Northern Territory v Ward
[2001] NNTTA 163
•21 December 2001
NATIONAL NATIVE TITLE TRIBUNAL
Northern Territory/Ben Ward and Others on behalf of the Miriuwung & Gajerrong People;
Moses Silver, Ishmael Andrews & Sammy Bulabul; Paddy Huddleston, Lenny Liddy, George Huddleston, Tony Kenyon, Robert Patrick Markham & Gabriel Hazelbane; Michael Page; Button Jones/Ashton Exploration Australia Pty Ltd; Stephen Darryl Moffatt; Grant Archer, David Langley & Jim Kastrissios; Arafura Resources N/L; Michael Daniel Teelow, [2001] NNTTA 163 (21 December 2001)
Application No: DO01/3, DO01/13, DO01/19 – DO01/23
IN THE MATTER of the Native Title Act 1993 (Cth)
- and -
IN THE MATTER of an inquiry into an expedited procedure objection application
The Northern Territory of Australia (Government Party)
- and -
Ben Ward and Others on behalf of the Miriuwung & Gajerrong People,
Moses Silver, Ishmael Andrews & Sammy Bulabul,
Paddy Huddleston, Lenny Liddy, George Huddleston, Tony Kenyon, Robert Patrick
Markham & Gabriel Hazelbane,
Michael Page, and
Button Jones (Native title parties)
- and -
Ashton Exploration Australia Pty Ltd,
Stephen Darryl Moffatt,
Grant Archer, David Langley & Jim Kastrissios,
Arafura Resources N/L, and
Michael Daniel Teelow. (Grantee parties)
DECISION ON WHETHER THE TRIBUNAL HAS JURISDICTION TO CONDUCT AN INQUIRY
Tribunal: John Sosso, Member
Place: Brisbane
Date: 21 December 2001
Catchwords: Native title – act attracting the expedited procedure – expedited procedure objection application – right to negotiate – objection inquiry process – future act – compliance issues – type of evidence – statutory and regulatory provisions – procedural irregularities – acceptance of forms lodged.
Legislation:
Acts Interpretation Act 1901 S25C
Bankruptcy Act 1966 S41(2)
Native Title Act (1993) (Cth) Ss 29, 31, 32, 35, 61, 75, 76, 77, 107, 108, 109, 110, 123, 124, 125, 130, 144, 145, 150, 233, 237
Cases:
Bendigo Bank v Williams (2000) 98 FCR 377
Brayson Motors Pty Ltd (In liq) v Commissioner for Taxation (1985) 156 CLR 651
Coney v Choyce [1975] 1 WLR 422
Dorothy and Thelma Tucker/Western Australia/Gold Partners Ltd WO00/393, Member Sosso, 24 August 2001
Federated Engine-Drivers and Firemen’s Association of Australasia v Broken Hill Pty
Co Ltd (1911) 12 CLR 398
Formosa v Secretary, Department of Social Security (1998) 46 FCR 117
Hamilton v Minister for Immigration, Local Government and Ethnic Affairs (1993) 48
FCR 20
Hilti (Australia) Pty Ltd v Millard (1997) 78 FCR 453
Howard v Secretary of State for the Environment [1975] QB 235
Hunter Resources v Melville (1988) 164 CLR 234
Kanak v National Native Title Tribunal (1995) 61 FCR 103
Kleinwort Benson Australia Ltd v Crowl (1998) 165 CLR 71
Liverpool Borough Bank v Turner (1861) 30 LJ Ch 379Mineralogy Pty Ltd v National Native Title Tribunal (1997) 150 ALR 467
Minister for Immigration and Multicultural Affairs v Hayman (1999) 90 FCR 120
Najarian v Minister for Immigration and Multicultural Affairs (2000) 175 ALR 695
North Ganalanja Aboriginal Corporation v Queensland (1996) 185 CLR 595
Northern Territory v Lane (1995) 59 FCR 332
Nugent v Brialkim Pty Ltd (1985) 61 ALR 725
Onea v Minister for Immigration and Multicultural Affairs (1997) 80 FCR 254
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355
Re Ma (1995) 58 FCR 444
Re Scerri (1998) 82 FCR 146
Re Smith (1995) 128 FLR 300
Re Waanyi People’s Native Title Application (1995) 129 ALR 100
Roy Dixon/Ashton Mining Limited/Northern Territory DO00/1-7, Deputy President
Franklin, 23 April 2001
Saraswati v R (1991) 172 CLR 1
Tasker v Fullwood [1978] 1 NSWLR 20
Western Australia/Richard Evans/ Australian Gold Resources,WO99/660, Hon C J
Sumner, 28 February 2000.
Wu v Minister for Immigration and Ethnic Affairs (1996) 64 FCR 245
REASONS FOR DECISION ON WHETHER THE TRIBUNAL HAS JURISDICTION TO CONDUCT AN INQUIRY
Introduction
[1] The government party has raised in its contentions to each objection lodged by the native title parties, a consistent series of submissions which focus on the extent to which there has been compliance with the requirements of Form 4. The essence of these submissions is outlined below.
[2] The contentions of the government party go to the jurisdiction of the Tribunal to deal with the contentions raised by the native title parties. In these circumstances there is an obligation on the Tribunal to make due inquiry as to whether it has the jurisdiction to consider the contentions – Mineralogy Pty Ltd v National Native Title Tribunal (1997) 150 ALR 467.
[3] Before dealing with both the law on this matter, as well as the contentions of both the government party and the native title parties, it is necessary to outline the background to the objections and the manner they were dealt with by the Tribunal as it has a bearing on the ultimate disposition of this matter.
Background
[4] By 11 April 2001 the Tribunal had been given 11 expedited procedure objection applications in response to section 29 notices issued by the Northern Territory, asserting that the expedited procedure was attracted over proposed tenements located in a specific geographic region of the Northern Territory (south west and south east of Darwin). These objections collectively were referred to by the Tribunal as “Group 4 objections”. Of that number, 10 were lodged by the Northern Land Council and one (DO01/03) was lodged on behalf of the Miriuwung and Gajerrong Peoples by the Miriuwung and Gajerrong Families Heritage and Land Council. Since that time, the Northern Land Council has become the legal representative for these objectors.
Substantially the same material is contained in each Form 4 lodged by the Northern Land Council. That lodged on behalf of the Miriuwung and Gajerrong Peoples contains different material in key respects.
[5] In his determination of 23 April 2001 in Roy Dixon/Ashton Mining Limited/Northern Territory DO00/1-7 Deputy President Franklyn analysed at some length, compliance issues pertaining to objectors complying with the requirements in Form 4. In light of the observations of Deputy President Franklyn, on 8 May 2001 the Tribunal issued Guidelines on Acceptance of Expedited Procedure Objection Applications.
[6] The Guidelines issued on 8 May 2001 took into account the observations of Deputy President Franklyn in Roy Dixon. Moreover the Tribunal sought comments from interested stakeholders on the revised Guidelines after they were posted on the web page.
[7] As will be noted, by the time the revised Guidelines were posted on the web page the objectors had already lodged their objections in each of the Group 4 matters. Whatever guidance the new material on the web page may have offered to potential objectors in the Northern Territory, this material came too late for the objectors.
[8] However, of perhaps even greater significance, each of the Group 4 objections now before the Tribunal were lodged before Deputy President Franklyn handed down his determination in Roy Dixon. Consequently whatever else may be said, the objectors in each of these matters lodged their Form 4s at a time when there was no comprehensive guidance on the completion of Form 4s other than that appearing on the Tribunal web page.
[9] While all of Form 4 is set out below, particular attention must be drawn to paragraphs 7 and 8.
Paragraph 7 requires:
“A statement why the objector believes that the proposed act is not an act attracting the expedited procedure that includes a statement of the likely impact of the act on community and social activities of the native title holders, areas or sites of particular significance and any land or waters concerned.”
Paragraph 8 requires:
“An outline of the type of evidence that the objector will produce to the National Native Title Tribunal.”
With respect to paragraph 7 the Tribunal Guide stated:
“The application must set out the ways the act will affect the native title holders, the land and any sites of particular significance. This should be set out with a short descriptive lead in, such as ‘The act is not an act attracting the expedited procedure because…’”.
The Guide gave this advice to objectors on paragraph 8:
“A brief summary of the type of evidence you will produce to the Tribunal to support the objection to the expedited procedure must be given. The type of evidence which could be used to support such a claim includes historical, anthropological and genealogical documents and evidence from you and other people, including experts. While only a summary is required it should be as precise as possible.
In the application this should be set out with a short descriptive lead in, such as ‘The type of evidence the applicant will produce to the National Native Title Tribunal to support the objection is…’”.
[10] The Form 4s prepared on behalf of objectors by the Northern Land Council all contained identical format responses to the questions posed in paragraphs 7 and 8.
[11] With respect to paragraph 7, an Attachment A was annexed to each Form 4. This Attachment set out two numbered paragraphs. The first numbered paragraph commences by stating:
“The claimants described in the application are, traditionally, the owners of the land and waters subject to the application (“the application area’). The native title rights and interests of the claimants include the following native title rights and interests which are also set out in schedule E of the application.”
The various claimed native title rights and interests are then set out.
[12] The second numbered paragraph then commences with: “Accordingly, the objector believes that the proposed act is not an act attracting the expedited procedure, as one or more paragraphs of section 237 are not satisfied, viz:”. In each case the relevant objector then sets out paragraphs (a) – (c) of section 237. No other information is contained in each Attachment A to assist the Tribunal.
[13] A different approach was adopted in the objection application of the Miriuwung and Gajerrong Peoples (DO00/03). The response to paragraph 7 was as follows:
“The Objectors believe that the proposed grant of the Exploration Licence over the area in question is not an act attracting the expedited procedure pursuant to section 237 of the Native Title Act 1993 (Cth) in that the proposed act:
(a) Is likely to interfere directly with the carrying on the community or social activities of the Objectors. The Objectors have a spiritual and physical connection with the land which is an integral part of the community life. Interference with the life of the community promotes spiritual, moral and social disturbance and breakdown.
(b) Is likely to interfere with areas and/or sites of particular significance in accordance with the traditions o f the members of the Objectors. There are areas and sites of particular significance within the area covered by the proposed grant of the exploration licences and there is a high probability that the proposed act will interfere with these areas and sites of particular significance.
(c) Is likely to involve major disturbance to land or waters concerned or create rights whose exercise will involve major disturbance to any land or waters concerned. The nature of the land means that it is susceptible to disturbance. Exploration work involves the use of machinery and clearing gridlines, access tracks and drilling holes which due to the fragile nature of the land, cause permanent disturbance to the land.”
[14] The responses to paragraph 8 by both sets of objectors are conspicuous by their brevity. The non-Miriuwung and Gajerrong Peoples objectors responded to paragraph 8 in this manner: “The objector intends to produce evidence, including historical, social and anthropological evidence, to the National Native Title Tribunal”. The Miriuwung and Gajerrong Peoples response was as follows: “The Objectors intend to produce direct evidence and anthropological and archaeological evidence as may be necessary to support their objection.”
[15] Upon lodgment of these various Form 4s with the Registry, Mr Ian Williams, the authorised decision maker (pursuant to section 130(5)) for section 77 acceptances, considered each of the expedited procedure objection applications and approved them. In so doing Mr Williams found that none of the Group 4 objections complied with paragraphs 7 or 8 of Form 4. Despite this he accepted the objection applications on the following basis:
“I consider it appropriate that I exercise the discretion in this case and accept the Group 4 objections, and I reach that conclusion for the following reasons:
(a) There is an implied discretion for the Tribunal to do so in this process (as outlined above by DP Franklyn in his findings).
(b) The revised Guidelines address the use of discretion by the decision maker in certain circumstances, and therefore the Guidelines reflect the findings of DP Franklyn.
(c) The decision of DP Franklyn and the revised Guidelines in response, both appeared after the 13 April 2001 closing date for the Group 4 objections.
(d) As outlined by DP Franklyn, the previous practice of the Tribunal has been to accept such applications, and it would lead to harsh consequences for the native title parties if the Group 4 objections were not accepted without notice being given.
(e) Such notice would be to advise potential objectors and their representatives that the Tribunal had a clarified view of what the Act and the Regulations require in relation to the completion of the Form 4. Notice to this effect has now been provided by the issuing of the revised Guidelines.
In his decision, Deputy President Franklyn, in addressing the purpose of the Form 4 said that:
‘It seems to me however that if the Form 4 is deficient but is accepted as a matter of discretion, and the evidence produced at the inquiry is such as to lead to the conclusion that the act does not meet each of the criteria of s237(a)(b) and (c), then the Tribunal must find, as a matter of law, that the act is not one attracting the expedited procedure regardless of any relevant omission by the objectors of information required by Form 4.’ (page 22)
I do not consider that it is preferred practice that an objection applications (sic) which does not comply with the Regulations be accepted on the basis of routine discretion, and that is not the case here. I consider that the use of discretion in this case to accept the Group 4 objections will not create a burden on subsequent downstream inquiries into whether the relevant acts attract the expedited procedure.
The use of discretion in this case does not intend to be inconsistent with the comments of Deputy President Franklyn or Member Sosso. Apart from the potential requirement to make a similar decision in relation to the Group 3 objections (which depends on a successful appeal on the s29 notice jurisdictional matter), there is little likelihood that decisions identical to this one will need to be made on future objection applications.
The exercise of discretion in these cases is consistent with the view that applicants be given reasonable notice of a change in acceptance practice that has been sufficiently established that it could be legitimately regarded as Tribunal policy.
I consider the decision to accept the Group 4 objections, in an unamended form, and using the discretion I have assumed, is the proper approach given all of the circumstances.”
[16] The government party, amongst other things, contended that there is nothing in the Native Title Act (1993) (“the Act”) that compels the Tribunal to accept Form 4s that “are empty of relevant information”. Further it was contended that a “beneficial interpretation of the NTA (the Act) cannot justify an arbitral inquiry of such lopsidedness.” Finally the government party commented that to have “the NNTT decision-maker claim that the exercise of discretion to accept this incomplete Form 4 under a s.77 discretion ‘will not create a burden on subsequent downstream inquiries’ is a nonsense.”
[17] In summary form, this is the background to the issue. It is now necessary to consider the relevant statutory and regulatory provisions and the contentions of the parties.
Legislative and Regulatory Framework
[18] Division 2 of Part 3 of the Act sets out the requirements for right to negotiate applications lodged with the Tribunal. Section 75 makes it clear that the provisions in Division 2 apply to expedited procedure objection applications. The key provisions are sections 76 and 77 which are as follows:
“76 Material and fees to accompany applications
An application must:
(a) be in the prescribed form; and
(b) be given to the Registrar; and
(c) contain such information in relation to the matters sought to be determined as is prescribed; and
(d) be accompanied by any prescribed documents and any prescribed fee.
77 Action to be taken in relation to applications
If an application complies with section 76, the National Native Title Tribunal must accept the application.
Note: The procedure to be followed in relation to these applications is set out in Subdivision P of Division 3 of Part 2.
[19] Section 32(3) requires that a native title party who wishes to lodge an objection with the Tribunal against the inclusion by the government party in a section 29 statement that the act attracts the expedited procedure, must do so within 4 months after the notification day – see section 29(4). Time is therefore of the essence for potential objectors.
[20] An expedited procedure objection application must be in the prescribed form – section 76(a). That form is prescribed under the Native Title (Tribunal) Regulations 1993. Form 4 prescribed by those Regulations is as follows:
“ Form 4
Paragraph 4(1)(a)
Native Title Act 1993
OBJECTION TO INCLUSION IN AN EXPEDITED
PROCEDURE APPLICATIONTo:
The Native Title Registrar
National Native Title Tribunal
[BEFORE COMPLETING THIS FORM, YOU SHOULD READ THE EXPLANATORY MATERIAL RELATING TO THE USE OF THE FORM THAT IS AVAILABLE FROM THE REGISTRAR]1. I,……………………………………, object to the inclusion in a 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.
2. Address of the objector.
3. Address for service of objector, including a telephone number and facsimile number (if any).
4. Name and address of the representative of the objector (if any) including a telephone number
and facsimile number (if any).
5. Whether the objector is the registered native title body corporate or a registered native title Claimant.
6. The government that issued the notice and the date of the notice.
7. A statement why the objector believes that the proposed act is not an act attracting the expedited procedure that includes a statement of the likely impact of the act on community or social activities of the native title holders, areas or sites of particular significance and any land or waters concerned.
8. An outline of the type of evidence that the objector will produce to the National Native Title Tribunal.
9. Any other relevant information.”
[21] It is also of relevance to note that when the Act was substantially amended in 1998, the Commonwealth Parliament recast the provisions dealing with right to negotiate applications. Sections 75-77 of the old Act provided as follows:
“ “Right to negotiate” applications
Applications that may be made
75.(1) The following table sets out applications that may be made to the Registrar under this Division and the persons who may make each of those applications:
APPLICATIONS Kind of application Application Persons who may make application Objection to inclusion in an expedited procedure application Application under subsection 32(3) objecting against the inclusion of a statement that an act is an act attracting the expedited procedure. A native title party Future act determination application Application under section 35 for a determination in relation to a future act. A negotiation party.
Form and contents
(2) An application must be in the prescribed form and be given to the Registrar. It must also contain such information in relation to the matters sought to be determined as is prescribed.
Material and fees to accompany applications
76. An application must be accompanied by any prescribed documents and any prescribed fee.
Action to be taken in relation to applications
77. If an application complies with section 75 and is accompanied by the things required by section 76, the Registrar must accept the application.
Note: The procedure to be followed in relation to these applications is set out in Subdivision B of Division 3 of Part 2.”
[22] It can be noted that under the old Act provisions, section 77 specifically referred to the Registrar as the person who accepted an expedited procedure objection application. However, under the new Act, acceptance in section 77 is by the National Native Title Tribunal.
[23] Section 107 provides for the establishment of the Tribunal, and section 108 sets out its functions. Section 110 provides that the Tribunal is constituted by the President and such number of Deputy Presidents and Members as are appointed by the Governor-General. The President may give directions to facilitate the business of the Tribunal including the persons who are to constitute the Tribunal for the purposes of a particular inquiry – section 123(1)(c). In addition, section 124 makes it clear that the Tribunal, for the purposes of a particular inquiry “must be constituted” by either a Member or 3 Members, not more than one of whom is a presidential member.
[24] Division 5 of Part 6 deals with both special and general inquiries held by the Tribunal. It is clear that such inquiries are conducted by the Member presiding – see e.g. section 144(1), 144(2), 145(2), 150(4).
[25] Accordingly, as a matter of statutory interpretation, when section 77 refers to the Tribunal accepting expedited procedure objection applications, it is referring to the Member presiding over that inquiry. It is not a reference to the Registrar or staff of the Tribunal, because the Act was specifically amended to delete the reference to the Registrar and replace it with a reference to the Tribunal. As indicated, the Act is drafted in such a way that the Tribunal is constituted for the purposes of a specific or general inquiry by the Member or Members presiding. Consequently, when a Member appointed to conduct an inquiry stops being a Member or becomes unavailable “the President must direct another member or members to constitute the Tribunal for the purposes of finishing the inquiry” – section 125(2).
[26] In conclusion, the Act draws a distinction between the management of the administrative affairs of the Tribunal (Division 4 of Part 6) and the conduct of inquiries. The Tribunal is constituted by Members for such inquiries, and only those Members are empowered to carry out the statutory functions reposed on the Tribunal by the Act. Thus when the Act requires the Registrar or staff of the Tribunal to carry out a task it makes a distinction between the duties of the Registrar or staff of the Tribunal and that of the Tribunal constituted by Members. In this regard, section 76 provides that an expedited procedure application must be given to the Registrar, but section 77 requires the Tribunal (i.e. the presiding Member) to accept that application if it complies with section 76. There is a clear dichotomy of functions. The Registrar and his staff have the administrative task of receiving and dealing with applications and the prescribed documents and fees. The presiding Member has the task of determining if there has been compliance with the Act and therefore either accepting the application or rejecting it.
Obligation on a Member when no issue is raised.
[27] If this analysis is correct, a situation which often arises is when neither the government party or the grantee party raises any objection to the Form 4 lodged by the native title party. The presiding Member is thus faced with a situation where there is no material before the Tribunal on the issue of whether the Form 4 complies with the relevant statutory requirements.
[28] In this situation unless it is patently clear that the native title party has not complied with the requirement to lodge an objection, there is no requirement placed on the Member to go behind the Form. Barton J in Federated Engine-Drivers and Firemen’s Association of Australasia v Broken Hill Pty Co Ltd (1911) 12 CLR 398 (at 428) made the following apposite comment: “where jurisdiction is not contested…very slight inquiry may be adequate, and many cases will, to the mind of the tribunal be so plainly within its competence that it will rightly forego inquiry unless the objection is taken, and the objector tenders proof of facts in its support.” See also Dorothy and Thelma Tucker/Western Australia/Gold Partners Ltd WO00/393, Member Sosso, 24 August 2001 at [5].
[29] Where no jurisdictional issue is raised, there is no obligation on the Tribunal to engage in a fishing expedition unless it is patently and obviously clear that there is a jurisdictional question which the Tribunal must address. Thus in the context of a Form 4 issue, if, for example, an objector has not used a Form 4 to lodge an objection or has not addressed most of the questions in the Form when one is used, then irrespective of whether a party has raised the matter, there would be a requirement placed on the Member to satisfy himself or herself that the Tribunal had the jurisdiction to deal with the objection. However, when an objector has completed a Form 4, and no other party raises an objection, there is no inherent duty placed on a Member to raise issues that could be raised and do the work of a party. The Tribunal has to rely on contentions of the parties before it; it is not the duty of the Tribunal to prepare contentions for a party or parties when none is prepared unless it is clear that the Tribunal has no jurisdiction to carry out its inquiry. In the absence of a clear case of want of jurisdiction, the Tribunal should proceed and complete its inquiry in the expeditious fashion envisaged by the Commonwealth Parliament.
Contentions of the parties
[30] The government party has raised in each of these objections contentions to the effect that the information contained in the various Form 4s did not disclose consequences
subsequently contended for, and that the native title parties should not be able to subsequently raise these consequences as:
(a)this would amount to a substantive amendment of the relevant Form 4s, and that the time for so amending had expired;
(b)adducing further grounds would surprise the government party and the various grantee parties, which action would be unjust and unfair;
(c)result in the commencement of proceedings when neither the government party or grantee parties knew the issues involved, thereby giving rise of unnecessary costs and delays – Roy Dixon/Northern Territory/Ashton Mining DO 00/01-07, 23 April 2001, Deputy President Franklyn (“Roy Dixon”);
(d) unnecessarily consume the resources of the Tribunal and the responding parties.
[31] In response, the various native title parties suggested that, as the Form 4 had been accepted by the Tribunal, it was therefore before the Tribunal for determination. Further, it was argued that the objectors had not only lodged the relevant Form 4s but had since lodged contentions, which had been replied to. Neither the government party or grantee parties were therefore surprised by any of those matters.
[32] In the alternative, the native title parties suggested that if the various Form 4s had not complied with the statutory requirements, the proper approach was to adopt the method of statutory interpretation outlined by a majority of the High Court in Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 (“Project Blue Sky”). If that approach to statutory interpretation was adopted, the native title parties argued, the Tribunal should hold that it was not Parliament’s intention that objectors be deprived of the valuable right to negotiate because of the adequacy or inadequacy of information provided in a Form 4.
[33] The various contentions of the government party and the native title parties on the adequacy of compliance with Form 4 and the consequences that flow therefrom, necessarily involve a consideration of the extent to which an objector has to comply with the requirements of that Form and further what discretion is vested in the Tribunal in the event of non-compliance.
Whether Tribunal Determination in Roy Dixon is binding
[34] The Tribunal (Deputy President Franklyn) recently considered the issue of compliance with Form 4 in a comprehensive determination – Roy Dixon. The determination of Deputy President Franklyn was, however, primarily directed to the issue of whether section 29 notices issued by the Northern Territory conformed with the relevant statutory requirements. In addition, however, Deputy President Franklyn also dealt with the Northern Territory’s submissions on jurisdiction which were based on the issue of whether the relevant objections lodged complied with the requirements of Form 4.
[35] The native title parties in this matter have submitted that I am not bound by previous Tribunal determinations. This issue was dealt with by Deputy President Sumner in Re Smith (1995) 128 FLR 300 who made these comments, with which I fully concur (at 305):
“The question has arisen of whether I am bound to follow the views of Mr Seaman QC on the issues of law that he has considered. The Tribunal is an administrative body so I do not believe that as a matter of law I am obliged, in the absence of any statutory direction, to do so. The Native Title Act contains no such provision and it has been put to me that there is no hierarchy in the Tribunal when considering these matters. A Deputy President has special responsibilities under the Act but in hearing matters of this kind is acting in the same way as a member. There is no appeal from the decision of a member to a Deputy President or President.”
Nevertheless Deputy President Sumner added that consistency in decision making is an important aspect of public administration, and unless there were special circumstances he intended to adopt Mr Seaman QC’s views on questions of law.
[36] While I am not bound by Deputy President Franklyn’s findings in Roy Dixon, there is one important distinction in this matter. The determination in Roy Dixon involved wholly the issue of the validity of section 29 notices. There is no reason to doubt that so far as that issue is concerned, Deputy President Franklyn’s findings remain undisturbed in the Northern Territory, and any discussion about Roy Dixon in the context of Form 4s is in no way a comment on the ratio of that determination (i.e. the sufficiency of section 29 notices).
[37] However, the comments Deputy President Franklyn made on Form 4s, while flowing from submissions made by the government party, were strictly obiter. They did not form part of the determination, and in my opinion are not binding on the Tribunal when considering these objections. That is not to say that the findings of Deputy President Franklyn are not persuasive (as they are); but they were not central to the determination of Roy Dixon.
Recent Court decisions on mandatory/directory provisions
[38] The contentions of both the government party and the native title parties turn on the issue as to the extent to which is an objector required to comply with Form 4. There is no doubt that in recent years the Courts in both Australia and the United Kingdom when considering the question of compliance with forms (and generally) have moved away from attempting to characterise the relevant legislative or regulatory provisions as either mandatory or directory.
[39] In Project Blue Sky, McHugh, Gummow, Kirby and Hayne JJ made these observations on the continued distinction between directory and mandatory requirements and directory acts that have substantially complied or not (at 390-391):
“They are classifications that have outlived their usefulness because they deflect attention from the real issue which is whether an act done in breach of the legislative provision is invalid. The classification of a statutory provision as mandatory or directory records a result which has been reached on other grounds. The classification is the end of the inquiry, not the beginning. That being so, a court determining the validity of an act done in breach of a statutory provision, may easily focus on the wrong factors if it asks itself whether compliance with the provision is mandatory or directory and, if directory, whether there has been substantial compliance with the provision. A better test for determining the issue of validity is to ask whether it was a purpose of the legislation that an act done in breach of the provision should be invalid…In determining the issue of purpose, regard must be had to ‘the language of the relevant provision and the scope and object of the whole statute.’”.
[40] The Honours referred to a decision of the New South Wales Court of Appeal – Tasker v Fullwood [1978] 1 NSWLR 20 in which the Court made the following observations (at 23-24):
“(1) The problem is to be solved in the process of construing the relevant statute. Little, if any, assistance, will be derived from the terms of other statutes or any supposed judicial classification of them by reference to subject matter.(2) The task of construction is to determine whether the legislature intended that a failure to comply with the stipulated requirement would invalidate the act done, or whether the validity of the act would be preserved notwithstanding non-compliance…(3) The only true guide to the statutory intention is to be found in the language of the relevant provision and the scope and object of the whole statute..(4)The intention being sought is the effect upon the validity of the act in question, having regard to the nature of the precondition, its place in the legislative scheme and the extent of the failure to observe its requirement. It can mislead if one substitutes for the question thus posed an investigation as to whether the statute is mandatory or directory in its terms. It is an invitation to error, not only because the true inquiry will thereby be sidetracked, but also because these descriptions have been used with varying significations…In particular it is wrong to say that, if a statute is couched in directory terms, the act will be invalid, unless substantial performance is demonstrated…A statute which, on its proper construction, does not nullify the act in question, even for total non-observance of the stipulation is also described as directory in its terms.”
The above decisions provide some guidance to a Tribunal engaged in the exercise of interpreting the words of a statute, which exercise in each case is designed to get to the real intention of the relevant law making body – Liverpool Borough Bank v Turner (1861) 30 LJ Ch 379.
[41] Just as undue emphasis on strict characterisation has led to errors in statutory interpretation, so too is the interposition of value judgments not founded on the objects of a statute or statutory instrument. As McHugh J said in Saraswati v R (1991) 172 CLR 1 at 22:
“where the text of a legislative provision is grammatically capable of only one meaning and neither the context nor any purpose of the Act throws any real doubt on that meaning, the grammatical meaning is ‘the ordinary meaning’ to be applied. A court cannot depart from ‘the ordinary meaning’ of a legislative provision simply because that meaning produces anomalies.”
[42] Also, while the above cases are helpful, it also needs to be kept in mind that in this matter what is being considered is the effect of compliance with a Form. In that regard reference can and should be made to section 25C of the Acts Interpretation Act 1901 (Cth) which provides as follows: “Where an Act prescribes a form, then, unless the contrary intention appears, strict compliance with the form is not required and substantial compliance is sufficient.” This formulation most probably reflects the common law – Hamilton v Minister for Immigration, Local Government and Ethnic Affairs (1993) 48 FCR 20.
[43] Finally, it is also been recognised by the Courts that given requirements “may be mandatory as to some of the integers therein and directory as to others” per Davies and Gummow JJ in Formosa v Secretary, Department of Social Security (1988) 46 FCR 117. Thus in Coney v Choyce [1975] 1 WLR 422 the Court held that regulations requiring public notice were mandatory with respect to the substantive requirements but only regulatory with respect to minor details. Similarly in Howard v Secretary of State for the Environment [1975] QB 235, the court found that the particular requirement in a planning appeal for stating the grounds of appeal was merely directory but the time for the appeal was mandatory.
[44] Accordingly when considering whether an objector has complied with Form 4 each of the requirements in that Form have to be considered in light of the principles enunciated in Project Blue Sky. Some requirements, when properly considered, may require strict compliance, some may allow substantial compliance and some may be ignored because they have no real bearing on the disposition of the objection. However, even if there has been compliance (whether strict or substantial) with the bulk of the requirements, it may be that there is in a Form, a requirement that goes to the heart of the matter, such that compliance with that requirement is essential and failure to comply (on whatever the standard may be) will prove fatal. As will be outlined hereafter, in the context of Form 4, the key requirement is paragraph 7. Compliance with this paragraph is a pre-condition to an objector’s application being accepted by the Tribunal.
Compliance in the context of the Native Title Act 1993
[45] With these principles in mind, it is important to look at the issue of Form 4 compliance in the context of the object of the Act and way in which its terms are drafted.
The Preamble to the Act provides, inter alia:
Justice requires that, if acts that extinguish native title are to be validated or to be allowed, compensation on just terms, and with a special right to negotiate its form, must be provided to the holders of native title…
It is particularly important to ensure that native title holders are now able to enjoy fully their rights and interests. Their rights and interests under the common law of Australia need to be significantly supplemented. In future, acts that affects that affect native title should only be able to be validly done if, typically, they can also be done to freehold land and if, whenever appropriate, every reasonable effort has been made to secure the agreement of the native title holders through a special right to negotiate. It is also important that the broader Australian community be provided with certainty that such acts may be validly done.
[46] While it would not be appropriate to place undue emphasis on the Preamble as a tool for the construction of specific provisions in the Act, nevertheless in numerous cases various judges have referred to the words in the Preamble as a highlighting the novel legal and administrative problems motivating the legislation as well as demonstrating the remedial nature of the legislation – e.g. Northern Territory v Lane (1995) 59 FCR 332, Kanak v National Native Title Tribunal (1995) 61 FCR 102 (“Kanak”) and North Ganalanja Aboriginal Corporation v Queensland (1996) 185 CLR 595 esp Kirby J at 653.
[47] Reference can be made in particular to the following observations of the Full Federal Court (Lockhart, Lee and Sackville JJ) in Kanak as follows (124):
“the preamble recognises the disadvantaged status of Aboriginal people as a group and the need for a special procedure for the just and proper ascertainment of native title. The legislation is clearly remedial in character and thus should be construed beneficially. So as to give the most complete remedy which is consistent with the actual language employed…It is therefore appropriate to adopt a construction that avoids harsh consequences flowing from a failure to observe procedural requirements specified in the Act.”
[48] The Act then contains in Division 3 of Part 2 a comprehensive code for future acts that affect native title. Division 3 is divided into Subdivisions A to Q, which each subdivision dealing with a particular aspect of the legislative regime governing future acts. Subdivision P sets out at some length provisions governing the right to negotiate.
[49] The Courts have commented on the value of the right to negotiate to native title holders and have recognised that the legislative provisions are designed to maintain the status quo until such time as a native title application is determined by the Federal Court. Thus in North Ganalanja Brennan CJ, Dawson, Toohey, Gaudron and Gummow JJ said (at 616):
“Thus, once a application for determination is accepted, the Act maintains the status quo between the registered native title claimant on the one hand and the Government and those having proprietary interests or seeking rights to mine on the other, unless the parties negotiate and agree on the resolution of their respective claims or a competent authority makes a binding decision.
It is erroneous to regard the registered native title claimant’s right to negotiate as a windfall accretion to the bundle of rights for which the claimant seeks recognition by the application. If the claim is well founded, the claimant would be entitled to protection of the claimed native title against those powers and interests which are claimed or sought by persons with whom negotiations might take place under the Act. Equally, it is erroneous to regard the acceptance of an application for determination of native title as a stripping away of a power otherwise possessed by Government to confer mining rights and other rights to which Sub-div B applies. If the claim of native title is well founded, the power was not available to be exercised to defeat without compensation the claimant’s native title. The Act simply preserves the status quo pending determination of an accepted application claiming native title in land subject to the procedures referred to. The mere acceptance of an application for determination of native title does not otherwise affect rights, powers or interests.”
[50] Despite the importance of the right to negotiate, nevertheless the Act provides that the government party may include in a section 29 notice a statement that it considers the act in question attracts the expedited procedure – section 32(1).
[51] If a native title party does not lodge with the National Native Title Tribunal an objection to the expedited procedure notice within 4 months of the section 29 notification day (see section 29(4)), the government party may do the act – section 32(2) – (3).
[52] If the Tribunal determines that the act does not attract the expedited procedure, the right to negotiate procedures apply – section 32(5) and section 31.
[53] An act is an act attracting the expedited procedure if the criteria enumerated in section 237 apply.
[54] As will be seen, the Act attempts to balance the rights of native title holders to preserve the status quo until their native title determination application is dealt with by the Federal Court with the responsibility of governments to manage economic development for the overall betterment of society. In that regard it must be borne in mind that Division 3 is not a code for all acts done by a government; it only applies to certain “future acts”, which term is defined in section 233. Moreover, the expedited procedure is intended to ensure that when there is a future act, but the government party believes its impact on native title holders is minimal, the future act can be done without activating the right to negotiate.
[55] Obviously when an expedited procedure objection is lodged, the relevant arbitral body (and in absence of alternative State provisions it is the Tribunal) has to carefully weigh up the material before it having regard to the criteria enumerated in section 237. A finding that the expedited procedure is attracted deprives the native title holders of their valuable right to negotiate and thus disturbs the status quo.
[56] A further matter which has to be considered, is that the Commonwealth Parliament has mandated tight timeframes for the resolution of both expedited procedure objections as well as determinations by the Tribunal pursuant to section 35 when the right to negotiate applies but the parties have not negotiated an outcome. Both the Federal Court and the Tribunal have at various times pointed out the need for a timely and speedy resolution to future act proceedings (and, indeed, native title determination applications as well).
[57] Thus, in the context of expedited procedure objections:
(a)an objection must be lodged with the Tribunal within 4 months of the section 29(4) notification day – s.32(3);
(b) the objection application must be in the prescribed form – s.76(a);
(c) the objection application must be given to the Registrar – s.76(b);(d)the objection application must contain such information in relation to the matters sought to be determined as is prescribed – s.76(c);
(e)the objection application must be accompanied by any prescribed documents and any prescribed fee – s.76(d);
(f)clause 4 of the Native Title (Tribunal) Regulations 1993 provides that for section 76(a) an expedited procedure objection application must be in Form 4;
(g)schedule 1 of the Native Title (Tribunal) Regulations 1993 sets out Form 4 which is set out earlier.
[58] The language used by the parliamentary counsel in drafting the various provisions outlined above, and as enacted by the Commonwealth Parliament, is quite clear. In order for the Tribunal to have before it a valid objection, an objector must lodge an application within 4 months and that objection must be in the prescribed form and it must contain the prescribed information. In these circumstance it is appropriate to treat the Act and Regulations as a single legislative scheme, such that it is not appropriate to speak of the Regulations being subordinate to the Act – both have to be considered as a cohesive unit having a consistent and cumulative effect : see Brayson Motors Pty Ltd (In liq) v Commissioner for Taxation (1985) 156 CLR 651 at 656-657 and Hunter Resources v Melville (1988) 164 CLR 234 at 250.
[59] If a native title party lodges an objection application after 4 months from the section 29(4) notification day, there is no discretion vested in the Act for that period to be extended by the Tribunal.
[60] If a native title party wishes to lodge an objection, that objection must be in the prescribed form. Again there is no statutory discretion vested in the Tribunal to process an objection which is not in the prescribed form or, indeed, not in writing at all. The subject matter of an expedited procedure objection is a very serious matter. It involves, necessarily, an inquiry by this Tribunal. It prevents, if properly lodged, the doing of the future act by the government party until such time as the objection is resolved one way or the other. Having regard to the seriousness of both the doing of the future act and the prevention of that act by the lodging of an objection, it is clear that the Parliament intended that an objector would lodge a Form 4. The reasoning of the Federal Court in Formosa v Secretary, Department of Social Security (1988) 46 FCR 117 at 121-123 lends support to this approach.
[61] If, in the unlikely event, for example, the Tribunal registry processed an objection which was not a Form 4, a Member conducting an expedited procedure inquiry would be required, irrespective of whether a party raised the matter or not, to refuse acceptance of the objection application: see also the following immigration law cases on the use of the wrong form – Wu v Minister for Immigration and Ethnic Affairs (1996) 64 FCR 245, Onea v Minister for Immigration and Multicultural Affairs (1997) 80 FCR 254 and Minister for Immigration and Multicultural Affairs v Hayman (1999) 90 FCR 120.
[62] If then, a putative objector has lodged within time, and with the prescribed fee a Form 4, the issue then becomes the extent to which an objector is required to comply with the various requirements of that Form.
Paragraphs 1-6 of Form 4
[63] In these objection proceedings no issue has arisen with respect to compliance with paragraphs 1 to 6 of Form 4. Matters that fall within these paragraphs include issues such as the address of the objector, the name and address of the representative of the objector, whether the objector is a registered native title body corporate or a registered native title claimant and the government that issued the notice and the date of that notice.
[64] It is possible to cite decisions on comparable requirements, including, for example, under the bankruptcy laws of Australia. One recent case is Hilti (Australia) Pty Ltd v Millard (1997) 78 FCR 453 where a bankruptcy notice was served on a debtor resident in New South Wales. Section 41(2) of the Bankruptcy Act 1966 required the notice to be in accordance with the Regulations, and Regulation 4.02 of the relevant subordinate legislation provided:
“(1) For the purposes of subsection 41(2) of the Act, the form of bankruptcy notice set out in Form 1 is prescribed.
(2) A bankruptcy notice must follow Form 1 in respect of its format (for example, bold or italic typeface, underlining and notes).
(3) Subregulation (2) is not to be taken as expressing an intention contrary to section 25C of the Acts Interpretation Act.”
Form 1 contains statements addressed to the recipient of a bankruptcy notice setting out steps that can be taken requiring attendance/contact with a Federal Court Registry. Paragraph 10 of that Form then requires the location of the relevant Registry of the State/Territory of the recipient.
[65] In this instance although the recipient was a New South Wales resident, the Adelaide Registry address was given. Burchett J held that the bankruptcy notice was a nullity. He said (at 454-455): “It is all very well to suggest that the error is minor, and that a sensible debtor might be able to ascertain where he should go by making some inquiries. However, not all debtors are sensible. Ex hypothesi, they may be in a seriously disturbed state of mind, may be greatly harassed, and may lack the means to obtain legal advice, or certainly to travel from Sydney to Adelaide.” See also Nugent v Brialkim Pty Ltd (1985) 61 ALR 725, Re Ma (1995) 58 FCR 444, Re Scerri (1998) 82 FCR 146 and Bendigo Bank v Williams (2000) 98 FCR 377.
[66] However, to mechanistically apply the jurisprudence pertaining to compliance to Forms under the Bankruptcy Act to the Native Title Act, would result in the very error highlighted by the Court in Tasker v Fullwood, namely by not concentrating on ascertaining the intention of Parliament by clearly and discretely interpreting each statute on its own terms.
[67] While there is a clear line of judicial decisions on how one should interpret Australia’s bankruptcy laws these do not necessarily have much relevance to the task required of this Tribunal in analyzing and properly applying the terms of the Act.
[68] A Form 4 is directed primarily to a government party and a grantee party. The type of information required in paragraphs 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 lodgment would render the objection application invalid such that the relevant information could not be provided during the inquiry process. Of course, if a Form 4 is lodged without a name and address of an objector, an argument could arise whether there is a valid Form 4 before the Tribunal. While it is not necessary to deal with this sort of hypothetical situation, an argument could be raised that the Tribunal does not have before it an objection as the document discloses no objector.
[69] While each matter has to be dealt with on its own terms, the ramifications of not accepting an expedited procedure objection application are so significant, that clearly it would not be consistent with the scheme and purpose of the Act to readily imply strict compliance with all applicable paragraphs 1-6 of Form 4 unless in a particular case it was shown by either the government party or grantee party that material injustice was caused by the failure to comply.
Paragraph 7 of Form 4
[70] Different considerations apply when considering paragraph 7 of Form 4.
This paragraph goes to the heart of the expedited procedure objection. It brings to the attention of the Tribunal and the other parties the basis upon which an objection has been launched and why the future act should be stayed. The information in this paragraph informs the Tribunal and the other parties of the basis of the objection and alerts the other parties as to the issues in contention.
[71] In dealing with paragraph 7, I commence by outlining the following extract from the determination of Deputy President Franklyn in Roy Dixon in respect of paragraph 7 of Form 4 (p.21):
“In my opinion an applicant does not comply by merely reciting, as in the present case, the provisions of s237 which define what is an act which attracts the expedited procedure. That recitation may constitute the objectors belief why the proposed act is not one which attracts the expedited procedure but it gives no indication of its impact on the community or social activities of the native title holders or areas or sites of particular significance or any land or waters concerned. The reference in paragraph 7 to the community or social activities of the native title holders makes clear that the statements to be included must be specific to the objector’s activities and so requires a statement of activities and the likely impact on them of the future act. As to areas or sites of particular significance, in my opinion they are required to be identified in some way. To be of particular significance to the native title holders they and their significance must be known and so the impact on them should be capable of statement. This is consistent with the provisions of s237(a) and (b). If there is an issue of cultural secrecy, that can be indicated and would be a matter to be taken into account in the exercise of discretion. In my opinion the requirement of Form 4 is that the activities, areas or sites said to be impacted upon by the proposed grant need to be identified so that any alleged impact can be recognised. Such information is necessary to identify the issues relevant to the objection. These issues are identified in s237 of the Act. It is also consistent with the obligation of the Tribunal to act in a fair, just, economical and prompt way and goes to establish the bona fides of the objectors. It enables the Government party and the Grantee to make appropriate submissions and provide appropriate evidence relevant to the ultimate determination and for the inquiry to proceed from the outset with knowledge of the issues between the parties. The alternative is to involve the Government party and the Grantee in proceedings, submissions and the acquisition of evidence without knowing the issues involved, thereby giving rise to unnecessary cost and delay in the ultimate determination.”
[72] Paragraph 7 is designed to inform the Tribunal and the parties of why an objection has been made. The objector is required to provide a statement as to why the proposed act does not attract the expedited procedure including a statement on the likely impact of the act on the community or social activities of the native title holders or sites of particular significance and any land or waters concerned.
[73] The rationale for the provision of this information is to alert the Tribunal, the government and grantee parties of the basis of the objection, which, presumably, could result in the government party reconsidering its position.
[74] If this information is not provided neither the government party or grantee party is aware of the nature of the objection. The government party is not in a position to withdraw its statement that the act attracts the expedited procedure (section 31(7)), other than on a basis which has no bearing on the merits of the objection. Moreover, the Tribunal is required to commence an inquiry with all of the attendant costs and logistical requirements for both itself as well as the other parties (including the native title party).
[75] Without a proper and sensible response to paragraph 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 an 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 paragraph 7, runs counter to the requirement that the Tribunal carries out its functions in a fair, just, economical and prompt way – section 109(1).
[76] As Deputy President Franklyn very properly highlighted, in the absence of the native title party stating at the outset why an objection is lodged, the other parties are placed at a disadvantage. The government and grantee parties have to make submissions without knowing the issues involved, which not only raises cost and timing issues, but also raises a fundamental issue of fairness, or lack thereof.
[77] In my view, then, compliance with paragraph 7 is of critical importance to the scheme of expedited procedure inquiries. It is not a matter which can be ignored or dispensed with. It is not an optional extra. In this sense I am in agreement with Deputy President Franklyn’s analysis of the importance of this paragraph in the scheme of expedited procedure inquiries. A formulaic response which repeats in rote fashion the paragraphs of section 237 is not good enough and can result in the expedited procedure objection application not being accepted.
[78] The difficulty in an exercise of statutory interpretation such as this, is that evaluating compliance with Form 4 necessarily involves a degree of flexibility because in each case the question of compliance will involve consideration of a number of factors, which factors may be different from one factual circumstance to another. In Project Blue Sky the following apposite comments were made (at 389):
“The cases show various factors that have proved decisive in various contexts, but they do no more than provide guidance in analogous circumstances. There is no decisive rule that can be applied; there is not even a ranking of relevant factors or categories to give guidance on the issue.”
[79] These comments have added resonance in matters such as this when the compliance issue is inherently evaluative and involves difficult questions of degree. Here the question is whether a form of words in response to the question posed by paragraph 7 is a sufficient response such that the objector has complied with the requirement imposed.
Looked at from this perspective, to determine in any given case if an objector has complied with paragraph 7, regard must be had not just to the actual response given, but also the circumstances surrounding that response. This simply means that a contextual analysis by the Tribunal conducting the inquiry is apposite.
[80] In addition the Tribunal should have regard to the consequences of finding either compliance or non-compliance. That such an approach should be undertaken by has been highlighted by the High Court in Project Blue Sky (at 389).
[81] Thus the Tribunal needs to take into account that non-compliance may result in an objection application being dismissed, thereby depriving objectors of their right to present their objection and, if successful, maintain the status quo and retain the right to negotiate. Conversely the Tribunal also needs to take into account flagrant failures to address paragraph 7 thereby subjecting the Tribunal and government and grantee parties to a potentially unnecessary and costly inquiry.
[82] In these matters it is open, and appropriate, for the Tribunal to consider the state of the law at the time the various objectors lodged their objections, as well as the guidance provided to those objectors by the Tribunal on its web site, or by its course of conduct over a number of years in not rejecting expedited procedure objection applications which, following the guidance provided by Deputy President Franklyn in Roy Dixon, were patently not complying with the requirements of Form 4.
[83] Part of the difficulty with these matters is the question of who “accepts” a Form 4, and if it is not the Member conducting the Tribunal, whether the relevant decision maker has a discretion to accept a Form 4 even if that Form 4 does not comply with the Act.
[84] There is nothing before this Tribunal to indicate that there is any discretion vested in the relevant decision-maker to accept a Form 4 which does not comply with the Act. A Form 4, which fails to comply with the statutory requirements, is void, and consequently there is no proper objection application before the Tribunal. This result necessarily flows from characterising paragraph 7 as being of fundamental importance to the whole inquiry. A failure to comply with the requirements of paragraph 7 is not curable by later amendment after the closing date for objections or by any discretion vested either in the Registrar or a member of the staff of the Tribunal or by the Member conducting the inquiry.
Consequently I believe that the choice of words of Mr Williams in his decision, while not correct, was understandable having regard to the interpretation of the relevant provisions by Deputy President Franklyn.
[85] What is beyond doubt, is that Mr Williams was entitled to take into account the matters outlined in his decision. In my opinion they were considerations that go to determining compliance – not matters that justify non-compliance.
[86] In each of the objection applications the type of response to paragraph 7 by the various objectors was, viewed from a non-contextual perspective, inadequate. Even taking into account a beneficial interpretation of the legislation, and the loss of the right to negotiate, such a manifest failure to address paragraph 7 would, ordinarily result in the objection application being not accepted. However the paucity of the response has to be weighed by regard to the circumstances that led to that response. It is particularly telling that the objectors in these matters completed the relevant Form 4s in a manner which, until that time, had not resulted in any negative action or contrary information from the Tribunal.
[87] Should an administrative tribunal look simply at the words and ignore the circumstances that led to those words being used? The High Court has answered that question by indicating that in many (but not all) instances it is not only open, but proper, for such an exercise to be undertaken.
Consequently I have formed the view that each of the objectors, having regard to the commonly understood state of the law at the time the objections were lodged, and the official information provided, sufficiently complied with the requirements of paragraph 7.
[88] Does this finding mean that any other objectors who provide manifestly inadequate information would also have their objection applications accepted? Clearly the answer to this is in the negative. The Tribunal has been confronted with special circumstances, and the principles of fairness and justice require a proper contextual analysis to determine if there has been compliance.
[89] This does mean that in the future in assessing compliance a contextual analysis is the proper approach, and it may be that an objector will present the Tribunal with special circumstances such that, despite the inadequacy of the written response, acceptance may still occur. However, that would be a very unlikely event, but, of course, one that should never be totally dismissed (e.g. an unrepresented objector who, despite their best endeavours, is disadvantage due to factors such as geographic isolation, literacy problems or other factors beyond their control).
[90] The Tribunal issued on 16 October 2001 Guidelines on Acceptance of Expedited Procedure Objection Applications. The Guidelines specifically deal with the type of compliance required by paragraph 7. The following information is provided:
“This paragraph has two requirements. First, a statement why the applicant believes the proposed act to be not one attracting the expedited procedure and second, the inclusion in that statement of a statement of the likely impact of the act on the relevant activities, areas and sites, land and/or waters concerned, as the case may require. An objection may be grounded on any one or more of paragraphs (a), (b) and (c) of s237. S237 (a), (b) and (c) define what is an act which attracts the expedited procedure in terms of the likely impact of the act. Paragraph 7 is not complied with by a mere claim that the proposed act is likely to interfere with or involve major disturbance in one or more of the ways specified in those sub-sections. Compliance with paragraph 7 requires a statement why the applicant has the belief of likely interference or disturbance and so must contain identification of the relevant activity or activities, site or sites, area or areas of land or waters the subject of such belief. Such identification is also necessary for a statement of believed likely impact of the act on any such activity, site, areas, land and/or waters claimed in the objection as it is the nature and degree of impact which gives rise to a consideration of likelihood of relevant interference or disturbance.”
This statement accurately sums up what paragraph 7 requires, and future objectors who do not wish to risk having their Form 4 objections not accepted should ensure that they comply with the requirements outlined above.
[91] The government party also made submissions that if the expedited procedure objection applications were accepted by the Tribunal under a section 77 discretion, those section 237 consequences not alleged in each of the Form 4s could not later be raised in evidence before the Tribunal as this would effectively amount to a substantive amendment of the relevant Form 4.
[92] It has long been the view of the Tribunal that an amendment is not permissible to cure substantive non-compliance with the Act or the Regulations, particularly after the expiration of the statutory four month period – Western Australia/Richard Evans/Australian Gold Resources, WO99/660, Hon CJ Sumner, 28 February 2000.
[93] However, the government party’s contentions are based on an incorrect assumption. The Form 4 provides the platform which founds an inquiry. During the course of the inquiry evidence is produced by the parties which assists the Tribunal in determining if the act attracts the expedited procedure. Provided that the objector has met the obligations imposed by paragraph 7, then there is no limitation placed on the objector expanding on the basis of the objection in its contentions or by means of direct evidence. In short, the issue is not one of amendment at all. Form 4 provides the basis for the commencement of the process, it by no means controls or limits the inquiry process. The only real issue is initial compliance. Once that is determined, it is up to the relevant parties to produce such material as they consider appropriate to assist the Tribunal in reaching its determination.
Paragraph 8 of Form 4
[94] Paragraph 8 requires an objector to outline the type of evidence that the objector will produce to the National Native Title Tribunal.
[95] In Roy Dixon Deputy President Franklyn interpreted paragraph 8 as follows (at [18]):
“However, the ‘type of evidence’ to be outlined pursuant to paragraph 8 must be evidence relevant to the issue whether the act is one attracting the expedited procedure. That is to say it must relate to the respective paragraphs of s237 which are the only issues relevant to the determination whether the act attracts the expedited procedure. In my opinion it is not sufficient compliance as to provide a general list of generic types of evidence which would appear relevant with establishing a connection with the land but do not suggest relevance to the issues raised by s237. In my opinion the relevant outline of the type of evidence to be produced requires a statement, in general terms, identifying whether the evidence relates to interference with the carrying on of the relevant and nominated community or social activities, interference with relevant areas or sites of particular significance to the holders of native title and/or likely disturbance to the land concerned and how that evidence will be given.”
[96] The revised Guidelines issued on 16 October 2001 attempt to give effect to Deputy President Franklyn’s interpretation by advising potential objectors that:
“A general list of generic types of evidence going only to establishing a ‘connection to land’ is insufficient.
An outline of the type of evidence requires a statement of categories of the evidence which relates to the matters to be determined under s237 that will be produced. It does not require a description of the content of such evidence.”
Mr Williams formed the view that none of the native title parties had sufficiently complied with the requirements of paragraph 8.
[97] There is no doubt that it would be helpful to the Tribunal and the parties if an objector was to outline the sort of evidence highlighted by Deputy President Franklyn. It is a matter of concern that Members who conduct expedited procedure inquires frequently are provided with cursory statements about what type of evidence will be adduced, and then are confronted on occasions with objectors not even producing that type of evidence. In short, it sometimes appears as if the response to paragraph 8 by certain objectors is not only cursory, but sometimes not accurate as well.
[98] However, the task is not to determine what objectors should do, but rather to interpret the requirement placed on objectors by the words used in the Form by the makers of the subordinate legislation. There are in fact two previous decisions on a similar requirement which are of assistance.
[99] Both decisions concerned the old Act, and in particular native title determination applications. Section 61(2) provided that an application must be in the prescribed form. Clause 4 of the National Native Title Tribunal Regulations provided that for the purpose of section 61(2) a native title determination application must be in Form 1.
Paragraph A11 of Form 1 required:
“An outline of the type of evidence which the applicant(s) will produce to the National Native Title Tribunal to support the claim, such as historical, anthropological and genealogical documents and oral evidence from the applicant and other people.”
As can be seen this is expanded version of paragraph 8.
[100] Paragraph A11 was considered by French J in Re Waanyi People’s Native Title Application (1995) 129 ALR 100 and by O’Loughlin J in Northern Territory v Lane (1995) 59 FCR 357.
In Northern Territory v Lane O’Loughlin J said, when discussing French J’s analysis in Waanyi (at 357):
“At a later stage in his reasons, when considering the answer to par A11 of Form 1 French J said (at 111): ‘…this does not require a description of the contents of such evidence, but rather a listing of its categories.’ I respectfully agree; the applicant is not required to supply an outline of the evidence that will be produced, but an outline of the type of evidence that will be produced.”
[101] In that case the applicants had completed paragraph A11 by listing 5 types of evidence that would be produced (historical, anthropological, genealogical, archaeological and ethno-botanical land biological (cultural use of natural resources)), and in each case listed three identical sub-categories:
(a) oral evidence from claimants;
(b)published and unpublished research, reports, records and other written materials; and
(c) expert evidence.
O’Loughlin found that the Registrar did not commit any error of law in deciding to accept the application on the basis of the type of evidence described above.
[102] In light of those decisions, I have reluctantly come to a different opinion to that of Deputy President Franklyn. In my opinion, paragraph 8 only requires an outline of the type of evidence that will be relied on in a general sense. It does not require a particularisation of the types of evidence by reference to each paragraph of section 237 as described by Deputy President Franklyn. If that degree of particularity is required, then the Executive Government should recast Form 4. For my own part, I think that it would be highly desirable if the sort of particularity described by Deputy President Franklyn were mandated by a recast paragraph 8. This would assist the inquiry process and ensure that objectors gave the type of thought and consideration in the preparation of objection applications that is commensurate with the gravity, cost and potential trauma of initiating an objection inquiry process. However, in the interim, as the Court said in Kanak (at 124): “It is appropriate to adopt a construction that avoids harsh consequences flowing from a failure to observe procedural requirements specified in the Act.” Consequently, even if Deputy President Franklyn’s analysis is correct, it would be appropriate to rely on section 25C of the Acts Interpretation Act to ensure that less than strict compliance with paragraph 8 did not result in an objection application not being accepted.
[103] I have, therefore, formed the view that each of the objectors’ response to paragraph 8 was in order, but, in any event, should that not be correct, there is no contrary intention in the Act to the application of section 25C of the Acts Interpretation Act 1901, such that there has been sufficient substantial compliance.
Conclusion
[104] The native title party in each objection matter have lodged with the Tribunal, a Form 4 that sufficiently complies with the relevant statutory requirements. Responsibility for acceptance of the expedited procedure objection applications, as I have indicated, resides with the Member conducting the inquiry. Pursuant to section 77, if an expedited procedure objection application complies with 76, the Tribunal must accept it. Accordingly I accept each of the expedited procedure objection applications.
[105] However, if this analysis is incorrect, then I find that Mr Williams, as the decision-maker within section 77, properly accepted the objection applications.
[106] I also find that, while a Form 4 cannot be amended in a substantive manner after the statutory four month time limit (section 31) has expired, nonetheless there has been no amendment of any of the Form 4s by the submission to the Tribunal of the matters contained in the contentions of the native title parties.
[107] While I reluctantly do not agree with the analysis of Deputy President Franklyn with respect to paragraph 8 of Form 4, I am in general agreement with his analysis of both the importance of paragraph 7 as well as the implications that flow from a failure to strictly comply with its requirements.
[108] These matters highlight the difficult ‘balancing act’ necessarily required by both ensuring a beneficial interpretation of the Act with the clear policy underlining the future act provisions of providing for timely, fair and certain outcomes.
[109] The clear implication of this matter is the critical importance of objectors complying with the requirements of paragraph 7 of Form 4. This paragraph is central to the expedited procedure objection inquiry process. While a contextual analysis is, I believe, the proper approach to sensibly and justly interpreting this provision, such that clear cases of injustice can be avoided where possible, nevertheless the information provided in the Guidelines on compliance with this Form should be heeded. It would be clearly wrong to assume that because the expedited procedure objection applications in this matter were accepted, that this in any way sets a firm precedent for similar responses to Form 4 in the future.
[110] Each and every objection application has to be analysed on the merits and the evidence before the Tribunal. The language of the Act and the Regulations implies that a rigorous approach to compliance is not unreasonable with respect to key information provisions, and such an approach, no doubt, will be taken by the Tribunal in future inquiries.
Decision
[111] The decision of the Tribunal is that each Form 4 lodged in Application Nos DO01/3, DO01/13, DO01/19, DO01/20, D001/21, DO01/22 and DO01/23 complies with the requirements of section 76 of the Native Title Act 1993 and the Tribunal has jurisdiction to conduct relevant inquiries and make determinations.
John Sosso
Member
21 December 2001
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