Ben Ward and Others on behalf of the Miriuwung & Gajerrong People; John Toby/Western Australia/Ocean Partners Pty Ltd and Ben Ward and Others on behalf of the Miriuwung & Gajerrong Native Title Claimants; John Toby...
[2005] NNTTA 71
•18 March 2005
NATIONAL NATIVE TITLE TRIBUNAL
Ben Ward and Others on behalf of the Miriuwung & Gajerrong People; John Toby/Western Australia/Ocean Partners Pty Ltd and Ben Ward and Others on behalf of the Miriuwung & Gajerrong Native Title Claimants; John Toby and George Dixon/Western Australia/Conquest Mining Limited, [2005] NNTTA 71 (18 March 2005)
Application Nos: WO04/277, WO04/326, WO04/327, WO04/330
IN THE MATTER of the Native Title Act 1993 (Cth)
-and-
IN THE MATTER of an inquiry into expedited procedure objection applications
Ben Ward & Others on behalf of the Miriuwung & Gajerrong People (WC94/2) (WO04/277)
and
John Toby (WC94/2) (WO04/327) (native title parties)
-and-
The State of Western Australia (Government party)
-and-
Ocean Partners Pty Ltd (grantee party)
Ben Ward & Others on behalf of the Miriuwung & Gajerrong Native Title Claimants (WC94/2) (WO04/330)
and
John Toby and George Dixon (WC94/2) (WO04/326) (native title parties)
-and-
The State of Western Australia (Government party)
-and-
Conquest Mining Limited (grantee party)
DECISION ON WHETHER THE TRIBUNAL HAS JURISDICTION TO CONDUCT AN INQUIRY
DECISION TO DISMISS OBJECTION APPLICATIONS (WO04/326 & WO04/327)
Tribunal: Hon C J Sumner, Deputy President
Place: Perth
Date: 18 March 2005
Catchwords: Native title – future act – proposed grant of exploration licences – expedited procedure objection applications – jurisdiction – challenge to authority of objectors – separate objections lodged by persons named as part of the applicant for native title determination – dismissal of objections for lack of authority.
Legislation:Native Title Act 1993 (Cth) ss 29, 57(2), 148(a)
Cases:Yarran and Others v Western Australia and Another [2003] NNTTA 99; (2003) 177 FLR 34
Hearing Date: 18 March 2005
Representative of the
Miriuwung Gajerrong
native title party: Ms Krysti Guest, Kimberley Land Council
Representative of Mr Robert Hannan, Miriuwung and Gajerrong Families
John Toby & George Dixon: Heritage and Land Council
Representative of the
grantee parties: Ms Tanya Wood
Representative of the Mr Trevor Creewel, State Solicitor’s Office
Government party: Mr Clyde Lannan, Department of Industry and Resources
REASONS FOR DECISION
Background
On 30 June 2004, the State of Western Australia (‘the Government party’) gave notice pursuant to s 29 of the Native Title Act 1993 (Cth) (‘NTA’) of its intention to grant exploration licence E80/3243 to Ocean Partners Pty Ltd (a grantee party) and included in the notice a statement that it considered the grant attracted the expedited procedure. The proposed licence is over an area of 231.36 square kilometres, 91 kilometres south-westerly of Kununurra in the Shire of Wyndham and East Kimberley.
On 8 September 2004, the State of Western Australia (‘the Government party’) gave notice pursuant to s 29 of the Native Title Act 1993 (Cth) (‘NTA’) of its intention to grant exploration licence E80/3196 to Conquest Mining Ltd (a grantee party) and included in the notice a statement that it considered the grant attracted the expedited procedure. The proposed licence is over an area of 229.68 square kilometres, 72 kilometres southerly of Kununurra in the Shire of Wyndham and East Kimberley.
On 13 October 2004, Ben Ward and Others on behalf of the Miriuwung Gajerrong Native Title Claimants WC94/2 (‘the native title party’) lodged an expedited procedure objection application with the Tribunal in relation to the proposed licence E80/3243 (WO04/277).
On 19 October 2004, John Toby also lodged an expedited procedure objection application in relation to E80/3243 (WO04/327).
On 26 November 2004, Ben Ward and Others on behalf of the Miriuwung Gajerrong Native Title Claimants WC94/2 (‘the native title party’) lodged an expedited procedure objection application with the Tribunal in relation to the proposed licence E80/3196 (WO04/330).
On 19 October 2004, John Toby & George Dixon also lodged an expedited procedure objection application in relation to E80/3196 (WO04/326).
The registered native title claimant for the Miriuwung Gajerrong claim comprises Ben Ward, John Toby, Ronnie Carlton, Button Jones, Ben Barney, Dodger Carlton, Kim Aldus, Murphy Simon, Sheba Dignari, Chocolate Thomas, Peter Newry (and three persons who are now deceased).
The Kimberley Land Council (‘the KLC’), the designated Native Title Representative Body under the NTA, acting for Ben Ward & Others, challenged the authority of John Toby and George Dixon who are part of the Miriuwung Gajerrong claimant group to lodge separate objections and for that reason sought dismissal of the objections under s 148(a) of the Act on the grounds that the Tribunal had no jurisdiction to deal with them. Section 148(a) says that the Tribunal may dismiss an application at any stage of an inquiry if the Tribunal is satisfied that it is not entitled to deal with it.
On 18 May 2005, Member Dan O’Dea was appointed to conduct a Tribunal s 150 conference into expedited procedure objection application Nos WO04/277 (E80/3243) and WO04/330 (E80/3196) to see if parties could reach agreement. On 10 June 2005, the native title party withdrew their objection applications after agreement had been reached.
With respect to the objections lodged by John Toby (WO04/327) and John Toby and George Dixon (WO04/326) I made directions for the exchange of contentions and evidence relating to the challenge to the Tribunal’s jurisdiction to inquire into them. A hearing was conducted on 18 March 2005 when, after hearing additional submissions, I gave the following reasons for dismissing the objections.
Extempore reasons given on 18 March 2005 for decision to dismiss objection applications WO04/326 and WO04/327 (with minor editing and case references added)
I’m prepared to deal with this issue now and to give some extempore reasons for my decision. These may be edited, added to, and have relevant references inserted if more formal reasons are published. My decision is that the objections of Mr Toby should be dismissed. I won’t reiterate the details of the objections, that you are fully aware of and have been restated again this morning by Case Manager Sara Burke. The KLC submitted that the objections lodged by John Toby and George Dixon should be dismissed as John Toby and George Dixon do not constitute a registered native title claimant and a native title party with status to make objections to the expedited procedure. Subsequently in submissions filed, John Toby has submitted that the KLC, or those that the KLC is acting on behalf of, did not have the relevant authority.
Following a preliminary conference on the 14 January, I gave directions to enable this issue to be resolved. A letter of the 20 January 2005 was sent to the parties by the Tribunal and it set out the Tribunal’s understanding of the law based on its previous decisions. The letter also drew the attention of the parties to a number of cases which have established the relevant law. I’ll not read that letter again, the parties are aware of it. [ADDITIONAL NOTE: the cases referred to in the letter were:
Cheinmora v Striker Resources NL & Ors [1996] 1147 FCA 1; (1996) 142 ALR 21
Dann v Western Australia & Ors (1996) 142 ALR 21
Placer (Granny Smith) v WA [2000] NNTTA 75; (2000) 170 FLR 469
Monkey Mia Dolphin Resort Pty Ltd v Western Australia [2001] NNTTA 50; (2001) 164 FLR 361
Mt Gingee Munjie v Victoria and Others [2003] NNTTA 125; (2003) 182 FLR 375
Summons v Victoria and Others [2003] NNTTA 66; (2003) 176 FLR 1
Victorian Gold Mines NL v Victoria [2002] NNTTA 130; (2002) 170 FLR 1
WMC Resources v Evans (1999) 163 FLR 333
Yarran and Others v Western Australia and Another [2003] NNTTA 99; (2003) 177 FLR 34
The letter pointed out that in each of these cases the Tribunal found that a native title party is the registered native title claimant who is the applicant for a determination of native title (s 253 NTA) and it is the persons authorised to make the application who are jointly the applicant (s 61(3)). Each individual named as part of the applicant is not a separate native title party and must be authorised to make objections on behalf of the registered native title claimant.]
I also pointed out in that letter that, on the face of it, the Miriuwung Gajerrong Claimant Group had instructed Mr Hope, Kimberley Land Council, to act for it in this matter and Mr Hope said his instructions were clear and that Mr Toby didn’t have authority to independently lodge objections. I made that point in the letter and further that there needed to be credible evidence to the contrary, otherwise I would accept Mr Hope’s assertions that he’s properly instructed by the native title party, and the nature of those instructions.
I made directions to have the matter of this preliminary issue resolved and as a result of those directions made on the 14 January 2005 and subsequent directions, I now have contentions, submissions and documentary evidence from the Government party, the KLC on behalf of the Miriuwung Gajerrong objectors, and from John Toby forwarded through Mr Robert Hannan, the Miriuwung and Gajerrong Families Heritage and Land Council, who has represented him in this matter and I’ve had regard to this material in making my decision.
The Miriuwung Gajerrong Claim No 1 was provisionally determined on 9 December 2003 by the Full Federal Court following an appeal to the High Court. Court orders make it clear that the application for determination of native title is not finalised until a Prescribed Body Corporate (‘PBC’) has been determined in accordance with s 57(2) of the Native Title Act. No PBC has yet been determined which means that the application still has claimant status for the purpose of right to negotiate inquiries. The persons named as part of the applicant and the registered native title claimant comprise the following – 11 persons: Ben Ward, John Toby, Ronnie Carlton, Button Jones, Ben Barney, Dodger Carlton, Kim Aldus, Murphy Simon, Sheba Dignari, Chocolate Thomas, Peter Newry. From information provided by the KLC, I understand that three other persons were part of the applicant but are now deceased and I have not named them.
Miss Guest for the KLC submitted that I should adjourn the proceedings pending the determination of a PBC which she expected to happen in May 2005. This was opposed by the grantee parties and Government party and I decided that the Tribunal should proceed to hear the matter consistent with its well established practice and principle about the Tribunal’s responsibility under the Native Title Act to determine right to negotiate inquiries, including expedited procedure objections, as expeditiously as possible. I also considered and rejected the possibility of a Section 150 conference to see if the issues between the two objectors could be resolved. The dispute within the claimant group is a long standing one which has manifested itself in a number of Federal Court and Tribunal proceedings including in the proceedings before the Full Federal Court for the consent determination that I have referred to above. There are other examples, cases where this dispute has manifested itself. In those circumstances I felt that a section 150 conference was unlikely to be useful in resolving the issues.
I received strong representations from the KLC and some members of the Claimant Group that this matter should be determined on country so that I could hear directly from Claim Group Members. I have determined that this is not necessary, given my decision that the John Toby objections should be dismissed.
The Government party’s contentions of the 4 March 2005 correctly set out the law, which I had already summarised in the Tribunal’s correspondence to the parties of the 20 January. I’ll not recite those submissions now, but they are accepted. The law was also summarised in another matter where a person named as part of the applicant and registered Native Title Claimant had objected to the expedited procedure, that was Yarran and Others v Western Australia and Another [2003] NNTTA 99; (2003) 177 FLR 34 which I also rely on. The KLC supported the Government party contentions on the relevant law. Mr Toby also accepted that authorisation from the claim group was required for a person to lodge an objection application. The issue before the Tribunal then comes down to a question of fact. The Tribunal must decide whether as a matter of fact either objection has been lodged by a Native Title Party; that is by the applicant for determination of Native Title and also a registered Native Title Claimant. This means the objection must be authorised collectively by the persons named as part of the registered Native Title Claimant, who I have already listed. It is not open to one of those persons or indeed some of them to act unilaterally.
The basis for my decision that the objection of John Toby should be dismissed is that he, neither on his own or with George Dixon is a native title party with status to lodge objections to the expedited procedure. On a purely technical level his Form 4 objection applications do not purport to be made on behalf of, or with the authority of, the registered native title claimant. Unless he and George Dixon can show that the objection is lodged with the authority of the applicant for native title, that is the registered native title claimant, then the Tribunal will not have jurisdiction to consider the objection and it should be dismissed pursuant to section 148(a) of the Native Title Act. I am not satisfied by the material provided, that Mr Toby and Mr Dixon are acting on behalf of the registered native title claimant in making their objection.
I am satisfied that the KLC and the legal practitioners employed by it, in these matters Miss Krysti Guest and Mr Philip Hope, are acting for the native title party, do have instructions to lodge objections for Ben Ward and others on behalf of the Miriuwung Gajerrong Claimant Group. Their instructions to act in the matter are consistent with the fact that the KLC has since December 2002 acted for the Miriuwung Gajerrong Claimant Group in various proceedings including in finalising its application for determination of Native Title in the Federal Court. The KLC acted in the mediation with the Western Australian Government and Northern Territory Government, leading to the Full Federal Court consent order of 9 December 2003. John Toby, Dodger Carlton and Ronnie Carlton objected to the making of the consent determination. After hearing submissions the Federal Court decided to proceed with the consent orders. The Federal Court had before it material filed by the KLC on behalf of the Claimant Group which set out the decision making process which had been used by the Claimant Group, and described by the anthropologist Mr Barber, in coming to a decision to make the application for a consent determination. The KLC is also acting for the Miriuwung Gajerrong Claimant Group in negotiations for the Argyle Diamond Mine Indigenous Land Use Agreement which is currently before the Tribunal for registration and in which the same dispute within the Claimant Group evident in these proceedings has also arisen. It also acts in the Ord River Global Negotiations, and the Tribunal is aware that it acts for the Miriuwung Gajerrong in right to negotiate matters, both in mediation and inquiry. I accept Miss Guest’s evidence that she has standing instructions to lodged expedited procedure objections on behalf of the Miriuwung Gajerrong Registered Native Title Claimant. I take into account that the KLC is the designated Native Title Representative Body under the Native Title Act, with special statutory responsibilities to assist claimants with their applications for determination of Native Title and related future act proceedings. Further, Miss Guest is a legal practitioner. She has, and other legal practitioners employed by the KLC have, a professional responsibility to ensure they have proper instructions to act. Unless there is clear evidence to the contrary I am entitled to rely on Miss Guest’s evidence in this respect.
The Miriuwung Gajerrong Claim Group make decisions about the claim in accordance with traditional decision making process. This has been described by Mr Kim Barber, an anthropologist who worked with the KLC and Claimant Group in preparation of the consent determination proceedings in the Full Federal Court. Mr Barber’s evidence of the traditional decision making process was accepted by the Federal Court in another matter, matter - Ward v Northern Territory [2002] FCA 1477 on 2 December 2002, which was a decision of Justice Mansfield relating to another, a different, Miriuwung Gajerrong claim which has been made in the Northern Territory. I do not regard the issues relating to the traditional decision making processes of the Miriuwung Gajerrong People as distinguishable as between present matter before me and that Federal Court matter. I adopt the relevant aspects of the description of the process set out in the judgement of Mansfield J in paragraphs [31] to [33]. The process is summarised in para [31] and I will read this as it is a reasonably succinct summary of the material that has been put to me about the traditional decision making process. Justice Mansfield says:
“I find, on the material presently before me, that the native title claim group is organised on the basis that responsibility for, and control of, the land the subject of the native title determination application is exercised by various estate or local groups or clans. Members of the local groups refer to their local areas as their “Darwang” or country. The members of the local groups responsible for speaking for and looking after the local areas are called “Dawawang” or traditional owners. The local groups make decisions in relation to particular land under the traditional law and custom of the native title claim group and not by some consensual democratic process. Traditionally, it is the responsibility of senior persons to look after sacred sites and to preserve and conduct ritual. Those persons have acquired appropriate knowledge to adopt or to take on such responsibilities. Such responsibilities also include secular matters such as the authorisation of persons to make and maintain the native title determination application, and to make decisions concerning it including instructions solicitors to conduct it.”
Further on in that decision (para [33]), and importantly I think (I won’t quote it directly) is that Mansfield J says that individual members of the Native Title Claim Group who do not agree with the decisions reached by the traditional processes do not have a right of veto nor are the decisions invalid or ineffective because some individual claimants do not agree with them. On this basis I am of the view that they are clearly collective decisions, not ones made by a single individual. I note that in that Federal Court matter, some claimants including John Toby, Dodger Carlton and Ronnie Carlton filed an affidavit asserting that at least some aspects of Mr Barber’s evidence was wrong in fact and in traditional law. This assertion was not pursued and Mansfield J gave little weight to the affidavit. He then proceeded to make the findings about traditional decision making processes within the Miriuwung Gajerrong Group that I have referred to and adopted for the purpose of this decision.
I accept Miss Guest’s evidence that the traditional decision making process described by Mr Barber and endorsed by the Federal Court is used to make decisions about the claim, including in right to negotiate inquiries and particularly with respect to these objections. Having regard to the evidence provided I find that the dawang affected by these exploration licences is the Mandangala/No Name area or group, and probably the Yunurra/Yalangga group. Please accept my apologies if I haven’t got those pronunciations precise. John Toby is a senior dawawang for the Mandangala dawang, but does not have sole authority. I make that finding. I accept the evidence that all relevant dawawang and other relevant senior people make decisions which affect country. This includes within the Mandangala dawang. This finding is consistent with those of Mansfield J about generally applicable decision making by the Miriuwung Gajerrong People.
Mr Toby’s evidence, supported by a number of named applicants, Dodger Carlton, Ronnie Carlton, Button Jones and Murphy Simon is that he and his family have the customary right to take the lead for business for his own country supported by others, including his cousin brother Ben Ward and his family. They and Sydney Chanuma have provided statutory declarations supporting John Toby’s right to object on his behalf and on behalf of his extended family and others. With Mr Toby and four of those persons, there are five of those who’ve made the statutory declarations who are named as part of the applicant. Despite this and while giving due respect to their views I do not find them consistent with findings made by the Federal Court about who has responsibility to speak for the various dawang, which exists in the claim area. Mr Toby does not have authority even as a senior dawawang to make decisions on his own. It must be done in accordance with the traditional decision making processes that involve others who are dawawang for the area, and in some circumstances as has been pointed out, by senior traditional owners for areas outside the dawang.
Mr Toby does, however, have a right to fully participate in the expedited procedure objections. There is a valid objection before the Tribunal made on behalf of the registered native title claimant, that is, by the native title party. The existence of another individual objection serves no purpose except to create confusion about the process. As pointed out in the Yarran matter, such a situation raises serious questions about the workability of the right to negotiate provisions of the Native Title Act. It places grantee parties in a difficult position about who to negotiate with. With the dismissal of Mr Toby’s objections, the grantee party, if it wants to reach agreement about disposal of the objection, can negotiate with the native title party, who includes Mr Toby, through the KLC. Mr Toby, if he chooses, can be part of those discussions and negotiations.
They are the reasons that I give for my decision, the decision is made operative from today, that the two objections lodged by Mr Toby, or one lodged by Mr Toby and one lodged by Mr Toby and Mr George Dixon are dismissed pursuant to s 148(a) of the Native Title Act.
Decision
Expedited procedure objection applications WO04/326 and WO04/327 are dismissed pursuant to s 148(a) of the Native Title Act 1993 (Cth).
C J Sumner
Deputy President
18 March 2005
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