Maitland Parker and Others on behalf of Martu Idja Banyjima/Western Australia/Consolidated Iron Pty Ltd

[2006] NNTTA 73

NATIONAL NATIVE TITLE TRIBUNAL

Maitland Parker and Others on behalf of Martu Idja Banyjima/Western Australia/Consolidated Iron Pty Ltd, [2006] NNTTA 73 (13 June 2006)

Application No:        WO06/113

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

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IN THE MATTER of an inquiry into an expedited procedure objection application

Maitland Parker and Others on behalf of Martu Idja Banyjima (WC98/62) (native title party)

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The State of Western Australia (Government party)

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Consolidated Iron Pty Ltd (grantee party)

DECISION TO NOT ACCEPT EXPEDITED PROCEDURE OBJECTION APPLICATION

Tribunal:           Hon C J Sumner, Deputy President
Place:                 Perth
Date:                  13 June 2006

Catchwords:     Native title – future act – proposed grant of exploration licence – expedited procedure objection application – s 29 notification day – application not lodged within four months of the notification day s 32(3) – s 29 notice withdrawn – objection application not accepted.

Legislation:        Native Title Act 1993 (Cth) ss 75, 76, 77, 139(b)

Acts Interpretation Act 1901 (Cth) ss 22, 32, 36

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

REASONS FOR DECISION

Background

1. On 16 November 2005, the Government party gave notice under s 29 of the Native Title Act 1993 (Cth) of its intention to grant exploration licence 47/1483 (‘the proposed licence’) to Consolidated Iron Pty Ltd (‘the grantee party’) and included in the notice a statement that it considered that the act attracted the expedited procedure. The proposed licence is 222.21 square kilometers, located 22 kilometres northerly of Wittenoom and falls within the Shire of Ashburton.

2. On 15 March 2006, Ned Cheedy & Others on behalf of the Yindjibarndi People (WC03/3) lodged an objection to the statement that the proposed licence attracts the expedited procedure. This objection was withdrawn on 13 April 2006 pursuant to an agreement reached.

3. On 17 March 2006, Maitland Parker and Others on behalf of Martu Idja Banyjima (WC98/62) (‘the native title party’) lodged an objection to the statement that the proposed licence attracts the expedited procedure.

4. Section 32 of the Act relevantly says:

   ‘s 32     Expedited procedure

   …

   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.

   …’

5. 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) (‘objection application’) 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)).

6. The issue that initially arose in this matter is whether an objection application which has been lodged outside the period of four months after the notification day specified in s 32(3) is a valid objection which can be accepted and inquired into. The decision whether to accept the objection application 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])).

Facts relating to lodgment of the objection application

1. There is no dispute that the Form 4 was received by the Tribunal on 17 March 2006.

2. According to the Tribunal’s calculation of the closing date, the expedited procedure objection application was received after the statutory time period for lodgment had expired. The Tribunal is of the opinion that by the operation of the Acts Interpretation Act 1901 (Cth) (s 22 – meaning of calendar month, s 36 – reckoning of time to be exclusive of the initial day, s 36(2) – Saturdays, Sundays and public holidays to be excluded) the date by which an objection should have been lodged was 16 March 2006. The notice was given on 16 November 2006, which date is to be ignored meaning that the objection should have been lodged before midnight on 16 March 2006 which is four months after the notification day. No weekend or public holidays were involved.

3. The s 29 notice, as issued by the Department of Industry and Resources (DoIR) incorrectly stated that the closing date for expedited procedure objection lodgment was 17 March 2006. After this problem was identified DoIR advised the Pilbara Native Title Service, the service arm of the native title representative body, that objection applications they intended to lodge in relation to the proposed licence should be done prior to 17 March 2006. However, Christensen Vaughan who were acting for the objectors were not notified that the closing date for the proposed licence was advertised incorrectly.

4. On 11 April 2006, the Tribunal wrote to the parties outlining its preliminary view that the objection had been lodged out of time and, therefore, the Tribunal lacked jurisdiction to accept it.  Parties were invited to make submissions as to whether the Tribunal could and should accept the objection within seven days of the date of the letter.

5. The Government party advised that it concurred with the Tribunal’s view and, after the native title party queried whether the s 29 notice was valid because of the incorrect date, agreed to withdraw and re-advertise the s 29 notice. All parties supported this course of action.

6. As the s 29 notification issued on 16 November 2005 with respect to the proposed licence is withdrawn the Tribunal no longer has before it notification of a future act, it no longer has jurisdiction to make a decision pursuant to s 32 of the Act nor to deal any further with the expedited procedure objection application.

Decision

1. The expedited procedure objection application is not accepted.

Hon C J Sumner
Deputy President
13 June 2006