George Brooking and Ors on behalf of Bunuba #2 Part B v Ge Resources Pty Ltd

[2018] NNTTA 77

NATIONAL NATIVE TITLE TRIBUNAL

George Brooking and Ors on behalf of Bunuba #2 Part B v GE Resources Pty Ltd [2018] NNTTA 77 (12 December 2018)

Application No: WO2018/0835

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

- and -

IN THE MATTER of an expedited procedure objection application

Bunuba Dawangarri Aboriginal Corporation RNTBC

(the PBC)

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George Brooking, Kevin Oscar, Isaac Hale, Danny Marr, June Oscar, Mary Aiken, Jimmy Andrews, Patsy Bedford, Patrick Green, Kevin Dann on behalf of the Bunuba #2 Part B Native Title Claimants (WC2012/004)

(the Applicant)

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GE Resources Pty Ltd

(GE)

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State of Western Australia

(the State)

DECISION NOT TO ACCEPT OBJECTION APPLICATION

Tribunal:

The Hon John Dowsett AM, President

Place:

Brisbane

Date:

12 December 2018

Catchwords:

Native title – future act – proposed grant of exploration licence – expedited procedure objection application – acceptance – objection by non-overlapping claim group – ‘administrative error’ – no power to amend form or extend time for lodgment – objection not accepted

Legislation:

Native Title Act 1993 (Cth) ss 29, 30A, 31, 32, 76, 77, 109, 148(a), 215(1), 237

Native Title (Tribunal) Regulations 1993 (Cth), reg 4

Cases:

Richard Evans v Western Australia[2000] NNTTA 84

Representative of the Applicant and PBC:

Ms Justine Toohey, Kimberley Land Council

Representative of GE: Mr Ken Green, Green Legal

Representatives of the State: Mr Domhnall McCloskey, State Solicitor’s Office
Ms Bethany Conway, Department of Mines, Industry Regulation and Safety

REASONS FOR NON-ACCEPTANCE OF OBJECTION

BACKGROUND

1. On or before 27 June 2018 the State of Western Australia (the “State”) gave notice pursuant to s 29(1) of the Native Title Act 1993 (Cth) (the “Native Title Act”) of its intention to grant mining tenement no. E04/2533 (the “proposed grant”) to GE Resources Pty Ltd (“GE”). The “notification day” for the purposes of s 29(4) of the Native Title Act was 27 June 2018. Pursuant to s 29(2) of the Native Title Act, the State gave notice of the proposed grant to Kimberley Land Council Aboriginal Corporation (“KLC”) and to Bunuba Dawangarri Aboriginal Corporation RNTBC (the “PBC”), a prescribed body corporate holding native title rights and interests over an area (the “determination area”) which includes part of the area which will be included in the proposed grant (the “tenement area”). Each notice contained a statement pursuant to s 29(7) of the Native Title Act. In these proceedings, the Tribunal was first provided with a copy of the notice addressed to KLC. I sought and obtained a copy of the notice sent to the PBC. The notices are not in identical form. In these proceedings, KLC represents the PBC.

2. George Brooking and others comprise the applicant (the “Applicant”), on behalf of the Bunuba People, for a native title determination over an area (the “claim area”) which is in the vicinity of, but does not include the tenement area. On 22 October 2018, the Applicant filed an objection to the proposed grant. Because the Applicant’s claim area does not overlap the tenement area, it cannot be a native title party, as defined in s 29(2), for the purposes of s 32(3). Hence the Applicant had no right to file an objection.

3. On 7 November 2018, following lodgment of the purported objection and completion of the necessary investigations, the Tribunal advised KLC of the apparent problem and invited comments.  On the same day KLC responded as follows:

   In response to your e-mail below, we would like to confirm that the objection was obviously meant to be lodged in relation to E04/2533, however due to an administrative error, the objector’s details were incorrectly quoted.  The objection was meant to be lodged in regards to Bunuba #2 Part A (WCD2015/009) and not WC12/04.  On this basis, we are seeking an opportunity to amend the objection Form 4 accordingly.

4. The reference to Bunuba #2 Part A is to the determination area. As I have said, the native title rights and interests over that area are vested in the PBC, and the tenement area lies within its boundaries. Hence the PBC would have been a competent objector for the purposes of s 32(3), had it lodged an objection during the period specified in that subsection, which period expired on 29 October 2018. As I understand it, KLC seeks, on behalf of the PBC, to amend the objection so that it, and not the Applicant, is the objector.

5. The Tribunal requested KLC to provide an affidavit explaining the circumstances in which the error occurred, and invited submissions from the parties. The State indicated that it did not wish to make submissions. KLC provided an affidavit and submissions. GE applied for the dismissal of the objection pursuant to s 148(a) of the Native Title Act and made submissions in support of that application.

6. The affidavit provided by KLC was affirmed by a trainee administrative officer (the “KLC deponent”), who has no legal qualifications and is not studying law.  The KLC deponent exhibits a copy of the State’s notice, addressed to KLC.  It relates to a number of proposed grants, only the first two of which are presently relevant.  The first is described as “E04/2532”.  It shows GE as the potential grantee and, under the heading “NTP/s” (presumably “Native Title Party/Parties”), it refers to “Bunuba #2 Part B” as a claim and, to “Bunuba #2 Part A”, as a “determined” area.  It seems that there was originally one application by the Applicant for a native title determination, from which Part A was excised.  The excised area is now the determination area.  Part B comprises the balance of the original application, in respect of which balance no determination has yet been made.  The next proposed grant in the notice is “E04/2533”, with which I am presently concerned.  GE is again shown as the proposed grantee.  Under the heading “NTP/s” it refers to “Determined Area(s) Bunuba #2 Part A”, referring to the determination area.

7. In effect the KLC deponent says that he mistakenly inserted in the objection, the name of the Applicant instead of that of the PBC.  Neither the PBC nor the Applicant is named in the notice. Presumably the KLC deponent obtained the Applicant’s name from a source in the KLC office.  It seems that KLC became aware of the error only as a result of the Tribunal’s email dated 7 November 2018.

8. The notice sent to the PBC is addressed to it and refers only to proposed grants E04/2532 and E04/2533.  It seems that the former is overlapped by both the claim area and the determination area, so that the State was obliged to send notices to both the Applicant and the PBC.  Proposed grant E04/2533 overlaps the determination area, but not the claim area, so that the State was required to notify the PBC, but not the Applicant.

   THE EXPEDITED PROCEDURE

9. Subdivision P of Div 3 of Pt 2 of the Native Title Act is headed “Right to negotiate”. It is concerned with proposed future acts by government (including the grant of various mining exploration licences and permits), and with establishing and regulating a negotiation procedure which includes native title parties, the relevant government agency (here, the State) and the proposed grantee (here, GE). See ss 30A and 31. The procedure recognizes that some proposed future acts may not adversely affect native title rights and interests. Section 29 of the Native Title Act requires the relevant agency to notify various persons of any proposed grant. In the present case, the State was obliged to notify the PBC as well as KLC. Where the State agency considers that the proposed future act will not have an adverse effect on native title rights and interests, it may include in the notification, a statement that the “expedited procedure” is attracted by the proposed future act. Section 32 provides:

   (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).

   …

   (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.

   …

   (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.

   …

   (4)If one or more native title parties object against the inclusion of the statement, the arbitral body must determine whether the act is an act attracting the expedited procedure. If the arbitral body determines that it is, the Government party may do the act.

   …

   (5)If the arbitral body determines that the act is not an act attracting the expedited procedure, subsection 31(1) applies as if the notice did not include a statement that the Government party considers the act attracts the expedited procedure.

   …

   (6)At any time before the arbitral body makes a determination under subsection (4), a native title party may withdraw his or her objection. If all such objections are withdrawn, the Government party may do the act.

   …

   (7)At any time before the arbitral body makes a determination under subsection (4), the Government party may, by giving written notice to the negotiation parties, withdraw its statement that it considers the act is an act attracting the expedited procedure. If it does so, subsection 31(1) applies as if the notice did not include such a statement.

10. Section 237 provides:

    A future act is an act attracting the expedited procedure if:

    (a)the act is not likely to interfere directly with the carrying on of the community or social activities of the persons who are the holders (disregarding any trust created under Division 6 of Part 2) of native title in relation to the land or waters concerned; and

    (b)the act is not likely to interfere with areas or sites of particular significance, in accordance with their traditions, to the persons who are the holders (disregarding any trust created under Division 6 of Part 2) of the native title in relation to the land or waters concerned; and

    (c)the act is not likely to involve major disturbance to any land or waters concerned or create rights whose exercise is likely to involve major disturbance to any land or waters concerned.

11. It is common ground that the proposed grant is a future act. Hence a valid objection may lead to an inquiry by the Tribunal as to the matters prescribed in s 237.

12. For present purposes, subss 32(1), 32(2) and 32(3) are particularly relevant. If an objection is lodged pursuant to s 32(3), the Tribunal must determine whether or not the proposed future act attracts the expedited procedure. If it decides that the expedited procedure is engaged, the obligations prescribed in s 31 do not arise. In those circumstances a native title party has no right to be heard or to negotiate with the relevant State agency and the proposed grantee. If the expedited procedure does not apply in the present case, the Applicant, the State and GE will have to negotiate.

    LODGING AN OBJECTION

13. Section 75 of the Native Title Act provides that a native title party may apply to the Tribunal by way of “objection application” pursuant to s 32(3). There seems to be an inconsistency between s 32(3) which describes the relevant document as an “objection” and ss 75 and 76, where the document is described as an “application”. However it is clear that those terms refer to the same document. Sections 76 and 77 provide:

    76       Material and fees to accompany applications

    An application must:

    (a)be in the prescribed form; and

    (b)be given to the Registrar; and

    (c)contain such information in relation to the matters sought to be determined as is prescribed; and

    (d)be accompanied by any prescribed documents and any prescribed fee.

    77       Action to be taken in relation to applications

    If an application complies with section 76, the National Native Title Tribunal must accept the application.

    …

14. Section 215(1) of the Native Title Act authorizes the making of regulations prescribing matters:

    (a)required or permitted by this Act to be prescribed; or

    (b)necessary or convenient to be prescribed for carrying out or giving effect to this Act.

15. Regulation 4 of the Native Title (Tribunal) Regulations 1993 (Cth) (the “regulations”), requires that an application pursuant to s 76(a) be in form 4. Form 4 requires that an objection contain:

    2.Address of the objector. 

    3.Address for service of objector, including a telephone number and facsimile number (if any). 

    4.Name and address of the representative of the objector (if any) including a telephone number and facsimile number (if any). 

    5.Whether the objector is the registered native title body corporate or a registered native title claimant. 

    6.The government that issued the notice and the date of the notice. 

    7.A statement why the objector believes that the proposed act is not an act attracting the expedited procedure that includes a statement of the likely impact of the act on community or social activities of the native title holders, areas or sites of particular significance and any land or waters concerned. 

    8.An outline of the type of evidence that the objector will produce to the National Native Title Tribunal.

    9.Any other relevant information.

16. Although, in the objection, the Applicant refers to the proposed grant (E04/2533), it claims to be the registered native title claimant for “claim WC12/04; WAD94/12”. As I understand it, that description relates to the application area, not the determination area where the tenement area is located. In those circumstances, the Applicant has not, and cannot comply with reg 4, in that it is neither the registered native title body corporate nor a registered native title claimant with respect to that area.

17. The Tribunal has only the jurisdiction conferred upon it by the Native Title Act. Its jurisdiction pursuant to s 32(4) may be enlivened only by the filing of an objection pursuant to s 32(3), s 76 and reg 4. The PBC has not done so. KLC, on behalf of the PBC, seeks to avoid the conclusion that the PBC failed to lodge an objection within the prescribed time. Presumably, it also acts on behalf of the Applicant in conceding that the latter has no standing to lodge an objection in this matter.

18. KLC makes three submissions. First, it submits that the Tribunal can, in some way, allow an amendment to the objection so that the PBC is substituted for the Applicant as the named objector. Second, it submits that the combined effect of s 32(3), the power to make regulations conferred by s 215 and reg 4, is that an objector must substantially comply with those provisions, and that the PBC has done so. Third, KLC relies upon s 109 of the Native Title Act which provides:

    …

    (1)The Tribunal must pursue the objective of carrying out its functions in a fair, just, economical, informal and prompt way.

    …

    (2)The Tribunal, in carrying out its functions, may take account of the cultural and customary concerns of Aboriginal peoples and Torres Strait Islanders, but not so as to prejudice unduly any party to any proceedings that may be involved.

    …

    (3)The Tribunal, in carrying out its functions, is not bound by technicalities, legal forms or rules of evidence.

    THE AFFIDAVIT

19. Before considering KLC’s submissions, I must say something about the affidavit which has been filed by way of explanation of its conduct in this matter.

20. It is quite unsatisfactory that I have only an affidavit from the KLC deponent.  I accept that he mistakenly inserted the Applicant’s name in the objection.  Any adequate explanation by KLC of the error which has occurred in this case, should, in my view, have identified the persons giving and receiving instructions, the nature of those instructions, the directions given to the KLC deponent and the supervision exercised in connection with his actions pursuant to those directions.  He frankly concedes his error, but the responsibility was not his.

    KLC’S SUBMISSIONS

21. In para 3 of its submissions, KLC submits that the PBC is effectively the successor to the Applicant in connection with the determination area. No doubt the claim group represented by the Applicant is, wholly or substantially, comprised of the same people as those on whose behalf the PBC holds the determination area. No doubt, too, the Applicant, as presently constituted, is wholly or substantially comprised of the same people as comprised the Applicant when the determination was made. In those circumstances, it might well be convenient, and not necessarily unfair to the other parties, if it were possible to construe the relevant provisions of the Native Title Act in a way which permits amendment, or otherwise justifies the inference that the PBC should be treated as having complied with s 32(3). However nothing is gained by asserting that the PBC is the successor, in some sense, to the Applicant. At no time did the Applicant have title to the determination area. The applicant for a native title determination is merely the moving party in the litigation which leads to a determination. The eventual determination is not that the relevant applicant holds native title, but that the claim group has such title. A prescribed body corporate derives its title pursuant to a court order. There seems to be a suggestion that the Applicant, the PBC and, perhaps, the Bunuba People can simply be treated as one entity for the purposes of s 32(3). No principled basis is advanced for such an approach.

22. KLC then submits that correction of the “administrative error” will not prejudice GE.  Characterizing the error as being “administrative” says nothing about its consequences.  Further, the absence of prejudice to other parties does nothing to establish that the Tribunal has power to relieve the PBC from the consequences of its inaction.  KLC submits that the Tribunal has an implied power to amend documents such as a form 4 objection.  In this regard it relies upon a decision of the Tribunal in Richard Evans v Western Australia [2000] NNTTA 84, in which Member Sumner appears to have held that given the content of s 109 of the Native Title Act, the Tribunal has an implied power to amend an objection. With all respect, I cannot accept that view. It is the filing of the objection which confers jurisdiction on the Tribunal to make a determination pursuant to s 32(4). There is no express power to amend an objection, or to extend the time within which such an objection may be filed. Such powers are commonly included in legislation. Had Parliament intended that the Tribunal have them, it would have conferred them expressly, not by the enactment of s 109. That section concerns the way in which the Tribunal deals with its work, not the circumstances in which its jurisdiction arises. In effect, the submission is that in its work, the Tribunal can simply ignore the requirements of s 32(3) if it considers that it is appropriate to do so. In my view there is no power to amend an application which does not comply with the requirements of s 32(3) and the prescribed form.

23. KLC also submits that the Native Title Act and the regulations require only “substantial compliance” with the requirements of s 32(3), reg 4 and form 4. For present purposes, I am willing to accept that substantial compliance is sufficient. However there has been no attempt to identify the meaning of that expression in connection with s 32(3). To my mind, the minimum requirement would be identification of the objector and the grounds (broadly speaking) of the objection. Here, the PBC has not been identified as the objector. The objection describes the Applicant as the native title claimant in proceedings identified in the Tribunal as WC12/04. A search against that description would lead to the identification of a claim area which does not include the tenement area. Further, there has been no indication as to whether the adverse impact, and the evidence particularized in the purported objection apply to the claim area or the determination area. In the circumstances I am unable to conclude that there has been substantial compliance with s 32(3).

1. The real question is whether the PBC has satisfied the requirements of s 32(3). Clearly, it has not done so.

   AN IRRELEVANT AND MISCONCEIVED SUBMISSION

2. At paras 6 and 7 of its submissions, KLC seems to submit that the Tribunal ought to have detected the error and advised KLC of it at a time prior to the expiry of the objection period on 29 October 2018.  Given that the objection was lodged on 22 October 2018, KLC seems to submit that the Tribunal should have identified the error and advised KLC on or before Friday 26 October 2018 or on Monday 29 October 2018.  This submission assumes that the Tribunal’s primary function is to ensure that there are no errors in the relevant document.  The Tribunal’s procedures prior to acceptance include checking with geospatial and other records.  The volume of the Tribunal’s objection work is such that it cannot be expected to identify any fatal flaw in an objection within five or six working days of its lodgment.  In lodging objections, parties should not delay until the last minute.  KLC’s submission is misconceived and irrelevant for present purposes.

   OUTCOME

3. GE seeks dismissal of the objection pursuant to s 148(a) of the Native Title Act, referring to a number of earlier decisions of the Tribunal. As I consider that the Tribunal should refuse to accept the objection, there is no need to rely upon that provision.

4. In the circumstances, I decline to allow amendment of the objection. I direct that the objection not be accepted pursuant to s 77 of the Native Title Act.

   The Hon John Dowsett AM

   President