Rares, White and Banks-Smith JJ
In this matter, an appeal by the Yanunijarra Aboriginal Corporation (YAC) and the Yi‑Martuwarra Ngurrara People (YMN) was jointly dismissed. Both entities sought to appeal the National Native Title Tribunal’s refusal of an application by YMN to object to government intention to permit a future mining interest in the native title area. The court upheld the Tribunal’s decision as YMN was not the native title party entitled to object under s 32(3) of the Native Title Act 1993 (Cth) (NTA). The State of Western Australia and GE Resources Pty Ltd (GE) were the respondents in the matter.
Background
In March 2018, native title over the relevant area was positively determined in the case of Forrest on behalf of the Ngurrara People v State of Western Australia [2018] FCA 289. The claimants were subsequently ordered to indicate within twelve months who would hold the native title, following s 56 of the NTA. YAC was nominated in March 2018, and the court held YAC was the RNTBC for YMN in August 2018.
In June 2018, the State gave notice of its intention to grant mining a interest to GE, with notification sent to YMN and the Kimberley Land Council (KLC). YMN, and later YAC, instructed the KLC to lodge an objection to the future mining grant under the right to negotiate provisions of s 32(3) NTA. The KLC lodged the objection on 22 October 2018, naming YMN as the registered native title claimants. In November, the Tribunal initially upheld the objection, but KLC brought attention to their mistake in listing the wrong native title party and applied to amend it which the State and GE successfully opposed. The Tribunal held it did not have jurisdiction to allow the amendment under s 148 of the NTA. The Tribunal then rejected the objection completely as YMN had no legislative right to object after the 4 September 2018.
Grounds of appeal
Both the YAC and the YMN appealed the decision according to s 126(1) NTA. They raised the fact that the application was in the prescribed form, evidenced by the Tribunal’s initial acceptance of the objection, and that YAC instructed KLC to lodge the objection. It was also submitted that YAC and YMN represented the same body of native title holders, and the objection contained the native title party named in the government notice. These factors led to the argument that the objection was sufficient to fulfill of s 32 and ss 75 – 77 NTA.
Alternatively, it was submitted that the Tribunal was not bound by the merely textual error, and refusal to consider the applicant would be unjust and contrary to s 109 NTA. This was supported by considerations of legislative intention, with submissions stating the NTA does not indicate an intention for technical requirements to exclude objection to mining interests. Instead, YAC and YMN argued the objection was sufficient to inform the Tribunal that the native title holders object to notification, which complies with the overall intention of NTA Part 2 Division 3 Subdivision P.
Decision
The joint judgement found no error in the Tribunal’s decision. Their honours upheld that the YMN claimant had no entitlement to object upon their removal from the register and the Tribunal was correct to reject their objection. It was also agreed that the objection application was made by YMN, despite senior KLC staff intending YAC to be named, the fact that the YMN and YAC cover the same native title areas, and that YAC also gave instructions to lodge the objection. It was discussed that the KLC employee intended to lodge for YMN, rather than merely mistakenly using the wrong name.
Their honours found the Tribunal was not bound by the original acceptance and that s 76 of the NTA precludes situations where an inappropriate applicant lodges a sufficient objection.
In regard to statutory purpose, the court held the rule requiring the applicant to be the native title party is an essential prerequisite to invoke Tribunal jurisdiction. Although it was stated at [92] that ‘the character of the NTA was remedial and beneficial,’ it cannot override express procedural requirements.
The judges noted the highly technical outcome of the application, given that YMN could have lodged the objection before 4 September 2018 successfully. However, their honours also considered that insisting compliance with procedural rules could serve native title holders in other circumstances. At [93], they stated ‘non‑compliance with the means for validation may result in a future act being unable to be undertaken, at least unlawfully.’ If an act contrary to native title holder interest did not comply with procedural requirements, this could be relied on. There honours also agreed that there is no evident statutory intention in the NTA to prevent the right to object upon change in the identification of the native title party, but the rules for this are provided in s 30(2) of the NTA.
Despite dismissing the appeal, the judges found the decision regrettable, and concluded at [111] that ‘one cannot help but have a sense of disquiet about a decision which produces the result that, in circumstances like the present, the ability to challenge the Government party’s decision that the future act attracts the expedited procedure has been lost.’