the Tribunal’s powers to reinstate the objection application. Mr McMahon submitted that the grantee party had been prejudiced by the objection withdrawal because it had done all things said to have been required by the native title party to effect withdrawal of the objection. Mr Creewel reiterated the Government party’s view that the Tribunal did not have jurisdiction to reinstate the objection. Mr Shazhad Rind, for the native title party, confirmed that YMBBMAC did not have instructions to withdraw the objection on the basis that the native title party had not been informed that uranium exploration was proposed by the grantee. I decided to reinstate the objection and gave extempore reasons which are set out with some editorial changes below ( paras [8]-[16]).

Findings in relation to the jurisdictional issue

  1. Pursuant to s 149A of the Act the Tribunal has the power to reinstate an objection application if it is found to have been dismissed in error. Although not necessary formally to decide the point it is my view that s 149A has no application in this matter as the objection was not dismissed and is not taken to have been dismissed but rather was withdrawn by the representative for the objector (cf s 42A(1B) of the Administrative Appeals Tribunal Act 1975 (Cth) where the withdrawal of an application for review is taken to be dismissal of the application by the Administrative Appeals Tribunal).

  2. If there were no other powers to correct the error which representatives for the native title party say occurred in this matter then an argument could certainly be made, as the Government party has done, that the Tribunal was functus officio and had no jurisdiction to reinstate the application because of the withdrawal.

  3. However, I am of the view that the Tribunal can use the ‘slip rule’ to correct this error. Section 109 of the Act, which deals with the Tribunal’s way of operating, provides some support for the existence of a slip rule. The Tribunal is not bound by legal technicalities, legal forms or rules of evidence. In applying the slip rule the Tribunal would also need to take account of any prejudice or injustice to other parties.

  4. There is considerable authority that Courts can use the slip rule to correct errors which have been made in a judgement or order from an accidental slip or omission.  In my view the Tribunal also has the capacity, incidental to its substantive statutory powers, to utilise the slip rule to correct errors in appropriate cases.  Whether it is appropriate to do so is a matter of discretion taking account of all the circumstances of the case.  I do not think it is confined to administrative errors by the Tribunal itself.

  5. In Martin v Native Title Register [2001] FCA 16 the Federal Court (French J) at [10] accepted that the Tribunal could have regarded errors in an affidavit filed in relation to the registration test as resulting from a slip or error. The Tribunal has also accepted that the misdescription of an objector or the claim number on a Form 4 objection application made in error could be corrected (Michael Page/Northern Territory/Norman Sydney McCleary, NNTT DO01/78, [2001] NNTTA 72 (3 May 2002), John Sosso, at [11]-[14]); Richard Evans/Western Australia/Australian Gold Resources Ltd, NNTT WO99/660, [2000] NNTTA 84 (28 February 2000), Hon C J Sumner at [7]-[8]).

  6. In this particular matter I am satisfied that the representative for the native title party did not have instructions from his clients to withdraw the objection application and was in error in doing so.  He gave notice of withdrawal of the objection withdrawal within an hour of it happening.

  7. In objection matter WO04/238 (Wongatha/ Jackson Gold Ltd) on 21 November 2005 the Tribunal reinstated an objection which had been withdrawn in error in circumstances where both the Government party and grantee party agreed with the reinstatement.  In the present case both the Government party and grantee party oppose reinstatement.  The grantee party certainly has some cause for complaint.  There are three registered claims which overlap the tenement area and the grantee party has entered into a Heritage Agreement with two of them (Thudgari (who did not lodge an objection) and Thalanyji (who lodged and objection but withdrew the objection following agreement)).

  8. On 27 February 2007 at a directions hearing, the grantee party offered to sign a RSHA with the objectors in this matter and was advised by the native title party’s representative that this was acceptable and that on receipt of an executed agreement the objection would be withdrawn.  On 27 March 2007, the RSHA, executed by the grantee party, was sent to YMBBMAC following which the objection was withdrawn on 24 April 2007, followed within the hour by notice that the withdrawal of the objection should itself be withdrawn.  The grantee party also says that the fact it had an agreement with the Puutu Kunti Kurrama & Pinikura native title party influenced it to also reach agreement with Thalanyji thus securing withdrawal of all objections.  For some two months the grantee party acted on advice from the native title party that this matter had been settled and set in train steps to secure withdrawal of the objections.  If reinstatement of the objection occurs then the grantee party will to some extent be prejudiced because there will be further delay in obtaining a grant of the tenement.  However on balance I am of the view that this is a case where the Tribunal should accept that the withdrawal was made in error.  The error was fundamental in that the native title party’s representative did not actually have instructions to withdraw in these circumstances and corrected his error within a short time.

  9. I therefore find that the objection to the assertion of the expedited procedure statement in relation to E08/1561 should be reinstated.  However, I am also of the view that as agreement has not been reached, the matter should proceed to inquiry as expeditiously as is reasonable in the circumstances.

The Inquiry

  1. The Tribunal made directions on 30 January 2007 for all parties to produce contentions and evidence for the conduct of the inquiry to determine whether or not the expedited procedure was attracted. The native title party was to provide a statement of contentions, documentary evidence and witness statements verified where possible by affidavits on or before 28 May 2007. The directions contain a statement that an objection may be dismissed pursuant to s 148(b) of the Act if the objector fails within a reasonable time to proceed with the application or to comply with a direction of the Tribunal. However, for reasons outlined above, this date passed without compliance and I remade directions with the agreement of all parties on 2 July 2007, now requiring native title party compliance on or before 24 August 2007. Mr Rind advised that the native title party would move as quickly as possible to prepare for the inquiry. A Listing Hearing was scheduled for 7 September 2007.

  2. On 6 September 2007, at which time the native title party had not complied with amended Directions of 2 July 2007, the Tribunal received a written request from the native title party representative for an adjournment of the Listing Hearing to 24 October on the basis that it was awaiting a report from an independent expert on uranium exploration and would then need to seek instructions from the native title party. The request for an adjournment of the listing hearing date was not accompanied by a request for an extension of the time for compliance and in light of advice that the grantee and Government parties’ opposed the request I ordered that the Listing Hearing be convened by the Tribunal’s senior caseflow manager as scheduled on 7 September. At this hearing Mr Rind for the native title party, advised that contentions and evidence could be provided by 24 September 2007. The Government and grantee parties opposed any extension of time and the Government party requested dismissal pursuant to s 148(b) of the Act on the basis on non-compliance with directions by the native title party.

  3. On 14 September 2007 I convene a Directions Hearing at which Mr Rind cited workload, failure to obtain an independent expert report in a timely manner, failure of the grantee party to provide further information requested by YMBBMAC and the need to seek instructions from the native title party as reasons for its application for a further extension of time in which to comply. The Government and grantee parties maintained their position that the objection application be dismissed for non-compliance. On 17 September 2007 the Tribunal advised all parties that I had considered submissions made at the hearing of 14 September and had decided that it was appropriate to dismiss the objection application pursuant to s 148(b) of the Act.

Findings

  1. It has been clear to the native title party since 2 July 2007 that there was no prospect of a mutually agreed outcome and therefore that contentions and evidence for an inquiry were necessary.

  2. In Teelow v Page [2001] NNTTA 107; (2001) 166 FLR 266 (at [13]) the Tribunal (Member Sosso) set out the principles applicable when considering dismissal of an objection application under s 148(b) of the Act which I have had regard to in this matter. In particular, the Tribunal is required to proceed as expeditiously as possible when conducting an inquiry into an expedited procedure application (see also Ruby Saltmere (Indjilandji/ Dithannoi)/Queensland/Savannah Resources Pty Ltd, NNTT QO04/94, [2005] NNTTA 54 (5 August 2005), John Sosso citing the Federal Court in Little v Western Australia [2001] FCA 1706 (6 December 2001); (2001) 6(4) AILR 67 (at [85]) (per Nicholson J) and Western Australia v Ward [1996] 993 FCA 1; (1996) 70 FCR 265 at 278 (per Lee J)). In this matter, the native title party was represented by YMBBMAC, the recognised Native Title Representative Body under the Act for the area of the native title party’s claim which has special responsibility for representing claimants in relation to native title determination proceedings and associated future acts. YMBBMAC and its legal representatives would be fully aware of the need to comply with Tribunal directions to enable contentions and evidence to support the objection application to be placed before the Tribunal in a timely manner. The native title party agreed to the timetable for compliance following my decision to reinstate its objection on 2 July 2007. I do not regard the reasons advanced by Mr. Rind as sufficient basis for the native title party’s failure to comply or to grant an extension of time. Further, there has already been prejudice to the grantee party in the delay in obtaining the grant of the tenement and this would be compounded by further delay.

  3. In exercising my discretion to dismiss the objection I have also had regard to the following matters.  First, the Government party confirmed that it would impose template Condition 520 on the grant of the exploration licence (formerly referred to as the Vosperton   condition following its consideration by the Tribunal in Champion v Western Australia [2005] NNTTA 1; (2005) FLR 362 at 369 [24].) This condition will provide the option for the native title party to enter into a RSHA with the grantee party within a specified time of the grant. This will lessen the likelihood that there will be interference with sites of particular significance to the native title party. Second, in Wilma Freddie and Others on behalf of the Wiluna Native Title Claimants/Western Australia/Globe Uranium Ltd, NNTT WO06/338, [2007] NNTTA 37 (14 May 2007), Hon C J Sumner (at [21]) the same grantee as in the present matter made certain undertakings in relation to uranium exploration. Mr. Shannon McMahon, for the grantee gave the same undertakings here. Third, the overlap area for the native title party is relatively small and the grantee party has entered into agreements with the other native title parties who do not object to the grant.

  4. Taking all these factors into account, I find that the native title party has failed to comply with the Tribunal’s directions having submitted no statements of contentions or supporting evidence as required by them despite having been informed of the possible consequences of a failure to comply.

Decision

  1. Objection application WO07/42 is dismissed pursuant to s 148(b) of the Native Title Act 1993.

Hon C J Sumner
Deputy President
2 November 2007

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