Angelina Cox & Ors on behalf of the Puutu Kunti Kurrama & Pinikura People/ Wintawari Guruma Aboriginal Corporation/Western Australia/FMG Pilbara Pty Ltd

[2009] NNTTA 57

NATIONAL NATIVE TITLE TRIBUNAL

Angelina Cox & Ors on behalf of the Puutu Kunti Kurrama & Pinikura People/ Wintawari Guruma Aboriginal Corporation/Western Australia/FMG Pilbara Pty Ltd, [2009] NNTTA 57 (15 June 2009)

Application No: WF07/40

IN THE MATTER of the Native Title Act 1993 (Cth)

- and –

IN THE MATTER of an Inquiry into a Future Act Determination Application

Angelina Cox, Angie Cox, Annabelle Stewart, Arness James, Charleston Cox, Chloe Hayes, Darryl Hughes, Gary Hughes, Harold Ashburton, Lily Mackay, Maudie Dowton, Mitchell Drage, Maurice Daublin on behalf of Puutu Kunti Kurrama Pinikura People (WC01/5)  (first native title party)

-  and  -

Wintawari Guruma Aboriginal Corporation (WC97/89)        (second native title party)

-  and  -

State of Western Australia     (government party)

-  and  -

FMG Pilbara Pty Ltd  (grantee party)

FUTURE ACT DETERMINATION – APPLICATION FOR ADJOURNMENT

Tribunal:  John Sosso
Place:  Brisbane

Date:  15 June 2009

Hearing dates:  5 June 2009

Representatives:-

Grantee Party:  Mr Ken Green, Green Legal Pty Ltd

Mr Sukhpal Singh, FMG Pilbara Pty Ltd

First Native Title Party:     Mr Carolyn Tan, Mr Ibrahim Kakay, Yamatji Marlpa Aboriginal     Corporation

Second Native Title Party: Ronald Bower, Corser & Corser Lawyers

Government Party:              Mr Domhnall McCloskey, State Solicitor’s Office

Ms Paola O’Neill, Department of Industry and Resources

Catchwords:     Native title – future act determination application – request for adjournment – whether tribunal has power to grant temporary stay of proceedings – factors to be taken into account when granting a stay or adjournment – short adjournment only.

Legislation:

Native Title Act 1993 (Cth) ss 36, 38, 109, 123, 150, 170, 190

Cases:Cadbury UK Ltd v Registrar of Trade Marks [2008] FCA 1126 (2008) 107 ALD 316

Cox v Western Australia (2008) 219 FLR 72

FMG Pilbara Pty Ltd v Cox & Ors [2009] FCAFC 49

Hicks v Western Australia [2002] FCA 1490

Martin on behalf of the  Widi Mob/Western Australia/Westland Gold NL & Ors WO 97/ 351 and 367 WO 98/332 [1999] NNTTA 228 (17 August 1999) Member Sumner

Minister for Mines (WA)/Taylor on behalf of the Njamal People & Ors/Mullan & Ors WF96/4 [1996] NNTTA 20 (30 April 1996) Member Sumner

Placer (Granny Smith) v Western Australia (1999) 163 FLR 87

Touma v Saparas [2000] NSWCA 11

Western Australia/Cheinmora & Ors/Striker Resources NL WO95/27 [1996] NNTTA 7 (7 February 1996) Member Sumner

REASONS FOR DECISION ON APPLICATION FOR ADJOURNMENT

Introduction

1. On 30 April 2009 the Full Federal Court in FMG Pilbara Pty Ltd v Cox & Ors [2009] FCAFC 49 set aside the decision of the Tribunal made on 11 July 2008 (Cox v Western Australia (2008) 219 FLR 72) and declared that the grantee party had fulfilled its obligation to negotiate in good faith. The Court therefore determined that the Tribunal had the power to conduct an inquiry and make a determination under section 38 of the Native Title Act 1993 (“the Act”).

2. On 8 May 2009 the Tribunal made Directions for the purpose of making a determination pursuant to section 38. In particular the Tribunal directed that the native title parties were to provide their contentions to each of the other parties on or before 2 June 2009. The first native title party filed a statement of contentions on 29 May 2009. The second native title party has not filed any material.

3. On 25 May 2009 the first native title party applied to the High Court of Australia for special leave to appeal from the whole judgment of the Full Federal Court, seeking, inter alia, an order that the decision of the Full Court be set aside and in lieu thereof and that the appeal from the decision of the Tribunal be dismissed.

4. On 5 June 2009 the first native title party lodged a submission (NTP1SOC) with the Tribunal seeking an adjournment of proceedings.  The submission sought relief in the following manner:

   (a) an adjournment of determination proceedings  pending the hearing of the special leave application, or alternatively;

   (b) an adjournment to allow time to provide further details of its Statement of Contentions until late August 2009;  and

   (c) the making of directions under section 150 of the Act for the parties to attend a conference to enable negotiations to take place.

The second native title party did not seek an adjournment, although it supported the application by the first native title party. Consequently, the only application before the Tribunal is by the first native title party.

Adjournment pending hearing of the special leave application

1. First, with respect to the request for an adjournment of proceedings until at least the hearing of the special leave application, the first native title party submitted (NTP1SOC at para 4) that the application would be heard in or about October 2009, and that the Tribunal is only required to take reasonable steps to make a decision as soon as practicable. All the circumstances can be taken into account to assess what is “reasonable”, including the fact of a special leave application, relative prejudice and other matters. The first native title party (NTP1SOC at para 6) drew the attention of the Tribunal to subsection 109(1) of the Act, and submitted that the objectives of fairness and a fair hearing will often override case management principles.

2. The first native title party submitted (NTP1SOC at paras 7 and 8) that  it would suffer prejudice if a determination was made to allow the future act to be done prior to the High Court considering the special leave application, and an appeal if leave is granted. Conversely, it was contended, the grantee party would suffer no prejudice by a delay in making a determination. Further, the first native title party contended that the time that had elapsed since the Tribunal determined that the grantee party had not negotiated in good faith had been caused by the grantee party appealing the decision in the Federal Court and its decision to refuse to have any further negotiation meetings and await the result of the appeal.

3. The first native title party contended (NTP1SOC at para 9) that it would suffer substantial prejudice if the Tribunal  determined to proceed and make a determination that the act be done:

   “The subject matter of the appeal (the mining lease) will have been lost. This cannot be reversed if special leave is granted and an appeal to the High Court succeeds. By this time there is likely to be significant damage to the landscape and to native title rights once mining operations commence.  There will also be great uncertainty as to the validity of the tenement if the appeal is successful and it is unclear as to whether the High Court could invalidate any tenement granted. This would deprive the PKKP of the fruits of its appeal if successful.”

4. In addition the first native title party contended (NTP1SOC at para 10) that proceeding with the determination in these circumstances would result in a substantial waste of the limited resources of all parties and the Tribunal.  Further it could not be assumed that there would be a need for a second determination hearing as the parties may reach agreement if the High Court appeal is successful.

5. Finally, the first native title party contended (NTP1SOC at para 11) that the making of a determination pending the appeal would severely compromise, and make a mockery of, any subsequent negotiations in good faith if the appeal was successful:

   “as it is not possible for the parties to have type (sic) of fair and good faith negotiations intended by the NTA if the result of any determination is already known.  A determination will deprive the parties of the subject matter of the High Court appeal as a good faith negotiation sought will be frustrated and the PKKP will lose the benefit of the good faith provisions.”

6. In response, the grantee party contended (GPSOC at para 1.1) that the Tribunal does not have the power to “stay” proceedings until the special leave application is heard. It was submitted (GPSOC at paras 1.2 and 1.3) that the Tribunal is a non-judicial body and does not possess inherent power to stay its proceedings. Further, the grantee party contended that there is no implicit power in the Act for the Tribunal to stay its proceedings. On the contrary, subsection 36(1) requires the Tribunal to take all reasonable steps to make a determination as soon as practicable. A stay of proceedings would, in fact, constitute a failure by the Tribunal to “carry out its functions” as required by section 109. Reference was also made to Parts 41 and 42 of the Rules of the High Court.

7. Finally it was contended (GPSOC at para 1.6) that while the Federal Court is expressly given the power (section 170) to stay Tribunal proceedings, by inference that power was not given to the Tribunal. The grantee party contended: “It cannot be the case that Parliament, after giving the Federal Court a limited power to stay the proceedings of the Tribunal on an appeal, intended that the Tribunal have a wider discretion to stay its proceedings.”  

8. Before proceeding, it is necessary to deal with the actual operation of section 170 of the Act and its relevance to the current matter. Section 170 enables the Federal Court to stay or otherwise affect the operation or implementation of the decision or determination of the Tribunal when an appeal has been instituted to the Federal Court. The application before the Tribunal is not to stay a determination of the Tribunal but to grant a lengthy adjournment prior to the Tribunal making a determination. While section 170 allows the staying of a decision or determination, the current matter is in the nature of an interlocutory application. Accordingly, no inference about the capacity of the Tribunal to stay or adjourn steps leading to a determination can sensibly be drawn from section 170.

9. The government party, at the Listings Hearing of 5 June 2009, supported in broad terms the submissions of the grantee party.

10. It will be noted that while the first native title party has sought an adjournment to a nominated event, namely the outcome of the special leave application to the High Court, the grantee party has characterised the application as a “stay”. There is a distinction to be drawn between the application for a “stay of execution” and a “stay of proceedings”. The former refers to an order that stays or affects the operation or implementation of a decision or determination of the Tribunal. Such a stay normally could only be obtained by an application to the Federal Court pursuant to section 170. The latter suspends the proceedings either temporarily or permanently. The current application although characterised by the first native title party as an adjournment is more in the nature of a “stay of proceedings” insofar as it is aimed at suspending the inquiry proceedings until the High Court decides whether to grant special leave to appeal. In this matter when reference is made to a “stay” it is a reference to a “stay of proceedings”.

11. The Act is silent on the power of the Tribunal to grant an adjournment or a stay. Section 109 prescribes how the Tribunal should operate. Subsection (1) requires that the Tribunal must pursue the objective of carrying out its functions in a fair, just, economical, informal and prompt way. Section 123 empowers the President of the Tribunal to give directions on a range of matters, including “the procedure of the Tribunal generally” section 123(1)(e). However, to date, no directions have been made regarding the practice of granting adjournments or a stay. The Tribunal has previously considered the question whether it has the capacity to grant a stay of proceedings pending an appeal, and has proceeded on the basis that it does have this power - see Martin on behalf of the Widi Mob/Western Australia/Westland Gold NL & Ors [1999] NNTTA 228. Where the Tribunal has considered granting a stay of proceedings, it has been in the context of a party requesting the Tribunal not make a determination to allow either for further negotiations or for the outcome of Court challenges to various preliminary or related decisions of the Tribunal – Minister for Mines (WA)/Taylor on behalf of the Njamal People & Ors/Mullan & Ors [1996] NNTTA 20.

12. Some assistance is provided by the recent Federal Court decision of Cadbury UK Ltd v Registrar of Trade Marks [2008] FCA 1126, (2008) 107 ALD 316. In that case, Cadbury UK Limited had made applications for the registration of trade marks in shades of the colour purple in relation to chocolate and related products. The registration was opposed by Darrell Lea Chocolate Shops Pty Ltd, and Cadbury had also brought an action in the Federal Court suing Darrell Lea for passing off. The Registrar of Trade Marks suspended the opposition proceedings until the Federal Court handed down its judgment. The question before Finkelstein J was whether the decision to suspend or temporarily stay objection proceedings under the Trade Marks Act 1995 (Cth) was lawful.

13. In the course of the judgment, Finkelstein J made the following observations ([12]/319):

    “The first point to observe is that while there is a provision permitting the registrar (or his delegate) to adjourn a hearing (reg 21.15(9)) there is no express power to suspend or temporarily stay opposition proceedings. But, subject to the requirements of the Trade Marks Act and Regulations, because the registrar has control over the procedures of opposition proceedings he may presumably suspend or temporarily stay proceedings for proper reasons. At any rate this case was argued on the basis that the registrar had the relevant power. The question here then is not whether the power to give the direction exists but whether it has been properly exercised.”

14. The contentions of the grantee party run counter to these observations. The grantee party contends that because the Tribunal is a non-judicial body it is limited to exercising powers that are either expressly stated in the Act, or implied by it. I accept the force in that argument, but do not accept that there is no implicit power in the Act to suspend or temporarily stay proceedings. On the contrary, the Act is drafted in a broad manner giving considerable scope to the Tribunal to conduct inquiries in a manner that ensures that it operates in a fair, just, economical, informal and prompt way. In particular, subsection 109(3) provides that in carrying out its functions the Tribunal is not bound by technicalities, legal forms or rules of evidence.

15. It is the case that the Tribunal is required to conduct its inquiries in a prompt manner. This is mandated not just by the wording of subsection 109(1) but the whole scheme of the right to negotiate provisions contained in Subdivision P. Section 36 requires the Tribunal to “take all reasonable steps to make a determination ... as soon as practicable” – section 36(1). If the Tribunal does not make a determination within six months from the making of a request for arbitration, the Commonwealth Minister must be advised of that fact, the reason for the delay and an estimate as to when a determination will be made – section 36(3). This is supplemented by the ability of the Commonwealth Minister, at any time after four months from the request for arbitration, to give notice to the Tribunal requesting it to make a determination within a specified time, which must be later than six months from the request for arbitration – section 36(4).

16. The Act, then, places a premium on the Tribunal making a determination as soon as practicable. However, the Act does not prescribe a mandatory time within which the Tribunal must make its determination. Implicit in the scheme of the legislation is the realisation that while Tribunal proceedings are designed to be informal, cost efficient and prompt, justice requires that all negotiation parties be accorded procedural fairness. It is also the case, as in this matter, that one of the negotiation parties may exercise their right to seek relief in the Federal Court, or even the High Court. In such circumstances the Tribunal must determine how best to give effect to its statutory mandate to make a determination. The refusal to grant an adjournment may in some circumstances amount to a denial of procedural fairness if it is likely to deny a party a reasonable opportunity to present their case – Touma v Saparas [2000] NSWCA 11.

17. The Tribunal, implicitly, is given the authority to control its proceedings. As part of that general power it has the authority to grant adjournments to a nominated time, or sine die, to temporarily stay proceedings and to suspend or vary the operation of its directions. In exercising that power, the Tribunal must have regard to the overarching principles governing its operation as set out in section 109, and the principles contained in section 36. The requirement for prompt decision making is extremely important, and must be given proper weight in determining whether to grant a stay or an adjournment. Accordingly, I do not accept the contentions of the grantee party that the Tribunal cannot grant a temporary stay, but I do accept that some of the principles outlined by the grantee party are key factors to be taken into account in determining whether a stay or an adjournment should be granted. It is not necessary for me to determine whether the Tribunal has the power to grant a permanent stay, or at least a very lengthy stay. However, the clear statutory scheme suggests that the Tribunal does not have power to do so. The Act proceeds on the basis that the Tribunal is charged with making a decision or determination in relatively tight timeframes. If the Tribunal were to grant a permanent or very lengthy stay it is arguable that this would amount to an abdication of responsibility and a potential denial of procedural fairness to any party who opposed such an application. In Cadbury UK Ltd v Registrar of Trade Marks Finklestein J held (at [9]) that to delay opposition proceedings for an indefinite period, which could stretch out to four or more years, amounted to a refusal by the delegate to hear those proceedings.

18. The principles to be adopted in determining whether to grant a stay were summed up by Deputy President Sumner in Martin on behalf of the Widi Mob/Western Australia/Westland Gold NL & Ors [1999] NNTTA 228 (at 5) as follows: “the decision to stay involved considering the public interest and whether failure to stay the applications would permanently defeat rights or cause injustice to one or other of the parties. It involved a weighing process involving considerations of fairness and public interest.”

19. The first native title party submits that it will suffer substantial prejudice if the Tribunal makes a determination before the outcome of the special leave application is known. It submits that if the Tribunal determines that the act be done, then even if the first native title party is ultimately successful in the High Court there is likely to be significant damage to the landscape and to its registered native title rights and interests.

20. A similar submission was made in Hicks v Western Australia [2002] FCA 1490. That case concerned an application under section 170 of the Act seeking a stay of the arbitral hearing of the Tribunal to allow an appeal against the Tribunal’s determination that the government party had negotiated in good faith. French J (as he then was) made the following finding (at [19]):

    “It is submitted that the outcome of the arbitral inquiry could have the most serious consequences for the applicants, namely the extinguishment of all of their registered native title rights and interests. It is, of course, open to the applicants to seek a stay of the ultimate determination of the Tribunal, as an incident of this appeal or as an incident of an appeal against the ultimate determination of the Tribunal. The refusal of the stay at this time would not result in any extinguishment of native title rights and interest.”

21. As French J highlights, the first native title party is in no way prejudiced by the Tribunal continuing to make a determination. The Tribunal is given the discretion, depending on the material submitted, to determine not only that the act be done, but also that it be done subject to conditions or not done at all.  It is entirely speculative as to what the ultimate outcome of these proceedings might be.  Even if there is a determination that the act be done unconditionally, the native title parties can exercise their legal rights to appeal that determination and seek orders staying the determination.

1. A further submission of the first native title party was that the grantee party would not be prejudiced by a delay in the Tribunal making its determination. At the Listing Hearing of 5 June 2009 the legal representative of the grantee party contested this assertion, pointing out that delays in granting the tenement were having an obvious deleterious impact. However, even if it were the case that staying proceedings would not disadvantage other parties, that of itself is not a basis for the Tribunal abdicating its responsibility for making a determination promptly. Once the Tribunal’s jurisdiction is enlivened by the making of a future act determination application, it is incumbent on the Tribunal to use its best endeavours to make a determination promptly. The convenience or otherwise of the parties is a subordinate consideration to the overriding requirement contained in section 36 for the Tribunal to make a determination as soon as practicable.

2. A further submission was that proceeding with a section 38 determination could result in a substantial waste of resources if it was found that the Tribunal did not have the power to actually make that determination. Some guidance on this point can also be gleaned from the findings of French J in Hicks v Western Australia where His Honour said (at [16]):

   “It might be said, although the applicants did not say it, that the Court should not risk rewarding a breach of the obligation to negotiate in good faith by allowing a hearing to proceed in spite of a challenge to the finding that such negotiation has not occurred. That is a risk which may be assessed in part by reference to the strength of the applicants’ case on appeal. While the reasons for decision of the Tribunal on the good faith question prima facie raise some serious and important questions of law, they are comprehensively and on the face of it, attractively reasoned. I can say no more than that, at this time, having regard to the fact that the Court has not heard or considered argument going to the strength of the appeal. Indeed, judgments about the strength of appeals for the purposes of a stay application must be essayed cautiously. Suffice it to say that I am not satisfied at the present that to refuse a stay would run a high risk of rewarding a failure by the State to negotiate in good faith having regard to the facts found by the Tribunal and bearing in mind that the appeal is limited to questions of law only.”

3. While the first native title party is correct in pointing out that resources may be wasted if the Tribunal proceeds and ultimately the native title party is successful in the High Court, the whole tenor of the submission is speculative. In this matter the following circumstances militate against the submission of the first native title party:

   (a)the determination of the Tribunal was reversed by a unanimous decision of a Full Court of the Federal Court;

   (b)on both the appeal to the Federal Court and when seeking leave to appeal to the High Court, only questions of law are involved, there is no dispute about the facts as found by the Tribunal;

   (c)the first native title party has not yet been given leave to appeal, at this stage it has only got to the stage of seeking leave to appeal; and

   (d)it is entirely inappropriate for the Tribunal to engage in any kind of speculative inquiry as to the likelihood of special leave being granted.

4. The final submission of the first native title party was that making a determination before the conclusion of the High Court proceedings ran the risk of making a mockery of any future good faith negotiations if the appeal was successful.  There is some force in this contention. If, for example, the Tribunal made a determination that the act be done unconditionally, but it was subsequently held that the Tribunal had no power to make such a determination, this in turn could have a bearing on the type of offers that the grantee and government parties may make or compromises that they may be prepared to consider in subsequent good faith negotiations.  In short, it could be said that while formalistic negotiations could occur, the parties would know in advance what would be likely to be determined if they fail to reach agreement.

5. On the one hand this is the type of consideration that goes to the heart of why a stay is permissible. If it could be shown that by not granting a stay any subsequent good faith negotiations would be rendered meaningless such that the valuable right to negotiate was in reality lost, then a stay or an adjournment, even for a lengthy period, would be appropriate.  In every instance the Tribunal would have to be guided by the circumstances, but it can be said that the grant of a stay would be the exception to the rule.  The reality is that if the Tribunal did make a particular type of determination but subsequently it was decided that the Tribunal lacked the power to make that determination, then good faith negotiations would need to recommence. The fact that a particular determination was made at a particular time on the facts before the Tribunal in no way leads to the presumption that this would occur again if different material was presented. More importantly still, this type of contention completely ignores the fact that if the first native title party was successful, then substantive good faith negotiations would need to recommence. Good faith would need to be evinced by all of the parties. There would be the likelihood that an accord could be achieved.  In short, there is nothing to suggest in reality that the negotiations would be formalistic or unproductive.

6. In conclusion, the material before the Tribunal does not justify a stay either until the hearing of the application for leave to appeal or, if leave is granted, until the High Court hears the appeal and hands down its decision.  There are sufficient remedies available to the first native title party to ensure that if any of the concerns it has raised eventuate, those concerns can be appropriately dealt with by the Federal Court.  However, from the perspective of the Tribunal, many of these concerns are purely speculative. The Tribunal has not made its determination, and only when such a determination is made could a sensible case be made for relief. At the moment the relief sought is predicated on a series of hypothetical events. That is not to say that a relatively lengthy adjournment would never be granted, however the clear statutory scheme requiring prompt decisions and the absence of concrete evidence of disadvantage, or even likely disadvantage, militate against granting a stay of the proceedings in this matter at this time.

Adjournment to late August 2009

1. In the alternative, the first native title party requested that the hearing be adjourned until late August to allow proper preparation to occur.  In support of this application the first native title party filed the affidavit of Ibrahim Baba Kakay, a lawyer employed by the Yamatji Marlpa Aboriginal Corporation, the native title representative body for the Pilbara region. So far as is relevant, Mr Kakay deposed that certain work was proposed in order to gain evidence to present to the Tribunal for the purposes of the determination. However, Mr Kakay was informed that a senior member of the claim group passed away on 27 May 2009, and accordingly, it was culturally inappropriate to talk with the people identified to provide evidence as they were mourning the passing of a senior member of the claim group.  Consequently meetings that were proposed to be convened in Onslow on 10, 11, 12 and 13 June 2009 have been cancelled and are not able to be rescheduled until July 2009.

2. Numerous other matters were raised in the affidavit of Mr Kakay that, with respect, are not relevant to the question of whether the Tribunal should amend the Directions to allow more time for the first native title party to prepare its case.

3. The first native title party submitted (NTP1SOC at para 14) that the Tribunal should take into account the cultural and customary concerns of the PKKP people in relation to sorry business and not require a hearing and urgent preparation to occur in the meantime.  Subsection 109(2) enables the Tribunal, in carrying out its functions, to take account of the cultural and customary concerns of native title parties. However the subsection then provides: “but not so as to prejudice unduly any party to any proceeding that may be involved.” 

4. The grantee party submitted that delays in the Tribunal making its determination would have a detrimental impact on it. Clearly, there is a commercial imperative in the grantee party obtaining a decision about the grant of the proposed tenement as quickly as possible. On the other hand, the first native title party has presented the Tribunal with a reasonable case for granting an adjournment to allow it to obtain the requisite material to more fully present its case.

5. I am cognisant that these proceedings have now been before the Tribunal in one form or another for more than twelve months. The Tribunal has on many occasions, when considering applications for adjournment, pointed out the statutory regime requires matters to be dealt with as expeditiously as possible – see, for example, Western Australia/Cheinmora & Ors/Striker Resources NL [1996] NNTTA 7 and Placer (Granny Smith) v Western Australia (2001) 163 FLR 87. On the other hand, a short adjournment that would allow the first native title party to obtain evidence to properly present its case would be fair, particularly due to the cultural issues raised. Nonetheless, such an adjournment will only be granted for a short time as further delays in this matter would be unfair to the grantee party and be contrary to the requirement that the Tribunal deal with matters promptly. I also specifically note that any submission that an adjournment be granted because of the special leave application is misplaced and has not been taken into account by the Tribunal.

Decision

1. The Directions made on 8 May 2009 are varied allowing the first native title party to lodge submissions by 4 August 2009. The remaining Directions are vacated and a Listing Hearing will be convened in the week commencing 10 August 2009.

John Sosso

Deputy President