Mr Allan Fisher, Ms Heather Tilberoo, Ms Gracelyn Smallwood, Mr Algon Walsh Jnr, Mr Colin McLennan, Mr David Miller, Mr Frank Fisher, Mr Patrick Walsh and Ors (Birri People)/Queensland/ Kitchener Mining Nl

[2005] NNTTA 33

Reported at (2005) 192 FLR 9

NATIONAL NATIVE TITLE TRIBUNAL

Mr Allan Fisher, Ms Heather Tilberoo, Ms Gracelyn Smallwood, Mr Algon Walsh Jnr, Mr Colin McLennan, Mr David Miller, Mr Frank Fisher, Mr Patrick Walsh and Ors (Birri People)/Queensland/ Kitchener Mining NL, [2005] NNTTA 33 (18 May 2005)

Application No:        QO05/99

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

- and -

IN THE MATTER OF a determination whether to accept an expedited procedure objection application

Mr Allan Fisher, Ms Heather Tilberoo, Ms Gracelyn Smallwood, Mr Algon Walsh Jnr, Mr Colin McLennan, Mr David Miller, Mr Frank Fisher, Mr Patrick Walsh and Ors on behalf of the Birri People 

(native title party)

- and -

The State of Queensland                (the government party)

- and -

Kitchener Mining NL  (the grantee party)

DECISION ON WHETHER TO ACCEPT AN EXPEDITED PROCEDURE OBJECTION APPLICATION

Tribunal:                  John Sosso
Place:  Brisbane
Date:     5 May 2005

Catchwords: native title – act attracting the expedited procedure – expedited procedure objection application – right to negotiate – objection inquiry process – future act – prescribed fee – when fees are not payable – decision whether to waive fee – Form 4 – non-acceptance of expedited procedure objection application.

Legislation:Native Title Act 1993 (Cth) ss. 29, 32, 76, 253

Native Title (Tribunal) Regulations 1993(Cth) regs 7, 8, 8A

Cases:Braganza v Minister for Immigration and Multicultural Affairs (2001) 109 FCR 364

Brierley v Reeves (2001) 51 NSWLR 689
  Kirk v Minister for Immigration and Multicultural Affairs (1998) 87 FCR 99
  Northern Territory v Ward (2001) 167 FLR 398

REASONS FOR DECISION ON WHETHER TO ACCEPT AN EXPEDITED PROCEDURE OBJECTION APPLICATION

[1] On 8 December 2004 the government party gave notice pursuant to section 29 of the Native Title Act 1993 (“the Act”) of its intention to grant additional “excluded land” under the Mineral Resources Act 1989 (Qld) under Exploration Permit 10408 to Kitchener Mining NL, and included a statement that the government party considered that the act attracted the expedited procedure.

[2] Michael Owens and Associates, the legal representative of the Birri People, lodged with the Tribunal an expedited procedure objection application. The Birri People is a registered native title claim, having been registered from 2 April 1998.

[3] In every respect, bar one, the expedited procedure objection application ostensibly complies with the requirements of the Act.

[4] Section 76 of the Act requires that an expedited procedure objection application must: “(d) be accompanied by any prescribed documents and any prescribed fee”.

[5] The Native Title (Tribunal) Regulations 1993 prescribes the relevant fee for s.76(d) – see Regulation 7. However, regulation 8 provides when fees are not payable. Of relevance, sub-regulation 8(b)(i) provides that a fee is not payable if the person liable to pay the fee is:

“(i) the holder of one of the following cards issued by the  Department of Social Security:

(A)a health care card;

(B)a health benefit card;

(C)a pensioner concession card;

(D)a Commonwealth seniors health card.”

[6] The scheme of the Act is to prescribe a fee for lodging an expedited procedure objection application, and then to prescribe that no fee is payable in enumerated circumstances.

[7] The fee for the lodgement of an expedited procedure objection application is payable by the native title party, which includes any registered native title claimant – s.29(2)(b). A registered native title claimant is “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.” – s.253.

[8] In this matter a Form 4 (“Objection to inclusion in an expedited procedure objection application”) was lodged with the Tribunal within four months of the notification day – s.32(3). However, the Form 4 was not accompanied by the prescribed fee – s.76(d).

[9] The legal representative for the native title party made application in correspondence forwarding the Form 4 for “relief from payment of the Application Fee pursuant to Reg 8 of the Native Title (Tribunal) Regulations 1993 on the basis that one or all of the persons liable to pay the fee fall within part (b) of that regulation.”

[10] The closing date for the lodgement of expedited procedure objection application fell on 8 April 2005.  By that date no material had been supplied to the Tribunal supporting the proposition that the native title party was not liable to pay the fee prescribed by Regulation 7.

[11] I am advised that the Brisbane Tribunal Registry telephoned the office of the legal representative on 19 April 2005 pointing out that the prescribed fee had not been paid and that a party asserting exemption from payment must lodge documentation to support that proposition.  A fax to the same effect was also sent to the legal representative on 19 April 2005.  The Brisbane Tribunal Registry again telephoned the legal representative of the native title party on 27 April 2005 requesting documentation in support of the fee waiver.  I am also advised that during that discussion, the legal representative indicated that the relevant documentation would be forwarded to the Tribunal by Friday 29 April 2005.  In fact no supporting documentation was sent by that date, or by time I made this decision.

[12] Acceptance or non-acceptance of expedited procedure objection applications is made by the Member of the Tribunal conducting the expedited procedure objection inquiry – Northern Territory v Ward (2001) 167 FLR 398.

[13] Section 76 requires an expedited procedure objection application to be accompanied by the prescribed fee. Two situations could arise. Firstly, a native title party does not pay the prescribed fee when the Form 4 is lodged but asserts that the fee is properly waived under the Regulations. The second, is where the prescribed fee is not paid and no assertion is made about the applicability of the Regulations.

[14] In the second case, a Tribunal Member is entitled to deal with the expedited procedure objection application on its face and not accept it without making any enquiries of the objector. Section 76(d) requires that an expedited procedure objection application be accompanied by the prescribed fee. A fee has been duly prescribed (regulation 7). However, the Regulations also prescribe that a fee is not payable in certain circumstances (regulation 8). If a native title party wishes to rely on the exemption from fee payment, then it must supply to the Tribunal material to that effect. A failure to assert that a fee is not payable by a native title party does not result in any obligation being placed on the Tribunal to make enquiries or to do anything further other than submit to the presiding Member the material to hand so that an acceptance decision can be promptly made. In the absence of an assertion that the circumstances outlined in regulation 8 apply, the Tribunal will proceed on the basis that a fee is duly payable under regulation 7. The payment of the prescribed fee is mandatory, and unless the native title party can rely on the circumstances outlined in regulation 8(a) or (b) or unless the Native Title Registrar has waived the fee under regulation 8(d), failure to pay the prescribed fee by the close of the objection period will result in the expedited procedure objection application not being accepted.

[15] In the first case, the Tribunal is put on notice that the objector contends that no fee is payable.  Nonetheless, the objector is obliged to provide material to the Tribunal to substantiate the assertion.  Procedural fairness requires that an objector be given a reasonable time to submit such material. However, what is a reasonable period of time depends on the facts of each case. Some factors that are relevant include:

(a)the time elapsing between the lodging of the Form 4 and the conclusion of the 4 month notification period;

(b)whether the native title party is legally represented;

(c)whether the native title party has previously lodged expedited procedure objection notices;

(d)whether the Tribunal has made contact with the native title party, either orally or in writing seeking the relevant documentation;

(e)the previous history of the native title party in dealing with such matters; and

(f)the practice of the Tribunal in the particular jurisdiction.

[16] It is also important to have regard to the fact that the Commonwealth Parliament has legislated for an alternative to the “right to negotiate” process in those circumstances where a government party considers that the future act attracts the “expedited procedure”. The very term “expedited procedure” carries with it the implication that the Tribunal will promptly determine pursuant to section 32(5) if the expedited procedure is attracted. The Act provides that the native title party can withdraw his or her objection (s.32(6)) or the government party can withdraw its statement about the expedited procedure (s. 32(7)). In the absence of either of those events occurring, the Tribunal is obliged to make a section 32(5) determination at the first reasonable opportunity. If the Tribunal did not do this, then the expedited procedure process would be overwhelmed by the weight of the number of outstanding objection applications, and the expedited procedure process would become a de-facto “right to negotiate” process.

[17] In the period 1 July 2004 to 31 December 2004 alone the State of Queensland issued 243 section 29 notices with statements asserting the expedited procedure. During that same period 71 expedited procedure objection applications were lodged with the Brisbane Registry of the Tribunal. The number of expedited procedure objection applications lodged with the Brisbane Registry has, in fact, steadily increased over the past eighteen months. In these circumstances there is a pressing and obvious need for the Tribunal to process expedited procedure objection applications in an efficient manner and for the presiding Member to make a decision on acceptance at the first practical opportunity. Until an acceptance decision is made the Member cannot commence to inquire pursuant to section 32(5), and having regard to the number of expedited procedure objection applications being lodged, delays in making an acceptance decision would create an untenable situation.

[18] The legal representative for the native title party is an experienced practitioner in this area and regularly makes application for the waiver of fees pursuant to Regulation 8. The legal practitioner is fully aware of the requirements of the Act, and the need to supply supporting documentation. In the case of the letter of 19 April 2005, the Registry alerted the legal practitioner to not only QO05/99 but a number of other expedited procedure objection applications for another native title party. In the case of the other native title party, supporting documentation was subsequently lodged.

[19] In my opinion the objectives of the Native Title Act 1993 and the role played by the expedited procedure objection process must be properly taken into account in making a decision whether to accept an expedited procedure objection application.

[20] In making my decision I have also considered various Federal Court decisions on the payment of fees under the Migration Act 1958 and Migration Regulations. Of most significance is the decision of the Full Federal Court in Braganza v Minister for Immigration and Multicultural Affairs (2001) 109 FCR 364.

[21] The case involved the failure by Mr Braganza to pay to the Migration Review Tribunal within the prescribed period the prescribed application fee pursuant to section 347 of the Migration Act 1958. An application for review under section 347 had to be made in the prescribed form (s.347(1)(a)), given to the Tribunal within the prescribed period (s.347(1)(b)) and “(c) be accompanied by the prescribed fee (if any).”  A fee was prescribed, but regulation 4.13 provided that an application could be made for fee waiver by the Migration Review Tribunal in cases of severe financial hardship. 

[22] Mr Bragazana lodged his application for review within the prescribed period and requested a fee waiver on the grounds of financial hardship. The waiver request was rejected by the Tribunal but Mr Bragazana asked it to reconsider the decision and for an extension of time to pay. Both requests were refused, and as Mr Bragazana had not paid the prescribed fee within the prescribed time, his application was rejected as being invalid. Mr Bragazana sought review of the Tribunal’s decision that the application for review was invalid.

[23] The Court (Wilcox, Weinberg and Stone JJ) upheld the appeal and said (375):

”where an applicant for a visa makes an application for a waiver of the prescribed fee in accordance with reg 4.13, and that application is made within the prescribed period, the application for review may be entertained; provided that the fee is either eventually waived, or paid within a reasonable time after the application for waiver is rejected. That is, s.347(1)(c) should be read as being subject to the qualification that, provided an application for waiver of the fee has been made within the prescribed period, the MRT is not prevented from considering the application for review merely because the prescribed has not been paid within the prescribed time.”

[24] The Court expressly distinguished the situation of where the application for fee waiver is made outside of the prescribed period. Where the prescribed period has elapsed and either the fee has not been paid or a waiver application has not been lodged, then an application has not been properly made and there is no jurisdiction to entertain the application -  Kirk v Minister for Immigration and Multicultural Affairs (1998) 87 FCR 99 and Brierley v Reeves (2001) 51 NSWLR 689.

[25] This situation is distinguishable to that facing the Full Federal Court. Here there was no application to waive the application fee pursuant to regulation 8(d). If there was such an application, then the normal course of events would have been for the presiding Member to have made an acceptance decision and, if the Form 4 is accepted, proceed with the inquiry. If, in due course, the Native Title Registrar had refused the fee waiver (and no review of the decision was sought in the Administrative Appeals Tribunal – regulation 8A(4)), the native title party would have been given a reasonable period to pay the fee. “Reasonable” in the context of this Act, would, however, be a very short period of time having regard to the statutory requirement to make a determination expeditiously.

[26] In this instance there is no exercise of any discretion in the Tribunal. The native title party has contended that no fee is payable. It has asserted that a state of affairs exists; in this instance that one of the persons who collectively comprise the Applicant has a health benefit card. It is incumbent on the native title party to provide some proof of this state of affairs. If it does so, then, subject to the Form 4 otherwise complying with the Act, the expedited procedure objection application would be accepted.

[27] There is no reviewable decision of the Tribunal, as there is with the exercise of a discretion to waive a fee on the basis of financial hardship (regulation 8(d)). Where it is contended that there is no prescribed fee because the native title party falls within certain enumerated categories that are exempt from payment, the threshold question is whether that state of affairs exists or not. A mere assertion that this state of affairs exists does not mean that it in fact does. In the absence of any evidence that this state of affairs exists, the Tribunal must proceed on the basis that the native title party is obliged to pay the prescribed fee.

[28] It must be borne in mind that the only material that has to be provided to the Tribunal to satisfy the presiding Member is a photocopy of the relevant health care, health benefit, pension concession or Commonwealth seniors health card.  The obligation is neither onerous or complicated.

[29] Decisions on acceptance of expedited procedure objection applications will be made in Queensland as soon as practicable after the closing date for objections. A native title party who asserts that the prescribed fee is not payable should provide documentation supporting that assertion either at the same time that the Form 4 is lodged or by the expiration of the notification period (s.32(3)). However, if supporting material is lodged after the closing date but before an acceptance decision is made, then the Tribunal will take that material into account.

Decision

[30] The decision of the Tribunal is that the Form 4 lodged in Application No QO05/99, not be accepted.

John Sosso
Member