FEDERAL COURT OF AUSTRALIA Franks and Lester for the Plains Clans of the Wonnarua People v National Native Title Tribunal (No 2) [2011] FCA 1531 Citation: Franks and Lester for the Plains Clans of the Wonnarua People v National Native Title Tribunal (No 2) [2011] FCA 1531 Appeal from: White Mining (NSW) Pty Ltd, Austral-Asia Coal Holdings Pty Ltd and ICRA Ashton Pty Ltd (grantee party) and Scott Franks and Robert Lester on behalf of the Plains Clans of the Wonnarua People (native title party) and State of New South Wales (government party) [2011] NNTTA 110 Parties: SCOTT MCCAIN FRANKS AND ROBERT JOHN LESTER FOR THE PLAINS CLANS OF THE WONNARUA PEOPLE v NATIONAL NATIVE TITLE TRIBUNAL, JOHN SOSSO, STATE OF NEW SOUTH WALES and WHITE MINING (NSW) PTY LTD ACN 089 414 595, AUSTRAL-ASIA COAL HOLDINGS PTY LTD ACN 113 038 663 AND ICRA ASHTON PTY LTD ACN 097 499 780 File number(s): NSD 1215 of 2011 Judge: JAGOT J Date of judgment: 19 December 2011 Catchwords: NATIVE TITLE – appeal from decision of National Native Title Tribunal that future act may be done – whether appeal raised question of law – whether Tribunal fell into error of law in determining not to hold hearing as to whether future act could be done Legislation: Native Title Act 1993 (Cth) ss 38, 151, 169 Date of hearing: 19 December 2011 Place: Sydney Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 29 Counsel for the Appellant: Mr I G A Archibald Solicitor for the Appellant: Eddy Neumann Lawyers Solicitor for the First Respondent: The First Respondent filed a submitting appearance Solicitor for the Second Respondent: The Second Respondent filed a submitting appearance Counsel for the Third Respondent: Mr H El-Hage Solicitor for the Third Respondent: Crown Solicitor for New South Wales Counsel for the Fourth Respondent: Mr S Lloyd SC with Mr C R Ireland Solicitor for the Fourth Respondent: McCullough Robertson Lawyers IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 1215 of 2011 ON APPEAL FROM THE NATIONAL NATIVE TITLE TRIBUNAL BETWEEN: SCOTT MCCAIN FRANKS AND ROBERT JOHN LESTER FOR THE PLAINS CLANS OF THE WONNARUA PEOPLE Appellant AND: NATIONAL NATIVE TITLE TRIBUNAL First Respondent JOHN SOSSO Second Respondent STATE OF NEW SOUTH WALES Third Respondent WHITE MINING (NSW) PTY LTD ACN 089 414 595, AUSTRAL-ASIA COAL HOLDINGS PTY LTD ACN 113 038 663 AND ICRA ASHTON PTY LTD ACN 097 499 780 Fourth Respondent JUDGE: JAGOT J DATE OF ORDER: 19 DECEMBER 2011 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The further amended notice of appeal filed in Court on 19 December 2011 be dismissed. 2. The applicants pay the costs of the fourth respondent in a sum fixed at $25,000 to be paid according to the following schedule: (a) $5,000 by 9 January 2012; (b) $5,000 by 9 February 2012; (c) $5,000 by 9 March 2012; (d) $5,000 by 9 April 2012; and (e) $5,000 by 9 May 2012. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011 IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 1215 of 2011 ON APPEAL FROM THE NATIONAL NATIVE TITLE TRIBUNAL BETWEEN: SCOTT MCCAIN FRANKS AND ROBERT JOHN LESTER FOR THE PLAINS CLANS OF THE WONNARUA PEOPLE Appellant AND: NATIONAL NATIVE TITLE TRIBUNAL First Respondent JOHN SOSSO Second Respondent STATE OF NEW SOUTH WALES Third Respondent WHITE MINING (NSW) PTY LTD ACN 089 414 595, AUSTRAL-ASIA COAL HOLDINGS PTY LTD ACN 113 038 663 AND ICRA ASHTON PTY LTD ACN 097 499 780 Fourth Respondent JUDGE: JAGOT J DATE: 19 DECEMBER 2011 PLACE: SYDNEY REASONS FOR JUDGMENT 1 On 24 June 2011, the National Native Title Tribunal (the Tribunal) made the following determination as set out at [102] of the Tribunal's reasons for decision published on that date (White Mining (NSW) Pty Ltd, Austral-Asia Coal Holdings Pty Ltd and ICRA Ashton Pty Ltd (grantee party) and Scott Franks and Robert Lester on behalf of the Plains Clans of the Wonnarua People (native title party) and State of New South Wales (government party) [2011] NNTTA 110): The determination of the Tribunal is that [the future act consisting of] the grant of Mining Lease Application 351 to White Mining (NSW) Pty Ltd, Australasia Coal Holdings Pty Ltd and ICRA Ashton Pty Ltd may be done. 2 This determination was made pursuant to s 38 of the Native Title Act 1993 (Cth) (the Native Title Act), which provides in subsection (1) that except where s 37 applies – which is immaterial for current purposes – the arbitral body must make one of the following determinations: (a) a determination that the act must not be done; (b) a determination that the act may be done; (c) a determination that the act may be done subject to conditions to be complied with by any of the parties. 3 Under s 169 of the Native Title Act, a party to an inquiry relating to a right to negotiate application before the Tribunal may appeal to this Court on a question of law from any decision or determination of the Tribunal in that proceeding (s 169(1)). The appeal is to be instituted within a period of 28 days starting on the day the decision or determination is given to the relevant party, or within such further time as the Court allows (s 169(4)(a)). 4 On 5 October 2011, I granted the appellant in this case an extension of time to appeal against the Tribunal's determination of 24 June 2011. The appellant's appeal is said to involve the following question of law as set out in the further amended notice of appeal which I gave leave to the appellant to file in Court today: Whether in making the [decision of 24 June 2011] the Tribunal erred in law in determining that the… grant of Mining Lease 351 may be done without conditions. 5 The appellant contends that the Tribunal fell into error of law by determining, on 1 June 2011, not to hold a hearing on the issue of whether the future act should be done. According to the appellant, the Tribunal: – (i) proceeded on the incorrect basis that the native title party consented to the Tribunal making a determination on the basis of the material before it, (ii) failed to consider the correct question, (iii) misconstrued its statutory function, (iv) acted arbitrarily, irrationally and capriciously, and (v) denied procedural fairness to the appellant. These alleged errors are particularised as follows (emphasis in original): • The Tribunal misunderstood the representative of the native title party as to whether it consented to the Tribunal making a determination without holding a hearing. • The Tribunal purported to give a summary of the evidence of the grantee party [the fourth respondents in this proceeding] and the government party, as well as the native title party, but failed to determine whether even on this summary the issues for determination could or could be adequately determined in the absence of the parties. • The Tribunal determined that it would determine the matter in the absence of the parties, but it did not determine whether or not the issues for determination could or could not be adequately determined in the absence of the parties. • The Tribunal misconceived its duty in deciding that its function was to weigh up the evidence based on the law and work out whether the future act should be done or not done. • The Tribunal made the decision to proceed without holding a hearing without receiving the further evidence from the native title party which it wished to present. 6 The reference in the grounds of appeal to the Tribunal having erred in determining not to hold a hearing relates to s 151 of the Native Title Act, which provides as follows: (1) For the purposes of an inquiry, the Tribunal may hold hearings. (2) The Tribunal may: (a) … (b) make a determination in relation to a right to negotiate application; by considering, without holding a hearing, the documents or other material lodged with or provided to the Tribunal. However, the Tribunal must hold a hearing if it appears to the Tribunal that the issues for determination cannot be adequately determined in the absence of the parties. 7 The factual foundation for the appellant's ground of appeal can be summarised briefly. There is in evidence before me the transcript of a directions hearing before the Tribunal on 1 June 2011 (which, as I understand it, occurred via telephone). Insofar as the appellant says is relevant, in an extract from that hearing the representative of the state party (the third respondent in this proceeding) said to the Tribunal: Deputy President, the State is of the view that all of the parties have had an opportunity to put forward all the information that the Deputy President would be able to make his decision based on that information [sic] and so the State would say that all the information is before you to make that determination on the papers in one go. 8 The Deputy President then responded: And I presume that's basically what you are also saying Mr Neumann, subject to the caveat that if I make a fundamental decision that the future act be done then you would want to put some extra material about conditions. 9 Mr Neumann replied: Ah yes, Mr Deputy President. 10 In so saying, Mr Neumann – according to an affidavit sworn by him on 28 November 2011 and filed in this proceeding – was "consenting to the proposition that if the Tribunal were to be minded to make a decision that the future act be done, then the Applicant would wish to put extra material before the Tribunal in relation to the conditions that ought to be imposed". Mr Neumann deposes that he was "not therein consenting to what was being put to the Grantee Party and the Government Party"; nor was he "consenting to the proposition that the matter be dealt with on the papers." 11 In its reasons for decision published on 24 June 2011, the Tribunal (at [7]) summarised the procedural history of the right to negotiate application. It noted that a listing hearing was convened in Sydney on 1 June 2011 and that, by that date, each of the negotiation parties had lodged its contentions with the Tribunal. The Tribunal further noted that both the government party and the grantee parties had confirmed with the Tribunal that they requested that the matter be heard "on the papers". However, on behalf of the native title party Mr Neumann initially submitted that the Tribunal "should engage in a bifurcated inquiry, whereby the Tribunal should first determine if the proposed future act could be done, and if it determined that that the future act could be done, then the parties could make further submission on what conditions, if any[,] should be imposed." 12 The Tribunal (also at [7]) recorded that the government and grantee parties did not support this approach and, according to the Tribunal's own reasoning, it "would not be helpful if an inquiry was split in the manner sought by Mr Neumann." The Tribunal continued: In order to determine if an act should or should not be done, it is necessary for all of the material to be before the Tribunal. It could be, for example, that the conditions sought by a party are legally impossible to impose and, in [that] case, that party may then oppose the doing of the future act. 13 The last sentence of [7] is the key to the appellant's appeal in this matter. The Tribunal recorded that "Mr Neumann then agreed that the Tribunal should make a determination on the basis of the material before it." 14 In short, it is the appellant's position that the Tribunal proceeded on the basis of an error, the error being that Mr Neumann consented to the Tribunal determining the question of the doing of the proposed future act on the papers (that is, without a hearing), when in fact he was only agreeing that the parties should be given a further opportunity to put on additional material about conditions. As I understand the appellant's position, this meant that the Tribunal's consideration of whether it was bound to hold a hearing in accordance with s 151 of the Native Title Act miscarried in the various ways set out above. 15 I consider this case to be fundamentally misconceived. First, the transcript of the directions hearing of 1 June 2011 does not begin and end with Mr Neumann saying, "Ah yes, Mr Deputy President," to the Tribunal's proposition regarding extra material about conditions. Read as a whole, the transcript makes it clear that the purpose of the directions hearing was to ascertain whether the Tribunal should proceed to make a determination on the papers as proposed by both the government party and the grantee parties. At p 2 the transcript shows that, having recorded the position of those parties, the Tribunal turned to Mr Neumann and said: I'll turn to you Mr Neumann, I know that I don't want to waste anyone's time, I know what the Government's position and the Grantee parties['] position [is], I don't know what your position is because you haven't submitted anything, so would you let me know what the position of the Native Title party is. 16 Mr Neumann responded that if the determination on the papers was "limited to the issue as to whether the future act should go ahead and there was a separate hearing or submissions in respect of conditions", then (with respect) Mr Neumann would agree to that course. Mr Neumann noted that he had not had the opportunity to put this position to the other side. 17 There followed a discussion at the end of which the Tribunal, rightly in my view, came to the conclusion that it did not have power to hold a bifurcated hearing as proposed by Mr Neumann. It was then, after hearing from and summarising the position of the grantee and government parties, that the Tribunal turned to Mr Neumann and asked what his position was and Mr Neumann responded, "Ah yes, Mr Deputy President". 18 That, however, was not the end of the matter. The Deputy President then asked Mr Neumann, "What other material would you want to put before me, if I went to that stage[,] that I don't already have?" After referring to some material on the valuation of cultural heritage which the appellant claimed would be destroyed by the proposed future act, and being pressed by the Tribunal as to whether such material was really necessary, Mr Neumann said: Well I haven't got any other evidence at the moment but I am instructed that I should be in a position of having further evidence in terms of putting a value on what would be destroyed. 19 It must be remembered in this context that directions had been made by the Tribunal as early as February 2011 which, amongst other things, required the parties to put on all their relevant evidence on or before 20 May 2011, including a statement of the evidence to be given by any witness for the native title party, verified where possible by affidavit, and the details of where the party proposed that the evidence be heard if the matter were not to be heard on the papers. 20 After Mr Neumann made the statement set out above, the Tribunal challenged the proposal that the native title party would put on further evidence, saying: Look, it really gets down to this: no one has put before me any material that is neither the Grantee Party [n]or the Government Party [n]or the Native Title party on conditions. The material before me is all whether the act should be done or shouldn't be done. 21 The Tribunal then summarised the position of the grantee parties and the government party, and that of the native title party, and put it to Mr Neumann that "that's really what you're saying". Mr Neumann agreed. The Deputy President continued: If that's the case then I just have to weigh it up based on the law and work out whether the future act should be done or not done. 22 Mr Neumann responded: Well, I can't, yeah, I don't seek to argue with that. 23 The Deputy President then said: I mean I don't know obviously and I'll have to go back and read thoroughly the copious materials before me, but it's one of these matters I think where, I'll have to determine whether the future act be done or not be done. Full stop. 24 After considering the consequences of the decision, the Deputy President again turned to both the government party and the grantee parties for their positions and then also turned to Mr Neumann, saying: Okay, Mr Neumann, have you got anything you'd like to assist me with[?] 25 The answer was: No, I've got nothing further to put. 26 The representative of the grantee parties then noted, "just to be abundantly clear", that the grantee parties "would strenuously oppose any further opening up of questions of conditions", and understood on the basis of what had gone before that there would be "no second wave of discussion in the event the act is allowed to proceed". The Deputy President responded as follows: No, well, Mr Neumann hasn't submitted and isn't submitting apparently that there be an on-country hearing or there be cross examination and so on and so forth. He has simply sought what he's sought. In those circumstances what I will do is proceed now to make a determination on the papers. If anything crops up in the meantime, obviously parties are at liberty to bring it to my attention and I would envisage that I'll bring [sic] that determination in approximately four weeks. Thank you, Ms Najdovski and thank you Mr Neumann for your attendance. 27 To which Ms Najdovski and Mr Neumann both responded: Thank you, Deputy President. 28 The idea that the Tribunal proceeded on the basis of some fundamental error about what Mr Neumann's position really was, having regard to the whole of the transcript, is simply untenable. It is obvious from the course of what occurred before the Tribunal that the Tribunal was of the view that the matter should proceed on the papers and that the Tribunal, by inference, did not think that it appeared that the issues for determination could not be adequately determined in the absence of the parties. Mr Neumann for the appellant had a full opportunity to put whatever he wished about that view. It could hardly have been clearer that the Tribunal proposed to deal with the matter without a hearing and, if Mr Neumann had thought there was any misunderstanding as to appellant's position, there was ample opportunity for him to raise with the Tribunal any matter he saw fit – including that, contrary to the Tribunal's summary as set out above, Mr Neumann was in fact submitting that the matter should proceed by way of hearing. However, Mr Neumann, according to the transcript, was silent in the face of all of these indications. The fact that Mr Neumann may not himself have considered that he was consenting to a particular proposition is simply immaterial in circumstances where, if that were the case, he had a more than adequate opportunity to make his position absolutely clear to the Tribunal and, on his own affidavit evidence, made no attempt to correct any misapprehension the Tribunal might have been under. Indeed, if the Tribunal were under any misapprehension, it was wholly due to the information provided by Mr Neumann himself. 29 In addition to this fundamental problem with the appellant's case, there remains the additional difficulty identified in the written submissions for the fourth respondents: namely, that the question whether the Tribunal erred in law in determining that the future act consisting of the grant of Mining Lease 351 may be done without conditions is not on any view a question of law. The mere fact that the grounds in the further amended notice of appeal specify alleged errors of law – none of which appears to be at all well founded on the basis of the transcript of the hearing on 1 June 2011 – is not sufficient to give rise to any question of law. As set out in the fourth respondents' submissions, the jurisdiction of the Court under s 169 of the Native Title Act depends upon the appeal being based on a question of law; accordingly, absent some question of law, this Court does not have jurisdiction to determine the appeal. For that reason, in addition to the reasons set out above, this appeal must be dismissed. I certify that the preceding twenty-nine (29) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jagot. Associate: Dated: 17 January 2012