Placer (Granny Smith) Pty Ltd v Western Australia
[2000] NNTTA 75
•24 February 2000
NATIONAL NATIVE TITLE TRIBUNAL
Placer (Granny Smith) Pty Ltd and Granny Smith Mines Limited/Western Australia/Ron Harrington-Smith & Ors on behalf of the Wongatha people, [2000] NNTTA 75 (24 February 2000)
Application No: WF99/5
IN THE MATTER of the Native Title Act 1993 (Cth)
- and -
IN THE MATTER of a Future Act Determination Application
Placer (Granny Smith) Pty Ltd and Granny Smith Mines Limited (applicant/grantee party)
- and -
The State of Western Australia (Government party)
- and -
Ron Harrington-Smith & Ors on behalf of the Wongatha people (native title party)
DECISION ON WHETHER INDIVIDUAL APPLICANTS FOR A NATIVE TITLE DETERMINATION CAN BE SEPARATELY REPRESENTED IN A RIGHT TO NEGOTIATE INQUIRY
Tribunal: Hon CJ Sumner, Member
Place: Perth
Date: 24 February 2000
Catchwords: Native Title – future act- application for a determination in relation to mining leases – individual applicants on a native title claim not entitled to be separately represented in a right to negotiate inquiry.
Legislation:Native Title Act 1993 ss 29, 30, 41, 61(1), 61(2)(c), 62(1), 62A, 84B, 109, 202, 251B, 253
Cases:Lewis v Daily Telegraph Ltd (No.2) [1964] 2QB 601
Wedderburn v Wedderburn (1853) 17 Beav 158
Iaonnou v Baroda (Holdings) Pty Ltd [1983] 2VR 348
Downs v Civil Aviation Authority (1992) 57 SASR 303
REASONS FOR DECISION
Background
On 16 February 2000 the Tribunal made a determination that five mining leases may be granted to Placer (Granny Smith) Pty Ltd and Granny Smith Mines Ltd (‘the grantee party’) subject to certain conditions to be complied with by the grantee party, the State of Western Australia (‘the Government party’) and Ron Harrington-Smith and eleven other applicants on the Wongatha claim (‘the native title party’).
During the inquiry into the future act determination application the Tribunal decided that individual applicants on the Wongatha claim were not entitled to be separately represented and undertook to provide written reasons for the decision.
At the time that the notice was given by the Government party under s 29 of the Native Title Act 1993 (Cth) (‘the Act’) the following persons were registered native title claimants over all of the proposed mining leases and native title parties in relation to the matter (s 29(2)(b)(i)).
| · | WC94/8 | Leo Thomas, Lois Thomas, Bertha Thomas, Preston Thomas (Jr), Beverley Lynch, Fay Sambo, Jennifer Lynch, Quinton Tucker, Roberta Thomas |
| · | WC95/57 | Dimple Sullivan |
| · | WC96/4 | Sadie Canning |
| · | WC97/4 | Aubrey Lynch, Ross Victor Lynch |
| · | WC97/10 | Barron Bonney, Alison Tucker, Hilda Dimer, Marjorie Bonney |
| · | WC97/35 | Sadie Canning, Dimple Sullivan, Tomasisha Passmore, Fred Meredith, Rommel McGrath, William Vincent, Laurel Cooper, Murray Stubbs, Elvis Stokes, Lois Thomas, Beverley Lynch, Fay Sambo, Allison Tucker, Marjorie Bonney, Barron Bonney, Hilda Dimer, Ross Lynch, Bertha Thomas, Cyril Barnes, Aubrey Lynch, Edward McGrath, Dennis Forrest, Adrian Meredith, Celia Sullivan, Preston Thomas (Jr) |
| · | WC97/64 | Pearlie Wells, Marjorie Strickland |
On 22 January 1999, the Federal Court combined twenty claims, including the seven claims specified above, into the Wongatha claim. The applicants on the Wongatha claim were specified as Ron Harrington-Smith, Leo Thomas, Cyril Barnes, Les Tucker, Dimple Sullivan, Aubrey Lynch, Elvis Stokes, Pearlie Wells, Murray Stubbs, Tomasisha Passmore, Thelma O’Loughlin and Sadie Canning.
On 26 February 1999 the Wongatha claim was accepted for registration under s 190A of the Native Title Act Amendment Act 1998 and placed on the Register of Native Title Claims on 3 March 1999. The applicants on the Wongatha claim thereby became a registered native title claimant over the area of the proposed mining leases (and for the reasons specified below the native title party in the proceedings).
On 16 November 1999, the Federal Court (WA v Native Title Registrar & Ron Harrington-smith & Ors on behalf of the Wongatha People [1999] FCA 1593, Carr J) set aside the decision to accept the claim for registration and on 10 December 1999 the Wongatha claim was removed from the Register and the pre-combination claims were reinstated.
On 10 February 2000 the Wongatha claim was again placed on the Register of Native Title Claims, after it was further amended and the Registrar had again accepted it for registration. At the time of the future act determination application hearing on 14 February 2000 the Wongatha applicants were the native title party in the application.
At the time of the future act determination application hearing the only person who sought separate representation was Mrs Dimple Sullivan. Her request for separate representation arose in the following circumstances:
At the time of a hearing conducted on 13 December 1999 to decide (among other things) if the Government and grantee parties had fulfilled the obligation to negotiate in good faith with the native title party as required by s 31(1)(b) of the Act all Wongatha applicants except Mrs Sadie Canning and Mrs Dimple Sullivan had signed a State Deed which is an agreement of the kind mentioned in s 31(b) of the Act. Following the hearing Sadie Canning (on 21 December 1999) and Dimple Sullivan (on 22 December 1999) also signed the State Deed.
On 11 January 2000, the grantee party received a facsimile from Mrs Sullivan which the grantee party regarded as the withdrawal of her agreement. This correspondence was sent to the Tribunal on 1 February 2000. In it Mrs Sullivan says that she did not want to sign the agreement; and that Tjinitjarra people wanted to have their own lawyer and their own claim. On receipt of the correspondence, the Tribunal’s Case Manager telephone Mrs Sullivan and informed her that if she wished to withdraw from the Wongatha claim and make her own claim she would need to apply to the Federal Court. Mrs Sullivan’s desire to withdraw from the Wongatha claim was reaffirmed at the future act determination application hearing
Prior to the good faith hearing I expressed the preliminary view that, despite policy considerations to the contrary, the Act appeared to permit the individual Wongatha applicants to be separately represented but invited the parties to make written submissions to enable the issue to be further considered. The Government party submitted that separate representation is not permitted by the Act and were supported by the Goldfields Land Council representing the Wongatha applicants. The grantee party did not contest the Tribunal’s preliminary view. Mrs Sullivan’s counsel at the good faith hearing submitted that she was entitled to be represented separately from the other Wongatha applicants.
At the future act determination application hearing I advised the parties that I had decided that the native title party is all of the registered native title claimants acting jointly or collectively. Individual applicants on a combined claim do not have a right of separate representation to make submissions contrary to those determined collectively by the claim group. The consequence of this decision was that Mrs Sullivan had no status as a party separate from the combined Wongatha applicants. The Wongatha applicants (with the exception of Mrs Sullivan) consented to the determination made.
General principles
I accept the submission from the Government party that, at common law, the general principle in litigation is that joint plaintiffs or defendants are not entitled to be separately represented (Lewis v Daily Telegraph Ltd(No.2) [1964] 2QB 601 at 620, 623 citing Wedderburn v Wedderburn (1853) 17 Beav 158 where the Court said:
‘When persons undertake the prosecution of a suit, they must make up their minds whether they will become co-plaintiffs; for if they do they must act together. I cannot allow one of several plaintiffs to act separately from and inconsistently with the others.’)
However the Court in Lewis acknowledged that separate representation of co-plaintiffs or co-defendants may be permitted in some cases (Pearson LJ at 620), for instance to avoid injustice (Russell LJ at 623) or if there was a conflict of interest (Sellers LJ at 624).
In Iaonnou v Baroda (Holdings) Pty Ltd [1983] 2VR 348 at 351, the Court permitted parties who had filed a common defence to be represented by separate counsel because the defendant parties were separate (an insured and his insurer) and had separate interests to pursue.
In Downs v Civil Aviation Authority (1992) 57 SASR 303 the SA Supreme Court permitted four defendants (two Government agencies and two of their employees) to be separately represented in an action for defamation on the basis that they were all different entities, the defences were legally different and there was different documentary evidence relating to each of them even though it was considered that there was no conflict of interest between them.
In my view these general principles are of limited use in resolving the issue before the Tribunal. They reaffirm the importance of Courts (and Tribunals) being able to conduct their business in the most expeditious and cost efficient way possible provided no injustice results. This principle is reflected in s 109(1) of the Act which says that the Tribunal must pursue the objective of carrying out its functions in a fair, just, economical, informal and prompt way.
The difficulty in this matter is that Mrs Sullivan clearly has a conflict with the other Wongatha applicants in that she did not agree to the mining leases being granted. If the provisions of the Act did not prohibit her from being separately represented, it would have been open to the Tribunal to permit her to appear separately on the basis of her conflict with her co-applicants. The issue is therefore to be decided principally by reference to the specific provisions of the Act not the general principles. The question is whether the native title party is the Wongatha applicants acting jointly or whether each of them individually is a native title party.
The provisions of the Native Title Act 1993 (Cth)
Section 143 of the Act entitles a party to a right to negotiate application (that is, an expedited procedure objection application and a future act determination application (s 75)) to appear in person or be represented by a barrister, a solicitor or another person.
Section 141(2) says that parties to an inquiry in relation to a right to negotiate application are the Government party, the native title parties and the grantee party.
The Government party submitted that where s 141(2) uses the plural – ‘native title parties’ – it is referring to a plurality of native title applications and not to individual native title claimants in a single native title application.
There is no doubt that there can be a plurality of native title applications (i.e. more than one application) over the same area and that these can be accepted for registration and placed on the Register of Native Title Claims, thus giving claimants the right to negotiate under the Act. Apart from the provisions dealing with registration of claims which permit overlapping claims in some circumstances, numerous other provisions of the Act clearly contemplate the existence of more than one native title party over the same area.
For example:
Section 28(1) – more than one native title party may lodge an objection to the attraction of the expedited procedure.
Section 29(2)(a) and (b) – notice may need to be given to more than one native title party.
Section 30 – the heading refers to ‘Other native title parties etc.’
Section 30A – says that ‘any native title party’ is a negotiation party (along with the Government party and any grantee party).
Section 31(1)(a) and (b) – as part of the normal negotiation procedure the Government party must give ‘all native title parties’ an opportunity to make submissions and the negotiation parties must negotiate in good faith with a view to obtaining the agreement of ‘each of the native title parties’.
Section 32(4) – provides for ‘one or more native title parties’ to object to the inclusion of a statement that an act attracts the expedited procedure.
Section 39 – sets out the criteria that the Tribunal must take into account in considering the effect of the future act on ‘the native title parties’.
Section 141(2) – refers to ‘the native title parties’.
The issue is not whether there can be more than one native title party to the right to negotiate procedures provided for by the Act but whether each person named as an applicant on a native title determination application is a native title party. In my view the provisions of the Act support a conclusion that they are not.
Section 61(1) specifies that a native title determination application may be made to the Federal Court by a person or persons authorised by all the persons in the native title claim group (that is, those persons who according to their traditional laws and customs, hold the common or groups rights and interests comprising the particular native title claimed) provided the person or persons are also included in the native title claim group.
Section 61(2)(c) says that the person or persons who make the application are ‘jointly, the applicant’.
Section 251B sets out what is meant by a native title claim group authorising a person or persons to make a native title determination application. It must either occur in accordance with the process of decision making according to the traditional laws and customs of the native title claim group (s 251B(a)) or where there is no such process by a process of decision making agreed to and adopted, by the persons in the native title claim group (s 217B(b)). The second method of authorisation at least is consistent with a joint or collective approach to the application.
Section 62(1) says that a claimant application must be accompanied by an affidavit which, among other things deposes that the applicant is authorised by all the persons in the native title claim group to make the application and to deal with matters arising in relation to it (s 62(1)(iv)); and to state the basis of the authorisation (s 62(1)(v)).
Section 62A empowers an applicant to deal with all matters arising under the Act in relation to the application. I have no doubt that this includes dealing with any right to negotiate procedures which can only arise because an application has been made and entered on the Register of Native Title Claims.
An amendment to a claimant application to replace an applicant must be accompanied by an affidavit sworn by the new applicants that they are appropriately authorised (s 64(5)).
Where an application is made to the Federal Court pursuant to s 66B for the replacement of the current applicant on the grounds that the current applicant is no longer authorised or has exceeded the authority given to make the application, the person so applying must be authorised by the native title claim group to make the application.
If these were the only statutory provisions to be considered I would have had little hesitation in reaching the conclusion I have come to. They make it clear that native title determination applications are made jointly or collectively after proper authorisation by the claim group.
The difficulty arises because the provisions which define a ‘native title party’ are less clear. Section 29 says that before a future act is done the Government party must give notice, among others, to any registered native title body corporate (s 29(2)(a)) and any registered native title claimant (s 29(2)(b)(i)). Both are defined as ‘a native title party’. The note to s 29(2)(b)(i) says – ‘Registered native title claimants are persons whose names appear on the Register of Native Title Claims as applicants in relation to claims to hold native title: see the definition of registered native title claimant in s 253.’
In fact the definition of ‘registered native title claimant’ in s 253 refers to ‘a person or persons whose name or names appear in an entry on the Register of Native Title Claims as the applicant in relation to a claim to hold native title …’ Reference to the definition rather than to the note to s 29(2)(b)(i) supports the interpretation argued for by the Government party. That is, a ‘registered native title claimant’ can be a ‘person or persons’ named as ‘the applicant’. There can be more than one person who is collectively the applicant and registered native title claimant.
The issue becomes less clear when s 30(1) is considered. Section 30(1) defines ‘other native title parties etc’ as follows:
‘30 Other native title parties etc.
(1) Each of the following is also a native title party:
(a)any person who, 4 months after the notification day (see subsection 29 (4)), is a registered native title claimant in relation to any of the land or waters that will be affected by the act, so long as:
(i)the application containing the claim was filed in the Federal Court, or given to the recognised State/Territory body, before the end of 3 months after the notification day; and
(ii) the claim related to any of the land or waters that will be affected by the act;
Note: The note to subparagraph 29(2)(b)(i) explains who can be a registered native title claimant.
(b)any body corporate that, 3 months after the notification day, is a registered native title body corporate in relation to any of the land or waters that will be affected by the act;
(c)any body corporate that becomes a registered native title body corporate in relation to any of the land or waters that will be affected by the act:
(i) after the end of that period of 3 months; and
(ii) as a result of a claim whose details were entered on the Register of Native Title Claims before the end of that period of 3 months.’
Section 30(2) says that a person ceases to be a native title party if the person ceases to be a registered native title claimant.
The reference to ‘any person’ becoming a registered native title claimant supports an interpretation that each individual applicant on a native title claim is a registered native title claimant and hence a native title party. This is supported by s 30(2).
It is inconceivable that Parliament could have intended a distinction to be drawn between a native title party defined by the operation of s 29(2)(b)(i) (where individual applicants could not be separate native title parties) and by s 30(1) (where individual applicants could be separate native title parties).
In my view the issue must be resolved by reference to the provisions referred to above which set out who can make a native title determination application and the procedures for doing so. In particular the guiding provision is s 61 which requires a person or persons making an application to be authorised by a native title claim group (s 61(1)) and provides that the person or persons are jointly ‘the applicant’ (and hence registered native title claimant).
The basis for a person having status as a native party for the purposes of the right to negotiate is found in the native title determination application and its registration. In my view these provisions should prevail in determining the issue, despite the fact that on one interpretation of s 30(1), the category of persons who may individually be native title parties is expanded.
The conclusion I have reached is supported by other provisions of the Act and the policy behind it.
First, I accept that the provisions in the Native Title Amendment Act 1998 for the combination and registration of claims were designed to produce a rationalisation and reduction of claims and improve their management. It is obvious that if individual applicants on a combined claim could be separately represented in relation to the claim or the right to negotiate, then the purpose of combination would be undermined. Significant practical difficulties would ensue. In this case the Government and grantee parties would have been obliged to negotiate in good faith with twelve separate applicants. Each applicant could have appeared and made separate and conflicting submissions on a determination. The difficulties are exemplified by s 41(1) which says that a determination or an agreement that the act may be done subject to conditions being complied with by the parties has effect as if the conditions were terms of a contract among the negotiation parties. Each person in the native title claim group is contractually bound to the Government and grantee parties by any conditions of an agreement or determination as they are each taken to be a negotiation party for the purposes of ss 41(1) (see s 41(2)). It is therefore difficult to see how individual applicants could have different conditions relating to them and would be difficult to decide which persons in the native title claim group were bound by which conditions.
If separate representations were permitted the orderly management and progression of both claim hearings and right to negotiate inquiries would be adversely affected so as to seriously undermine the workability of the new provisions in the Native Title Amendment Act 1998. The Tribunal would find it more difficult to operate in the way envisaged by s 109.
Second, the requirements for the registration of a claim imposed by the Native Title Amendment Act 1998 are much stricter than previously. To enhance their case for registration it has become common for claimants to combine previously overlapping claims. It would be contrary to the policy of the Act for claimants to obtain registration of the claim by combining pre-existing claims but then being permitted to act individually in relation to the claims. If a particular applicant no longer wants to be part of a combined claim they should make application to the Federal Court to amend the claim to withdraw from it. The resulting separate claims would then be subjected to the registration test.
Third, there are other statutory provisions which lend support to the Tribunal’s conclusion. The Goldfields Land Council’s submission referred to:
s 202 of the Act which provides that representative Aboriginal or Torres Strait Islander bodies (of which the Goldfields Land Council is one) may perform certain functions which include assisting in the resolution of disagreements among individuals or groups making application for determination of native title; and assisting such individuals or groups, if requested to do so, in proceedings relating to the doing of acts affecting native title (which includes right to negotiate matters) or other matters relevant to the operation of the Act; and
s 84B which allows a party to proceedings in the Federal Court to appoint a society, organisation, association or other body to act as agent.
I accept that the purpose of these sections is to enable large groups to appoint an agent to represent them to facilitate processing of the claims and related matters under the right to negotiate provisions. In this matter the Goldfields Land Council was instructed in relation to the Wongatha claim made by approximately 2000 claimants in the north eastern goldfields region of Western Australia.
Fourth, I accept that the nature of native title which is generally considered to be held communally adds weight to an interpretation of the Act which supports a joint or collective approach to particular native title claims and matters arising from them.
Conclusion
For these reasons it is my conclusion that it is not open to individuals named as applicants to appear separately in an inquiry into a right to negotiate application and take a position which is contrary to that taken by other named applicants who are acting with the authority of native title claim group.
While individual applicants or members of the claim group can obtain their own legal advice in relation to matters which the group may be considering, resolution of any issues in dispute must be made by the claim group in accordance with its internal procedures. Once an issue has been resolved collectively no member of the claim group is entitled to take a contrary position in the claim application or any right to negotiate proceedings.
The Hon C.J. Sumner
Member
24 February 2000
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