Noelene Margaret Edwards & Ors (Wongkumara People)/Queensland/Gellard Enterprises Pty Ltd
[2010] NNTTA 20
•16 February 2010
NATIONAL NATIVE TITLE TRIBUNAL
Noelene Margaret Edwards & Ors (Wongkumara People)/Queensland/Gellard Enterprises Pty Ltd, [2010] NNTTA 20 (16 February 2010)
Application No: QO10/39
IN THE MATTER of the Native Title Act1993 (Cth)
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IN THE MATTER of an inquiry into an expedited procedure objection application
Noelene Margaret Edwards, Clancy McKellar, Iona Dawn Smith, Ernest Ebsworth, Rosemary Anne Wilson, Margaret Anne Collins, Sharleen Louise Knight and Archie Ebsworth on behalf of the Wongkumara People
(native title party)
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The State of Queensland (government party)
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Gellard Enterprises Pty Ltd (grantee party)
DECISION NOT TO ACCEPT EXPEDITED PROCEDURE OBJECTION APPLICATION
Tribunal: John Sosso
Place: Brisbane
Date: 16 February 2010
Catchwords: Native title – future act – proposed grant of exploration permit – expedited procedure objection application – non-compliant documentation – expedited procedure objection application not accepted.
Legislation:Native Title Act 1993 (Cth) ss 29, 32, 77, 109, 237.
Cases: Brown v Queensland (2005) 190 FLR 389
Dixon v Northern Territory (2001) 166 FLR 29
Northern Territory v Ward (2001) 167 FLR 398
Ward v Northern Territory (2002) 169 FLR 303
REASONS FOR DECISION NOT TO ACCEPT EXPEDITED PROCEDURE OBJECTION APPLICATION
On 18 August 2009, the State of Queensland (“government party”) gave notice under section 29 of the Native Title Act 1993 (Cth) (“the Act”) of its intention to grant Exploration Permit for Mineral, EPM 17694 to Gellard Enterprises Pty Ltd (“grantee party”) and included a statement that it considered that this proposed future act attracted the expedited procedure. Pursuant to s. 29(4) 30 September 2009 was specified as the notification day.
[2] On 27 January 2010 each of the persons collectively comprising the Applicant for the Wongkumara People native title determination application (“native title party”) lodged with the National Native Title Tribunal (“Tribunal”) an expedited procedure objection application (Form 4) pursuant to s. 32(3). The address of the objector was stated to be care of Michael Owens & Associates, Solicitors of Townsville.
On 1 February 2010 each of the persons collectively comprising the Applicant for the native title party lodged with the Tribunal another expedited procedure objection application in relation to the proposed future act. The address for the objector in this application was stated to be Eddy Neumann Lawyers of Sydney.
On 9 February 2010, Deputy President Sumner, as delegate to the President, appointed me as the Member to constitute the Tribunal for the purpose of the expedited procedure objection inquiry.
The Tribunal notified both stated legal representatives of the native title party that the Tribunal would be convening a Status Conference on 10 February 2010 to deal with this matter. The purpose of the Status Conference was to ascertain which legal representative held instructions from the native title party and which expedited procedure objection application had to be considered for acceptance pursuant to s. 77. It is important to note that in an expedited procedure objection inquiry a native title party in all but exceptional cases, can only be represented by one legal representative, except when the interests of procedural fairness otherwise require it – Ward v Northern Territory (2002) 169 FLR 303. As was pointed out in that matter (at 311): “Multiplicity of representatives for a native title party is a sign, as a general rule, that the claim group is split into factions and could lead to conflicting evidence. This in turn would raise a number of threshold legal issues that may result in the inquiry process becoming untenable.”
On 9 February 2010 Ms Tamara Medill of Michael Owens & Associates emailed the Tribunal as follows:
“We hereby give notice of Withdrawal of the Objection filed on 27 January 2010 by this firm on behalf of the Native Title Party for EPM 17694.
Could you please amend your records accordingly and confirm that the objection has been withdrawn in due course.”
Consequently, at the Status Conference there was only one legal representative appearing for the native title party (Mr. Neumann) and only one expedited procedure objection application to consider pursuant to s.77.
The expedited procedure objection application lodged by Eddy Neumann Lawyers had some obvious defects. The first of these was that, although in paragraph 1 each of the persons comprising the Applicant were named there was no mention of which claim group they represented. In the covering letter dated 29 January 2010 the native title party was specifically referred to. Mr Neumann contended that the Tribunal should read the expedited procedure objection application together with the covering letter. In addition to this there was also mention at paragraph 6 of the proposed tenement. Therefore, taken together, it was clear on whose behalf the persons comprising the Applicant had lodged their objection.
The Tribunal, when determining whether to accept an expedited procedure objection application, will approach its task in a common sense and non-technical way. The Tribunal is required to carry out its functions in a fair, just, economical, informal and prompt way – s.109(1). In doing so, the Tribunal is not bound by technicalities, legal forms or rules of evidence – s.109(3). Consequently, when determining whether to accept an expedited procedure objection application, the Tribunal will approach this task by looking at the totality of the material before it and being careful not to deprive a native title party of its right to object unless it is clear that the objection application is manifestly defective in a key area. In short, a beneficial approach to the question of acceptance of expedited procedure objection applications is adopted so that the key issues set out in s.237 can be properly ventilated and not avoided due to an overly technical approach to the acceptance of Form 4s.
[10] One of the key requirements when completing a Form 4 is to address the requirements of paragraph 7. This paragraph requires the objector to provide a statement why the objector believes the proposed future act is not an act attracting the expedited procedure and includes a statement of the likely impact of the future act on community or social activities of the native title holders, areas or sites of particular significance and any land or waters concerned. The only information provided under this paragraph was as follows:
“The objectors believe the proposed act is not an act attracting the expedited procedure for the reasons set out in attachment ‘B’.”
However, no attachment was annexed to the Form 4, and no document dealing with the matters outlined in paragraph 7 has been provided to the Tribunal in any form whatsoever.
[11] In a number of determinations, commencing with Dixon v Northern Territory (2001) 166 FLR 29, the Tribunal has found that paragraph 7 of Form 4 is of central significance to the acceptance or non-acceptance of an expedited procedure objection application. The material required to be addressed in this paragraph goes to the heart of whether the assertion of the expedited procedure by the government party may be well founded or not. The completion of this paragraph puts both the government and grantee parties on notice of any substantive concerns that a native title party may have. To the extent that these parties are put on notice of such concerns at the outset, it increases the likelihood of a consensual outcome. As was explained in Northern Territory v Ward (2001) 167 FLR 398 (at 417):
“Without a proper and sensible response to par 7, therefore, the Tribunal and the other parties are inexorably drawn into an inquiry process, and only during the course of that inquiry are the other parties alerted to the real reasons underlying the objection. All in all this is a very unsatisfactory situation and one which both lengthens and makes more costly an expedited procedure inquiry. To that extent, failure to provide the information envisaged by par 7, runs counter to the requirement that the Tribunal carries out its functions in a fair, just, economical and prompt way (s 109(1)).”
[12] The reality is that in the vast majority of instances when a government party asserts the expedited procedure, the parties reach an accord. The completion of a Form 4 is not a mechanistic exercise designed to comply with an arid bureaucratic requirement. It puts the government and grantee parties on notice of a native title party’s concerns. Failure to properly complete a Form 4 should be seen not just as an oversight, but as a possible impediment to a consensual outcome.
[13] It was also pointed out in Northern Territory v Ward (at 417) that assessing a Form 4 necessarily involves a degree of flexibility because of the range of factors that have to be taken into account. The Tribunal is required to consider not just the actual response, but the circumstances surrounding that response. This contextual analysis is particularly important when regard is had to the limited time allowed for the making of an objection, the number of section 29 notices that are published, the fact that many claim groups do not have legal representation and questions of distance, remoteness and climate.
[14] Mr Neumann made two submissions to the Tribunal. His first was that if there were deficiencies in the Form 4 he lodged on behalf of the native title party, those defects could be remedied by reliance on the Form 4 lodged by Mr. Owens. As was previously pointed out the other expedited procedure objection application was withdrawn. The Tribunal has before it only one Form 4, it is therefore not possible for Mr Neumann to rely on a document that is not before the Tribunal and which has no legal status. Moreover, when considering whether to accept a Form 4 the Tribunal cannot go far beyond the actual Form 4. That document may be assessed in light of an accompanying letter or other document (for example, an Affidavit), or supplementary oral or documentary material which the Tribunal may give leave to be admitted to explain the Form 4 - see Brown v Queensland (2005) 190 FLR 389. The Tribunal may also give leave for the Form 4 to be amended, but only to cure technical or typographical errors. Leave will not be granted to amend after the four month closing date to cure substantive non-compliance.
[15] Mr. Neumann then contended that if there were deficiencies in paragraph 7, regard should be had to the information set out in paragraph 8. Paragraph 8 provides an outline of the type of evidence that the objector will produce to the Tribunal to satisfy the expedited procedure objection. Under this paragraph the following information was provided:
“1. Oral evidence from applicants who have carried out cultural surveys and clearances in the general area.
2. The experience of the applicants as the area could contain burial of ancestors.
3. The area is relatively undisturbed.
4. The area is within an area found by the applicants to be likely to contain areas and objects of significant cultural importance.”
The first issue is whether, in determining whether paragraph 7 has been complied with, regard should be had to another paragraph, especially when no reference is made to that paragraph in the material in paragraph 7. The Tribunal will approach its evaluation of compliance with a Form 4 in a commonsense manner, and when assessing compliance with a particular paragraph will look at the document as a whole. If there is a deficiency in the completion of a particular paragraph, it may be remedied by the material contained in another paragraph, even if there is no internal cross-referencing in the Form 4. The second issue is whether the material in paragraph 8 actually assists in the assessment of compliance with paragraph 7. The answer is clearly in the negative. The material in paragraph 8 is general and vague. There is a statement that there could be burials, that the area is relatively undisturbed, that the area is within an area where there is likely to be areas and objects of significant cultural importance. In short, there is nothing in paragraph 8 that greatly assists the Tribunal, except a few brief general statements that go nowhere towards addressing the issues outlined in section 237. A response of the type found in paragraph 8 of this Form 4 would be, in all likelihood, manifestly inadequate to satisfy the requirements of paragraph 7.
[17] Finally there is the central issue, namely whether the information contained in paragraph 7 is adequate. As pointed out, no information was provided and no attachment was ever lodged. There is no substantive information before the Tribunal as to why the native title party believes that the proposed future act is not an act that would attract the expedited procedure. In these circumstances the Tribunal is unable to accept the expedited procedure objection application.
Decision
[18] The expedited procedure objection application in relation to EPM 17694 lodged on behalf of the Wongkumara People is not accepted.
John Sosso
Deputy President
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