Norman Brown & Ors (Barada Barna Kabalbara and Yetimarla People#4)/Queensland/ Midas Resources Ltd
[2005] NNTTA 3
•4 February 2005
Reported at (2005) 190 FLR 389
NATIONAL NATIVE TITLE TRIBUNAL
Norman Brown & Ors (Barada Barna Kabalbara and Yetimarla People#4)/Queensland/ Midas Resources Ltd, [2005] NNTTA 3 (4 February 2005)
Application No: QO05/11
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
Norman Brown & Ors (Barada Barna Kabalbara & Yetimarla People#4) (native title party)
-and-
The State of Queensland (Government party)
-and-
Midas Resources Ltd (grantee party)
DECISION ON WHETHER TO ACCEPT THE EXPEDITED PROCEDURE OBJECTION APPLICATION
Tribunal: John Sosso
Place: Brisbane
Date: 4 February 2005
Catchwords: Native title – future act – proposed grant of an exploration permit – mineral – expedited procedure objection application – whether to accept the application – who may make the application – application cannot be made by an individual registered native title claimant – amendment of Form 4 after the time prescribed in section 32(4) - application accepted
Legislation: Acts Interpretation Act 1901 (Cth) s 36
Native Title Act 1993 (Cth) ss 29, 32, 61, 75, 76, 77, 253
Cases: Ankamuthi People v Queensland (2002) 121 FCR 68
Button v Chapman [2003] FCA 861
Kanak v National Native Title Tribunal (1995) 61 FCR 103
Morton v Hampson [1962] VR 364
Michael Page/Northern Territory/Norman Sydney McCleary [2002] NNTTA 72 (3 May 2002), Member Sosso
Northern Territory v Ward (2001) 167 FLR 398
Richard Evans on behalf of the Koara People/Western Australia/Australian Gold Resources Ltd [2000] NNTTA 84 (28 February 2000) Member Sumner
Susiatin v Minister for Immigration and Multicultural Affairs (1998) 83 FCR 574Yarran v Western Australia (2003) 177 FLR 34
Hearing date: 25 January 2005
Representative of the native title party: Mr Peter Gore
Representative of the grantee Party: Mr Alan Thompson
Representative of the Government party: Mr Rod Beausang
REASONS FOR DECISION TO ACCEPT THE EXPEDITED PROCEDURE OBJECTION APPLICATION
[1] On 15 September 2004 the State of Queensland (“the government party”) issued a notice pursuant to section 29 of the Native Title Act 1993 (“the Act”) that it proposed, inter alia, to grant Exploration Permit (“EPM”) 14490 to Midas Resources Ltd (“the grantee party”) and included a statement that it considered this act attracted the expedited procedure.
[2] EPM 14490 consists of two parts, each of which is located to the south-east of Nebo. Together they comprise an area of approximately 316 square kilometres. The proposed tenement is located within the boundaries of a registered native title determination application - the Barada Barna Kabalbarra & Yetimarla People #4. This application was filed with the Federal Court on 31 July 2001 and entered on the Register of Native Title Claims on 5 April 2002.
[3] There are 11 persons whose names appear in the Register as the Applicant in relation to the Barada Barna Kabalbarra & Yetimarla People#4 application. Those persons are: Ms Harriet Tanna, Mr Gibson Gela, Ms Alison Douglas, Ms Celeste Walsh, Mr Les Budby, Mr Norman Brown, Ms Lynette Brown, Mr Albert Brown, Mr Frank Budby, Ms Nicole Muller and Ms May James.
[4] On 17 January 2005 a Form 4 (Objection to Inclusion in an Expedited Procedure Application) was lodged with the National Native Title Tribunal (“the Tribunal”). Section 32(3) of the Act provides: “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.” The Form 4 was lodged outside the four months period from the notification date - s.32(3). However, there are two matters that need to be taken into account.
[5] First, in the normal course, when the expression “within” is used in an enactment, it should be read as exclusive of the day of the act in question – see s.36(1) Acts Interpretation Act 1901 (Cth). Thus in Morton v Hampson [1962] VR 364 the Full Court said (at 365): “The modern rule in relation to a period of time fixed by statute ‘within’ which an act is to be done after a specified event is that the day of the event is to be excluded; the next day is the first day of the stipulated period and the time expires on the last day of the period, counting from and of course including the first day.” See also Susiatin v Minister for Immigration and Multicultural Affairs (1998) 83 FCR 574 at 580-581 per Beaumont J.
[6] Second, where “the last day of any period prescribed or allowed by an Act for the doing of anything falls on a Saturday, on a Sunday…the thing may be done on the first following which is not a Saturday, Sunday” – s.36(2) Acts Interpretation Act 1901.
[7] Having regard to s.36(1) the four months period ordinarily would have expired on 16 January 2005, which was a Sunday. Accordingly, s.36(2) came into play, ensuring that the objection application could be lodged on 17 January, which in fact occurred.
[8] Paragraph 1 of the Form 4 lodged read as follows: “I, Norman Brown, object to the inclusion in the notice under section 29 of the Act of a statement that an act attracts the expedited procedure. The following information, and the documents referred to in this application are provided for the purposes of the objection.” It will be noted that the expedited procedure objection application was lodged in the name of Norman Brown alone, and not each of the persons who are jointly the Applicant and, therefore, jointly the ‘registered native title claimant’ – see ss 61(2) and 253. Moreover, in no other paragraph of the Form 4 was it stated, explicitly or implicitly, that Mr Brown had lodged the Form 4 on behalf of the other registered native title claimants, or with their consent or knowledge.
[9] Section 75 provides that an expedited procedure objection application may be made by a “native title party”. This term is explained in section 29, and, except where there is a registered native title body corporate (which does not apply in this matter), such a party is any registered native title claimant in relation to any land or waters that will be affected by the proposed future act.
[10] An expedited procedure objection application must be in the prescribed form and otherwise comply with the requirements of section 76. Under the Native Title (Tribunal) Regulations 1993 (Cth) Form 4 has been prescribed for the purposes of section 76. If a native title party has complied with the requirements of Form 4, then the Tribunal must accept the application – section 77. When the Act refers to the “Tribunal” accepting the application, it is referring to the Member presiding over the expedited procedure objection inquiry – see Northern Territory v Ward (2001) 167 FLR 398 at 406-407 for an extended discussion of this issue.
[11] The obligation imposed on a presiding Member when determining whether to accept a Form 4, in the absence of any objection by either the government or grantee parties, is relatively slight. Unless it is patently clear that there is a jurisdictional issue which must be addressed, a Member would in the normal course of events accept the Form 4 lodged and proceed with the inquiry. Furthermore, the Tribunal has determined that, with the exception of Paragraph 7 of Form 4 (with which strict compliance is required), a fair degree of latitude is given to native title parties when completing the other paragraphs. This is particularly the case as various Federal Court decisions have made it clear that the Act is to be given, where possible, a beneficial interpretation – see, for example, Kanak v National Native Title Tribunal (1995) 61 FCR 103 at 124 per Lockhart, Lee and Sackville JJ.
[12] In Northern Territory v Ward (2001) 167 FLR 398 I made these observations (at 415): “A Form 4 is directed primarily to a Government party and a grantee party. The type of information required in pars 1-6 while of great importance (names and addresses), could not be said to be of such vital and unique significance that any sort of failure to strictly comply with all applicable paragraphs at the date of lodgement would render the objection application invalid such that the relevant information could not be provided during the inquiry process.”
[13] One example of how the Tribunal approaches these matters is Michael Page/Northern Territory/Norman Sydney McCleary [2002] NNTTA 72 (3 May 2002). In that matter the objector named in the Form 4 was “Michael John Porter”, when in fact it should have been “Michael Page”. Michael John Porter was not a registered claimant and his name had been entered in error. It is important to note that the Form 4 made it clear that “Michael John Porter” had lodged the objection on behalf of the correctly named claim group. I made the following finding (at [12]):
“In this matter the expedited procedure objection application has identified the registered native title claim group. Neither the government and grantee parties were misled or confused as to the existence of the registered native title claim which is the foundation for the objection. The fact that the objector was misdescribed was unfortunate, but this misdescription is not of such a nature that it could be said that either the government or grantee parties were prejudiced. It would be different, for example, if both the objector and the claim group were misdescribed. It may well be that in such an instance that it could be said that the government and grantee parties were misled and that they would be prejudiced if the Tribunal permitted the correction of the error – see generally the comments of Olney J in Vulcan-Hart Corp v Vulcan Australia Ltd (1994) AIPC 91-110.”
[14] The issue in this matter is entirely different from that presented in the Michael Page inquiry. There was no suggestion in that matter that the Registered Native Title Claimant had not made the expedited procedure objection, the only question was whether a typographical error which resulted in a misdescription of the Applicant could be excused. In this matter the question is whether the objector has the legal authority to make the objection. If the objector does not have the requisite authority, then the Form 4 is invalid and the Tribunal lacks jurisdiction to proceed with the inquiry.
[15] The Form 4 before the Tribunal has been made in the name of only one of the 11 persons who are the Applicant. There is no statement in the Form 4 that Mr Norman Brown has made the objection with the knowledge and acquiescence of the other persons who collectively comprise the Applicant. In short the Form 4 has been completed by Mr Brown with the bald assertion that he alone is the objector and has launched the proceedings. The question is not whether the Registered Native Title Claimant has been properly authorised by the claim group. It is not the duty of the Tribunal in other than exceptional cases to go behind the Register of Native Title Claims. If there are registered native title claimants, then the Tribunal proceeds on the assumption that they have been properly authorised. The issue here is whether the named objector has any authority to lodge an expedited procedure objection application on behalf of the Registered Native Title Claimant, or whether the named objector has acted unilaterally and without authority.
[16] I convened a Conference in Brisbane on 25 January 2005 to give each of the parties an opportunity to address the Tribunal on this matter prior to a decision being made whether or not to accept the Form 4.
[17] Mr Gore, for the native title party, made a series of submissions. His first submission was to the effect that, irrespective of whether Mr Brown had lodged the Form 4 on behalf of the Applicant, he was entitled to independently lodge with the Tribunal a Form 4. He also submitted that it would be possible for each of the persons who constitute the registered native title claimant to lodge a Form 4 with respect to a proposed future act and to advance different submissions.
[18] The centrepiece of Mr Gore’s submissions was the wording of section 29(1)(b)(i) which imposes on a government party an obligation to give a section 29 notice to “any registered native title claimant (also a native title party)”. The term “registered native title claimant” is defined in section 253 to mean: “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.” It was submitted that because section 29 refers to “any” native title claimant in section 29, it was intention of the Parliament that any registered native title claimant could become a native title party to future act proceedings.
[19] The government party submitted that section 29 should be interpreted so that the term “native title party” referred to the Applicant in each matter, and that there could only be one Form 4 lodged for each claim group. In particular the government party rejected the suggestion that it was possible or sensible for multiple Form 4s to be lodged for an individual claim group. Mr Beausang drew my attention to the following statement of law by Deputy President Sumner in Yarran v Western Australia (2003) 177 FLR 34 at 42 - 43:
“It follows that a native title party, which is one of the three negotiation parties (the others being the government and grantee parties), with standing to participate in mediations and inquiries under the right to negotiate provisions of the Act, is all the persons named on the native title determination application acting jointly. It is a native title party that has standing to lodge an objection with the Tribunal (ss 32(3) and 75).
The fact that native title is generally considered to be held communally (Mabo v Queensland (No 2) (1992) 175 CLR 1 at 109-111; Risk v National Native Title Tribunal [2000] FCA 1589 at [30]; Western Australia v Ward (2000) 99 FCR 316 at [181]) supports the position that a native title party is the person or persons who jointly comprise the applicant and registered native title claimant and not each individual person named as the applicant.”
[20] Deputy President Sumner pointed out (at 43) that the purpose of the Act and its workability would be severely compromised if each person named as part of the Applicant and registered native title claimant could lodge objections and then seek to negotiate separate agreements in relation to them.
[21] Leaving aside policy considerations, the first issue is the proper interpretation of section 29. When reference is made to “any” registered native title claimant, it is, in my opinion, dealing with the situation where a proposed tenement overlaps more than one native title determination application. There may be a number of native title parties in an expedited procedure objection inquiry, each of which represents a separate claim group and each of which may raise different objections to the proposed future act.
[22] It is not accidental that the Act has been drafted in the singular when referring to a “registered native title claimant” and to the “applicant” with respect to each claim group. Native title proceedings are complex and difficult due in no small part to the fact that each native title determination application is brought on behalf of a number of people often who are geographically diverse. Not only are the legal principles underpinning native title novel, ever changing and complex, but managing native title litigation is itself a challenging exercise. The human, legal, financial, cultural and policy factors that come into play in such litigation set native title proceedings apart from all others. For these and no doubt other good reasons, the Parliament has ensured in various provisions of the Act that native title proceedings may only be brought by a person or persons authorised by the native title claim group – s.61. The person or persons so authorised are placed in an extremely important position. As Drummond J pointed out in Ankamuthi People v Queensland (2002) 121 FCR 68 at [8] “It is clear enough that it is only the named applicant who has control of the litigation instituted by the filing of the application for a determination of native title on behalf of the claim group. The other members of the group, so far as the Court is concerned and so long as the applicant remains the applicant in the proceedings have no authority to take any step in the proceedings.”
[23] Reference should also be made to section 61(2)(c) which provides: “the person is, or the persons are jointly, the applicant”. The key word is “jointly”. The Act requires that the persons who jointly comprised the Applicant, will act collectively not individually. Just as native title as a concept is communal, so too, the persons who are the legal “agents” for the claim group must act collectively. There is no scope in the Act to suggest that persons in whom the claim group has collectively reposed their trust and authority to advance their collective interests, have thereafter any implied authority to make decisions independently of the other persons who collectively constitute the applicant. Indeed as Justice Kiefel said in Button v Chapman [2003] FCA 861 at [9]: “the position of an applicant…does not involve a personal right.”
[24] Accordingly, the submission that one of the persons who collectively constitute the applicant has the authority to unilaterally lodge a Form 4 on behalf of a native title claim group is inconsistent with the scheme of the Act and the statutory role given to an applicant. An applicant, when comprised of more than one person, must act collectively and consistently. Any one of the persons who collectively comprise the registered native title claimant has no individual authority to act independently in lodging a Form 4, and any Form so lodged has no legal status. The presiding Member will, in such circumstances, not accept the Form 4 lodged as the Tribunal lacks the jurisdiction to conduct an inquiry.
[25] Commonsense dictates how the Tribunal will approach matters such as these. When a Form 4 is lodged by one of the named persons who collectively comprise the applicant, but the Form clearly states that the objector is acting “on behalf” of the registered native title claimant, or “with the authority” of those who jointly constitute the applicant or “with the consent” of the applicant, then, in the absence of any contrary information provided, the presiding Member will accept the Form 4 without further inquiry. If, at a later time in the inquiry, it comes to the attention of the Tribunal that the Form 4 was not lodged with the authority of the applicant, but that a person was acting unilaterally, then the issue will be re-opened as the Tribunal will have been conducting an inquiry without the requisite jurisdiction to do so. However, when, as in this instance, a Form 4 is lodged without any suggestion that the applicant collectively has determined to object to the assertion by the government party that the expedited procedure is attracted, the Tribunal is required, independently of any submissions from the government or grantee parties, to determine if it has jurisdiction to conduct an inquiry. It is then incumbent on the objector to satisfy the Tribunal that the objection has been properly instituted.
[26] Having disposed of that first series of Mr Gore’s submissions, he then moved on and informed the Tribunal that in fact Mr Brown had lodged the Form 4 with the knowledge and the approval of all of the people named as the applicant, but that his name alone appeared on the Form 4 because of a misunderstanding relating to lodgement fees.
[27] Mr Gore then submitted that in those circumstances one of two means was open to cure the defect in the Form 4.
[28] The first option was amending the Form 4 to make it clear that the objection had been lodged by the applicant collectively and not by Mr Brown individually. A native title party has four months after the notification day to lodge an expedited procedure objection – s.32(4). During that period of time a native title party is at liberty to amend any objection lodged without leave of the Tribunal. However, once the period for lodging objections has closed a native title party can only amend a Form 4 lodged with leave of the Tribunal. A distinction can be made between the period before and that after acceptance, however, in my opinion, the same principles apply in either case.
[29] The practice adopted by the Tribunal was clearly set out by Deputy President Sumner in Richard Evans on behalf of the Koara People/Western Australia/Australian Gold Resources Ltd [2000] NNTTA 84 (28 February 2000). It was pointed out that while there is no specific power in the Act enabling the Tribunal to allow amendments to right to negotiate applications, such a power must be implied to exist as a necessary adjunct to enable the Tribunal to properly carry out its functions and to operate in the manner required by section 109 (to operate in a fair, just, economical and prompt way). The amendments that would be permitted are designed to cure technical or typographical error. However, a substantive amendment to cure patent inadequacies in a Form 4 would not be allowed. Deputy President Sumner also pointed out that amendments, even if allowed, could not cure substantive non-compliance with the Act or the Regulations and in those circumstances an objection could not be accepted and must be dismissed for want of jurisdiction.
[30] In this matter the amendment sought is not a technical one, but goes to the heart of the Tribunal’s jurisdiction. There is not a technical or typographical error, but a deliberate completion of a Form with only one of the persons comprising the Applicant who has been named as the Objector. To allow an amendment of the Form 4 without more would not cure the defect. The Tribunal is not in a position to know if it has jurisdiction to proceed with the inquiry. To allow an amendment after the closing date which is intended to grant to the Tribunal a jurisdiction which it otherwise lacks is inappropriate and unsustainable. Accordingly leave was not granted to amend the Form 4 by adding the names of the omitted persons who collectively comprise the applicant.
[31] Finally, Mr Gore submitted that it was open to the Tribunal to receive further information from the native title party designed to explain the Form 4 so that the presiding Member could make an informed decision on whether to accept the expedited procedure objection application. In the past the Tribunal has determined that it is open to native title party to provide information during the inquiry process aimed at explaining issues in relation to a Form 4 – see e.g. Northern Territory v Ward at 415/[68].
[32] Before making a decision whether to accept a Form 4, a presiding Member may give leave to any of the parties to make submissions or provide information. The object is not to allow an amendment of the Form 4, or to supplement it, but to explain it. Thus in this matter, it would be not useful to allow the Form 4 to be amended by adding the names of all of the persons who are jointly the Registered Native Title Claimant, because the issue was whether Mr Brown was acting on their behalf. The simple addition of names once the lodgement period had closed fails to cure the central problem with this objection, which is whether the expedited procedure objection application has been properly made by the registered native title claimant or by one person unilaterally.
[33] I gave leave to Mr Gore to explain the situation, which he did. He informed me that Mr Brown was not acting independently and that the Form 4 had been lodged with the full knowledge and support of each of the persons who comprise the applicant. He subsequently forwarded some further material which was aimed at supporting that proposition. In the event, as Mr Gore is an officer of the court, I accepted his assurances but gave him 7 days leave to lodge any further material he thought appropriate.
[34] I was satisfied, having heard Mr Gore, that this objection was properly founded and that the failure to include all of the persons who are the applicant was due to a misunderstanding and not as a result of a deliberate attempt by Mr Brown to act unilaterally and without the knowledge and consent of the applicant.
[35] This matter highlights the importance of legal representatives providing careful advice on the completion of expedited procedure objection applications. The Tribunal operates in an informal manner and with the knowledge that many objectors have no legal representation and, even if they do, most legal representatives have little experience in this area of the law. Moreover, with the State of Queensland making increasing use of the expedited procedure to advance mineral exploration, especially in North-West Queensland, there are many time and logistic pressures being imposed on native title parties. All of these matters are factored into how the Tribunal processes applications and conducts it operations. Despite this, the Act requires a certain standard to be adopted when making an expedited procedure objection application, and if an application is patently deficient, an objector runs the risk that a Form 4 will not be accepted.
[36] In this instance, I convened a special Conference and gave each of the parties an opportunity to address the Tribunal. If Mr Gore had not given the Tribunal the additional information outlined I would have not accepted the Form 4, and having made that decision the State would have been at liberty to grant the tenement. I have set out at some length the background to this matter to alert other persons the approach adopted by the Tribunal and the obligations imposed on objectors. If, in the future, I am presented with a Form 4 which is as manifestly inadequate as the one before me, I will not accept it.
Decision
[37] The decision of the Tribunal is that the Form 4 lodged in Application QO05/11 complies with the requirements of section 76 of the Native Title Act 1993 and the Tribunal has jurisdiction to conduct an expedited procedure objection inquiry.
John Sosso
Member
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