FEDERAL COURT OF AUSTRALIA

Yanunijarra Aboriginal Corporation RNTBC v State of Western Australia [2020] FCAFC 64

ORDERS

THE COURT ORDERS THAT:

1.    The appeal is dismissed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

THE COURT:

1    This is an appeal from a decision of the National Native Title Tribunal (the Tribunal) concerning an objection (commonly referred to as a “right to negotiate” application) made pursuant to s 32(3) of the Native Title Act 1993 (Cth) (the NT Act) with respect to a future act: Josephine Forrest and Ors on behalf of the Yi-Martuwarra Ngurrara Native Title Claimants v State of Western Australia [2019] NNTTA 43.

2    The Tribunal (constituted by the President) dismissed the application on the basis that it had not been made by the entity entitled under the NT Act to make it. The application should have been lodged by the first applicant as the registered native title body corporate for the area in question. Although it was lodged by the previously registered native title claimant (the second applicant, to whom we will refer as the “YMN Claimant”) in the interests of the same holders of determined native title rights and interests (NTRI), the Tribunal held that the second applicant had not been competent to do so. It also held that the Tribunal did not have the power to allow an amendment of the application so that the position could be corrected. In these circumstances, the Tribunal considered that it was not entitled to deal with the application and, pursuant to s 148 of the NT Act, dismissed it.

3    The question on this appeal on a question of law is whether it was correct to do so.

4    On 4 September 2019, the Chief Justice directed, pursuant to s 20(1A) of the Federal Court of Australia Act 1976 (Cth) that the original jurisdiction of the Court in relation to the whole of the matter be exercised by a Full Court.

The statutory provisions concerning right to negotiate applications

5    Section 24OA of the NT Act provides that, unless otherwise provided in the NT Act, a future act is invalid to the extent that it affects native title. Subdivision P in Pt 2 Div 3 of the NT Act contains a scheme by which future acts by the Commonwealth, a State or a Territory involving, generally speaking, mining activities, may be valid. The evident intention of Subdiv P is to provide a means by which future acts of this kind may be lawfully undertaken, despite their effect on native title, and to provide some certainty as to whether the acts are permitted.

6    The scheme in Subdiv P contemplates four such means: negotiated agreement; governmental decision when an expedited procedure is appropriate; arbitral determination; or ministerial determination. It puts particular emphasis on the parties negotiating an agreement with respect to the carrying out of future acts.

7    The elements of the scheme which are relevant for present purposes are these. Before any future act is done, the Government party must give notice of the act in accordance with s 29 (s 29(1)). If there is any registered native title body corporate in relation to any of the land or waters which will be affected by the act, the notice must be given to that entity (s 29(2)(a)). When there is no registered native title body corporate or bodies corporate in relation to all of the land or waters that will be affected by the act, the notice must be given to any registered native title claimant, that is, the persons whose names appear on the Register of Native Title Claims as applicants in relation to claims to hold native title (s 29(2)(b)(i)). Both the registered native title body corporate and the registered native title claimant are referred to in s 29(2) as a “native title party”.

8    The Government party must also give notice to any person who has applied to do the act (defined as a grantee party) (s 29(2)(c)) and to the Registrar or other proper officer of the arbitral body (defined in s 27 but in most cases the Tribunal) in relation to the act (s 29(2)(d)).

9    If there is no registered native title body corporate in relation to all of the land or waters which will be affected by the act, either the Government party or the grantee party must also give notice to the public in a prescribed way (s 29(3)).

10    The Government party must specify in the s 29(1) notice a day as “the notification day” for the act and include a statement to the effect that, under s 30, persons have three months after the notification day to take certain steps to become native title parties in relation to the notice (s 29(4)). The notification day fixed by the Government party is to be the day by which it considers it reasonable to assume that all notices in relation to the act will have been received by, or otherwise have come to the attention of, the persons required to be notified (s 29(6)).

11    By s 29(7), a notice may include a statement that the Government party considers that the act attracts “the expedited procedure”. That expression is defined in s 237 of the NT Act:

237 Act attracting the expedited procedure

A future act is an act attracting the expedited procedure if:

(a)    the act is not likely to interfere directly with the carrying on of the community or social activities of the persons who are the holders (disregarding any trust created under Division 6 of Part 2) of native title in relation to the land or waters concerned; and

(b)    the act is not likely to interfere with areas or sites of particular significance, in accordance with their traditions, to the persons who are the holders (disregarding any trust created under Division 6 of Part 2) of the native title in relation to the land or waters concerned; and

(c)    the act is not likely to involve major disturbance to any land or waters concerned or create rights whose exercise is likely to involve major disturbance to any land or waters concerned.

12    As is apparent, in general terms the Government party may consider a proposed future act to be suitable for the expedited procedure if it is likely to have no, or only minimal, impact on matters of significance to native title holders.

13    Subdivision P provides for two forms of procedure after the giving of a s 29(1) notice. These are designated as the “normal negotiation procedure” and the “expedited procedure”.

14    Section 31 provides the normal negotiation procedure. It contemplates all native title parties having the opportunity to make submissions to the Government party in writing or orally regarding the proposed act and the “negotiation parties” (the Government party, any native title party, and any grantee party) negotiating in good faith with a view to obtaining the agreement of each of the native title parties to the doing of the act or the doing of the act subject to conditions (s 31(1)). If any of the negotiation parties requests the arbitral body to do so, it must mediate among the parties to assist them in obtaining agreement (s 31(3)). If at least six months elapse after the notification day without agreement having been reached, any negotiation party may apply to the arbitral body for a determination (s 35). The arbitral body is then obliged to take all reasonable steps to make a determination in relation to the act as soon as practicable (s 36(1)). That determination may be that the future act must not be done, may be done, or may be done subject to conditions to be complied with by one or more parties (s 38(1)).

15    Section 32 provides for the course to be followed if the Government has included in the notice a statement that it considers that the act attracts the expedited procedure:

32 Expedited procedure

(1)    This section applies if the notice given under section 29 includes a statement that the Government party considers the act is an act attracting the expedited procedure (see section 237).

Act may be done if no objection

(2)    If the native title parties do not lodge an objection with the arbitral body in accordance with subsection (3), the Government party may do the act.

Kinds of objection

(3)    A native title party may, within the period of 4 months after the notification day (see subsection 29(4)), lodge an objection with the arbitral body against the inclusion of the statement.

Objections against inclusion of statement

(4)    If one or more native title parties object against the inclusion of the statement, the arbitral body must determine whether the act is an act attracting the expedited procedure. If the arbitral body determines that it is, the Government party may do the act.

Act not attracting expedited procedure

(5)    If the arbitral body determines that the act is not an act attracting the expedited procedure, subsection 31(1) applies as if the notice did not include a statement that the Government party considers the act attracts the expedited procedure.

Withdrawal of objection

(6)    At any time before the arbitral body makes a determination under subsection (4), a native title party may withdraw his or her objection. If all such objections are withdrawn, the Government party may do the act.

Withdrawal of statement about expedited procedure

(7)    At any time before the arbitral body makes a determination under subsection (4), the Government party may, by giving written notice to the negotiation parties, withdraw its statement that it considers the act is an act attracting the expedited procedure. If it does so, subsection 31(1) applies as if the notice did not include such a statement.

16    As is apparent, a native title party (and only a native title party) may, within the period of four months after the notification day, lodge an objection with the arbitral body against the inclusion in the notice of the statement that the Government party considers that the act attracts the expedited procedure. If the native title parties do not lodge such an objection, the Government party may then proceed to do the act and it will be valid (s 32(2)). However, if one or more native title parties do object to the inclusion of the statement, the arbitral body must determine whether the act does attract the expedited procedure (s 29(4)). If the arbitral body determines that the act does attract that procedure, the Government party may then proceed to do the act. If, on the other hand, the arbitral body determines that the act does not attract the expedited procedure, the normal negotiation procedure will apply (s 32(5)).

17    In this scheme, the importance of an objection lodged pursuant to s 32(3) is apparent. It is by the lodging of an objection that native title parties can test the Government party’s decision that the act attracts the expedited procedure so that the normal negotiation procedure outlined in s 31 is not required. If there is no objection lodged, or if the arbitral body determines that the Government party has properly assessed the act as attracting the expedited procedure, the native title parties will have no right to negotiate with respect to the doing of the act and the act may be undertaken validly. Conversely, if the native title parties do lodge such an objection in accordance with s 32(3) and the arbitral body upholds the objection, they obtain the valuable right to negotiate for which s 31 of the NT Act provides. In that event, a negotiated agreement with the native title party will be the principal means by which the future act can lawfully be undertaken.

18    An important element of the scheme is that the person entitled to lodge an objection pursuant to s 32(3) must be either a registered native title claimant or a registered native title body corporate. When a native title determination has been made recognising a single native title over the whole of the area on which it is proposed to carry out the future act in question, there can, for the purposes of Subdiv P, be only one native title party.

Objections in the Tribunal

19    The Tribunal is established by s 107 of the NT Act and, by s 108(1), has the functions “in relation to applications, inquiries and determinations given to it by Part 3 and Division 5”. Section 139 of the NT Act requires the Tribunal to hold an inquiry into (relevantly) an application pursuant to s 32(3), which it describes as “a right to negotiate application”. Section 162 of the NT Act requires the Tribunal (subject to s 37), after holding an inquiry in relation to the s 32(3) application, to make a determination about the matters covered by the inquiry.

20    Division 2 of Pt 3 of the NT Act concerns the lodgment with the Tribunal of objections pursuant to s 32(3). Section 75 refers to such an objection as an “expedited procedure objection application” and provides that only a native title party may make the “application”. In the balance of these reasons, we will use the term “objection application”.

21    In relation to an objection application, ss 76 and 77 provide:

76 Material and fees to accompany applications

An application must:

(a)    be in the prescribed form; and

(b)    be given to the Registrar; and

(c)    contain such information in relation to the matters sought to be determined as is prescribed; and

(d)    be accompanied by any prescribed documents and any prescribed fee.

77 Action to be taken in relation to applications

If an application complies with section 76, the National Native Title Tribunal must accept the application.

Note:    The procedure to be followed in relation to these applications is set out in Subdivision P of Division 3 of Part 2.

22    It was common ground that s 25C of the Acts Interpretation Act 1901 (Cth) (the Interpretation Act) is applicable to s 76(a) of the NT Act. Section 25C provides:

25C Compliance with forms

Where an Act prescribes a form, then strict compliance with the form is not required and substantial compliance is sufficient.

23    Section 109 is an important provision concerning the manner in which the Tribunal is to operate:

109 Tribunal’s way of operating

Objectives

(1)    The Tribunal must pursue the objective of carrying out its functions in a fair, just, economical, informal and prompt way.

Concerns of Aboriginal peoples and Torres Strait Islanders

(2)    The Tribunal, in carrying out its functions, may take account of the cultural and customary concerns of Aboriginal peoples and Torres Strait Islanders, but not so as to prejudice unduly any party to any proceedings that may be involved.

Tribunal not bound by technicalities etc.

(3)    The Tribunal, in carrying out its functions, is not bound by technicalities, legal forms or rules of evidence.

Factual setting

24    On 12 March 2018, this Court made a determination of native title over an area claimed by the Yi-Martuwarra Ngurrara People (the YMN) – see Forrest on behalf of the Ngurrara People v State of Western Australia [2018] FCA 289. At the same time, the Court ordered that a representative of the common law holders of the NTRI indicate within 12 months whether they intended to have the NTRI held on trust and, if so, by whom. The Court then ordered that, if a body corporate was nominated, that body corporate would hold the NTRI on trust for the common law holders. The Court also made orders providing for the contingency that no body corporate was nominated but, for the purposes of this appeal, they need not be outlined.

25    The Court made these orders so as to give effect to s 56 of the NT Act which provides (relevantly):

56 Determination whether native title to be held in trust

Trust determination

(1)    One of the determinations that the Federal Court must make is whether the native title is to be held in trust, and, if so, by whom.

Steps in making determination

(2)    The Federal Court is to take the following steps in making the determination:

(a)    first, it must request a representative of the persons it proposes to include in the determination of native title as the native title holders (the common law holders) to indicate whether the common law holders intend to have the native title held in trust by:

(i)    nominating, in writing given to the Federal Court within a specified period, a prescribed body corporate to be trustee of the native title; and

(ii)    including with the nomination the written consent of the body corporate; and

(b)    secondly, if the common law holders give the nomination within the period, the Federal Court must determine that the prescribed body corporate is to hold the rights and interests from time to time comprising the native title in trust for the common law holders; and

(c)    thirdly, if the common law holders do not give the nomination within the period, the Federal Court must determine that the rights and interests are to be held by the common law holders.

Native title held in trust

(3)    On the making of a determination under paragraph (2)(b), the prescribed body corporate holds, in accordance with the regulations, the rights and interests from time to time comprising the native title in trust for the common law holders.

…

26    YAC was nominated in accordance with the orders of 12 March 2018 and, on 13 August 2018, the Court determined that it held the native title on trust for the YMN.

27    In accordance with Pts 7 and 8 of the NT Act, on 4 September 2018, the Tribunal made entries in the Registers for which it was responsible. It recorded the determination of 12 March 2018 in the National Native Title Register and noted that, by reason of this Court’s orders on 12 March and 13 August 2018, the determination came into effect on the latter of those two dates. The Tribunal registered YAC as the registered native title body corporate and removed the YMN Claimant from the Register of Native Title Claims.

28    These events overlapped with the State of Western Australia on 22 June 2018 giving notice under s 29(1) of the NT Act (the Notice) of its intention to grant Mining Tenement E04/2533 to GE Resources Pty Ltd (GE). It was common ground that the proposed grant would be a future act for the purposes of Pt 2, Div 3, Subdiv P of the NT Act and that the “notification day” for the purposes of s 29(4) of the Act stated in the Notice was 27 June 2018.

29    The State sent the Notice to Kimberley Land Council Aboriginal Corporation (KLC) and to “Yi-Martuwarra Ngurrara care of KLC”.

30    On 22 October 2018, KLC lodged with the Tribunal pursuant to s 32(3) an objection application to the grant of the future interest. The objection application followed exactly the form of Form 4 in Sch 1 to the Native Title (Tribunal) Regulations 1993 (Cth), this being the form for objection applications prescribed pursuant to s 76(a) of the NT Act. Paragraph 1 of Form 4 required the identification of the objector and paragraphs 2, 3 and 4 the address of the objector, its address for service and the name and address details of its representative. Paragraph 5 of Form 4 required the objector to state whether it was a registered native title body corporate or a registered native title claimant.

31    The unfortunate circumstance which gives rise to this appeal is that the objection application lodged by KLC stated that it was made by the YMN Claimant. KLC was listed as the YMN Claimant’s representative and its address was given in each case as the relevant address. Moreover, in para 5, the objection application listed the names of the 11 persons comprising the YMN Claimant and described them as “the registered native title claimants” in respect of claims WC12/02 and WAD25/12.

32    As already noted, an objection application pursuant to s 32(3) may be made only by a native title party, being either a registered native title body corporate in relation to the area affected by the proposed future act or a registered native title claimant in relation to the area.

33    As at 22 October 2018, the YMN Claimant did not have the status of either a registered native title body corporate or a registered native title claimant. Its status as a registered native title party ceased on 4 September 2018 when it was removed from the Register of Native Title Claims. YAC then took its place as the native title party. That is the effect of s 30(2) of the NT Act which provides:

Ceasing to be a native title party

(2)    A person ceases to be a native title party if the person ceases to be a registered native title claimant.

Note:    If a native title claim is successful, the registered native title claimant will be succeeded as a native title party by the registered native title body corporate.

34    Although throughout the period from 27 June 2018 to 4 September 2018, KLC had held instructions from the YMN Claimant to lodge an objection application to all s 29 notices containing expedited procedure statements, and could have lodged an objection application on the YMN Claimant’s behalf in that period, it had not done so. As we understand it, the YMN Claimant’s instructions to KLC were not withdrawn on 4 September 2018: they simply ceased to be effective on the YMN Claimant’s change of status on that day.

35    YAC did have the status of a native title holder in respect of the area in question after 4 September 2018 but it was not named as the objector on the objection application lodged by KLC. There was no objection lodged by YAC in its name in the period between 4 September 2018 and 27 October 2018 in relation to the act notified in the Notice.

36    The President of the Tribunal summarised the circumstances in which the objection application came to be lodged in the name of the YMN Claimant rather than YAC. The accuracy of the summary was not in issue on the appeal. The President recorded the matters to which we have just referred, namely, that the YMN Claimant had given instructions to KLC to lodge objection applications to all s 29 notices containing expedited procedure statements which were current between 12 March and 4 September 2018. On 2 October 2018, the Chief Executive Officer of YAC (Mr Murray) had instructed KLC to file an objection application to the State’s Notice of 22 June 2018. Mr Romano, a solicitor employed by KLC spoke to two KLC employees in relation to the lodging of the objection and confirmed to them that YAC was the registered native title body corporate for the area in question. One of the employees was at the time a trainee administrator employed by KLC. She prepared the objection application on 22 October 2018, but did so having regard to the identification of the native title party in the notice given by the State, namely:

Yi- Martuwarra Ngurrara

Kimberley Land Council

PO Box 2145

BROOME WA 6725

37    In her affidavit in support of the application before the Tribunal, the employee explained why she had done so:

After confirming with Future Act Officer Ania Maszkowski that we had instructions to lodge objections to the expedited procedure for the YMN claimants I lodged the objection with the National Native Title Tribunal by email on 22 October 2018.

(Emphasis added)

38    As is apparent, the employee lodged the objection application in the name of the YMN Claimant, having confirmed with another employee that KLC was instructed to do so.

39    The President said that it seemed either that the employee “was unaware of the determination, the subsequent appointment of [YAC], its registration on the National Native Title Register and the removal of [the YMN Claimant’s] name from the Register of Native Title Claims, or she did not appreciate the significance of those events”.

40    If it be the case that the subjective intention of the person lodging the document is material (a matter to which we will return) then it is pertinent that the intention of the employee was to lodge the objection application for the YMN Claimant. It was not, for example, a case of her intending to lodge for YAC but mistakenly using the YMN Claimant’s name in doing so. Mr Murray at YAC and Mr Romano at KLC intended that KLC would lodge an objection application for YAC but effect was not given to their direction.

41    The YMN Claimant’s lack of standing to object initially went unnoticed. In fact, on 2 November 2018, the Tribunal acting pursuant to s 77 of the NT Act, accepted the objection application. Subsequently, the President made directions with respect to the hearing of the objection application.

42    However, on 8 March 2019, Mr Romano discovered the error and brought it to the attention of the Tribunal.

43    KLC, acting on behalf of YAC, then applied to the Tribunal to amend the objection application to “list” YAC as the objecting party. Both the State and GE successfully opposed that application.

44    It is understandable that YAC and the native title holders regard the position by which they are precluded from challenging the appropriateness of the use of the expedited procedure as being highly technical. Before 4 September 2018, the YMN Claimant could have lodged an objection application and, if it had done so, YAC would have succeeded it as the objector – see s 30(2) of the NT Act. Both the YMN Claimant and YAC had a common interest in the protection of the interests of the native title holders and had wished to make the objection application in the defence of those interests. No practical prejudice was caused to the Tribunal, the State or GE by KLC’s error.

The decision of the Tribunal

45    The Tribunal refused the application to amend and found that it was not entitled to deal with the objection application filed by KLC on 22 October 2018. In summarised form, the President dealt with the diverse submissions made by KLC on behalf of YAC as follows:

(a)    the Tribunal does not have power to grant leave to amend an objection application, at [43]-[54]. The beneficial nature of the NT Act does not give it the power to exempt parties from compliance with procedural requirements, at [46];

(b)    after 4 September 2018, the YMN Claimant lacked the competence to object as it was no longer a native title party, at [39];

(c)    the objection application had not been lodged by YAC or on its behalf, at [30]. In particular, the YMN Claimant had not lodged the objection application on behalf of YAC. The problem was that even though KLC had held instructions from YAC at the time to lodge an objection application, it had not carried out those instructions, at [30]. It could not be said that KLC had been instructed to lodge the objection application on behalf of YAC using the name of the YMN Claimant, at [57]. The only objection application which YAC had authorised was an objection application in its own name, at [39];

(d)    YAC had not succeeded the YMN Claimant in the sense that something had passed from the latter to YAC, at [32];

(e)    although s 25C of the Interpretation Act provides that substantial compliance with a prescribed form will be sufficient, it could not be said that KLC had “substantially complied” with the requirements of the NT Act with respect to the lodgment of the objection application, because correct identification of the objector somewhere in the application is essential to the validity of an objection application, at [26]-[28], [33], [38]-[39] and [42];

(f)    if YAC had substantially complied with Form 4, the amendment it sought would be unnecessary, at [26];

(g)    while s 109 may permit some informality in the conduct of objection proceedings which have been properly commenced, it does not authorise departures from the statutory requirements for the invoking of the Tribunal’s jurisdiction, at [56];

(h)    the Tribunal’s acceptance of the objection application under s 77 was not conclusive of its jurisdiction to deal with it, at [66]-[83];

(i)    it was immaterial that neither the State nor GE had been prejudiced, at [58], [68]; and

(j)    this was not a situation in which a “slip rule” could be applied, at [61].

The appeal to this Court

46    Section 169(1) of the NT Act provides that 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. The present appeal is brought by both YAC and the YMN Claimant. No issue was raised about the standing of YAC to bring the appeal.

47    The applicants identified the questions of law on which they appealed in the following manner:

Questions of law

In circumstances where a registered native title body corporate has instructed its representative to object to the inclusion by the Government party in a notice under s 29 of the Native Title Act 1993 (Cth) (NTA) of a statement that the Government party considers the act the subject of the notice is an act attracting the expedited procedure, and the Tribunal has accepted an expedited procedure objection application made by that representative which erroneously describes the objector as the former registered native title claimants rather than the registered native title body corporate:

1.    Does that misdescription necessarily deprive the Tribunal of jurisdiction to consider and determine whether the act is an act attracting the expedited procedure?

2.    In particular, does that misdescription constitute a technicality or an error in a legal form within s 109(3) of the NTA such that the Tribunal was not bound by the misdescription of the objector; and is the Tribunal's refusal to consider and determine whether the act is an act attracting the expedited procedure unfair, unjust or unduly formal contrary to s 109(1) of the NTA?

(Emphasis added)

48    The Notice of Appeal contains two grounds:

1.    On the proper construction of the NTA, the misdescription in the Objection of the objector as the registered native title claimants rather than the registered native title body corporate did not deprive the Tribunal of the jurisdiction which it had accepted to inquire into and determine the Objection.

2.    Further or alternatively to ground 1:

(a)    the misdescription constituted a technicality or an error in a legal form which did not bind the Tribunal, within the meaning of s 109(3) of the NTA; and

(b)    the Tribunal’s refusal to consider and determine whether the act is an act attracting the expedited procedure was unfair, unjust or unduly formal, contrary to s 109(1) of the NTA.

(Emphasis added)

49    As is apparent, the applicants do not contend that the President erred in finding that the Tribunal did not have power to allow a party to amend an objection application.

50    We will refer later to the significance of the applicants’ characterisation of the error as a misdescription.

51    The State of Western Australia as first respondent opposed the appeal. GE did not appear as it had filed a submitting notice.

The significance of the Tribunal’s acceptance of the objection

52    Some of the submissions at first instance seemed to suggest that, because the Tribunal had accepted the application under s 77, it was bound to deal with it. In our view the President was correct to reject that submission.

53    The terms of ss 76 and 77 of the NT Act have been set out earlier in these reasons.

54    Section 76 provides for the manner and form in which an objection application pursuant to s 32(3) is to be made. Section 77 obliges the Tribunal to “accept” the objection application if it complies with s 76. In Charles v Sheffield Resources Ltd [2017] FCAFC 218; (2017) 257 FCR 29 at [142], White J expressed the view that the Tribunal’s acceptance of an application is an essential step in the making of an objection application. That is to say, an objection application is to be regarded as having been made for the purposes of the NT Act when an application complying with the requirements of s 76 is given to the Registrar of the Tribunal, and the Tribunal determines to accept it, as required by s 77.

55    However, the Tribunal’s acceptance of an objection application is not conclusive of its jurisdiction to deal with it. So much is apparent from s 148(a) of the NT Act:

148 Power of Tribunal where no jurisdiction, failure to proceed etc.

The Tribunal may dismiss an application, at any stage of an inquiry relating to the application, if:

(a)    the Tribunal is satisfied that it is not entitled to deal with the application; or

...

56    Thus, the correct position is that, having accepted the objection application in this case, the Tribunal was required to determine it as soon practicable. However, if it became satisfied that the objection application was not a matter with which it was entitled to deal, it was empowered to dismiss the application without determining it.

57    On the hearing of the appeal, the applicants sought to attach a different significance to the circumstance that the Tribunal had accepted the objection application. We will return to this later.

A challenge to a factual finding

58    Although the applicants can appeal to this Court only on a question of law, as their submissions developed it became apparent that they were seeking to impugn the Tribunal’s factual finding as to the identity of the “entity” which had lodged the objection application.

59    Counsel accepted that the YMN Claimant was named as the objector and, further, that no reference had been made to YAC in the objection application. He submitted nevertheless that a factual finding should have been made that it was YAC which had lodged the objection application. This was so because YAC had given KLC instructions to lodge an objection application, KLC had lodged the application, the identity of the relevant native title party was fixed by the provisions of the NT Act and, as a matter of public record, both the State and GE knew, or had the means of ascertaining, who could make a valid objection application.

60    As already noted, the Tribunal found that the objection application lodged was not made by YAC. The President found expressly that YAC had not lodged an objection application in its own name, at [13]; that KLC had instructions from the YMN Claimant until 4 September 2018 to lodge an objection application, at [17], [71]; that the KLC employee had prepared and lodged the objection application for “the YMN claimants” after confirming with KLC’s “Future Act Officer” that KLC had instructions to do so for those claimants, at [18]; that KLC’s employee had intended subjectively to lodge the objection application in the name of the YMN Claimant, at [70]; that it could not be concluded that either the employee or the Future Act Officer had been instructed to lodge the objection application in the name of YAC, at [70]; that there was no evidence that YAC had authorised the YMN Claimant to act on its behalf or in its name, at [30], [39], [51], [57]; and that even though Mr Romano at KLC had instructions from the Chief Executive Officer of YAC to lodge an objection application for YAC, KLC had simply failed to carry out those instructions and had, instead, lodged the objection application in the name of a purported objector from whom it no longer held instructions, at [30], [57] and [72].

61    There are two immediate difficulties for YAC with its challenge to the Tribunal’s factual finding on this issue. The first is that the appeal to this Court lies only on a question of law. This Court is not entitled on appeal to review the Tribunal’s findings of fact: Cook v ASP Ship Management [2009] FCAFC 113 at [16]. The second is that, as the State submitted, the challenge to the factual findings is not raised by the Notice of Appeal. Counsel for the applicants sought to avoid this difficulty by referring to the preamble to the identification of the questions of law in the Notice of Appeal:

In circumstances where a registered native title body corporate has instructed its representative to object to the inclusion by the Government party in a notice under s 29 of the Native Title Act 1993 (Cth) (NTA) of a statement that the Government party considers the act the subject of the notice is an act attracting the expedited procedure, …

62    In our opinion, it is doubtful that this passage can reasonably be understood as putting in issue the factual finding which the applicants seek to impugn. That is especially so given the ready availability of alternative means by which they could have articulated such a complaint more expressly.

63    Nevertheless, it is established that the question of whether facts fully found fall within the provisions of a statute properly construed is a question of law: Hope v The Council of the City of Bathurst (1980) 144 CLR 1 at 7. Adopting a view which is favourable to the applicants, we are willing to proceed on the basis that their complaint on appeal is of that nature. We did not understand the State to assert that doing so involved any denial of procedural fairness to it.

64    However, even proceeding on that favourable basis, it is difficult to conclude that the Tribunal should have found, on the findings of fact it had made, that the objection application was made by YAC. The objective facts stand in the way of that conclusion. The objection application was expressed to have been made by the YMN Claimant and it contained no reference at all to YAC. It is pertinent in this respect that para [5] in the Form 4 required the applicant to state expressly whether the objector is the registered native title body corporate or a registered native title claimant. As previously noted, of these two alternatives the objection application lodged on 22 October 2018 named the registered native title claimant as the objector. That YAC and senior staff at KLC may have intended, and indeed had given an instruction, that the objection application be lodged by YAC does not warrant a different conclusion in the face of the sworn evidence of the employee who lodged the objection application, that she did so in the name of the YMN Claimant, having confirmed with KLC’s Future Act Officer, that the objection application should be made by the YMN Claimant. The fact that the KLC staff lodging the objection application were mistaken in their belief as to the identity of the party entitled to object does not alter the position. As previously noted, this is not a case of KLC having lodged the objection application using the name of the YMN Claimant in the mistaken belief that YAC had authorised it to be made by the YMN Claimant or that its name was correct description of YAC.

65    The applicants’ submissions emphasised that both YAC and the YMN Claimant represented and acted for and on behalf of the same body of native title holders. One may accept that that is so but it is not of assistance presently. It is not as though there is an equivalent of the “corporate veil” which can be pierced on this account. Section 30(2) provided that YAC succeeded to YMN’s position as the native title party once the Tribunal registered YAC as the registered native title body corporate of the NTRI.

66    The regrettable position, as the Tribunal found, was that while KLC had been instructed by YAC to lodge an objection application in its name, it did not do so. Instead, KLC lodged the objection application for, and in the name of, persons from whom it no longer held effective instructions and which had no standing at that time to make the objection.

67    Accordingly, we conclude that, even if this revised way of presenting the appeal be open to the applicants, no error in the decision of the Tribunal has been shown.

Reliance on s 25C of the Interpretation Act

68    The applicants’ next submission was that the Tribunal had asked itself the wrong question. The relevant question, they submitted, was not whether the objection application lodged named the entity which was the current native title holder, but whether it had been “sufficient to satisfy the statutory purpose” of s 32 and ss 75-77 of the NT Act.

69    Counsel for the applicants emphasised that the Tribunal had before it an objection application in the prescribed form which identified the proposed future act and stated an objection to the appropriateness of the use of the expedited procedure. He emphasised again that YAC had authorised KLC to lodge a s 32(3) objection application.

70    In support of this submission, YAC referred to MZAIC v Minister for Immigration and Border Protection [2016] FCAFC 25; (2016) 237 FCR 156. The issue in MZAIC arose from the use by an applicant to the former Refugee Review Tribunal (the RRT) of a superseded version of the form of application approved for that purpose. Section 412(1)(a) of the Migration Act 1958 (Cth) then in force required that an application to the RRT be made in “the approved form”. The principal issue on the appeal was whether the use of a non-approved form made the application to the RRT invalid by reason of non-compliance with s 412. The resolution of that issue turned on the application of s 25C of the Interpretation Act.

71    After an extensive review of the authorities, the plurality (Kenny, Tracey, Robertson and Mortimer JJ) concluded:

(a)    the use of superseded form did not, of itself, preclude an analysis of whether there had been substantial compliance with the approved form, at [48]. Instead, s 412(1)(a), in conjunction with s 25C of the Interpretation Act, required consideration of whether the application to the RRT had been made substantially in the approved form, at [52]; and

(b)    the assessment of substantial compliance should be made by reference to the purpose of the form and the sufficiency of the information provided in satisfying that purpose, at [54]-[55], citing SZGME v Minister for Immigration and Citizenship [2008] FCAFC 91; (2008) 168 FCR 487 at [78]-[87].

72    The plurality then engaged in a close analysis of the content of the form used by the applicant and a comparison of it with the approved form, at [58]. Their Honours concluded that there had been substantial compliance. In consequence, the plurality found that the jurisdiction of the RRT had been validity invoked.

73    The plurality rejected a submission by the Minister concerning uncertainty and the comparative analysis of a form which would be required of the RRT if substantial compliance was sufficient. Their Honours said:

[51]    We do not accept the Minister’s submission that if the Court concluded that an applicant had “substantially” complied with s 412(1)(a) by making an application in a form revoked by the Minister or the Principal Member under s 495 that will give rise to significant uncertainty. Neither do we accept that the Tribunal member who assessed the application for validity would be required to undertake a comparative analysis of the differences between the two forms and then make an evaluative judgment about whether the differences between the two forms were “substantial”. The answer to both these issues, in our opinion, is that the Tribunal would ask itself the question whether the form of the application made contained the information the Tribunal needed to set in train the process of review. That, in our view, is the purpose of s 412. Otherwise, as we have said, despite s 25C, the focus of attention would be on the form of the form rather than on the substance of its contents …

(Emphasis added)

74    Counsel relied on the emphasised passage, submitting that this approach should also have been adopted by the Tribunal. Had it done so, counsel submitted, the Tribunal should have concluded that the objection application lodged by the KLC on behalf of the YMN was sufficient to invoke its jurisdiction because it:

(a)    contained the name of the native title party named in the s 29(1) notice;

(b)    identified the tenement number, the name of the grantee party and the date of the s 29 notice; and

(c)    provided, as required by the prescribed form, the reasons for the objection together with an outline of the type of evidence which would be adduced in support of it.

75    Counsel submitted that the sufficiency of the information provided was evidenced by the Tribunal’s acceptance of the application and it having made directions for its hearing.

76    The Explanatory Memorandum Notes on Clauses to the Acts Interpretation Amendment Bill 1984 (Cth), which led to the insertion of s 25C, referred to its purpose in the following terms:

Proposed s 25C provides that where a form is prescribed in an Act, or by a regulation, unless the contrary intention appears, any form which is like or has the effect of the prescribed form will be sufficient for the purposes of the Act or regulation. The inclusion of this provision will remove the need to include such a provision in particulars Acts and regulations.

77    There is a significant distinction between the circumstances considered in MZAIC and the circumstances of the present case. That is that the person designated as MZAIC had been entitled to make the application to the RRT and had purported to do so. In the present case, although YAC had been entitled to lodge an objection application with the Tribunal, it had not done so. The only objection application which was lodged was made by persons who had no entitlement to do so.

78    In our view, s 25C of the Interpretation Act does not have any operation in a circumstance of the present kind. Instead, s 76 of the NT Act and s 25C operate in relation to the use of a form by the party making the application in question. It is the consequences of that party’s non-compliance in every respect with the requirements of the form to which s 25C is directed. That could encompass situations in which the party misdescribes itself, or describes itself insufficiently. It does not, however, encompass situations in which the prescribed form of application is used by an entity which is incompetent to make the application.

79    The reasons of the Full Court in MZAIC on which YAC relied should be understood as addressed to the circumstance then before it. It would not be reasonable to suppose that the Full Court intended to say that, when an application is made by a party which is not competent to do so, a tribunal need enquire only whether the application contained the information needed to set in place the process of review at the instigation of a competent party.

80    It is pertinent that none of the authorities in the extensive list reviewed by the Full Court in MZAIC, nor MZAIC itself, concerned a circumstance like the present case, that is, in which s 25C or an analogue was sought to be invoked by a person which had not made the application in question.

81    This means, in our opinion, that the applicants’ reliance on s 25C is misplaced. Plainly, there was substantial compliance with the prescribed form in the present case, but that compliance was by the YMN Claimant, and not YAC. The YMN Claimant, by KLC, made the objection application using the prescribed form and included in it the details required by that form. The issue here does not arise from some non-compliance with the prescribed form, but from the fact that it was lodged by an entity which was not competent to make the objection application, whether by the prescribed form or otherwise. This is not a case of YAC lodging an objection application but not complying in every respect with the requirements of the form. We note again that on the factual findings of the Tribunal, the application was not lodged by the YMN Claimant on behalf of YAC.

82    In summary, when, as here, an entity has not made an objection application, its compliance or otherwise with the form prescribed for that purpose does not arise. Accordingly, we reject this submission of the applicants. No error in the conclusion of the Tribunal has been shown.

The Project Blue Sky principle

83    The applicants contended, in the alternative, that the NT Act does not evince an intention that an application of the kind lodged by the YMN Claimant in the present case should be insufficient to invoke the Tribunal’s jurisdiction. It referred to the well-known passages in the reasons of the majority in Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 at [91] and [93]:

[91]    An act done in breach of a condition regulating the exercise of a statutory power is not necessarily invalid and of no effect. Whether it is depends upon whether there can be discerned a legislative purpose to invalidate any act that fails to comply with the condition. The existence of the purpose is ascertained by reference to the language of the statute, its subject matter and objects, and the consequences for the parties of holding void every act done in breach of the condition. Unfortunately, a finding of purpose or no purpose in this context often reflects a contestable judgment. The cases show various factors that have proved decisive in various contexts, but they do no more than provide guidance in analogous circumstances. There is no decisive rule that can be applied; there is not even a ranking of relevant factors or categories to give guidance on the issue.

…

[93]    [A] court, determining the validity of an act done in breach of a statutory provision, may easily focus on the wrong factors if it asks itself whether compliance with the provision is mandatory or directory and, if directory, whether there has been substantial compliance with the provision. A better test for determining the issue of validity is to ask whether it was a purpose of the legislation that an act done in breach of the provision should be invalid. This has been the preferred approach of courts in this country in recent years, particularly in New South Wales. In determining the question of purpose, regard must be had to “the language of the relevant provision and the scope and object of the whole statute”.

(Citations omitted)

84    The applicants submitted that there is nothing in the NT Act to indicate a legislative intention that access by native title holders to an arbitral determination of whether an act attracts the expedited procedure should be confined to those circumstances in which an objection application describes the native title party “with strict textual accuracy or in a way which is linguistically or textually sufficiently similar such that the name on the form can be discerned on its face to be the same as the name on the relevant register”. They submitted again that all that was required was that the objection application contain sufficient information to notify the Tribunal that the native title holders in question object to the Government party’s assertion in the s 29 notice that the future act in question attracts the expedited procedure.

85    A related submission of the applicants was that it should not be concluded that Parliament intended that an objection application which complies with the relevant form but which names the objector as the registered native title claimant specified in the s 29 notice, rather than the registered native title body corporate as per s 30 of the NT Act, would be insufficient to invoke the Tribunal’s jurisdiction. They noted in this respect that an objection application lodged by the YMN Claimant before 4 September 2018 would have been sufficient to invoke the Tribunal’s jurisdiction. The NT Act could not have intended, it submitted, that the valuable procedural rights of native title holders should be lost merely because of a change in the identity of the native party within the four month period commencing on the notification day.

86    Next, the applicants submitted that the existence of such an intention in the NT Act was inconsistent with the representative nature of a native title party (the role of the registered native title body corporate or the registered native title claimant), and with the beneficial objects of the NT Act generally.

87    As is apparent, the applicants’ submission placed considerable emphasis on the perceived injustice to the native title holders if there was no valid objection application. They did not engage in the close examination of “language of the statute, its subject matter and objects” required for the application of the Project Blue Sky principle.

88    Although the Tribunal referred to the approach concerning the identification of invalidity discussed in Project Blue Sky, it did not express any conclusion as to its application in the circumstances of this case.

89    The approach in Project Blue Sky was considered in Forrest & Forrest Pty Ltd v Wilson [2017] HCA 30; (2017) 262 CLR 510 with respect to the effect of non-compliance with procedural requirements for the grant of a mining lease under the Mining Act 1978 (WA). The majority (Kiefel CJ, Bell, Gageler and Keane JJ) noted that the decision in Project Blue Sky had been strongly influenced by three factors: first, that the requirement for the exercise of the statutory power in question regulated the exercise of functions already conferred on the agency, rather than imposing essential preliminaries to the exercise of the agency’s functions; secondly, that the statutory conditions did not have “a rule-like quality which [could] be easily identified and applied” and, instead, many of the obligations had been “expressed in indeterminate language”; and, thirdly, that public inconvenience would be the result of the act being declared invalid especially given that those affected by the non-compliance were neither responsible for, nor aware of, the non-compliance, at [62]. The majority distinguished the grant of a mining lease under the Mining Act from circumstances of that kind. Their Honours also referred to a “line of authority which establishes that where a statutory regime confers power on the executive government of a State to grant exclusive rights to exploit the resources of the State, the regime will, subject to provision to the contrary, be understood as mandating compliance with the requirements of the regime as essential to the making of a valid grant”, at [64].

90    Many of the considerations to which the majority referred in Forrest & Forrest are applicable presently. The status of an applicant as “a native title party” is an essential pre-requisite under ss 32(3) and 75 for the invoking of the Tribunal’s jurisdiction. The scheme established by Div 3 of Pt 2 of the NT Act by which future acts may be validly undertaken has a “rule-like quality”. Further still, the detriment resulting from the non-compliance with the NT Act is one for which the YAC (by its agent the KLC) is itself responsible.

91    The provisions in Div 3 of Pt 2 of the NT Act may not be directly concerned with “the disposition of the interests in the resources of a State” (Forrest & Forrest at [64]), but they are concerned with a closely related subject matter. In our view, the rationale to which the majority referred in Forrest & Forrest is also apposite in the present context.

92    The character of the NT Act as remedial and beneficial legislation is important. It should be construed with these objects in mind: Commonwealth of Australia v Yarmirr [2001] HCA 56; (2001) 208 CLR 1 at [124] (McHugh J). But this does not mean that the procedural requirements of the NT Act, especially those on which the jurisdiction of the Tribunal depends, can be overlooked: Lake Torrens Overlap Proceeding (No 3) [2016] FCA 899 at [127].

93    Moreover, the submission of YAC focussed only on the effects of non-compliance on an objection application. Regard should be had to the content of Div 3 of Pt 2 more generally. It contains a suite of provisions by which future acts may be made valid. It is entirely in keeping with the evident purpose of the Division that non-compliance with the means for validation may result in a future act being unable to be undertaken, at least lawfully. In this way insistence on compliance with the procedural requirements of the NT Act may serve the interest of native title holders. This means, in our opinion, that for this reason alone the Court should be cautious before concluding that the Project Blue Sky principle may be invoked in relation to any individual non-compliant act in the implementation of the scheme.

94    The applicants are correct in submitting that the NT Act does not evince an intention that the entitlement to object to the expedited procedure should be lost merely because of a change in the identity of the native title party in the four month notification period. On the contrary, the NT Act makes express provision for that contingency in s 30(2) by providing that, if a native title claim is successful, the registered native title claimant will be succeeded as a native title party by the registered native title body corporate. Had the YMN Claimant lodged an objection application before 4 September 2018, YAC would have succeeded it as the native title party, including to its position as an objector without needing to do anything more.

95    The NT Act expressly identifies the persons who have the status to lodge an objection, in ss 30 and 32, and, as s 30(2) provides, the NT Act allows an existing objection to continue for the benefit of the successor to the original, lodging, native title party. But the NT Act also evinces the intention of removing from a registered native title claimant the status of a person who can lodge an objection once a registered native title body corporate has succeeded it as the holder of the relevant NTRI. Accordingly, the NT Act provides expressly for who it is, as between a registered native title claimant and a registered native title body corporate, that has standing at any point in time to lodge an objection application.

96    It follows that we consider that the applicants’ reliance on the Project Blue Sky principle does not avail them presently.

Reliance on s 109 of the NT Act

97    The Tribunal concluded that s 109(1) (set out earlier in these reasons) should be understood as addressing the Tribunal’s conduct of proceedings of which it is properly seized, not as authorising the dispensation from compliance with statutory requirements for the engagement of its jurisdiction.

98    By Ground 2 of the Notice of Appeal, the applicants contended that the Tribunal had applied s 109 too narrowly. Instead, it should have regarded the “misdescription” in the name of the objectors as constituting “a technicality or an error in a legal form” which did not bind the Tribunal within the meaning of s 109(3). The applicants contended further that the Tribunal’s refusal to consider and determine whether the proposed future act did attract the expedited procedure was “unfair, unjust or unduly formal”, contrary to s 109(1).

99    Counsel developed the submission in support of these grounds by contending that the functions of the Tribunal include the function of determining the limits of its own jurisdiction. It was bound in the discharge of that function to apply s 109, that is to say, in determining whether or not it was entitled to deal with an objection application, to do so without being bound by technicalities or legal forms. The Tribunal’s acceptance of the objection application on 2 November 2018 was significant in this respect because it indicated that the Tribunal had embarked on the exercise of its jurisdiction. This meant that, in addition to have the flexibility for which s 109 provides, it could have regard to all the evidence it had received, including the evidence of the instructions given to, and within, KLC.

100    Counsel then characterised the mistake in naming the YMN Claimant as the objector rather than YAC as “a technicality in a legal form” which ought not to have bound the Tribunal when considering whether it was entitled to deal with the objection application. Counsel also submitted that the Tribunal’s insistence “on linguistic or textual equivalence between the name on the objection application and the name of the native title party as per the relevant register [was] an unduly technical approach”. Counsel emphasised again the unfairness of the result which the Tribunal’s decision had produced.

101    In our view, these submissions cannot be accepted. Either the Tribunal’s jurisdiction had been properly invoked so that it did have jurisdiction to deal with the objection application, or it had not. The resolution of that question was a matter of law. When the Tribunal discharged its implicit jurisdiction to determine whether it was entitled to deal with a matter, it was required to do so by applying the law. The resolution of the question of jurisdiction could not vary according to the stage in the proceedings at which the issue was considered. Moreover, the resolution of the question of jurisdiction could not vary according to whether the issue was being considered by the Tribunal (and in doing so applying s 109) or by, say, this Court (which would not be required to apply s 109).

102    Moreover, the Tribunal, as a non-judicial body, could not determine conclusively the limits of its own jurisdiction. As Gaudron, McHugh, Gummow, Kirby and Hayne JJ said in Plaintiff S157 v The Commonwealth (2003) 211 CLR 476 at 505[73]:

a privative clause cannot operate so as to allow a non-judicial tribunal or other non-judicial decision making authority to exercise the judicial power of the Commonwealth (R v Kirby; Ex parte Boilermakers' Society of Australia (1956) 94 CLR 254; Attorney-General (Cth) v The Queen (1957) 95 CLR 529). Thus, it cannot confer on a non-judicial body the power to determine conclusively the limits of its own jurisdiction. So much is clear from the observation of Mason A-CJ and Brennan J in Coldham that they were ``unable to perceive how the Commission could be given authority to determine conclusively the question [upon which its jurisdiction depended] consistently with its character as a body which does not exercise the judicial power of the Commonwealth'' (Coldham (1983) 153 CLR 415 at 419. See also at 426 428, per Deane and Dawson JJ).

103    The question of whether the Tribunal’s jurisdiction had been properly invoked was a matter to be determined objectively. The lawful exercise of jurisdiction by the Tribunal could not depend on the subjective intention of the person lodging the objection application. See in another context SZGGT v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 435 at [41], [45]-[46]. The matter was to be determined by an objective consideration of the objection application which was lodged having regard to the context of the NT Act as a whole: cf Le v Minister for Immigration and Border Protection [2019] FCA 427 at [81]-[88].

104    It is important to keep the purpose of provisions like s 109 firmly in mind. In Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21; (1999) 197 CLR 611, Gleeson CJ and McHugh J described an analogue of s 109 in the Migration Act as “intended to be facultative, not restrictive”, the purpose of which was to free the Tribunal, at least to some degree, from constraints otherwise applicable to courts of law, at [49]. Likewise, Gaudron and Kirby JJ said that the provision required the RRT “to operate as an administrative body with flexible procedures and not as a body with technical rules of the kind that have sometimes been adopted by quasi-judicial tribunals”, at [75].

105    It is plain that the NT Act intends the Tribunal to have this flexibility when dealing with matters within its jurisdiction. In Singh v Minister for Immigration and Multicultural Affairs [1999] FCA 353; (1999) 92 FCR 557, Wilcox J said of the analogue of s 109 then under consideration:

[8]    … Section 420 is concerned with the manner of exercise of the Tribunal’s powers. It is not concerned with the circumstances in which the Tribunal has jurisdiction. If an applicant fails to enliven the Tribunal’s jurisdiction, by failing to lodge an application in the approved form, within the prescribed time or accompanied by the prescribed fee, the Tribunal has no power to carry out a review. Consequently, the provisions dealing with the manner of exercise of its review powers do not arise.

106    For this reason, the applicants’ invocation of s 109 does not assist it in the present circumstances.

107    There is an independent reason why the applicants’ submission cannot be accepted. That is that, contrary to their submission, the “functions” to which s 109 refers are to be understood naturally as those specified in s 108 of the NT Act which, relevantly, were bestowed by s 108(1):

Applications, inquiries and determinations

(1)    The Tribunal has the functions in relation to applications, inquiries and determinations given to it by Part 3 and Division 5.

108    The determination by the Tribunal of its own jurisdiction is not one of those functions. Its jurisdiction to do so is an implied jurisdiction, as an incident of its establishment and other functions: Re Adams and The Tax Agents Board (1976) 12 ALR 239 at 242; Minister for Immigration and Border Protection v Singh [2016] FCAFC 183, (2016) 244 FCR 305 at [44].

109    Accordingly, Ground 2 fails.

110    Several of the submissions made on behalf of the applicants referred to the naming of the YMN Claimant rather than YAC as the objector in the objection application lodged with the Tribunal as a “misdescription”. As counsel for the State contended, this characterisation of the matter implied that the entity lodging the application was YAC albeit that it had been misdescribed as the YMN Claimant in the application. In our opinion, the applicants’ characterisation of the mistake as a “misdescription” cannot be accepted. The Tribunal found as a fact that YAC had not lodged any objection application, having considered alternative means by which the objection application lodged by the YMN Claimant could possibly have been attributed to YAC. As noted earlier, YAC cannot impugn that finding of fact.

Conclusion

111    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. Nevertheless, for the reasons given above, we consider that the Tribunal was correct to conclude that that is the case. We dismiss the appeal.

Associate:

Dated:    14 April 2020