Yindjibarndi Aboriginal Corporation on behalf of Yindjibarndi #1/Western Australia/ FMG Pilbara Pty Ltd

[2013] NNTTA 1

NATIONAL NATIVE TITLE TRIBUNAL

Yindjibarndi Aboriginal Corporation on behalf of Yindjibarndi #1/Western Australia/ FMG Pilbara Pty Ltd, [2013] NNTTA 1 (10 January 2013)

Application No:        WO2012/1083

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

- and -

IN THE MATTER of an inquiry into expedited procedure objection application

Yindjibarndi Aboriginal Corporation on behalf of          (native title party)
Yindjibarndi #1

- and -

The State of Western Australia   (Government party)

- and -

FMG Pilbara Pty Ltd   (grantee party)

DECISION TO DISMISS OBJECTION APPLICATION

Tribunal:                  Helen Shurven
Place:  Perth
Date:  10 January 2013

Catchwords:  Native title – future act – proposed grant of exploration licence – expedited procedure objection application – native title applicant - objection application dismissed.

Legislation:    Native Title Act 1993 (Cth), ss 29, 30, 75, 148(a)

Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth)

Cases:FMG Pilbara Pty Ltd/Ned Cheedy and Others/WA, 2012 NNTTA 11 (7 February 2012)

Representatives

Native title party:   Ms Christina Araujo, Yindjibarndi Aboriginal Corporation

Government party:           Mr Clyde Lannan, Department of Mines and Petroleum

Grantee party:                   Ms Gemma Phillips, FMG Pilbara Pty Ltd

REASONS FOR DECISION TO DISMISS OBJECTION APPLICATION

1. On 27 June 2012, the State of Western Australia gave notice under s 29 of the Native Title Act 1993 (Cth) (‘the Act’) of its intention to grant the exploration licence E45/2842 (‘the proposed licence’) to FMG Pilbara Pty Ltd and included in the notice a statement that it considered that the grant attracted the expedited procedure. The proposed licence is found within the area relating to the claim known as Yindjibarndi #1 (WC03/3).

2. On 2 October 2012, the Yindjibarndi Aboriginal Corporation (‘YAC’), ‘for and on behalf of’ Yindjibarndi #1, lodged an expedited procedure objection application with the National Native Title Tribunal (‘Tribunal’) in relation to the notice.

3. The issue before the Tribunal is whether the expedited procedure objection application was properly made and, if not, whether the application should be dismissed.

4. Under s 75 of the Act, an expedited procedure objection application may be made by a ‘native title party’, as defined in s 29 and s 30 of the Act. For example, s 29 states that the ‘native title party’ is any registered native title claimant (‘RNTC’) – that is, the persons whose names appear on the Register of Native Title Claims as applicant in relation to the relevant claim. The current Register of Native Title Claims does not list any representative for the applicant in relation to this claim. There are also current applications before the Federal Court to replace the current applicant.

5. On 9 November 2012, the Tribunal asked the YAC to provide submissions showing that the YAC had authority to lodge the expedited procedure objection application on behalf of Yindjibarndi #1 applicant.  On 27 November 2012, a faxed letter dated 16 November 2012 was received by the Tribunal. It is signed by approximately 26 people who stated they were, among other things, ‘members of the current Applicant’. However, none of these people appear to be among those named on the Register of Native Title Claims for Yindjibarndi #1, and so cannot be members of the current applicant.  The signatories to this letter state that they want the Tribunal to accept this objection OR to allow them further time until the Federal Court makes its decision regarding the application to replace the applicant. Unfortunately, the request for more time reveals a misunderstanding in relation to the statutory nature of objection inquiry time frames. The Tribunal has no power to extend the closing date for lodgment of expedited procedure objection applications, and, in addition, the Tribunal must deal with the applicant recorded on the Register of Native Title Claims.

6. The faxed letter also included a letter from the YAC to a barrister dated 24 August 2012, and another letter to the same barrister dated 23 August 2012, related to a Report which appears to be associated with the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth). It was not clear how, if at all, these letters related to this current matter.

7. In summary, from the fax received on 27 November 2012, the letter dated 16 November 2012 did not confirm that the Yindjibarndi #1 applicant had authorised the YAC to act on its behalf in the lodgment of an expedited procedure objection application, and the other letters were of no assistance to the Tribunal in this matter.

8. The Tribunal wrote to the YAC on 3 December 2012 confirming that ‘the Tribunal will not accept the objection, unless by COB Friday 14 December 2012, authorisation for YAC to lodge the objections is provided to the Tribunal, by the named registered native title claimant’.

1. Submissions were received from YAC in response, dated 18 December 2012, which stated, among other things, that:

   · YAC has authority to act as an agent for Yindjibarndi #1 as per s 84B of the Act and that authority has not been revoked

   ·     Just because certain members of Yindjibarndi #1 are in dispute with YAC does not terminate the agency

   ·     Yindjibarndi #1 have not taken any steps to terminate the authority for YAC to act as an agent

   ·     Two or three dissenting members of Yindjibarndi #1 cannot terminate the authority to act as agent

   ·     There are currently applications before the Federal Court to effect a change in the Yindjibarndi #1 applicant group and until that is resolved, YAC are the Yindjibarndi #1 agent

   ·     Member O’Dea’s decision in FMG Pilbara Pty Ltd/Ned Cheedy and Others/WA, 2012 NNTTA 11(7 February 2012) was erroneous

2. Subsection 84B(1) of the Act provides that a party to a proceeding may appoint a society, organisation, association or other body to act as agent on behalf of the party in relation to the proceeding. No evidence in support of the assertion that the YAC is appointed agent as per s 84B of the Act was provided to the Tribunal in relation to the expedited procedure objection application.

1. I turn to the Federal Court register of documents filed for this claim group, and find that the Pilbara Native Title Service came off the record as the representative for this applicant group on 22 February 2008, and solicitors Slater and Gordon were appointed as the new representatives.  I also note that Slater and Gordon came off the record on 28 September 2011, and since that date there is no evidence of any documents being filed to replace them as the representative for this group.  As the Federal Court record and the Register of Native Title Claims stand now, the address for service is each of the named individuals who together comprise the applicant for the Yindjibarndi #1 claim.  As such, any objection to the expedited procedure notice would need to be made by each of these individuals, acting in concert, unless evidence can be provided that another entity represented these individuals.

1. In answer to the question of representation, I also turn to Member O’Dea’s decision in FMG Pilbara Pty Ltd/Ned Cheedy and Others/WA, 2012 NNTTA 11 (7 February 2012), at [18] where he stated that ‘even if it were the case that YAC had been properly appointed as agent for the native title party, the Tribunal could not consider submissions or evidence from that party, unless that evidence was lodged on behalf of all the persons who jointly comprised the applicant of the native titles parties claim, acting as a whole’. Member O’Dea’s decision at [18]-[19] also points to some defects in the appointment of the YAC as agent and concludes by saying ‘the appointment of an agent does not address the difficulties confronted by the native title party relating to the inability of the persons who comprise the applicant to act in concert in making submissions to the Tribunal’.

2. Taking all of this information into consideration, I find that the expedited procedure objection application was not made by the RNTC and, therefore, does not satisfy the requirement of s 75 of the NTA.

Decision

1. Expedited procedure objection application WO12/1083 is dismissed pursuant to s 148(a) of the Native Title Act 1993 (Cth).

Member Helen Shurven

10 January 2013