Cyril Gordon and Others on behalf of Kariyarra & Others/Western Australia/Julie Lynne and Bradford John Young & Others

[2008] NNTTA 135

NATIONAL NATIVE TITLE TRIBUNAL

Cyril Gordon and Others on behalf of Kariyarra & Others/Western Australia/Julie Lynne and Bradford John Young & Others, [2008] NNTTA 135 (3 October 2008)

Application Nos:           WO08/583, WO08/584, WO08/585, WO08/586, WO08/587, WO08/588, WO08/589, WO08/590, WO08/591, WO08/592, WO08/593, WO08/594, WO08/595, WO08/596, WO08/597, WO08/598, WO08/599, WO08/600, WO08/602, WO08/603, WO08/604

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

- and -

IN THE MATTER of inquiries into expedited procedure objection applications

Cyril Gordon and Others on behalf of Kariyarra (WC99/3) (WO08/583) (native title party)
[Other Applications are listed in the attached schedule]

- and -

The State of Western Australia (Government party)

- and -

Julie Lynne and Bradford John Young (WO08/583)

DECISION TO NOT ACCEPT EXPEDITED PROCEDURE OBJECTION APPLICATIONS

Tribunal:  Hon C J Sumner, Deputy President
Place:  Perth
Date of decision:           5 August 2008
Date of reasons:           3 October 2008

Catchwords:   Native title – future act – proposed grant of exploration, prospecting and miscellaneous licences – expedited procedure objection applications – s 29 notification day – applications not lodged within four months of notification day (s 32(3)) – electronic lodgement - no power to extend time for lodgement - Tribunal has no jurisdiction to conduct an inquiry – objection applications not accepted.

Legislation:  Native Title Act 1993 (Cth) ss 29, 32, 76, 77
  Electronic Transmissions Act 1999 (Cth) s 14

Cases:Angus Fire Armour Australia Pty Ltd v Collector of Customs (NSW) [1988] FCA 339; (1988) 19 FCR 477

Neowarra v Western Australia [2004] NNTTA 102; (2004) 189 FLR 249

Northern Territory of Australia v Ward and Others [2001] NNTTA 163; (2001) 167 FLR 398

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

Representative of the     Mr Domhnall McCloskey, State Solicitor’s Office
Government party:         Mr Greg Abbott, Department of Industry and Resources

Representative of the     Mr Chris Clegg, Statewide Tenement Advisory Services Pty Ltd

grantee parties:               for Witx Pty Ltd, De Grey Mining Limited, Oakover Gold Limited and Shaw River Resources Ltd

REASONS FOR DECISION TO NOT TO ACCEPT OBJECTION APPLICATIONS

Background

[1] On the dates outlined in the attached schedule, the Government party gave notice under s 29 of the Native Title Act 1993 (Cth) (‘the Act’) of its intention to grant certain exploration, prospecting and miscellaneous licences to the parties as outlined in the attached schedule (‘the grantee parties’) and included in the notices statements that it considered that the grants attracted the expedited procedure.

[2] On 20 June 2008 the representative for each of the native title parties referred to in the attached schedule made expedited procedure objection applications (‘objection applications’) to the Tribunal. At that time, the s 29 closing date for each objections application had already passed.

Relevant facts

[3]        On 20 June 2008 the Yamatji Marlpa Barna Baba Maaja Aboriginal Corporation (‘Yamatji’) representing each of the native title parties, forwarded to two Tribunal officers an email of 9 May 2008, with the Form 4 objection applications attached to it.  Yamatji’s covering correspondence queried whether the correspondence of 9 May 2008 had been received by the Tribunal on the date sent.  The electronic documentation revealed that the email of 9 May 2008 had been forwarded to an invalid email address.

[4]        On receipt of the email of 20 June 2008, the Senior Caseflow Manager responsible for future acts at the Tribunal’s Western Australian Registry, confirmed that the correspondence of 9 May 2008 had not been received on that date, and in fact that the Tribunal had not been aware of the email until 20 June 2008 when it was forwarded to the two individual Tribunal officers.  Thereafter Mr Dennis Jacobs, Senior Future Acts Officer with Yamatji made application to the Tribunal to accept the objection applications as if they had been lodged on 9 May 2008 as intended.  On 25 June 2008, in order to decide this preliminary issue, I sought submissions (from the native title parties’ representative) as to why the Tribunal should accept the objection applications.  Formal submissions were provided by email on 26 June 2008 and subsequently forwarded on 30 June 2008 to each party potentially affected by the objection applications with an invitation to provide their own submissions.  Further, the Tribunal received a legal opinion from its Legal Services Unit that the objection application had been lodged out of time, which opinion was subsequently forwarded to each party with an invitation for further comment.

[5] The majority of grantee parties did not respond to the invitations to make submissions. However, Mr Chris Clegg, Principal of Statewide Tenement and Advisory Services Pty Ltd acting for Witx Pty Ltd, De Grey Mining Limited, Oakover Gold Limited and Shaw River Resources Ltd submitted that under the Act there is no capacity for the Tribunal to extend the time for lodgement of objection application and indicating concurrence with the Tribunal’s legal opinion. Mr Domhnall McCloskey for the Government party made the same submission.

Legal Principles

[6] Section 32 of the Act relevantly provides the following in relation to the expedited procedure:

‘(1)This section applies if the notice given under section 29 includes a statement that the Government party considers the act is an act attracting the expedited procedure (see section 237).

Act may be done if no objection

(2)If the native title parties do not lodge an objection with the arbitral body in accordance with subsection (3), the Government party may do the act.

Kinds of objection

(3)A native title party may, within the period of 4 months after the notification day (see subsection 29(4)), lodge an objection with the arbitral body against the inclusion of the statement.’

[7] If a native title party objects to the inclusion of the expedited procedure statement, the Tribunal must determine whether the act is an act attracting the expedited procedure (s 32(4)). An objection is lodged by way of an expedited procedure objection application (s 75) which must be in the prescribed form, given to the Registrar, contain such information as is prescribed and be accompanied by any prescribed documents and any prescribed fee (s 76). If the application complies with s 76, the Tribunal must accept the application (s 77). The Tribunal then conducts an inquiry to determine whether the act is one which attracts the expedited procedure (s 139(b)).

[8] The issue that arises in these matters is whether the objection applications were validly lodged with the Tribunal within the period of four months after the s 29 notification date. The decision whether to accept the objection applications is one for the Member appointed to conduct the inquiry to make (Northern Territory of Australia v Ward and Others [2001] NNTTA 163; (2001) 167 FLR 398 ([22]-[26])).

[9]        The Tribunal has previously considered the issue of the acceptance of an objection application that has been lodged prima facie out of time (Neowarra v Western Australia [2004] NNTTA 102; (2004) 189 FLR 249, (‘Neowarra’)) and concluded that it is the responsibility of the native title party to ensure that its objection has been lodged within time (para [18]). In that matter the circumstances differed in that the objection application was said to have been posted prior to the s 29 closing date, but was received at the Tribunal offices some time after the date had passed. In the present case there was a clear attempt to lodge the objection applications via electronic means prior to the various closing dates, but the communication failed and no further attempts were made to lodge by alternative means until a date considerably past the closing date. However, the same principles apply and I adopt the findings in Neowarra at paras [14]-[23] for the purposes of this decision.

[10]      In Angus Fire Armour Australia Pty Ltd v Collector of Customs (NSW) [1988] FCA 339; (1988) 19 FCR 477 which the Tribunal applied in Neowarra (para [14]) the Full Federal Court (per Northop J at 488 [57]) said that the word ‘lodge’ meant that a document must be received by the relevant agency and be the subject of some form of physical acceptance by it. If an application is posted but not delivered to the agency, the application is not lodged.

Findings

[11]      The Tribunal has for some time permitted objection applications to be lodged by email.

[12]      In February 2008 the Western Australia Registry of the Tribunal implemented an electronic objection application lodgement system to facilitate a simplified and more accountable system of lodging and tracking objection applications lodged by email.  While use of the electronic lodgement system is not mandatory, parties are encouraged to use the facility, and instructions on its use were provided to each native title representative body or service provider in Western Australia by email dated 25 February 2008.  The designated electronic mailbox address is [email protected], the ‘nntt.gov.au’ identifying that the Tribunal is a Commonwealth Government Agency.  Stakeholders were advised that on delivery of an objection application email to the mailbox an auto response would be provided as follows:

‘Your application has been received.  If the application is accepted all parties will be notified within 21 days.’

Between the date of implementation of the electronic lodgement system and the failed lodgement of 9 May 2008, Yamatji had successfully lodged a number of objections applications on behalf of its clients by this electronic method.

[13] It is clear that if there is no other legislation governing the situation, the application of the general law referred to above means that the objection applications could not be said to have been lodged pursuant to s 32 of the Act. The Tribunal did not have any knowledge of them and they could not be said to have been received by it.

[14]      However, I am of the view that the Electronic Transmissions Act 1999 (Cth) (‘the ETA’) is applicable to the Tribunal’s electronic mailbox practice.  The purpose of the ETA is to enable individuals or organisations to use electronic transactions in the course of satisfying their legal obligations and one of the stated objects is to enable business and the community to use electronic transactions in their dealings with government (s 3(d)).   

[15]      Part 2 Division 3 of the ETA is applicable to the present situation and provides for statutory recognition of the time and place of dispatch and receipt of electronic communications.  In each instance s 14 ETA provides ‘that unless otherwise agreed between the originator and the addressee’ the time and place or dispatch and receipt of an electronic communication is as provided in the various subsections.  I accept that the email from Yamatji and the accompanying Form 4 objection applications fall within the definition of ‘electronic communication’ in the ETA (s 5).

[16]      Section 14 of the ETA sets out the time of receipt of an electronic communication:

‘(3)For the purposes of a law of the Commonwealth, if the addressee of an electronic communication has designated an information system for the purpose of receiving electronic communications, then, unless otherwise agreed between the originator and the addressee of the electronic communication, the time of receipt of the electronic communication is the time when the electronic communication enters that information system.

(4) For the purposes of a law of the Commonwealth, if the addressee of an electronic communication has not designated an information system for the purpose of receiving electronic communications, then, unless otherwise agreed between the originator and the addressee of the electronic communication, the time of receipt of the electronic communication is the time when the electronic communication comes to the attention of the addressee.’

[17]      The notice to parties on 25 February 2008, advising of the Tribunal’s new electronic mailbox practice means that the Tribunal has a designated ‘information system’ (defined by the ETA (s 5) as ‘a system for generating, sending, receiving, storing or otherwise processing electronic communications’) for the purpose of receiving electronic communications.  No specific arrangements as to what constituted the time of receipt were agreed between the originator and the addressee and accordingly s 14(3) is applicable.

[18]      The email of 9 May 2008 sent by Yamatji reveals that it had been sent in error to [email protected] instead of the correct address which had been notified to parties on 28 February 2008 of [email protected].  The domain name in this address shows the Tribunal as a WA State Government agency rather than a Commonwealth agency and clearly the address was incorrect.

[19]      On 26 June 2008 Mr Jacobs for the native title parties submitted that on the first attempt to send the email attaching the objection applications it had been returned with a message indicating that it had not reached the intended recipient.  He subsequently resent the email and attached objection applications to the same email address, following which no further ‘undeliverable’ response was received.  Mr Jacobs argues that because no further indications that the communication had failed to reach the intended recipient was received the email must have been successfully delivered.  However, he concedes that Yamatji did not receive the usual auto response from the Tribunal’s email server indicating receipt.  Notwithstanding this, it is his submission that while he accepts the Tribunal’s finding in Neowarra that it is the responsibility of the native title party to ensure its objection is lodged, he was ‘denied the opportunity of seeking recourse due to the failure of the mail service provider to inform me that this was indeed the case ....’ and later in the same submissions ‘I would have ensured that the matter had been lodged, had I been advised of the delivery failure’.

[20] It is undeniable that the electronic communication originated by Yamatji did not enter the designated information system in accordance with s 14(3) of the ETA, either on 9 May 2008 when the attempt to send the communication was first made, or at any time thereafter. When the objection applications were brought to the attention of Tribunal officers on 20 June 2008 it was not via the designated information system but by email to individuals. Accordingly it follows that s 14(4) of the ETA is applicable in the case of the lodgement attempt on 20 June 2008, and the objection applications came to the attention of the addressee on that date, some seven days after the latest relevant s 29 closing date of 13 June 2008 (in relation to miscellaneous licences L52/103 and L52/105) and five weeks after the earliest s 29 closing date of 16 May 2008 in relation to prospecting licence P45/2682 and exploration licence E52/1978.

[21]      Mr Jacob’s application to the Tribunal was not that the Tribunal should extend the time for the objection applications to be validly lodged, which in any event the Tribunal determined in Neowarra at [21]-[23] it could not do, but that the Tribunal consider the applications to have been validly lodged within the statutory timeframes. This, for the reasons given, is not the case.

Conclusion

[22] I am satisfied that the objection applications were not properly lodged with the Tribunal within the timeframes specified by the Act. The first attempt to lodge clearly failed and the native title parties were notified of this by the delivery failure notice from the email service provider. There is no evidence that the second attempt to lodge the objection application was successful even though no notice of delivery failure was sent to Yamatji. Presumably the service provider has a practice of only providing notice of one delivery failure. What is clear is that the Tribunal did not have any knowledge of the objection applications until 20 June 2008 and they could not be said to have been lodged with it before that time.

[23]      The Tribunal has now revised its information sheet detailing how to complete an objection application and this fact sheet can be accessed via the Tribunal’s website at  It contains information pertinent to the lodgement of objection applications via the Western Australia Registry’s electronic objection mailbox and suggests that the following procedure be adopted to assist objector’s representatives in the conduct of their responsibilities:

·‘objection applications to be lodged electronically as individual records, with one application attached to each email or

·the covering email to list each attached objection application for the avoidance of doubt as to the number and subject of each attachment.’

Decision

[24]      Expedited procedure objection applications WO08/583, WO08/584, WO08/585, WO08/586, WO08/587, WO08/588, WO08/589, WO08/590, WO08/591, WO08/592, WO08/593, WO08/594, WO08/595, WO08/596, WO08/597, WO08/598, WO08/599, WO08/600, WO08/602, WO08/603 and WO08/604 are not accepted.

Hon C J Sumner
Deputy President
3 October 2008

WO08/583-WO08/600 and WO08/602-WO08/604
SCHEDULE - DECISION TO NOT ACCEPT OBJECTION APPLICATIONS

Tenement No.	Date of Govt. Party Notification (s 29 Notice)	S 29 Notice Objection closing date	Objection Application No.	Date Objection Application Lodged	Grantee Party/ies	Native Title Party & Linked Claimant Application No.	Date Objection not accepted
P45/2686	30 January 2008	30 May 2008	WO08/583	20 June 2008	Julie Lynne and Bradford John Young	Cyril Gordon and Others on behalf of Kariyarra (WC99/3)	5 August 2008
P45/2687	30 January 2008	30 May 2008	WO08/584	20 June 2008	Julie Lynne and Bradford John Young	Cyril Gordon and Others on behalf of Kariyarra (WC99/3)	5 August 2008
E45/3125	30 January 2008	30 May 2008	WO08/585	20 June 2008	De Grey Mining Ltd	Johnson Taylor and Others on behalf of Njamal (WC99/8)	5 August 2008
E46/749	30 January 2008	30 May 2008	WO08/586	20 June 2008	Witx Pty Ltd	Johnson Taylor and Others on behalf of Njamal (WC99/8)	5 August 2008
E46/750	30 January 2008	30 May 2008	WO08/587	20 June 2008	Witx Pty Ltd	Johnson Taylor and Others on behalf of Njamal (WC99/8)	5 August 2008
E46/751	30 January 2008	30 May 2008	WO08/588	20 June 2008	Witx Pty Ltd	Johnson Taylor and Others on behalf of Njamal (WC99/8)	5 August 2008
E46/752	30 January 2008	30 May 2008	WO08/589	20 June 2008	Witx Pty Ltd	Johnson Taylor and Others on behalf of Njamal (WC99/8)	5 August 2008
E46/747	30 January 2008	30 May 2008	WO08/590	20 June 2008	Mark James Thompson	Johnson Taylor and Others on behalf of Njamal (WC99/8)	5 August 2008
E46/748	30 January 2008	30 May 2008	WO08/591	20 June 2008	Witx Pty Ltd	David Stock & Ors on behalf of Nyiyaparli (WC05/6)	5 August 2008
E45/3086	30 January 2008	30 May 2008	WO08/592	20 June 2008	Niraan Punnya De Silva, Quaalup Investments Pty Ltd	Darcy Hunter and Ors on behalf of Nyangumarta People (WC98/65)	5 August 2008
E45/3087	30 January 2008	30 May 2008	WO08/593	20 June 2008	Niraan Punnya De Silva, Quaalup Investments Pty Ltd	Darcy Hunter and Ors on behalf of Nyangumarta People (WC98/65)	5 August 2008
E52/2043	30 January 2008	30 May 2008	WO08/594	20 June 2008	Pannawonica Iron Associates, Cape Lambert Iron  Associates, North Mining Ltd, Robe River Mining Co	Adam Standard & Ors on behalf of Ngarlawangga (WC05/3)	5 August 2008
E08/1806	30 January 2008	30 May 2008	WO08/595	20 June 2008	Rheingold Investments Corporation Pty Ltd	Nicholas Cooke and Others on behalf of the Innawonga People (WC98/69)	5 August 2008
E08/1807	30 January 2008	30 May 2008	WO08/596	20 June 2008	Rheingold Investments Corporation Pty Ltd	Nicholas Cooke and Others on behalf of the Innawonga People (WC98/69)	5 August 2008
E08/1808	30 January 2008	30 May 2008	WO08/597	20 June 2008	Rheingold Investments Corporation Pty Ltd	Nicholas Cooke and Others on behalf of the Innawonga People (WC98/69)	5 August 2008
E08/1809	30 January 2008	30 May 2008	WO08/598	20 June 2008	Rheingold Investments Corporation Pty Ltd	Nicholas Cooke and Others on behalf of the Innawonga People (WC98/69)	5 August 2008
E08/1810	30 January 2008	30 May 2008	WO08/599	20 June 2008	Rheingold Investments Corporation Pty Ltd	Nicholas Cooke and Others on behalf of the Innawonga People (WC98/69)	5 August 2008
P45/2682	16 January 2008	16 May 2008	WO08/600	20 June 2008	Shaw River Resources Ltd	Peter Coppin & Ors on behalf of the Njamal People #10 (WC00/5)	5 August 2008
E52/1978	16 January 2008	16 May 2008	WO08/602	20 June 2008	Oakover Gold Ltd	David Stock & Others on behalf of Nyiyaparli (WC05/6)	5 August 2008
L52/103	13 February 2008	13 June 2008	WO08/603	20 June 2008	Australian Manganese Pty Ltd	David Stock & Others on behalf of Nyiyaparli (WC05/6)	5 August 2008
L52/105	13 February 2008	13 June 2008	WO08/604	20 June 2008	Australian Manganese Pty Ltd	David Stock & Others on behalf of Nyiyaparli (WC05/6)	5 August 2008