Federal Court of Australia

Little v Wajarri Yamaji Aboriginal Corporation RNTBC [2024] FCA 778

ORDERS

THE COURT ORDERS THAT:

1.    For the purposes of today's hearing, and pursuant to s 47B of the Federal Court of Australia Act 1976 (Cth), the appellants are permitted to deliver oral submissions by way of video link.

2.    The proceeding is dismissed pursuant to s 31A(2) of the Federal Court Act.

3.    By 4.00 pm AWST on 19 July 2024, the first respondent must file and serve any further affidavit in support of its application for costs as against the second appellant with any brief further submissions by covering email to the Chambers of Justice Jackson.

4.    By 4.00 pm AWST on 26 July 2024, the second appellant may file and serve any affidavit in response, together with any brief further submissions by covering email to the Chambers of Justice Jackson.

5.    The question of costs will be determined on the papers.

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

REASONS FOR JUDGMENT

(edited from the transcript)

JACKSON J:

1    The appellants, Terrence Little and Lucas Menzel, have applied for a prospecting licence under the Mining Act 1978 (WA). The application relates to an area near Cue, Western Australia. The first respondent, Wajarri Yamaji Aboriginal Corporation (WYAC) holds native title in relation to an area that includes the ground over which the prospecting licence is sought.

2    The grant of a prospecting licence would be a future act under Part 2 Div 3 of the Native Title Act 1993 (Cth) (NTA). WYAC is the native title party that has the right to negotiate in respect of the grant of the prospecting licence, for which right Subdivision P of that Part provides. When the State gave notice under s 29 of the NTA of its intention to grant the prospecting licence to the appellants, it included a statement under s 29(7) that it considered that the act attracted the expedited procedure. But WYAC lodged an objection under s 32(3) and the Tribunal determined under s 32(4) that the grant did not attract the expedited procedure: Wajarri Yamaji Aboriginal Corporation RNTBC v Terrence Harold Little and Lucas Ronald Marcinowski Menzel and Another [2022] NNTTA 34. Hence under s 31(1)(b) of the NTA, the appellants, WYAC and the State of Western Australia were required to negotiate in good faith in respect of the grant of the prospecting licence: see s 32(5).

3    The parties did not reach agreement about the grant, and the appellants applied to the Tribunal, as the arbitral body in respect of the future act, for a determination under s 38 of the NTA that the prospecting licence could be granted. Section 36(2) of the NTA provides that if a party to the negotiation satisfies the arbitral body that any other party (other than a native title party) has not negotiated in good faith then, subject to immaterial exceptions, the arbitral body must not make the determination applied for.

4    Before the Tribunal, WYAC contended that the appellants had not negotiated in good faith. On 28 August 2023 the Tribunal published the decision that is now being appealed. In it, the Tribunal accepted that the appellants had not negotiated in good faith, and therefore decided that it was not entitled to proceed to make a determination about the grant of the prospecting licence. It dismissed the application on that basis under s 148(a) of the NTA.

5    The appellants appeal from that decision under s 169 of the NTA. An appeal under that section only lies on a question of law: see s 169(1). WYAC contends, and the State agrees, that the present appeal is incompetent because it is not an appeal on a question of law. WYAC seeks leave to rely on a notice of objection to competency filed out of time, alternatively it seeks summary dismissal of the appeal.

Procedural background

6    The appellants are unrepresented. Initially, Mr Little filed a notice of appeal for himself without Mr Menzel's participation, and named as the only respondent the member of the Tribunal who made the decision. But since then the proceeding has been properly constituted due to orders made by a case managing registrar. Mr Menzel has been joined as an appellant, the member has been removed as a respondent, and WYAC and the State have been joined as respondents.

7    On 22 November 2023, Mr Little served the notice of appeal and order joining WYAC as a respondent on WYAC (by email, but service is not contested). On 8 February 2024, the solicitors for WYAC wrote to Mr Little asserting that the notice of appeal was defective and inviting him to discontinue it within 21 days, saying that if he did so, WYAC would not seek costs. Mr Little did not respond to that invitation (and neither did Mr Menzel).

8    Under r 33.30 of the Federal Court Rules 2011 (Cth), any notice of objection to the competency of the appeal is to be filed within 14 days of being served with the notice of appeal. So by 8 February 2024, WYAC was well out of time. On 19 March 2024, it filed the present interlocutory application seeking leave to file a notice of objection to competency, alternatively that the whole proceeding be dismissed under r 26.01 of the Rules and/or s 31A(2) of the Federal Court of Australia Act 1976 (Cth).

9    The State supports WYAC's application. The appellants oppose it.

The decision under appeal

10    It is not necessary to describe the Tribunal's decision to dismiss the appellants' determination application in any detail. After summarising the procedural background and the law applicable to determining whether a party had negotiated in good faith, the Tribunal reviewed the evidence. It said that there had been no substantive negotiation between the parties before Mr Little had lodged his determination application.

11    When the Tribunal decided, in 2022, that the expedited procedure did not apply, the Department of Mines, Industry Regulation and Safety wrote to Mr Little and WYAC enclosing information about the obligation to negotiate and asking for certain information. Mr Little's response provided some information and made certain assertions but did not propose any next step for negotiations. WYAC did not respond to the Department's letter at all. The Tribunal noted that Mr Little said that he had attempted to contact representatives of WYAC as well as a Wajarri elder, but he may have done so under a misapprehension about the nature of the negotiations.

12    Mediation ensued in the Tribunal. Essentially, Mr Little maintained that his native title and mineral rights are being improperly claimed by WYAC, and that this was extortion.

13    The Tribunal, in its 2023 decision, characterised the appellants' efforts to progress the negotiations as 'minimal at best' (para 37). The Tribunal did not consider that any of the parties had 'covered themselves in glory' in respect of negotiating in good faith, at least prior to mediation conferences (para 47). At the mediation conferences, the Tribunal found, there had been no meaningful effort to discuss the terms of a proposed agreement or the issues between the parties.

14    The Tribunal described as the 'central stumbling block' the approach of the appellants 'which has been shaped by some fundamental misconceptions about the role of the grantee party and Mr Little's rights' (para 52). The misconceptions, as described by the Tribunal, appear to stem from Mr Little's belief that as a traditional owner, he has a right to minerals, and he has rights to minerals under the surface. That led him to act in a manner 'indicative of a closed mind' (para 57). The Tribunal found that the appellants' position had been unreasonable and that they had not negotiated in good faith. Hence it dismissed the application for a determination.

The Notice of Appeal and Mr Little's affidavits

15    It is undisputed that Mr Little is a Wajarri man. While he may have a different conception of his rights, on the face of things he is a member of the group of people for whom WYAC holds native title rights. Mr Menzel is not an Aboriginal person and does not claim any such rights.

16    Mr Little commenced the appeal by filing a Form 75 'Notice of appeal from a tribunal'. In the space to identify the questions of law in the appeal, the notice says:

Who is intitled to deal with my application in regards to my exclusive heritage rights to this land.

17    In oral submissions, I clarified with Mr Little what he meant by his reference to 'exclusive heritage rights'. Mr Little confirmed that he was referring to the rights that he asserted in the Tribunal process, namely, native title rights as a traditional owner of the relevant land, including rights to minerals under the surface, which Mr Little says he has. It is therefore clear that when Mr Little refers to 'heritage rights' he is, in broad terms, referring to what he says are his native title rights, and not to any rights that might arise specifically under Aboriginal cultural heritage legislation.

18    Under 'Findings of fact that the Court is asked to make' the notice of appeal says:

Who are the traditional owners to the proclamation of the Murchison goldfields.

19    The 'Orders sought' are:

I would like my exclusive heritage rights back to my land.

20    The sole ground under 'Grounds relied on' is:

I am the traditional owner to the proclamation of the Murchison goldfields.

21    On 20 September 2023, Mr Little affirmed an affidavit that was filed with the notice of appeal. Apart from annexing the primary decision of the Tribunal, the affidavit had an annexure, handwritten by Mr Little which, after saying that Mr Little wants to appeal from the primary decision, poses the following question:

Who then is entitled to deal with my application for my heritage rights to this land and why was my application dismissed if the Tribunal satisfied itself that it was not entitled to deal with it.

22    The affidavit also attaches what appears to be a statement of contentions that Mr Little filed in the proceeding before the Tribunal. With respect, that document is difficult to understand. It appears to claim that WYAC does not, or should not, hold native title rights for the Wajarri Yamaji people, and may also claim that Mr Little himself holds those rights. It is open to infer that Mr Little sees an equivalence between the rights that the prospecting licence would give him and what he perceives as his rights as a traditional owner.

23    The statement of contentions itself annexes the 'proclamation of the Murchison goldfields' which is mentioned in the notice of appeal. It is a gazetted proclamation dated 24 September 1891 by the then Colonial Administrator, Alexander Onslow. It was made under an Imperial statute: 50 Vic n. 18 (Goldfields Act) 1886 (Imp). This proclaims an area, defined in the proclamation as a Goldfield for the purposes of that statute, to be called 'The Murchison Goldfield'. I assume that the area of the application for the prospecting licence is within the area covered by the proclamation. However, the significance of that proclamation for the present appeal has not been made clear.

24    Also annexed to Mr Little's affidavit is a submission that he provided to the Tribunal in response to an invitation to the parties to comment on the application of the (now-repealed) Aboriginal Cultural Heritage Act 2021 (WA) to the relevant area. The submission asserted that Mr Little, as a traditional owner, never lost his rights to what he called his land. It said (the spelling and punctuation in the following extracts are as in the original, save that block capitals have been rendered in sentence case and some minimal punctuation added):

I am being extorted for my exclusive heritage rights which is my livelyhood and quality of life to this land and the Wajarri Yamaji Aboriginal Corporation hold my non-exclusive heritage rights in trust to this land. All the [Aboriginal Cultural Heritage Act] will do for me is put my name and exclusive heritage right's to this land into disrepute. I would like my exclusive heritage right's to this land back exempt of rent's and rate's. Compensated for what the 'Act' has done to me and my people's right's to our land. I also would like to have my recently forfeited mining lease 59/761 on the 7-7-2023 reinstated (letter attached) then

Minister of Mine's: Bill Johnson

Minister of Aboriginal's: Tony Buti

Yamatji Marlpa Aboriginal Corporation: Simon Hawkins Chief Executive Officer

investigated and charged with extortion of my name and executive [sic] heritage rights to my land and deported.

25    On 9 May 2024, Mr Little also swore an affidavit in opposition to the interlocutory application. In it, he claims to be a traditional owner of 'this land' and to act for the 'Wajarri Yamaji peoples'. In it, he asserts that the rights that WYAC holds on trust for the Wajarri Yamaji:

are non exclusive rights and interests because the trust has been varied to include any persons taking away Wajarri Yamaji people's identity to this trust and land under the Heritage Act 1972. Further more it is unclear to me, as I am a Wajarri Yamaji person and traditional owner and property owner and lease holder under the Mining Act 1978, therefore, what native title rights and interests held on trust for the Wajarri Yamaji people that Wajarri Yamaji aboriginal corporation claim to hold on trust because of the Wajarri Yamaji Part A native title consent determination at Woolleen Station WA on 19 October 2017.

26    After describing some of the procedure in the Tribunal matter, Mr Little says that the Tribunal's dismissal of his application:

in turn forfeited my heritage rights to my land and intellectually forfeiting my property rights. Under s 148(a) of the Native Title Act the member was not entitled to deal with my heritage rights because of the Migration Act 1958 where within the meaning of section 486k of that Act I had a reasonable prospect of success with my s 35 application because I am not a migrant or a pastoralist. I am in fact a traditional owner to this land by birth and name under the Heritage Act and the Constitution of Australia.

27    After describing the present application, the affidavit says that a 'Certificate under section 486I of the Migration Act 1958' is attached.

28    Then the affidavit says:

In conclusion, I would like my heritage rights under the Mining Act which are my exclusive mineral rights. I want my s 35 application reinstated and granted as well have my application for prospecting licence P 20/2429 granted and my forfeited mining lease that has been forfeited under the Mining Act s 111A for non compliance with my rights reinstates in full under the Mining Act.

29    Sections 486I and 486K of the Migration Act 1958 (Cth) impose a requirement that a lawyer must not file a document commencing migration litigation unless the lawyer certifies in writing that there are reasonable grounds for believing that it has a reasonable prospect of success. It is entirely unclear why Mr Little refers to those provisions or why he annexes an (unsigned) s 486I certificate to his affidavit. More broadly, however, I infer that Mr Little is referring to the Migration Act as a way of emphatically distinguishing himself as a traditional owner, from persons who may have come to this country recently or in the more distant past, who could be characterised as migrants.

30    In oral submissions, Mr Little said that he had pegged the land for the prospecting licence, and as far as he was concerned, had done nothing non-compliant. Mr Little submitted that he had tried to negotiate, including by attending meetings and having phone conversations with WYAC representatives. He gave some information as to the content of the negotiations, including discussions about the cost of heritage surveys and who would bear that cost. Mr Little feels that he did negotiate with WYAC in good faith. It follows that he disagrees with the Tribunal's assessment that he did not negotiate in good faith.

31    Mr Little also submitted that WYAC has been taking away his property rights, which he characterised as exclusive rights. He gave WYAC's actions the label of 'intellectual property theft' and said that he wanted his rights back. He also said that he considered he had a good chance of succeeding under the Migration Act.

32    When I asked Mr Little to identify specifically for me the question of law which is necessary to be raised in order for an appeal under s 169 of the NTA to succeed, he repeated his contentions that he has rights over the land and that he believes he negotiated in good faith.

33    Mr Menzel has filed no materials in the appeal. It appears from the Tribunal's reasons that he took no part in the primary proceeding, other than to attend mediation conferences. Mr Menzel did appear at the hearing in this Court. When I invited him to say anything that he wanted to say about the application, he said, in effect, that he did not think that he had anything useful to add, other than to agree that what is in issue today is what he described as Mr Little's 'exclusive rights'.

Principles

34    While styled an 'appeal', the proceeding is in fact in the original jurisdiction of the Court: Western Australia v Ward (1996) 70 FCR 265 at 275. There is therefore no doubt about the ability of a single judge of the Court to grant summary judgment or to dismiss the proceeding as incompetent: cf. Ascic v Comcare [2022] FCA 1245 at [29]-[32].

35    In an 'appeal' of that kind, the existence of an error of law is not only necessary for the appeal to be competent; the error of law, and it alone, is the subject matter of the appeal: see Brown v Repatriation Commission (1985) 7 FCR 302 at 304-305 (concerning the cognate right of appeal under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth)); and see Yanunijarra Aboriginal Corporation RNTBC v State of Western Australia [2020] FCAFC 64; (2020) 276 FCAFC 53 at [61] (Rares, While and Banks-Smith JJ).

36    On the view I have taken of the matter, there is no need to consider the principles that concern notices of objection to competency.

37    Section 31A relevantly provides:

…

(2)    The Court may give judgment for one party against another in relation to the whole or any part of a proceeding if:

(a)    the first party is defending the proceeding or that part of the proceeding; and

(b)    the Court is satisfied that the other party has no reasonable prospect of successfully prosecuting the proceeding or that part of the proceeding.

(3)    For the purposes of this section, a defence or a proceeding or part of a proceeding need not be:

(a)    hopeless; or

(b)    bound to fail;

for it to have no reasonable prospect of success.

38    It is convenient to refer to, but not repeat, the summary of the well-established principles concerning this power that is given in Quach v Commissioner of Taxation [2019] FCA 1729 at [11]-[12].

Consideration

39    It is appropriate to grant summary judgment against the appellants under s 31A of the Federal Court Act. That makes it unnecessary to address the application for leave to file a notice of objection to competency out of time (or the application for summary judgment pursuant to r 26.01(1)(a) of the Rules).

40    It is appropriate to grant summary judgment because the notice of appeal and other materials that the appellants have filed disclose no coherent basis on which the appeal could be allowed.

41    The primary decision is a decision that:

(a)    the appellants did not negotiate in good faith in respect of the proposed grant of the prospecting licence, as they were required to do under s 31(1)(b) of the NTA;

(b)    accordingly, the Tribunal was not entitled to make any determination that the prospecting licence could be granted; and

(c)    accordingly, the appellants' application for a determination that the prospecting licence could be granted was dismissed.

42    The notice of appeal and the other materials filed by Mr Little that are canvassed above disclose no coherent basis to think that the Tribunal erred in relation to any of this, let alone that it made the error of law that would be necessary in order for the appellants to successfully prosecute the proceeding.

43    With respect, those materials are hard to understand at many points. The concerns and grievances held by Mr Little that emerge from them appear to stem from his perception that he is a traditional owner of the land over which the prospecting licence would be granted, that the position of WYAC as a native title holder following the Wajarri Yamaji consent determination (Dann obh of Wajarri Yamatji People (Part D) v State of Western Australia [2021] FCA 867) has somehow interfered with and usurped his rights as a traditional owner, and that he is somehow entitled to the prospecting licence because of those rights or that the grant of the licence will somehow vindicate them. Mr Little wants to be able to conduct prospecting activities as would be authorised by the licence. He also appears to hold a grievance over the forfeiture of a mining lease which took place in 2023.

44    The problem for Mr Little and Mr Menzel in this appeal is that none of that touches on whether the Tribunal was correct in making the decision that is summarised above. That decision was about the right to negotiate that the NTA effectively confers on WYAC as the holder of native title in an area that includes the area of the proposed prospecting licence. Mr Little's materials do not address that. He raises a more fundamental issue about whether he holds, in effect, rights and interests in relation to the land and subsurface minerals.

45    While it is fundamental, it appears to be misconceived. But it is not necessary to consider it further in this proceeding. That is because even if it were correct, it could not establish the error of law on the part of the Tribunal that would be necessary for the appellants to succeed in this appeal. The Tribunal was exercising a power under s 38 of the NTA to make a determination as to whether the prospecting licence could be granted. That power arose in the context of the right to negotiate that the NTA confers on WYAC as the native title holder. The Tribunal had no power to recognise or grant any native title or heritage rights to Mr Little or any other rights he claims in the capacity as a traditional owner. Even further from its remit is any question about the forfeiture of a mining lease under the Mining Act. So the fact that the Tribunal did not recognise those asserted rights cannot be an error on its part, whether an error of law or otherwise.

46    Nothing in Mr Little's appeal materials contradicts that conclusion. The question he raises as a 'question of law' in the notice of appeal (see [16] above) is difficult to understand. But in any event, it does not identify a question of law that arises in or from the Tribunal's decision. When Mr Little comes to address that decision in his affidavit of 9 May 2024 (see [24] above), his complaints about it are not coherent.

47    Therefore, while the Court accepts that Mr Little has genuinely and strongly held views about his status as a traditional owner, and while WYAC recognises that Mr Little is effectively a traditional owner as a member of the group of people for whom the native title consent determination was made, neither those beliefs or rights have any bearing on the particular task that was given to the Native Title Tribunal in the decision that it has made. Nor can those beliefs or rights provide support for any conclusion that the Tribunal committed any error when it made that decision.

48    Since no one suggests that Mr Menzel is a traditional owner, he does not even have the above concerns and grievances to rely on.

Conclusion

49    The appeal has no prospects of success. There is no discretionary reason not to exercise the power to dismiss it under s 31A(2) of the Federal Court Act. To the contrary, this is a clear case where to do so will save everyone involved further wasted costs and effort.

50    The proceeding is dismissed pursuant to s 31A of the Federal Court Act.

Associate:

Dated:    18 July 2024