Paddy Neowarra & Others on behalf of the Wanjina Wunggurr Wilinggin Native Title Claimants/Western Australia/Thundelarra Exploration, Ragged Range Mining Pty Ltd
[2004] NNTTA 102
•5 November 2004
Reported at (2004) 189 FLR 249
NATIONAL NATIVE TITLE TRIBUNAL
Paddy Neowarra & Others on behalf of the Wanjina Wunggurr Wilinggin Native Title Claimants/Western Australia/Thundelarra Exploration, Ragged Range Mining Pty Ltd, [2004] NNTTA 102 (5 November 2004)
Application No: WO04/173
IN THE MATTER of the Native Title Act 1993 (Cth)
- and -
IN THE MATTER of an inquiry into an expedited procedure objection application
Paddy Neowarra & Others on behalf of the Wanjina Wunggurr Wilinggin Native Title Claimants (WC99/11) (native title party)
- and -
The State of Western Australia (Government party)
- and -
Thundelarra Exploration, Ragged Range Mining Pty Ltd (grantee party)
DECISION NOT TO ACCEPT EXPEDITED PROCEDURE OBJECTION APPLICATION
Tribunal: Hon C J Sumner, Deputy President
Place: Perth
Date: 5 November 2004
Catchwords: Native title – future act – proposed grant of amalgamation applications - expedited procedure objection application – s 29 notification day – application not lodged within four months of notification day (s 32(3)) – no power to extend time for lodgement -Tribunal has no jurisdiction to conduct an inquiry – objection application not accepted.
Legislation:Native Title Act 1993 (Cth) ss 32(3), 77
Cases:Angus Fire Armour Australia Pty Ltd v Collector of Customs (NSW) (1998) 19 FCR 477
Northern Territory of Australia v Ward and Others [2001] NNTTA 163; (2001) 167 FLR 398
Bingham v England (1996) 17 WAR 226
Landsal Pty Ltd v REI Building Society (1993) 41 FCR 421
Mr B v Minister for Immigration and Multicultural Affairs [1997] 422 FCA (21 May 1997), 50 ALD 120
Little v Western Australia [2001] FCA 1706 (6 December 2001), (2001) 6(4) AILR 67
Review Applicant: PJ00829 [1997] IRTA 11047 (31 December 1997)
Western Australia v Ward & Ors (1996) 70 FCR 265 at 278, 141 ALR 753
Words & phrases ‘lodge’
Representative of the
native title party Mr Phillip Hope, Kimberley Land Council
Representative of the
grantee party Mr Matthew J Clohessy, Emerald Tenement Services
Representative of the
Government party Mr Clyde Lannan, Department of Industry and Resources
REASONS FOR DECISION
Background
On 10 March 2004 (‘the notification day’), pursuant to s 29 of the Native Title Act 1993 (Cth) (‘the Act’), the State of Western Australia (‘the Government party’) gave notice of its intention to do certain future acts, namely to grant amalgamation applications KU12/23 and KU13/23 in relation to exploration licence 80/2650 to Thundelarra Exploration Ltd and Ragged Range Mining Pty Ltd (‘the grantee party’) under the Mining Act 1978 (WA). Amalgamation application KU12/23 relates to an area of 194.99 hectares, 148 kilometres north-easterly of Fitzroy Crossing in the Shire of Wyndham and East Kimberley and amalgamation application KU13/23 relates to an area of 136.45 hectares, 145 kilometres north-easterly of Fitzroy Crossing in the Shire of Wyndham and East Kimberley. The notice included a statement that the Government party considered the acts to be acts which attract the expedited procedure (s 29(7)) (that is, acts which can be done without the normal negotiations required by s 31 of the Act).
Paddy Neowarra & Others on behalf of the Wanjina Wunggurr Wilinggin native title claimants WC99/11 (‘the native title party’) have lodged an objection to the statement that the grants of the amalgamation applications attract the expedited procedure.
Section 32 of the Act relevantly says:
‘s 32 Expedited procedure
…
Act may be done if no objection
(2)If the native title parties do not lodge an objection with the arbitral body in accordance with subsection (3), the Government party may do the act.
Kinds of objection
(3)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.
…’
If a native title party objects to the inclusion of the expedited procedure statement, the Tribunal must determine whether the act is an act attracting the expedited procedure (s 32(4)). An objection is lodged by way of an expedited procedure objection application (s 75) (‘objection application’) which must be in the prescribed form, given to the Registrar, contain such information as is prescribed and be accompanied by any prescribed documents and any prescribed fee (s 76). If the application complies with s 76, the Tribunal must accept the application (s 77). The Tribunal then conducts an inquiry to determine whether the act is one which attracts the expedited procedure (s 139(b)).
The issue which arises in this matter is whether an objection application which has been lodged outside the period of four months after the notification day specified in s 32(3) is a valid objection which can be accepted and inquired into. The decision whether to accept the objection application is one for the Member appointed to conduct the inquiry to make (Northern Territory of Australia v Ward and Others [2001] NNTTA 163; (2001) 167 FLR 398 ([22]-[26])).
Facts relating to receipt of the objection application by the Tribunal
By letter dated 25 June 2004, the Kimberley Land Council (‘KLC’), the designated representative body under the Act for the area covered by the Wanjina claim, sent to the Registrar of the Tribunal at Level 11, East Point Plaza, 233 Adelaide Terrace, Perth (ie. to the address of the Tribunal’s Future Act Unit in Western Australia) an expedited procedure objection application (in the prescribed Form 4 and also dated 25 June 2004). In accordance with the Tribunal’s standard procedures the letter was opened by the Tribunal’s Principal Registry and contains a date stamp showing the letter received at 3.30 pm on 22 July 2004. The accompanying objection application contains a different form of date stamp showing receipt at the same time. On the face of it the objection application was not lodged within the four months specified by s 32(3) of the Act (ie. by 10 July 2004).
The apparent problem with the late lodgement of the objection application was drawn to the attention of Mr Phillip Hope a solicitor with the KLC by the Tribunal’s Future Act Case Officer (Ms Vicki Johnson). Mr Hope provided a written response with the following information and submissions.
Ms Chris Richards, the responsible KLC officer, made a file note “Objection Lodged 25/6/04”.
The KLC file contains copies of the letter sent to the Tribunal dated 25 June 2004 and the accompanying Form 4.
Ms Richards placed the letter and Form 4 in the KLC post box on 25 June 2004 and noted that the objection had been lodged in the file management system.
The KLC mail record book does not disclose that the letter was sent but this is not unusual as Ms Richards makes her own file management records of the various steps taken in relation to the future act and it is not her practice to use the mail book for this type of correspondence.
Mr Hope provided the KLC’s file management printout for another objection application (WO04/95) showing the objection lodged on 14 June 2004 and suggested that the Tribunal records would indicate that the objection arrived in time probably within 3-5 days of 14 June 2004. I have ascertained that this objection was lodged with the Tribunal on 17 June 2004.
Mr Hope also:
-queried why the KLC letter and Form 4 application contained different forms of the date stamp.
-queried whether it was usual to process the mail after 3.00 pm and whether this indicated that it was done outside the normal mail processing run.
-suggested that the letter and Form 4 may have been mislaid in the Tribunal and only stamped when discovered.
-suggested that any log of mail received kept by the Tribunal may be of assistance in resolving the matter.
-maintained that the letter and Form 4 were forwarded on or shortly after 25 June 2004 and in time to meet the deadline for lodging objections.
The matters raised by the KLC were investigated by the Tribunal. The Records Management section of the Tribunal has provided the following explanation of events.
The KLC’s letter was received in the Australia Post mail bag at 8.30 am on 22 July 2004. The letter was opened and date stamped 22 July 2004 and the envelope discarded. Records Management assert that the date stamp should have shown 9.00 am and not 3.30 pm and that staff have now been instructed to change the date stamp to reflect the time a letter is received. Records Management have also advised that Australia Post deliver all Tribunal mail in Western Australia to the Principal Registry at the same time whether or not it is addressed to a street number or the Tribunal’s post office box number.
The letter was registered into the Tribunal’s Electronic Document Records Management System (‘EDRMS’) at 9.36 am on 22 July 2004. This fact is verified by a documentary print out of the details in the EDRMS.
The letter and Form 4 were delivered by internal mail to WA Registry (State Manager) at 10:30 am.
The date stamp on the Form 4 is not a Records Management date stamp.
Ms Johnson informs me that the date stamp on the Form 4 is that used by the Future Act Unit and was placed on it by her at the date and time shown. It appears to be coincidental that this is the same date and time as the date stamp placed by Records Management on the KLC letter dated 25 June 2004.
On 6 August 2004, the Tribunal wrote to all parties enclosing relevant documentation, expressing the preliminary view that there are difficulties in accepting the objection application because of the late lodgement, drawing attention to certain cases which supported its view and inviting submissions on the issue.
On 6 August 2004, Emerald Tenement Services, on behalf of the grantee party, replied that the grantee party did not wish to make any submission and that it intended to enter into an agreement with the KLC and objector.
On 11 August 2004, the Tribunal sent to all parties advice received from the Tribunal’s Legal Services section providing further details for its preliminary view and which the Tribunal would take into account in arriving at its final decision. The Government party and KLC advised that they had no further submission to make.
On 11 August 2004, the Tribunal informed the parties that it had decided (consistent with its previous advice and in the absence of any substantive submissions) that the objection had not been lodged within the statutorily required four months and there was no power in the Act or otherwise to extend the time. In the light of the parties willingness to negotiate the Tribunal suggested some options for consideration to enable the negotiations to continue, viz – the Government party to refrain from making the grant until an agreement is made; possible withdrawal of the expedited procedure statement (s 32(7) of the Act); and issuing a new s 29 notice while continuing negotiations.
Findings on whether the objection application was lodged in time
In Angus Fire Armour Australia Pty Ltd v Collector of Customs (NSW) (1998) 19 FCR 477 the Full Federal Court considered when an application for review of decision made under the Customs Act 1901 (Cth) by the Administrative Appeals Tribunal was validly lodged. Justices Sweeney & Northrop agreed that the word ‘lodge’ in the relevant section of the Administrative Appeals Act 1975 (Cth) was to be given its ordinary meaning. Justice Northrop (at p 488 [57]) said:
‘The word “lodge”, when used as a verb, has a number of meanings. In the Shorter Oxford Dictionary the relevant meaning is “a. To place, deposit”. A number of examples are set out including: “To put and leave in a place of custody or security 1666. To lodge money in the hands of a banker 1882. b. To deposit in court or with an official a formal statement of (an information, complaint, objection, etc).” Thus, in s 68 of the Act, the word “lodged” is used in the sense of placing or depositing a document at the office of the Registry or a Deputy Registrar. It appears to be the practice of the Tribunal to allow this to be done by post. Whether the lodging is done by post or by depositing the document at the office, a concept of acceptance is required in a sense similar to that required with respect to the presentation of a document. There must be a physical acceptance of the document by an officer of the Registry. Thus, if an application is posted but not delivered to a Registry, the application is not lodged. In all probability, it is lodged when it is received at the office of the Registry. Similarly, a document deposited on a counter at the office of a Registry may not be lodged, but if taken by an officer, or in other words received by that officer, it is accepted for the purpose of lodging. Reg. 9(1) of the Regulations is consistent with this construction. In that Reg. the words “lodged or received” seem to be used in the sense of deposited and accepted.’
Justice Jenkinson in dissent went further and found that lodgement involves more than mere physical receipt of documents but requires the receiver of the document to take some action in relation to it beyond simple receipt so as to signify that it has been accepted (see also Mr B v Minister for Immigration and Multicultural Affairs [1997] 422 FCA (21 May 1997), 50 ALD 120; Review Applicant: PJ00829 [1997] IRTA 11047 (31 December 1997).
There is nothing in s 32(3) of the Act or generally which suggests that the word ‘lodge’ in s 32(3) should bear other than its normal meaning as explained by the Federal Court. Applying this interpretation to the facts of the present matter leads to the conclusion that the objection application was not lodged until 22 July 2004 when it was received by post and processed by officers of the Tribunal in a way which confirmed its lodgement. The evidence does not permit a finding that the objection application was received by the Tribunal on or before 10 July 2004. The only clear evidence which is verified by the creation of a contemporaneous record in the Tribunal’s EDRMS is that the letter and Form 4 were received and entered into the Tribunal’s records on 22 July 2004. The Tribunal’s Records Management Unit assert that the letter was received in the Australia Post mail bag on the morning of 22 July 2004 and there is no evidence to suggest that this is incorrect. In particular, there is no objective evidence to give credence to Mr Hope’s suggestion that the letter and Form 4 had languished in the Tribunal unattended to for some time. Although the date stamp shows the time of receipt as 3.30 pm on 22 July 2004 this contradicts the entry in the EDRMS which I consider to be a more reliable record. It appears that a mistake was made with the time on the date stamp. In any event the date stamp confirms receipt of the KLC letter and objection application on 22 July 2004 and on its own provides no basis for finding that the letter had been received by 10 July 2004 and mislaid in the Tribunal. There is no firm evidence from the KLC of when the letter was actually posted. The envelope which may have contained a date stamp and assisted in establishing this was (in accordance with practice at the time) discarded by the Tribunal. My finding is that the KLC letter of 25 June and accompanying Form 4 were received by and lodged with the Tribunal and processed in the manner described on 22 July 2004.
The date on which the objection application was posted (even assuming that date was as early as 25 June 2004) cannot be said to be the date that it was lodged with the Tribunal.
Based on the cases cited above I am of the view that it is the applicant’s responsibility to ensure that an application is actually received and lodged by the Tribunal within time. The Tribunal facilitates the process by permitting lodgement by hand delivery, delivery by post, fax or email. In future the Tribunal’s practice will be amended to ensure:
the date stamp contains the actual time as well as the date of stamping; and
the envelope containing a right to negotiate application (Form 4 – expedited procedure objection application and Form 5 – future act determination application) be retained and attached to the correspondence or prescribed form which is forwarded to the Future Act Unit.
I also recommend that the date stamp (with time) be placed on the Form 4 (as well as any correspondence transmitting it) immediately on receipt by the Tribunal.
Does the Tribunal have the power to extend the time of lodgement?
The next issue is whether there is any discretion in the Tribunal to extend the time within which an objection application can be lodged. There is nothing in the Act, regulations or procedures of the Tribunal to suggest any such power. Existing practice is reflected in para 3.2.1 of the Tribunal’s Procedures under the Right to Negotiate Scheme ( which says that the Tribunal is unable to accept an objection lodged outside of the timeframe in s 32(3). Unlike a Court of record there can be no argument that the Tribunal has an inherent power to exercise its discretion in this way and even if it did have, it could not do so if it contravened the terms of a statute (Bingham v England (1996) 17 WAR 226; Landsal Pty Ltd v REI Building Society (1993) 41 FCR 421 (at 427)).
By way of contrast to the powers of the Tribunal, the Federal Court of Australia Act 1976 (Cth) provides that the Court has power to make rules relating to the time and manner of initiating appeals to the court (s 57(2)(r)) which it has exercised by providing that an extension of time for lodging an appeal may be granted for ‘special reasons’ (O 52 r 15(2)). The Administrative Appeals Tribunal Act 1975 (Cth) (s 29(6)) specifically provides that the Administrative Appeals Tribunal may entertain a late application for review, if it is of the opinion that there are special circumstances that justify it doing so.
In my view the words of s 32(3) of the Act are clear and import a limit on the time within which an objection application must be lodged and create a condition precedent to the Tribunal’s jurisdiction to conduct an inquiry. Where an objection has not been lodged within time the Tribunal can refuse to accept it. If it were for some reason accepted, the Tribunal would be obliged to dismiss the application under s 148(a) of the Act on the basis that the Tribunal was not entitled to deal with it.
I also consider that this interpretation accords with the intention of Parliament and purpose of the right to negotiate provisions of the Act. (See Explanatory
Memorandum - Procedures under the right to negotiate scheme - 8 February 2002 ( The main objects of the Act include to provide for the recognition and protection of native title (s 3(a)) and to establish ways in which future dealings affecting native title may proceed and to set standards for those dealings (s 3(b)). The Tribunal has accepted that Parliament intended that proposals to do future acts subject to the right to negotiate provisions should be dealt with in a timely manner (para 3 - Explanatory Memorandum). It also accepts that in a procedural sense objection applications are to be dealt with expeditiously (para 5 - Explanatory Memorandum; Western Australia v Ward & Ors (1996) 70 FCR 265 at 278, 141 ALR 753 at 766; Little v Western Australia [2001] FCA 1706 (6 December 2001) (at [84]-[85]), (2001) 6(4) AILR 67).These policy considerations, reflected in the Act generally, support the interpretation that the time limit imposed by s 32(3) is strict; something which is in any event plain from the ordinary words of the Act and the lack of any power or specified circumstances under which the time may be extended.
Decision
The expedited procedure objection application is not accepted.
Hon C J Sumner
Deputy President
5 November 2004
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