Richard Evans on Behalf of the Koara People (WC95/1, WC99/5)/Western Australia/Australian Gold Resources Ltd

[2000] NNTTA 84

NATIONAL NATIVE TITLE TRIBUNAL

Richard Evans on behalf of the Koara People (WC95/1, WC99/5)/Western Australia/Australian Gold Resources Ltd, [2000] NNTTA 84 (28 February 2000)

Application No:        WO99/660

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

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IN THE MATTER of an inquiry into an expedited procedure objection application

Richard Evans on behalf of the Koara People (WC95/1, WC99/5) (native title party)

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The State of Western Australia (Government party)

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Australian Gold Resources Ltd (grantee party)

DECISION THAT OBJECTION APPLICATIONS HAVE BEEN PROPERLY MADE AND TRIBUNAL HAS JURISDICTION TO CONDUCT AN INQUIRY

Tribunal:       The Hon C.J. Sumner
Place:             Perth
Date:              28 February 2000

Catchwords: Native Title – future act – objection to inclusion in an expedited procedure application – proposed grant of exploration licences – objection application amended after closing date for applications – amendment allowed – technical misdescription in objection application not grounds for dismissal – substantial compliance with prescribed form.

Legislation:Acts Interpretation Act 1901 (Cth) s 25C

Native Title Act 1993 (Cth) s 148(a) ss 75, 76

Native Title (Tribunal) Regulations 1993 paragraph 5, Form 4

REASONS FOR DECISION

1. On 11 August 1999, the Government party gave notice of its intention to grant exploration licences E57/435, E57/436, E57/437, E57/438, E57/439, E57/440, E57/441, E57/442, E57/450, E57/457 and E57/479 to Australian Gold Resources Ltd (‘the grantee party’) and included in the notice a statement that the grant attracted the expedited procedure.  The notice specified 13 December 1999 (that is, 4 months from the notification day) as the day by which a native title party should lodge an objection application if it wished to object to the attraction of the expedited procedure.

1. Pursuant to ss 75 and 76 of the Native Title Act 1993 (Cth) (‘the Act’) an objection to the expedited procedure application (which is a Form 4 prescribed by the regulations) was made to the Tribunal on 13 December 1999 by Richard Evans on behalf of the Koara People (‘the native title party’). Para 5 of Form 4 requires information to be provided on – ‘Whether the objector is the registered native title body corporate or a registered native title claimant’. The application said that the native title party was a registered native title claimant in respect of claim number WC95/1.

1. Claim number WC95/1 was made by Richard Evans on behalf of the Koara People and placed on the Register of Native Title Claims on 8 September 1995.  On 11 January 1999, the Federal Court ordered that six claims made by Richard Evans (including WC95/1) be combined into one claim (WC99/5).  On 24 March 1999 the combined claim WC99/5 was entered on the Register.  Both claims WC95/1 and WC99/5 cover the areas of the proposed mining leases.

1. On 16 November 1999, the Federal Court (Western Australia v Native Title Registrar & Ors [1999] FCA 1594, Carr J) set aside the decision made by the Registrar of Native Title Claims to enter combined claim WC99/5 on the Register. On 10 December 1999, pursuant to the Federal Court order, pre-combination claim WC95/1 was re-entered on the Register and combined claim WC99/5 was removed from it. I am informed by the officer of the Tribunal responsible for amending the Register that the re-entry of pre-combination claim WC95/1 occurred before claim WC99/5 was removed.

1. Because the objection application, when it was lodged, incorrectly referred to WC99/5 as the relevant claim, the Tribunal requested the native title party to resubmit the objection application with a registered claim number. An amended Form 4 objection application specifying the correct claim number (WC95/1) was lodged on 19 January 2000. It was accepted by the Tribunal on 2 February 2000 pursuant to s 77 of the Act.

1. The grantee party submitted that the objection application should be dismissed as the Tribunal is not entitled to deal with it because:

• the Form 4 which was lodged on 13 December 1999 was invalid as the native title party claimed to be a registered native title claimant on claim WC99/5; and

• the amended Form 4 was also invalid because it was lodged beyond the time period allowed by (s 32(3)) of the Act.

1. In my view the grantee’s submission must be rejected.  I regard the misdescription of the relevant claim on the original Form 4 as a technical error which could properly be rectified by amendment after the closing date for objections.  There is no doubt that at all relevant times Richard Evans was a registered native title claimant over the area of the proposed mining leases.  To decide otherwise would not be consistent with the Tribunal’s mandate to pursue the objective of carrying out its functions in a fair, just, economical, informal and prompt way (s 109(1)).  It would not be fair to the native title party nor consistent with the requirements of informality to dismiss an objection on the grounds requested.

Section 25C of the Acts Interpretation Act 1901 (Cth) says that where an Act prescribes a form, strict compliance with the form is not required and substantial compliance is sufficient, unless the contrary intention is expressed. There is no doubt that there has been substantial compliance in this case.

Further (although it is not necessary to decide the point), it is not clear that, strictly, the information required to be provided by paragraph 5 of Form 4 includes specifying the relevant claim number. The paragraph does not specifically refer to the claim number.

However, as a matter of good practice, it is obviously helpful to the Tribunal and the other parties to know the basis of an assertion that an objector is a registered native title claimant and the Tribunal expects this information to be provided.

1. It is my view that if a problem of this kind occurs in future it would be sufficient for the applicant to provide a letter amending the application to correct the technical error without the need to make a completely fresh amended application. Although there is no specific power in the Act covering amendments to right to negotiate applications I think power must be implied to exist as a necessary adjunct to enable the Tribunal to properly carry out its functions and to operate in the manner set out in s 109 of the Act. For example, in the context of a future act determination application it would hardly be fair, informal or consistent with the prompt attention to the Tribunal’s business to require a fresh application to be lodged where an amendment to an application was required because technical errors were discovered in the information required to be provided. Whether amendment is appropriate to overcome defects in an application will need to be considered by the Tribunal at the time of acceptance of the application or, after acceptance, by a Member appointed to conduct the inquiry in a particular case. There will, of course, be cases where amendments cannot cure substantive non-compliance with the Act or Regulations and the application cannot be accepted or must be dismissed for want of jurisdiction. This may particularly be the case where amendments are sought to be made to objection applications after the time to make them has expired. As there is no time limit within which future act determination applications must be made the problem may not be so great in these cases.

Decision

The Tribunal’s decision is that the objection to the expedited procedure application has been properly made and the Tribunal has jurisdiction to conduct an inquiry and make a determination.

Hon C.J. Sumner
Member
28 February 2000