Northern Territory/Ben Ward & Ors/Ashton Exploration Australia Pty Ltd

[2001] NNTTA 119

NATIONAL NATIVE TITLE TRIBUNAL

Northern Territory/Ben Ward & Ors/Ashton Exploration Australia Pty Ltd, [2001] NNTTA 119 (24 October 2001)

Application No:  DO 01/03

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

And

IN THE MATTER  of an inquiry into an expedited procedure application

NORTHERN TERRITORY OF AUSTRALIA (government party)

And

BEN WARD & Ors (native title party)

And

ASHTON EXPLORATION AUSTRALIA PTY LTD (grantee party)

DECISION ON APPLICATION TO DISMISS APPLICATION s.148

Tribunal:       Mr John Sosso
Place:             Brisbane
Date:              24 October 2001

Catchwords: Native title – future act – proposed grant of exploration licence – expedited procedure application – application for dismissal of application under s 148 – as soon as reasonably practicable

Legislation:Native Title Act 1993 (Cth) – sections 148 and 190

Native Title Amendment Act 1998 Part 4 Schedule 5

Cases:Anaconda Nickel Ltd & Ors/Western Australia/Ron Harrington-Smith & Ors (Wongatha People) WF00/2-5, Deputy President Sumner, Member Sosso and Member Stuckey-Clarke, 8 December 2000

Maddalozzo v Maddick (1992) 84 NTR 27

McMillan v TIO (1988) 57 NTR 24

Wills v Whiteside [1987] 2 Qd R 284

[1] In its Statement of Contentions of 19 September 2001 the government party contended that the Tribunal did not have before it a valid objection application into which to inquire, and should therefore dismiss the application pursuant to section 148 of the Native Title Act 1993 (“The Act”). The essence of the government party’s contention was that the objector was not a native title party as defined by section 30 of the Act.

[2] In order to become a native title party in expedited procedure inquiries, a person must be a registered native title claimant.  If a person ceases to be a registered native title claimant, then that person automatically ceases to be a native title party – section 30(2).

[3] In this matter there is a registered native title claim – DC95/01.  This claim was lodged prior to 27 June 1996, and has remained on the Register of Native Title Claims since that time.  However, since the Act was substantially amended in 1998 and new registration provisions came into operation, it has not been subject to registration testing under the new statutory regime.

[4] The Federal Parliament explicitly dealt with the situation of pre 27 June 1996 registered claims in the transitional provisions in the Native Title Amendment Act 1998. Reference needs to be made to Item 11 in Part 4 of Schedule 5 of the amendment Act. Sub-item 3 provides as follows:

“Section 190A to be applied, with expedited consideration, to applications before 27 June 1996 where section 29 notice

(3) If:

(a)      the application was made before 27 June 1996; and

(b)a notice is given under section 29 of the new Act, or a corresponding provision of a law of a State or Territory covered by a determination under subsection 43(1) of the new Act or old Act, in relation to an act affecting any of the land or waters covered by the claim; and

(c)no such notice has previously been given in relation to an act affecting any of the land or waters covered by the claim;

the Registrar must:

(d)      consider the claim under section 190A of the new Act; and

(e)use his best endeavours to finish doing so by the end of 4 months after the notice is   given.

If he or she does not do so by that time, he or she must consider the claim under that section as soon as practicable afterwards.”

[5] In this matter the grantee party made application for the grant of exploration licence 22332 pursuant to the Mining Act (Northern Territory).  On 13 December 2000 the government party gave notice, pursuant to section 29, of its intention to grant the proposed exploration licence and included a statement that this act attracted the expedited procedure.

[6] It is clear that the Registrar was required to use his best endeavours to conclude consideration of this claim pursuant to section 190A by 13 April 2001. Having failed to consider the claim by that date, the Registrar was required to do so as soon as practicable thereafter.

[7] More than six months has since elapsed with no action having been taken; and no indication that it is about to be taken.  In its Further Statement of Contentions, the government party made these submissions:

“13.  The mandatory nature of these requirements and the expedited statutory timeframes for   s.75 applications means that, at the extremity, another month might capture what was intended to be “as soon as reasonably practicable afterwards’.  This would allow 5 months from the notification date for the task to be finalised.  Ten months has since expired.

14.     In the normal RTN context, for example, this ten months would allow claimants to a claim which has not yet been registration tested by the Registrar under s.190 NTA to potentially participate in negotiations, suffer a s.35 application and be well on the road to an arbitrated outcome – all without yet becoming a “native title party”.

15.     Also, s.32(4) NTA permits a native title party to lodge an objection with the Tribunal within the period of four months after the notification day.  To stretch this term to ten months permits pre-27 June 1996 applicants to have, unfairly, more than double the time of other native title applicants.

16.     In these circumstances, whilst an entry may exist on the Register for pre 27 June 1996 purposes, the Objectors are not registered native title claimants within 2.30 NTA and are not thus a “native title party” for the purposes of the notice posted on 13 December 2000.

17.     As there is no “native title party”, the Tribunal cannot have an objection application into which to inquire and should dismiss the application pursuant to s.148(a) NTA for want of jurisdiction.”

[8] The native title party contended that the note annexed to subparagraph 29(2)(b)(i) clarifies that registered native title claimants are  persons whose names appear on the Register of Native Title Claims as applicants. On 13 December 2000 – the date that the government party gave notice pursuant to section 29 – the names of the objectors appeared on the Register. As to the contentions of the government party, the following submission was made (Objector’s Reply to the Contentions of the government party dated 17 October 2001):

“82. The transitional provisions set out in Table A set out time limits regarding the Registrar’s performance of that function [Sub item 4(3)]. Notwithstanding those time limits, if they are not met, the decision whether the claim satisfies the conditions in sections 190A and 190B is still yet to be made.  Therefore, the Registrar is unable to remove the details of the claim from the Register.  Until that decision is made a person on the Register of Native Title Claims continues to be a registered native title claimant.

83. For the purposes of any notice served under s29 they are a native title party.”

[9] As indicated the thrust of the government party’s contentions were directed to the issue that the Registrar had not fulfilled his statutory obligations by registration testing DC 95/01 “as soon as reasonably practicable” after the expiration of four months from the date the government party gave notice pursuant to section 29.  This is not a line of argument that needs to be considered at great length.  Certainly there are various judicial pronouncements that the terms “as soon as practicable” or “as soon as reasonably practicable” are to be interpreted in a more flexible manner than the phrase “as soon as possible” – Wills v Whiteside [1987] 2 Qd R 284 per Andrews CJ at 288. What amounts to “as soon as reasonably practicable” can only be determined by a close examination of the relevant statutory regime and factoring in the normal and reasonable procedures of the administrative decision-maker and the surrounding circumstances.  In the Northern Territory case of McMillan v TIO (1988) 57 NTR 24, Gallop J said (at 26-27): “My present task is to ascertain the meaning of the phrase ‘as soon as practicable’ as used in s31(1) and to consider its relevance to the exercise of the discretion conferred by s31(2). The phrase ‘as soon as practicable’ is designed to impose a reasonably practical time limit after the subject accident for making a claim under the Act.  What is a  reasonably practicable time must vary according to the circumstances. No doubt all the surrounding circumstances relative to the claimant must be taken into consideration, as in every other case where it falls to a tribunal to decide what is reasonable.”  See also Maddalozzo v Maddick (1992) 84 NTR 27.

[10] There is not sufficient material before this Tribunal to determine if the requirement to re-registration test this claim has not been carried out “as soon as reasonably practicable” after the expiration of four months.  The Courts have consistently held that when the legislature reposes in a decision maker leeway for the making of a decision, that a mechanistic application of time constraints on that decision maker is inconsistent with the intention of Parliament.  In some circumstance a very tight time frame may be appropriate having regard to all the circumstances, whereas in other situations what is reasonably practicable may require great latitude being afforded.

[11] Clearly the Federal Parliament envisaged in this instance that registration testing may not be concluded within four months, and specifically enabled the Registrar to registration test a claim after that time.  It could well be that in certain circumstances that a delay of one month after the four months limit would be unreasonable, or, conversely, that delaying the registration testing of a claim, for six months, would be reasonable. However, it is important to bear in mind that the Federal Parliament has specifically legislated on the matter of re-registration testing old Act claims when future act proceedings are initiated, clearly because of the very tight timeframes within which future act proceedings must be concluded.

[12] I have not dealt with this matter at any length, because even if this Tribunal did form the view that the Registrar had not acted as soon as reasonably practicable (a matter which I express no view on) no result would flow from such a conclusion. The Tribunal has before it an objection lodged by a registered native title claimant. There is a claim currently on the Register. The Registrar has not removed the claim. The failure of the Registrar to consider the claim under section 190A in no way alters its current registration status.

[13] In short, the Tribunal when conducting this inquiry has an objector whose claim is on the Register.  Such a person properly falls within the class of description of  a “native title party” within section 30.

[14] A Tribunal Member conducting an expedited procedure inquiry is neither required or empowered to look behind or beyond the Register in matters such as this.  There are circumstances where a serious jurisdictional challenge is made and the Tribunal is not bound by fact that an objector is on the Register – Anaconda Nickel Ltd & Ors/Western Australia/Ron Harrington-Smith & Ors (Wongatha People), WF00/2-5, Deputy President Sumner, Members Sosso and Stuckey-Clarke, 8 December 2000 – but this is not such a situation. If the government party wishes to pursue this line of contention then the National Native Title Tribunal is not the appropriate forum for it to obtain the relief sought.

[15] Before concluding, however, I do place on the record my concern that at an advanced stage of an expedited procedure inquiry, the clear  intention of the Federal Parliament has not yet been addressed.  It is patently obvious that when a future act process is initiated that the Parliament intended that the Tribunal would re-registration test pre 27 June 1996 claims in an expeditious fashion.  This is especially the case when there is an expedited procedure inquiry.  Obviously it is in the public interest that the same registration test standards are applied to all expedited procedure objectors.  It would be potentially unfair if an inquiry was concluded before the re-registration test was applied.  It would be unfair not just to those claimants whose claims have failed the registration test, and thus who have been deprived of the valuable right to negotiate, but also to government and grantee parties who are required to participate in a costly inquiry, the basis of which may be undermined by the results of the re-registration test.

[16] There may well be very sound reasons why the Registrar has not yet considered DC95/01 under section 190A. The type of factual circumstances the Registrar may be confronted with, and the need for the Registrar to act not only in a timely but also a procedurally fair manner, necessitates the degree of latitude in the timing of the section 190A consideration which the Commonwealth Parliament has allowed. Consequently, I am not critical of the fact that DC95/01 has not yet been considered under section 190A. However, the policy of the future act provisions is predicated on there being registered native title claimants, and that all of those claims have been considered in a uniform manner pursuant to section 190A. The Commonwealth Parliament has mandated not just a threshold test, in the form of registration testing, for those claimants having the benefit of the right to negotiate, but also a level playing field amongst and between native title claimants. Not applying the re-registration test to old Act claims in an expedited manner once a section 29 notice is issued does not facilitate this fundamental and basic statutory objective.

Determination

[17] The application by the government party, pursuant to section 148, that the objection of the native title party be dismissed, is not upheld.

John Sosso

Member
24 October 2001