Dimer and Others v Stewart and Others

[2006] NNTTA 70

Reported at (2006) 200 FLR 385

NATIONAL NATIVE TITLE TRIBUNAL

James Dimer on behalf of the Esperance Nyungar People/Paul Winston Askins, James Ian Stewart/Western Australia, [2006] NNTTA 70 (8 June 2006)

Application No:        WF05/14

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

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

James Dimer on behalf of the Esperance Nyungar People – (WC96/64) (applicant/native title party)

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James Ian Stewart, Paul Winston Askins (grantee party)

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The State of Western Australia (Government party)

FUTURE ACT DETERMINATION

Tribunal:                  Mr Dan O’Dea, Member

Place:    Perth
Date:     8 June 2006

Catchwords:             Native title — future act — application for determination for the grant of exploration licences — registered native title claimants deceased — application is dismissed.

Legislation:Native Title Act 1993 (Cth), ss. 5, 29, 30A, 30, 31–39, 61, 62A, 64, 66B, 75, 109, 139, 148, 190A, 203B, 253.

Mining Act 1978 (WA)

Cases:Monkey Mia Dolphin Resort Pty Ltd v Western Australia [2001] NNTTA 50; (2001) 164 FLR 361

Angus Abdullah and Others on behalf of Njamal/BGC Contracting Pty Ltd/Western Australia, NNTT WF05/18, [2006] NNTTA 14 (16 February 2006), Hon C J Sumner

Moore and Others v Mungeranie and Others [2005] NNTTA 53; (2005) 193 FLR 62

Bradley Foster & Ors (Waanyi Peoples)/Copper Strike Ltd/Queensland; [2006] NNTTA 61 (19 May 2006), Member Sosso

Placer (Granny Smith) v WA [2000] NNTTA 75; (2000) 170 FLR 469

Hearing dates:          21 December 2005; 13 March 2006; 19 April 2006; 12 May 2006;

29 May 2006

Counsel for the
native title party:      Mr Murray Hutchings, Goldfields Land and Sea Council

Representative of the
grantee party:           Mr Paul Askins

Counsel for the

Government party:  Mr Rod Wahl, Mr Travis McLeod and Mr Trevor Creewel, State Solicitor’s Office

Representative of the

Government party:  Ms Faye Mitchell and Ms Janice Goodwin, Department of Industry and Resources

REASONS FOR FUTURE ACT DETERMINATION

Background

1. On 26 January 2005, the Government party gave notice under s 29 of the Native Title Act 1993 (Cth) (‘the Act’) of a future act namely the grant of exploration licences 74/317 and 74/318 (‘the proposed licences’) under the Mining Act 1978 (WA) to James Ian Stewart, Paul Winston Askins (‘the grantee party’).

2. The native title party in respect of these proceedings is:

   James Dimer (deceased) and Malcolm Bullen (deceased) on behalf of the Esperance Nyungar native title claimants (WC96/64 – registered 16 July 1999) (‘the native title party’).

3. The areas and locations of the proposed licences are as follows:

   ·     E74/317 – 199.86km², 6km south westerly of Munglinup, in the Shire of Esperance /Ravensthorpe;

   ·     E74/318 – 177.56km², 26km northerly of Munglinup, in the Shire of Esperance.

The proposed licences entirely overlap the Esperance Nyungar native title claim. No other native title determination applications will be affected by the exploration licences.

1. On 7 December 2005, being a date more than six months after the s.29 notice was given, the Goldfields Land and Sea Council (‘GLSC’) made an application pursuant to s.35 of the Act for a future act determination under s.38 in relation to the proposed licences. The GLSC is the representative body for native title claimants in the Goldfields region pursuant to s.203B of the Act and is instructed to act on behalf of the Esperance Nyungar People. Paragraph 10 of the application asserts that the grantee and native title parties have reached agreement about the doing of the acts and consent to the future act determination. It is also stated that there are logistical difficulties in arranging for the native title party to execute an ancillary agreement and State Deed as a consequence of both named applicants being deceased.

2. Appended to the s.35 determination application was a minute of a consent determination in the following terms executed by Mr Murray Hutchings for and on behalf of the native title party, by Mr Paul Askins on behalf of the grantee party and Mr Jeff O’Halloran (State Solicitor’s Office) on behalf of the Government party:

‘CONSENT DETERMINATION UNDER SECTION 38 OF

THE NATIVE TITLE ACT 1993 (CTH)

1. The Government Party has complied with the requirements of s.31(1)(a) of the Native Title Act 1993.

2. The Government Party, the Native Title Party and the Grantee Party has complied with the requirements of s.31(1)(b) of the Native Title Act 1993.

3. The Government Party, the Native Title Party and the Grantee Party consents to a determination under s.38 of the Native Title Act 1993 that the ‘act’ being the grant of Exploration Licences 74/317 and 74/318 may be done.’

4. The Tribunal has power to make a determination with the consent of the parties and it will normally be appropriate to do so where the parties (and particularly the native title party) are legally represented and those representatives have advised the Tribunal of the consent.  The Tribunal will hear the parties to satisfy itself that the consent determination is appropriate (Monkey Mia Dolphin Resort Pty Ltd v Western Australia [2001] NNTTA 50; (2001) 164 FLR 361).

The inquiry

1. On 21 December 2005, the Tribunal conducted a hearing. Mr Murray Hutchings from GLSC appeared as counsel for the native title party, Mr Paul Askins represented the grantee party and Mr Rod Wahl and Ms Faye Mitchell appeared for the Government party. At this hearing I indicated that the circumstances of this application were different from those previously dealt with by the Tribunal. As all of the named applicants for this claim are deceased, questions were raised as to the capacity of the native title party to have consented to the doing of the act or to bring this s.35 application.

2. Accordingly, I directed that evidence be provided showing the basis on which the native title party representative believed that consent had been given and invited the parties to file submissions on the question of how it was said to be possible for the Tribunal to make a determination in the absence of any living applicants.

3. At an adjourned hearing on 13 March 2006, Mr Hutchings advised that although a meeting of the Esperance Nyungar working party had occurred, the native title party’s authority to consent to the determination was yet to be obtained due to insufficient attendance at the meeting to carry a resolution. At a subsequent hearing on 19 April 2006, Mr Hutchings confirmed that the group’s authority had been obtained and evidence of this in the form of an affidavit was filed with the Tribunal on 11 May 2006. Mr Hutchings deposes (inter alia):

   8. ‘On the 8 March 2006 I was present at a meeting of the Esperance Nyungar Working Party. 

9. The Esperance Nyungar working party was elected at a full claim meeting held on 17 November 2005.  The object of the working party was that it was representative of the claim group and could conduct necessary business on behalf of the claim group between full claim meetings.  The working party then reports to the full claim group at meetings.  Full claim group meetings are held at least twice a year.

10. The working party is made up of representatives from each of the major family groups that have been identified comprising the Esperance Nyungar People Native Title Claim group.

11. At that meeting the issue was discussed about signing State Deeds in the absence of named Applicants. At that meeting and at a previous claim meeting the issue of electing new Applicants had been discussed.  Each family was requested to nominate a family member to comprise the application for new Applicants. 

12. The issue of electing new Applicants has not been concluded.  I am informed that further discussions have taken place at subsequent meetings with regard to the nomination of new Applicants.  I am informed that the claimants will complete the elections and an application to replace the deceased applicants soon.  There are apparently further issues with respect to claim boundaries and genealogies that will be completed prior to the application for the new Applicants.  The claim group does not wish to apply to have new Applicants appointed until all business with respect to their claim is finalised. 

13. At the working party meeting held on 8 March 2006 the following resolution was proposed, seconded and unanimously passed:

1. “Until such times as a New Applicant is appointed for the Esperance Nyungar Native Title claim group, we the Esperance Nyungar working Group authorize Murray William Hutchings, solicitor to sign consent determinations for exploration and prospecting  licences only on behalf of the claim group”

14. Following the outcomes achieved at the working party meeting held on 8 March 2006 I am satisfied that I have the authority to bring the applications to seek that determinations be made in terms of the consent applications and that the Esperance Nyungar people have consented to the granting of the tenements in the absence of any named applicants.’

1. The Government party made the following submission in relation to issue of authorisation and the capacity of the Tribunal to act in the circumstances.

   8. The wishes of the grantee party and native title parties to enter into an agreement such as contemplated by s.31 NTA have been thwarted by the demise of the deceased registered native title claimants. For the same reasons, the parties cannot enter into a consent determination relating to the s.35 future act application. However, it remains open for the Tribunal to make a determination of the future act application.
   9. Pursuant to s.139 NTA, the Tribunal is obliged to conduct an inquiry into the future act application. Further the Tribunal is obliged to pursue the objective of carrying out its functions in a fair, just, economical, informal and prompt way (s.109(1) NTA).
   10. It is submitted that, in the circumstances of the Esperance Nyungar people vis á vis this application, it would fit the justice of this matter if the Tribunal were to carry out an inquiry in the following manner:

   (a)by ordering an affidavit to be filed by a person such as the Esperance Nyungar people’s solicitor, deposing as to:

   1.   the steps which have been and are being taken to replace the deceased registered native title claimants, and the reasons why this has not yet been achieved;

   2.   the means by which decision-making and authorisation is achieved by the Esperance Nyungar people in the absence of the registered native title claimants;

   3.   on the Esperance Nyungar people’s part, the means by which agreement in respect of the proposed future act was reached and authorised in this particular case;

   4.   confirmation that, in the deponent’s view, the Esperance Nyungar people have agreed to the proposed future act, and the basis upon which the deponent reached this view;

   (b)by ordering a notice to be served upon the Esperance Nyungar people at the registered address for service, and also by their solicitor upon at least two of those persons currently representing the native title claim group advising that, unless cause is shown to the contrary, on a specified date that Tribunal would be making a determination that the proposed future act may be done unconditionally;

   (c)the Tribunal could then conduct its inquiry on the basis of the papers submitted, which would include those papers filed by the Government party and grantee party, which should be sufficient for the Tribunal to make determination in favour of the act being done.

2. At a further hearing on 12 May 2006, I indicated that on the basis of the parties’ submissions, I was not satisfied that a determination by consent that the acts be done could be made. At this hearing I also questioned the competency of the s.35 determination application itself.

3. Pursuant to s.75 an application mentioned in s.35 may be made by any negotiating party. Section 30A defines negotiation party as either the Government party, any native title party or any grantee party. In this case, the native title party purported to make the application. The ‘native title party’ is defined in s.253 of the Act as having the meaning given by paragraphs 29(2)(a) and (b) and s.30.

Section 29(2) relevantly provides:

(b)unless there are one or more registered native title bodies corporate in relation to all of the land or waters that will be affected by the act:

(i) any registered native title claimant (also a native title party ); and

Note: Registered native title claimants are persons whose names appear on the Register of Native Title Claims as applicants in relation to claims to hold native title: see the definition of registered native title claimant in section 253.

(ii) any representative Aboriginal/Torres Strait Islander Body.

Section 253 defines a registered native title claimant, in relation to land or waters, as ‘a person or persons whose name or names appear in an entry on the Register of Native Title Claims as the applicant in relation to a claim to hold native title in relation to the land or waters’. There are no registered native title body corporate in relation to any of the relevant land and waters and no other entity which might be construed as a native title party pursuant to s30.

1. All of the applicants whose names appear in the entry on the Register of Native Title Claims for the Esperance Nyungar claim are deceased and were deceased prior to any decisions taken by the group to enter into any agreement with the grantee party in this matter, or make an application for a consent determination.

2. A native title determination application pursuant to s.61(1) of the Native Title Act may be brought by the person or persons authorised by all the persons who, according to their traditional laws and customs, hold the common or group rights and interests comprising the particular native title claimed. The person or persons so authorised will be applicant for the purposes of s.61(2). Section 61(2)(c) and (d) make it clear the person or persons jointly so authorised are the applicant and no other. Section 61(2)(d) bluntly excludes all others who may be part of the ‘native title claim group’ from being considered part of the applicant.

Section 61(2)(d):

none of the other members of the native title claim group….is the applicant

Section 62A of the Native Title Act deals with the powers of the applicant authorised by the group to the effect that —

In the case of:

(a)     a claimant application ….

the applicant may deal with all matters arising under this Act in relation to the application.

1. It is an inescapable conclusion of the statutory framework set out above that, if there is no living applicant, there is no party empowered to act on behalf of the native title claim group which is essential to the process of dealing with ‘any matters arising under this Act’. 

2. The powers of the applicant are joint and not unfettered.  An applicant may not exceed its authorisation. The Tribunal does not require that all members of the joint applicant act with unanimity.  The Tribunal has decided that the native title party is not each individual registered native title claimant but it is the registered native title claimants acting collectively as representatives and agents for the claim group and that each individual registered native title claimant is not entitled to separate representation in a right to negotiate inquiry (Placer (Granny Smith) v WA [2000] NNTTA 75; (2000) 170 FLR 469 per Sumner DP at 5–11 and Monkey Mia at 19).

3. The members of the native title claim group may amend the application to replace an applicant with a new applicant if the new applicant is so authorised (this will usually involve a new list of the persons who jointly comprise the applicant which would typically involve the deletion of some names and the inclusion of additional or replacement names, but it is not necessary to delete any of the original names). Alternatively, if a person or persons who jointly form the applicant lose the authorisation or exceed the authority given to them under the authorisation process they may be removed and replaced if the member or members making the application are authorised to replace them (see 66B). The processes of the Act to replace persons who comprise the applicant are time-consuming and sometimes complex and the amendment of the applicant pursuant to s.64(5) triggers the application of the registration test pursuant to s.190A(1) even if the claim has been previously accepted for registration. Despite these difficulties there is no alternative but to seek a new or replacement applicant if all the persons who jointly comprise the applicant, whose names appear on the Register, are deceased. As Member Sosso observed in relation to s.62A in Bradley Foster & Ors (Waanyi Peoples)/Copper Strike Ltd/Queensland; [2006] NNTTA 61 (19 May 2006), Member Sosso at (34) ‘the Act vests in the persons comprising the applicant, the carriage of the native title determination application’. None of the persons who are part of the native title claim group, but not part of the applicant, can have any formal role in taking any steps in the matter (Bradley Foster at 34).

4. Mr Hutchings in his affidavit at paragraph 18 has indicated that the Esperance Nyungar people are not prepared at this time to take immediate steps to replace the applicant.  Apparently there are other aspects of the claim that require amendment and it is deemed inconvenient to have to undertake a series of amendments.  That is a matter for Mr Hutchings and his clients, however, the Tribunal, in circumstance such as these, doesn’t have any capacity to assist the party in this determination application in the absence of an applicant.

5. The Government party’s first submissions argue that in the current circumstances the wishes of the grantee and native title parties have been ‘thwarted by the demise of deceased registered native title claimants’.  In a sense that is correct.  I have no doubt, on the evidence before me, that the grantee and the great bulk, if not all the persons who make up the of the Esperance Nyungar native title claim group, are content to enter the proposed agreement.  The question is whether it remains open to the Tribunal to make a determination to that effect by consent or at all.

6. The Government party makes reference to the Tribunal’s obligations under s.139 in relation to the conduct of enquiries and s.109 in relation to how the Tribunal must, more generally, conduct itself. A reference might also have been made to requirement of the Tribunal to take the agreement of the parties into account when making a determination under s.38. As Member Sosso remarked recently in Bradley Foster at 33: ‘The cumulative effect of all of these provisions (s.31–39, s.150, s.109, etc.) is to place the Tribunal on notice that wherever possible the Tribunal should promote agreement-making and recognise the primacy of any reasonable agreement reached between the negotiating parties.’ This statement is indisputable but does not assist in the current situation. If there was no applicant, there was no native title party who was a negotiating party for the requisite purpose, and therefore, not only could it not be said that the applicant consented to the proposed agreement, it was not competent to make the s.35 application pursuant to s.75.

7. I respectfully agree with the statement of the law in relation to the making of s.38 determinations by consent as recently enunciated by Member Sosso in Moore and Others v Mungeranie and Others [2005] NNTTA 53; (2005) 193 FLR 62 at 60–64 and Bradley Foster & Ors (Waanyi Peoples)/Copper Strike Ltd/Queensland; [2006] NNTTA 61 (19 May 2006), Member Sosso at 27–39.

1. The critical issue for the Tribunal is whether the native title party has given their consent.  The native title party in this sense is confined to that group of persons whose names appear on the Register of Native Title Claims as the registered native title claimants, who jointly comprise the applicant for the purposes of the native title determination application.  The question of whether that consent has been given is not to be determined solely by reference to the question of whether each individual comprising the applicant has explicitly expressed an endorsement of any agreement.  In any particular instance the Tribunal must look to the particular facts and circumstances of the case in making its determination as to the existence of consent when all the persons who comprise the applicant have not so signified.  There are many circumstances including death, incapacity, isolation, disappearance or collateral dispute which might explain why all the persons who comprise the applicant have not formally ratified an agreement by signature.

1. When determining the question of consent the Tribunal is not be bound to be satisfied that a certain proportion of persons comprising the applicant have signed an agreement. The laws and customs of the particular group concerned will be determinative of that question (see Bradley Foster at 38). I further accept that it is not for the Tribunal to resolve internal disputes amongst the persons who comprise the applicant by substituting its own view of a ‘reasonable agreement’ in the circumstances. Equally, I do not accept the proposition that the Tribunal is prevented from concluding that the applicant group as a whole can consent to the making of a s.38 determination even in circumstances where one or more of the persons who comprise the applicant refuse to sign an agreement because they object to some of its terms. In such circumstances the Tribunal might generally be expected to reach the conclusion that there was no such consent, but it will be the particular facts and circumstances of the case, including the nature of the traditional laws and customs of the native title claim group that will be of paramount importance in making the decision. A recent observation of member Sosso puts the current application in a nutshell:

‘However, if none of the persons who collectively comprise the applicant have either executed or consented to the agreement there is no accord between the negotiation parties as one of those parties is incapable of reaching agreement’ (Bradley Foster at 38).

1. At the hearing of 12 May, upon my outlining of my preliminary finding, Mr Crewel for the Government party requested leave to make further submissions with a view to curing the difficulties in the application by substituting the applicant with a competent party.  The other parties supported this request and leave was subsequently granted.

2. Those submissions contend the following (inter alia):

   7. The National Native Title Tribunal has now raised the issue that under s35 of the NTA, a future act determination application can only be made by a “negotiation party”. Section 30A NTA defines “negotiation party” as being each of the Government party, any native title party, and any grantee party; and s.29(2)(b)(i) NTA relevantly defines a “native title party” as being “any registered native title claimant”. However, in the present manner there are no registered Esperance Nyungar native title claimants, as both registered native title claimants are deceased. This casts doubt on the validity of the future act determination application.

   8.   It is submitted that the most expeditious way in the circumstances for the grantee party, the Government party and the native title party to achieve their agreed goal of a consent determination that the proposed future acts may be done is by substituting one of the other parties as the applicant in place of the native title party.

   9.   The Tribunal is obliged to pursue the objective of carrying out its functions in a fair, just, economical, informal and prompt way (s.109(1) NTA). The Tribunal, in carrying out its functions, is not bound by technicalities, legal forms or rules of evidence (s.109(3)) NTA).

   10.    However, the rules and practices of other jurisdictions can be informative and provide guidance to the Tribunal.

   11.    Subrule (1) of Order 13 rule 2 of the Federal Court Rules provides that, subject to the subrules, the Court may, at any stage of any proceeding, order that any document in the proceeding be amended, or that any party have leave to amend any document in the proceeding, in either case in such a manner the Court thinks fit. This rule confers a wide discretion on the Court as to the time, manner and nature of any amendment.

   12.    Subrule (2) of Order 13 rule 2 of the Federal Court Rules provides that “all necessary amendments shall be made for the purpose of determining the real questions raised by or otherwise depending on the proceeding, or of correcting any defect or error in any proceeding, or of avoiding multiplicity of proceedings.”

   13.    Further, Order 13 rule 2 permits the name, identity and status of the parties to be amended, and even to substitute another person for a person already party to the proceedings, viz:

   (a)  Subrule (4) – “Where there has been a mistake in the name or identity of a party, an amendment to correct the name of the party may be made notwithstanding that the effect of the amendment is to substitute another person as a party”.

1. I accept that the Tribunal has the capacity to amend an application before it, including by replacing or substituting the applicant, in appropriate circumstances; see procedures under the Right to Negotiate Scheme (issued 27 January 2005, section 5.3). I further agree that the rules and practices of other jurisdictions can provide guidance to the Tribunal in the conduct of its proceedings. However, in this instance, where the applicants were dead when the application was commenced, the difficulty is not a matter of form. If a plaintiff is dead at the time of the commencement of a proceeding, that proceeding is a nullity and cannot be cured by amendment (Halsbury Laws of Australia 325–1470). This application was brought after the death of the persons who were entitled to bring it and, in my view, is therefore a nullity.

1. In this matter as can be seen from the foregoing, I have reached the conclusion that the current application is a nullity. It cannot be cured by amendment and will be dismissed. It is, of course, open to another negotiation party to make an application under s.35, albeit it would be difficult to see how such an application could be dealt with by consent without any living applicants in existence on the native title claim. One alternative is for the State to proceed to grant the tenement on the basis that there is no native title party pursuant to s.28(1)(b). If this option was adopted, or indeed at any event, there is nothing to prevent the native title claim group and the grantee party in honouring the agreement they have reached as between themselves despite the lack of jurisdiction of the Tribunal to formally make it a condition of the doing of the act concerned.

Decision

1. The application is dismissed pursuant to s.148(a) of the Native Title Act 1993 (Cth).

Mr Dan O’Dea

Member

8 June 2006