NATIONAL NATIVE TITLE TRIBUNAL
Minister for Lands, State of Western Australia and Another v Buurabalayji Thalanyji Aboriginal Corporation RNTBC [2014] NNTTA 85 (18 August 2014)
Application No: WF2013/0005, WF2013/0006, WF2013/0007, WF2013/0008
IN THE MATTER of the Native Title Act1993 (Cth)
- and -
IN THE MATTER of an inquiry into future act determination applications
Minister for Lands, State of Western Australia (Government party/applicant)
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Western Australian Land Authority (grantee party)
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Buurabalayji Thalanyji Aboriginal Corporation RNTBC (native title party)
FUTURE ACT DETERMINATION THAT THE ACT MAY BE DONE
Tribunal: Raelene Webb QC, President
Place: Perth
Date of decision: 18 August 2014
Hearing dates: 12 and 19 November 2013
Catchwords: Native title – future acts – application for determination with respect to the compulsory acquisition of native title rights and interests – application to refer question of law – application for referral refused – jurisdictional issues – notice simultaneously given under Land Administration Act 1997 (WA) and Native Title Act 1993 (Cth) – validity of notice given under State legislation irrelevant to exercise of power – notices effective for the purposes of s 29 – s 39 criteria considered – no direct or immediate effect on registered native title rights and interests – no effect on sites of particular significance – economic significance where areas required to support existing development – public interest in acquiring the interests outweighs effect on native title – determination that the acts may be done
Legislation:Native Title Act 1993 (Cth), ss 24MD(2), 24MD(3), 24MD(6A), 25(4), 26(1)(c)(iii), 29, 30, 30A, 31(1)(b), 35, 36(1), 36A, 38, 39, 41(3), 41(5), 52, 52A, 109(3), 145, 169, 253
Land Administration Act 1997 (WA), ss 165, 166, 167, 170
Western Australian Land Authority Act 1992 (WA), ss 3, 5A, 16(e)
Aboriginal Heritage Act 1972 (WA), ss 5, 18
Environment Protection and Biodiversity Conservation Act 1999 (Cth)
Mining Act 1978 (WA)
Petroleum and Geothermal Energy Resources Act 1967 (WA)
Transfer of Land Act 1893 (WA)
Cases:Adani Mining Pty Ltd/Jessie Diver & Ors on behalf of the Wangan and Jagalingou People/State of Queensland [2013] NNTTA 52 (‘Adani Mining v Diver’)
Attorney-General of the Northern Territory v Ward (2003) 134 FCR 16; [2003] FCAFC 283 (‘Attorney-General v Ward’)
Australian Manganese Pty Ltd v Western Australia (2008) 218 FLR 387; [2008] NNTTA 38 (‘Australian Manganese v Western Australia’)
Backreef Oil Pty Ltd and Oil Basins Ltd/JW (name withheld) & Ors on behalf of Nyikina and Mangala/Western Australia [2013] NNTTA 9 (‘Backreef Oil v JW’)
Banjima People v Western Australia (No 2) [2013] FCA 868 (‘Banjima People v Western Australia (No 2)’)
Bissett v Mineral Deposits (Operations) Pty Ltd (2001) 166 FLR 46; [2001] NNTTA 104 (‘Bissett v Mineral Deposits (Operations)’)
Coalpac Pty Ltd/State of New South Wales/Gundungurra Tribal Council Aboriginal Corporation #6 (NC97/7), Wiray-dyuraa Maying-gu (NC11/3), Warrabinga-Wiradjuri People (NC11/4)/State of New South Wales [2013] NNTTA 2 (‘Coalpac v Gundungurra Tribal Council’)
Cheinmora v Striker Resources NL; Dann v Western Australia (1996) 142 ALR 21; [1996] FCA 1147 (‘Cheinmora v Striker Resources’)
Dann and Others (Amangu People) v Western Australia (2006) 208 FLR 357; [2006] NNTTA 126 (‘Dann v Western Australia’)
Dixon v Northern Territory (2001) 166 FLR 29; [2001] NNTTA 29 (‘Dixon v Northern Territory’)
Dolores Cheinmora & Ors/Western Australia/Mark James Thompson, Striker Resource NL and Australian United Gold NL [1995] NNTTA 26 (‘Cheinmora v Thompson’)
FMG Pilbara Pty Ltd v Cox (2009) 175 FCR 141; 255 ALR 229; 2 ARLR 141; [2009] FCAFC 49 (‘FMG Pilbara v Cox’)
Hayes v Western Australia [2008] FCA 1487 (‘Hayes v Western Australia’)
Hicks v Western Australia [2002] FCA 1490 (‘Hicks v Western Australia’)
Jabiru Metals Ltd v Victoria (2010) 257 FLR 443; [2010] NNTTA 138 (‘Jabiru Metals v Victoria’)
Jax Coal Pty Ltd v Smallwood (2011) 260 FLR 99; [2011] NNTTA 46 (‘Jax Coal v Smallwood’)
Albert Little and Others on behalf of the Badimia People/Western Australia/FMG Resources Pty Ltd [2011] NNTTA 173 (‘Little v FMG Resources’)
Magnesium Resources Pty Ltd; Anthony Warren Slater/Puutu Kunti Kurruma and Pinikura People; Puutu Kunti Kurruma and Pinikura People #2/Western Australia [2011] NNTTA 80 (‘Magnesium Resources v Puuntu Kunti Kurruma and Pinikura’)
McKenzie v Minister for Lands (2011) 45 WAR 1; 187 LGERA 1; 256 FLR 1; 6 ARLR 1; [2011] WASC 335 (‘McKenzie v Minister for Lands’)
Minister for Lands, State of Western Australia/Marjorie May Strickland and Anne Joyce Nudding on behalf of the Maduwongga People; Brian and Dave Champion, Cadley and Dennis Sambo, George Wilson and Clem Donaldson for their respect (Gubrun) families; Dorothy Dimer, Ollan Dimer and Henry Richard Dimer on behalf of Mingarwee (Maduwonjga) People [1998] NNTTA 2 (‘Minister for Lands v Strickland’)
Minister for Mines (WA) v Evans (1998) 163 FLR 274; [1998] NNTTA 5 (‘Minister for Mines v Evans’)
Monadee v Western Australia (2003) 174 FLR 381; [2003] NNTTA 38 (‘Monadee v Western Australia’)
Moore v Mungeranie (2005) 193 FLR 62; [2005] NNTTA 53 (‘Moore v Mungeranie’)
O’Sullivan v Farrer (1989) 168 CLR 210; 89 ALR 71; 64 ALJR 86; [1989] HCA 61 (‘O’Sullivan v Farrer’)
Peregrine Resources Pty Ltd v Ashwin [2014] NNTTA 59 (‘Peregrine Resources v Ashwin’)
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; 153 ALR 490; 72 ALJR 841; [1998] HCA 28 (‘Project Blue Sky v Australian Broadcasting Authority’)
Raymond Dann & Others on behalf of the Amangu People/Western Australia/Warrego Energy Limited [2010] NNTTA 30 (‘Dann v Warrego Energy’)
Re Koara People (1996) 132 FLR 73; [1996] NNTTA 31 (‘Re Koara People’)
Silver v Northern Territory (2002) 169 FLR 1; [2002] NNTTA 18 (‘Silver v Northern Territory’)
State of Western Australia/M M Strickland and A J Nudding on behalf of the Maduwongga People; B & D Champion, C & D Sambo, G Wilson and C Donaldson on behalf of the Gubrun People; and D Dimer, O Dimer and H Dimer on behalf of Mingarwee (Maduwonjga) People/Plutonic (Baxter) Pty Ltd and Mineral Commodities NL [1998] NNTTA 12 (‘Western Australia v Strickland’)
Summons v Victoria (2003) 176 FLR 1; [2003] NNTTA 66 (‘Summons v Victoria’)
Walley v Western Australia (1999) 87 FCR 565; 168 ALR 359; [1999] FCA 3 (‘Walley v Western Australia’)
Ward v Western Australia (1996) 69 FCR 208; 136 ALR 557; [1996] FCA 1452 (‘Ward v Western Australia’)
Weld Range Metals Ltd v Western Australia (2011) 258 FLR 9; [2011] NNTTA 172 (‘Weld Range Metals v Western Australia’)
Western Australia v Gordon (2010) 258 FLR 168; [2010] NNTTA 152 (‘Western Australia v Gordon’)
Western Australia v Thomas (1996) 133 FLR 124; [1996] NNTTA 30 (‘Western Australia v Thomas’)
Western Desert Lands Aboriginal Corporation v Western Australia (2009) 232 FLR 169; 2 ARLR 214; [2009] NNTTA 49 (‘Western Desert Lands v Western Australia’)
WF (Deceased) & Ors on behalf of the Wiluna Native Title Claimants/Western Australia/Emergent Resources Ltd [2012] NNTTA 17 (‘WF v Emergent Resources’)
WMC Resources v Evans (1999) 163 FLR 333; [1999] NNTTA 522 (‘WMC Resources v Evans’)
Xstrata Coal Queensland Pty Ltd & Ors/Mark Albury & Ors (Karingbal #2); Brendan Wyman & Ors (Bidjara People)/Queensland [2012] NNTTA 101 (‘Xstrata Coal Queensland v Albury’)
Yindjibarndi Aboriginal Corporation RNTBC v FMG Pilbara Pty Ltd [2014] NNTTA 8 (‘Yindjibarndi Aboriginal Corporation v FMG Pilbara’)
Representatives of the Mr Stephen Wright, Francis Burt Chambers
Government party and Ms Sophia Woodrow, State Solicitor’s Office
the grantee party: Mr Cheyne Beetham, State Solicitor’s Office
Representatives of the Ms Chau Huynh, Corser & Corser Lawyers
native title party: Mr Jerome Frewen, Desert Management Pty Ltd
REASONS FOR DECISION
Background
In August 2012, the Minister for Lands on behalf of the State of Western Australia (‘the Government party’) gave four notices of its intention in accordance with s 170 of the Land Administration Act 1997 (WA) (‘LAA’) to take interests in land and confer interests under written law (referring also to s 24MD(6A) of the Native Title Act 1993 (Cth) (‘the Act’, ‘NTA’) – as to which see [11] and [33]-[49] below); and in accordance with s 29 of the Act, to compulsorily acquire native title rights and interests in certain land (‘the August 2012 notices’). The notices were signed by the Minister on 10 August 2012. By way of notification under s 29 of the Act, copies of the notices were given to Buurabalayji Thalanyji Aboriginal Corporation (‘the native title party’) and the National Native Title Tribunal (‘the Tribunal’) under cover of letter dated 20 August 2012. This letter is referred to later in these reasons as ‘the Raven letter’.
The notices relate to four separate areas of land near the town of Onslow in the Shire of Ashburton, as follows:
(a) approximately 200 hectares, being portions of Lot 152 on Deposited Plan 220265 shown as “Area 1” on Deposited Plan 72887, being portion of Crown Lease 56/1967 “Minderoo Station” being part of the land in certificate of Crown land title volume 3098 folio 710 (‘Area 1’).
(b) approximately 60 hectares, being portion of Lot 153 on Deposited Plan 220110 shown as portion of “Area 2” on Deposited Plan 72887, being portion of Crown Lease 330/1967 “Urala Station” being part of the land in certificate of Crown land title volume 3135 folio 585, and Portion of Lot 152 on Deposited Plan 220265 shown as portion of “Area 2’ on Deposited Plan 72887, being portion of Crown Lease 56/1967 “Minderoo Station” being part of the land in certificate of Crown land title volume 3098 folio 710 (‘Area 2’).
(c) approximately 8 hectares, being the whole of Lot 350 on Deposited Plan 72964, being the whole of the land in certificate of Crown land title volume 3020 folio 843; the whole of Lot 72 on Deposited Plan 214441, being the whole of the land in qualified certificate of Crown land title volume 3054 folio 771; and the whole of Lot 79 on Deposited Plan 214441, being the whole of the land in qualified certificate of Crown land title volume 3054 folio 772 (‘Area 6’).
(d) approximately 31.5 hectares, being portion of Lot 152 on Deposited Plan 220265 shown as “Area 7” on Deposited Plan 74351, being portion of Crown Lease 56/1967 “Minderoo Station” being part of the land in certificate of Crown land title volume 3098 folio 710 (‘Area 7’).
Areas 1, 2 and 7 are within the Ashburton North Strategic Industrial Area (‘ANSIA’). The ANSIA, located approximately 12 kilometres south-west of Onslow and two kilometres north-east of the Ashburton River, is the proposed multi-user port and strategic industrial area at Ashburton North with a land area of approximately 8000 hectares.
Area 6 is adjacent to the town of Onslow, but outside its current townsite boundary. Its proposed future use is residential development and associated infrastructure.
The purpose of the proposed compulsory acquisitions is to enable the transfer or grant of freehold title to Areas 1, 2, 6 and 7 to the Western Australian Land Authority (LandCorp) so that it may then develop and subdivide the areas and transfer freehold lots or grant leases, and other associated interests, to third parties.
Section 5A of the Western Australian Land Authority Act 1992 (WA) (‘WALA Act’) provides that LandCorp is not an agent of the Crown and does not have the status, immunities or privileges of the Crown. Because the purpose of the acquisitions is not to confer rights and interests on the Government party or to provide an ‘infrastructure facility’, as defined in s 253 of the Act, the taking of the areas pursuant to s 165 of the LAA are compulsory acquisitions of native title rights and interests covered by s 26(1)(c)(iii) of the NTA. They are therefore future acts to which the right to negotiate provisions set out in Part 2 Division 3 Subdivision P of the Act apply. Unless the provisions of Subdivision P are complied with, the future acts will be invalid to the extent that they affect native title: s 25(4) NTA.
The Government party asserts that LandCorp is a ‘grantee party’ in respect of each of the future acts. Section 253 of the Act defines a ‘grantee party’ as having the meaning given in s 29(2)(c), which clearly identifies the ‘grantee party’ as the person who has ‘requested or applied for’ the doing of the relevant act. It is not at all clear from the evidence that LandCorp has requested or made application for the proposed future acts to be done. Nonetheless this matter has proceeded from the outset on the assumption that LandCorp is a ‘grantee party’, and no party has questioned that assumption. For the purposes of the present matter, where negotiation in good faith is not an issue (see [10] below), the correctness or otherwise of that assumption is of no consequence. LandCorp is the beneficiary of the proposed acquisitions in any event. For those reasons I am prepared to proceed, as the parties have, by referring to LandCorp as the grantee party, although noting that the Government party and the grantee party were jointly represented and filed joint contentions and evidence. I will adopt the same approach as the parties and refer to the Government party and the grantee party collectively as the ‘GPs’, where relevant.
For the purposes of s 29(4), the notices specified the notification day as 22 August 2012 and contained a statement to the effect that, under s 30 of the Act, persons have until three months after the notification day to take certain steps to become native title parties in relation to the notice. At the notification day, the Buurabalayji Thalanyji Aboriginal Corporation was the registered native title body corporate in relation to the land that will be affected by the proposed acts. It is therefore a native title party in accordance with s 29(2)(a) of the Act and by s 30A has the status of a ‘negotiation party’ under Part 2 Division 3 Subdivision P of the Act. There is no other native title party to these proceedings. The Government party and the grantee party are also ‘negotiation parties’.
On 21 June 2013, the Government party applied under s 35 of the Act for a future act determination under s 38. The application was made on the basis that the negotiation parties had not been able to reach agreement on the proposed acts within six months of the notification day. On 3 July 2013, I appointed Member Dan O’Dea to constitute the Tribunal for the purpose of conducting an inquiry into the proposed acts. Following the untimely passing of Member O’Dea, I appointed myself to the matter on 3 September 2013.
Preliminary Issues
A preliminary conference was convened on 12 August 2013 for the purpose of determining whether any party intended to raise the issue of whether any other party, apart from the native title party, had negotiated in good faith and to set directions for the conduct of the inquiry. As the native title party indicated that it would not be taking issue with the good faith of the other parties, directions were issued for the progress of the substantive inquiry.
At the preliminary conference, Member O’Dea drew attention to the fact that each of the August 2012 notices refer to s 24MD(6A) as well as s 29 of the Act. Parties were invited to make submissions as to whether the reference to s 24MD(6A) affected the validity of the notices. Section 24MD(6A) concerns the treatment of acts that pass the freehold test but do not attract the right to negotiation. As the native title party indicated its intention to challenge the validity of the notices on this ground, in parallel with the directions made for the progress of the inquiry, directions were made for the native title party to file submissions on the s 24MD(6A) issue and for the Government party and the grantee party to file submissions in response.
On 2 September 2013, the native title party filed an Outline of Submissions - Invalidity of Notices of Intention to take Land (‘NTP Submissions’). In response, the Government party and the grantee party jointly filed an Outline of Submissions regarding the Validity of the Notices on 13 September 2013 (‘GP Submissions’).
In addition to addressing the validity of the notices, the native title party’s submissions also included a request that the matters dealt with in the submissions be referred to the Federal Court pursuant to s 145 of the Act. Section 145 provides that the Tribunal may, on its own initiative or at the request of a party, refer a question of law arising in an inquiry to the Federal Court for a decision. The native title party also requested the opportunity to respond to any submissions made on behalf of the Government party or the grantee party in relation to the notices.
On 19 September 2013, I gave leave to the native title party to reply to the GP Submissions and indicated to parties that I would reserve my decision as to whether the matter should be referred to the Federal Court until that reply had been filed. The native title party filed its Responsive Submissions - Invalidity of Notices of Intention to take Land on 1 October 2013 (‘NTP Responsive Submissions’), together with the affidavit of Frances Hayes affirmed on 24 September 2013 and the affidavit of Lesleigh Anne Emily Bower sworn 27 September 2013. Pursuant to liberty given on 10 October 2013, the Government party and the grantee party filed submissions in reply on 14 October 2013 (‘GP Reply’) and the native title party filed further responsive submissions on 15 October 2013 (‘NTP Final Submissions’).
In addition to addressing the effect of the references to s 24MD(6A) on the validity of the notices, the native title party raised a further ground for asserting invalidity of the notice of intention to take that accompanied the notice for Area 1, namely a handwritten notation on the copy of that notice which was an annexure to the s 35 application. On 24 October 2013, I directed the Government party and the grantee party to file an affidavit deposing to the circumstances in which the annotation was made. The Government party and the grantee party subsequently filed the affidavit of Anita Passante sworn 28 October 2013 (‘Passante Affidavit’).
On 29 October 2013, having considered the submissions and supporting documents filed by each party in relation to the validity of the notices, I declined the native title party’s request that the matters dealt with in the submissions be referred to the Federal Court. The Tribunal issued certification of the outcome, indicating that the reasons for my decision would be made available in due course. My reasons now follow.
Referral to Federal Court
The power to refer a question of law arising in an inquiry to the Federal Court is discretionary (see Cheinmora v Thompson). The Tribunal has no obligation to accede to a request that a question of law be referred to the Federal Court, and the presiding member must agree to the referral (see s 145(2) NTA). Importantly, there must be clarity as to the question of law to be referred.
The matter dealt with in the NTP Submissions which the native title party requested be referred to the Federal Court under s 145 of the Act is the purported invalidity of the Notices of Intention to Take (‘NOITTs’) in respect of Areas 1, 2, 6 and 7. Those submissions rest on two grounds. The first is that the reference in the notices to both s 29 and s 24MD(6A) confuses the rights to which the relevant native title parties are entitled under the Act. The second ground is that the handwritten note on the instrument lodged for registration at the Western Australian Land Information Authority (Landgate) in respect of Area 1 (Form LAA-1029) is inaccurate, as it purports to add a further portion of land to the area advertised in the notice.
The NTP Submissions placed considerable emphasis on the decision of the Supreme Court of Western Australia in McKenzie v Minister for Lands, in which Martin CJ considered the interaction between the LAA and the NTA. In subsequent submissions, the native title party shifted its focus to the question of whether the notices complied with s 29 of the Act, though it continued to maintain that the validity of the NOITTs under the LAA was nevertheless a precondition to the Tribunal’s jurisdiction (for example, NTP Final Submissions at paragraph 7).
I note here that whilst ‘jurisdiction’ has been used to describe the Tribunal’s authority to conduct the future act inquiry, ‘it would be equally accurate and perhaps clearer to characterise the question as one about the power of the Tribunal which is not a court but a statutory body carrying out an administrative function’: Hicks v Western Australia at [15] per French J, see also FMG Pilbara v Cox at 143. Where relevant, references to ‘jurisdiction’ in these reasons are to be read with that qualification.
The Government party and the grantee party submit that the question of whether the NOITTs issued under the LAA are invalid is beyond the jurisdiction of the Tribunal to determine, as it is neither a question that arises under the application nor a question that goes to the Tribunal’s jurisdiction to conduct an inquiry and make a determination in respect of the application (GVP Submissions, paragraph 2). Accordingly, the Tribunal has no power to refer the question to the Federal Court as it is not a question ‘arising in an inquiry.’ Alternatively, the Government party and the grantee party submit that the matter should not be referred to the Federal Court as the Tribunal is capable of deciding for itself any questions raised in the native title party’s submissions, including the extent to which the questions as relevant to its jurisdiction, as it has done previously in Western Australia v Gordon and Jabiru Metals v Victoria (GP Submissions, paragraph 3).
To the extent the matters raised in the native title party’s submissions are framed around the validity of the NOITTs under the LAA, I accept the Government party and the grantee party’s submission that the Tribunal’s authority to conduct the future act inquiry does not depend on the validity of the NOITTs. This precise issue has already been considered by the Tribunal in Western Australia v Gordon. In that matter, Deputy President Sumner (at [48]) referred to his earlier findings in Jabiru Metals v Victoria at [16], where he concluded it was unnecessary for the Tribunal to satisfy itself of the validity of an application under the relevant mining legislation before it could deal with a proposed future act under the right to negotiate provisions. In Western Australia v Gordon, Deputy President Sumner considered that the same principles applied to a jurisdictional challenge based on the validity of a notice given under the LAA (at [49]-[50]):
The Tribunal is concerned with a proposed future act as identified in the s 29 notice not with State processes leading up to or indeed whether State legislation requires further procedures to be complied with following those of the NTA … The Tribunal is concerned with the content of the s 29 notice and whether it complies with the NTA. A valid s 29 notice is a necessary pre-condition to the Tribunal’s jurisdiction in a right to negotiate inquiry … Once there is a proper notice of a future act under the NTA (irrespective of what procedures might be required by other legislation) the Tribunal has jurisdiction to deal with it … If in the conduct of an inquiry it appears that the proposal is not in fact the one for which the notice was given then a jurisdictional issue could arise at that point. It could also be that questions about the validity of the future act could arise if a future act was done which was different to the one considered by the Tribunal … However, at this point in the process the Tribunal has before it a valid s 29 notice and clear statements from the Government party in its contentions about the nature of the future act … which confirms the information in the s 29 notice. On this basis the Tribunal can proceed to an inquiry and make a determination.
In my view, it is important to appreciate that the August 2012 notices simultaneously gave notice under s 170 of the LAA and notice under s 29 of the Act, combining those notices in the same document, but addressing two separate procedures under different legislation. Although both procedures (under the LAA and the NTA) have to be completed if a compulsory acquisition of native title is to be valid, I agree with Deputy President Sumner that the Tribunal’s power to conduct the future act inquiry is conditioned only upon proper notice of a proposed future act being given under s 29 of the Act. If the Tribunal has before it a valid s 29 notice it will have the power to conduct a right to negotiate inquiry, even in circumstances where a challenge is made elsewhere to the validity of the notice given under s 170 of the LAA.
I will turn to the issue of whether the notices comply with s 29 and whether they accurately describe the acts proposed to be done later in these reasons. For present purposes, I adopt the principles outlined by Deputy President Sumner in Jabiru Metals v Victoria and Western Australian v Gordon. The question whether the NOITTs issued under the LAA are invalid is beyond the Tribunal’s jurisdiction to determine. The power to conduct an inquiry and make a determination in respect of the s 35 application does not depend on the validity of the NOITTs under State law. It follows that the Tribunal does not have power to refer that question to the Federal Court as it is not a question ‘arising in an inquiry’ for the purposes of s 145(1) of the Act.
The native title party’s submissions on the validity of the NOITTs were predicated on whether notice was given in accordance with s 29 of the Act, thus conflating the two separate procedures under the LAA and the NTA. In this regard, the native title party’s submissions fail to appreciate that each of the August 2012 notices simultaneously gave notice under s 170 of the LAA as well as notice under s 29 of the NTA (see [23] above). This is exemplified in the NTP Reply, particularly at paragraphs 23 and 27, which refers to the s 29 notice relied on as a NOITT issued under the LAA, and then identifies the issue as whether the NOITTs give the notice required by s 29 of the NTA.
This underscores the difficulty with the way in which the submissions on this issue have been framed, focusing on the validity of the combined notices, instead of the live issue before the Tribunal identified in the NTP Reply at paragraph 21: ‘Has the Government party complied with section 29 of the NT Act?’
I accept that the question of whether there has been compliance with s 29 may be one of general importance, as the purpose of the notice provisions is to ensure that native title holders and claimants are not left out of negotiations and have the opportunity to make submissions on the proposed act (see Western Australia v Strickland). The notice provisions also ensure that persons have the opportunity of becoming registered native title claimants, though this has less relevance to the present matter, as there is a registered native title body corporate for all the areas affected by the proposed acquisitions (see ss 29(2)(b) and 29(3) NTA).
However, the Tribunal has already dealt with the requirements of s 29 in previous decisions. If a question of law could be formulated, I am not satisfied it would raise a novel issue requiring the consideration of the Federal Court. In the circumstances, I do not consider that the referral of the issue to the Federal Court is preferable given the additional expense that would be incurred by the parties. I have also taken into account the existence of a right of appeal to the Federal Court on a question of law from any decision or determination of the Tribunal in relation to these proceedings (see s 169 NTA; Cheinmora v Thompson).
Another question may be said to arise regarding the annotation to the Form LAA-1029 for Area 1. As will become apparent from my discussion of the issue later in these reasons, the question of whether the annotation renders the notice invalid is at best a question of law and fact, as it depends on a finding as to the meaning of the annotation. For this and the reasons outlined above, I do not consider this to be an appropriate question for referral pursuant to s 145(1) of the Act.
Validity of the Notices
Compliance with the Land Administration Act
As noted above at [22]-[24], I accept the submission of the Government party and the grantee party that the Tribunal’s jurisdiction in this matter does not depend on the validity of the NOITTs under the LAA. The Tribunal’s jurisdiction is conditioned on compliance with the requirements of s 29 of the Act, and the validity of the notices for the purposes of the LAA is not a precondition to its jurisdiction to conduct an inquiry under s 38 of the Act.
Reference to s 24MD(6A) NTA
Each August 2012 notice purports to give notice in accordance with s 170 of the LAA and s 24MD(6A) of the NTA. Notice is also said to be given in accordance with s 29 of the NTA. All parties accepted that the reference to s 24MD(6A) has no operation in relation to the proposed acquisitions, and the Government party and the grantee party state that the reference was included in error.
The native title party argues that it is likely the Government party’s error in including the reference to s 24MD(6A) is a systemic one, as it occurred across all four notices. Whether or not that error has occurred in other notices, the question remains whether the reference to s 24MD(6A) affects the validity of the August 2012 notices for the purposes of s 29 of the NTA.
It is helpful for present purposes to set out the notice heading and preamble in full:
NOTICE OF INTENTION
TO TAKE INTERESTS IN LAND TO CONFER INTERESTS UNDER WRITTEN LAW
LAND ADMINISTRATION ACT 1997 (WA) SECTION 170
AND TO COMPULSORILY ACQUIRE NATIVE TITLE RIGHTS AND INTERESTS
NATIVE TITLE ACT 1993 (CTH) SECTION 29I, the Honourable Brendon John Grylls MLA, Minister for Lands HEREBY GIVE NOTICE in accordance with Section 170 of the Land Administration Act 1997 (LAA) and Section 24MD(6A) of the Native Title Act 1993 (Cth) (NTA) that it is proposed to take, pursuant to Section 165 of the LAA, those interests in the land described in the Schedule for the purposes specified.
AND for and on behalf of the State of Western Australia HEREBY GIVE NOTICE in accordance with Section 29 of the NTA that any native title rights and interests in the land described in the Schedule are to be compulsorily acquired for the purposes specified.
The native title party submits that the ‘primary’ references to s 24MD(6A) in the NOITTs ‘undermine and negative’ the later references to s 29. It is said that the reference to s 24MD(6A) in each of the notices is ‘a fundamental error’ that invalidates them for the purposes of s 29 of the Act (NTP Responsive Submissions, paragraph 50). It is also argued that a notice which ‘fundamentally confuses the applicable procedure by conflating mutually exclusive provisions of the LA Act and/or the NT Act’ cannot be clear or certain, meaning they are unable to satisfy the requirements of s 29 of the NTA (NTP Responsive Submissions, paragraph 48).
According to the Government party and the grantee party, the NOITTs only constitute part of the notice given to the native title party for the purposes of s 29. In this regard, the Government party and the grantee party rely on a letter dated 20 August 2012 from Murray Raven, Pilbara Manager of the State Lands Services Division, Department of Regional Development and Lands to the native title party, which enclosed copies of the NOITTs and other documents relating to the proposed acquisitions (the Raven Letter). That position is consistent with the assertion in paragraph 7.1 of the s 35 application that the notices were given in accordance with s 29 of the NTA on 20 August 2012.
The Government party and the grantee party submit that the Raven Letter and the accompanying documents satisfy the requirements of s 29 of the Act in relation to the proposed acquisitions (GP Submissions, paragraph 10-11). Specifically, it is stated that the Raven Letter:
·makes express reference to notice being given under s 29 of the Act;
·identifies each of the proposed acquisitions, both in the letter itself and in combination with the accompanying documents;
·makes reference to there being a notification day, which is specified in the enclosed NOITTs; and
·contains statements, both in the letter itself and the enclosed NOITTs, to the effect that, under s 30 of the Act, persons have until three months after the notification day to take certain steps to become native title parties.
I note that all of these requirements are also met in the August 2012 notices, if read as simultaneously giving notice under s 170 of the LAA as well as notice under s 29 of the NTA.
The Government party and the grantee party submit that the Act does not prescribe a particular form in which the notice must be given and only requires substantial compliance, particularly where the native title party has not been adversely affected by any deficiencies in the notice (GP Submissions, paragraph 9). It is submitted that the inclusion of references to s 24MD(6A), while incorrect, has no effect on the validity of the notice under s 29 of the Act or otherwise on the Tribunal’s jurisdiction to make a determination in respect of the s 35 application (GP Submissions, paragraph 14). The native title party, on the other hand, maintains it was the NOITTs and not the Raven Letter that constituted notice for the purposes of s 29 of the Act, and the Raven Letter cannot be relied on to cure any defects in the NOITTs. The native title party placed particular emphasis on what is described as the Government party’s reliance on the NOITTs in making its application to the Tribunal, based upon the reference in paragraph 7.1 of the s 35 application to giving ‘four notices in accordance with section 29 of the Native Title Act 1993 (Cth) ... of the acts referred to in paragraph 9 below (Notices)’, and then attaching the August 2012 notices as evidence of that notification.
It is of no consequence that the Government party referred to and included the August 2012 notices in its application to the Tribunal rather than the Raven Letter and the accompanying documents. What matters is whether the notice actually given to the native title party on 20 August 2012 complied with the requirements of s 29 of the Act and, if it did not comply with those requirements, whether the non-compliance invalidates the notice. To address those issues, it is necessary to examine the language of s 29 in the context of the scope and objects of the Act, taking account of the practicalities of compliance and the consequences of non-compliance (see Dann v Western Australia at [24]; Western Australia v Strickland; Little v FMG Resources at [11]-[22]).
Section 29(1) of the Act provides that, before the act is done, the Government party must give notice of the act in accordance with the section. For present purposes, the relevant provision is s 29(2)(a), which requires the Government party to give notice of the act to any registered native title body corporate in relation to any of the land or waters that will be affected by the act. As the native title party is the registered native title body corporate in relation to all the land or waters that will be affected by the act, the Government party was not required to give notice to any registered native title claimant or representative Aboriginal/Torres Strait Islander body in accordance with s 29(2)(b) or public notification under s 29(3). It was required to, and did, give notice to the Tribunal as required by s 29(2)(d).
A notice given under s 29(2) must specify a day as the notification day; contain a statement to the effect that, under s 30, persons have until three months after the notification day to take certain steps to become native title parties in relation to the notice; and be accompanied by any prescribed documents and include any prescribed information (s 29(4) NTA). There are no documents or information prescribed in relation to s 29(2)(a) and there are no statutory requirements other than that the Government party ‘must give notice’ of the act, though the notice must be adequate to inform the native title party of the nature and location of the act (see Jabiru Metals v Victoria at [7]).
The question is whether the inclusion of references to s 24MD(6A) in the NOITTs meant that the Government party did not ‘give notice’ of the acts in accordance with s 29, taking into account the purpose of the notice provisions and the possible implications of non-compliance. The Government party and the grantee party place particular emphasis on the fact that there is nothing to suggest the native title party was denied its procedural rights or otherwise prejudiced as a result of the erroneous reference to s 24MD(6A). In this regard, reference was made to the Tribunal’s finding in Dann v Western Australia at [100]-[106], where it was held that a notice was valid notwithstanding the voluntary inclusion of incorrect information over and above the requirements of s 29, especially where there is no evidence that anyone relied on the information to their detriment. However, the pertinent inquiry is whether, as a matter of statutory construction, any non-compliance with the Act rendered the notice invalid (see Project Blue Sky v Australian Broadcasting Authority at 388-391). Although the possible consequences of non-compliance are relevant in determining the legislative intent behind the provisions, the actual consequences can only be illustrative of the potential implications of non-compliance and are not a complete answer to the question of validity.
As noted above at [27], the purpose of the notice provisions is to ensure that native title holders and claimants are not left out of negotiations and have the opportunity to make submissions on the proposed act. The native title party says that the consequences arising from the confusion of the relevant procedural rights are significant, substantial and potentially serious, as there are patent differences between the rights afforded by s 24MD(6A) and those available under s 29 (NTP Submissions, paragraph 46). Specifically, the native title party argues that, if the notices are found to be effective for the purposes of s 29, it is possible that determinations could be made without a native title party having clear or certain notice of what is proposed and the laws governing its procedural rights, particularly where the native title party is unrepresented (NTP Responsive Submissions, paragraph 52).
This issue must be determined on the facts in this matter, and not on some hypothetical situation. There is no evidence, or even any allegation in the native title party’s submissions, that this native title party was deprived of any negotiation or procedural rights in this matter as a result of the reference to s 24MD(6A) in the August 2012 notices. Indeed, it appears that the error only came to light when it was raised by Member O’Dea at the preliminary conference following the lodging of the s 35 application. There is no question that negotiations did not occur between the parties as required by the Act: see [10]-[11] above and [234]-[235] below.
I do not accept the proposition that the reference to s 24MD(6A) in the notice to the native title party had the potential to cause a situation where the proposed acquisitions could proceed without the involvement of the native title party. In the present circumstances, the proposed acquisitions would only be valid if an agreement of the kind mentioned in s 31(1)(b) was made or there was a determination under ss 36A or 38 that the act may be done or may be done subject to conditions (see s 28(1) NTA). That is to say, the procedures under Part 2, Division 3, Subdivision P would need to have been followed irrespective of whether the notices included references to an alternative procedure, in order for the proposed acquisitions to be validly done.
The native title party responded to the notice by lodging an objection to the proposed acquisitions, which is a right that would have been available to the native title party under s 24MD(6A). This suggests there may have been some confusion as to how to proceed, but it is clear from the ‘objection’ that the native title party was aware of, and intended to pursue the negotiation and procedural rights available to it under the NTA. The letter of objection concluded by stating that the objection would be withdrawn upon the proponents entering into negotiations in good faith with the determined native title holders in compliance with the provisions of the NTA.
In other circumstances, there may be a question as to whether the reference to s 24MD(6A) may influence a person’s decision to take the necessary steps to become a registered native title claimant. That question does not arise in the present matter, as the native title party is the registered native title body corporate in relation to all of the land that will be affected by the proposed acquisitions.
In any event, the notices must be read as a whole. The Raven Letter expressly states that any person who is a native title party in relation to the proposed acquisitions ‘has the procedural rights provided in Part 2 Division 3 Subdivision P of the NTA (i.e. the right to negotiate).’ It also invites the native title party to make submissions in accordance with s 31(1)(a) of the Act. Furthermore, each of the August 2012 notices made ‘Particular statements for the purposes of the NTA and Native Title (Notices) Determination 2011 (No. 1) (Cth).’ Those ‘Particular statements’, which, in my view, were clearly intended to be read as giving notice in accordance with s 29 of the NTA, included a statement that ‘[a]ny person who is or becomes a native title party is entitled to the negotiation and procedural rights provided in Part 2 Division 3 Subdivision P of the NTA.’ Even if one were to disregard the Raven Letter, I do not accept that any existing or potential native title party would have been mistaken about the nature of its procedural rights available under the NTA.
In conclusion, I find that the inclusion of the reference to s 24MD(6A) in the August 2012 notices does not mean the notices were ineffective for the purposes of s 29 of the Act and does not deprive the Tribunal of jurisdiction to determine the application.
Handwritten annotation
The native title party also submits that the notice issued in respect of Area 1 is invalid because it contains an inaccurate description of the land to be compulsorily acquired. The submission is made on the basis of a handwritten note made on the face of the Form LAA-1029 which, together with the August 2012 notice relating to Area 1, formed part of Attachment 1 to the s 35 application.
The parcel of land to be taken in respect of Area 1 is described in the Schedule of the August 2012 notice relating to that Area, as follows:
LAND DESCRIPTION: the portions of Lot 152 on Deposited Plan 220265 shown as ‘Area 1’ on Deposited Plan 72887, being portion of Crown Lease 56/1967 ‘Minderoo Station’ being part of the land in certificate of Crown land title volume 3098 folio 710 Area: 200.4387 hectares
This is consistent with the information recorded in the ‘Description of Land’ panel of the Form LAA-1029:
The portions of Lot 152 on Deposited Plan 220265 shown as ‘Area 1’ on Deposited Plan 72887, being portion of Crown Lease 56/1967 “Minderoo Station”
To the right of the ‘Description of Land’ panel in the Form LAA-1029 are further panels labelled ‘Extent’, ‘Volume’ and ‘Folio’. Respectively, these panels contain the following typed entries: ‘Part’, ‘3098’ and ‘710’. Beneath these entries are then handwritten annotations, with the symbol ‘&’ between the ‘Description of Land’ and ‘Extent’ panels and the symbol ‘″’ in the ‘Extent’ panel beneath the word ‘Part’, the letters ‘CL’ between the ‘Extent’ and ‘Volume’ panels, and the numbers ‘56’ and ‘1967’ in the ‘Volume’ and ‘Folio’ panels respectively. The native title party submits that the annotation is a reference to Crown Lease 56/1967 and its only possible meaning is to add a further portion of Crown Lease 56/1967 to the land to be acquired. In the native title party’s submission, the annotation invalidates the notice as it renders the land to be taken ambiguous (NTP Submissions, paragraphs 56-71).
The Government party and the grantee party submit that the copy of the Form LAA 1029 given to the native title party with the Raven Letter did not contain the annotation, which was inserted by Landgate as part of the process of registering the NOITT (GP Submissions, paragraphs 17-18). In any event, the Government party and the grantee party submit that the annotation does not affect the validity of the notice as there was no ambiguity in the documents comprising the notice as to the identification of the proposed future act and there is no evidence that the native title party was misled, denied its procedural rights or otherwise prejudiced as a result of the annotation. In particular, they note that Area 1 is correctly identified in the Raven Letter and the accompanying maps and in the native title party’s objection in response to the notice (GP Submissions, paragraph 19).
In reply, the native title party submits that the registration of the NOITT by Landgate constitutes a public representation by the Government party regarding the land to be acquired. According to the native title party, the discrepancy between the registered Form LAA-1029 and the notice given to the native title party creates ambiguity as to the proper form of the NOITT, as a native title party, properly advised, would be expected to check any notice given to it under s 29 of the Act against the details disclosed on a title search (NTP Responsible Submissions, paragraphs 74-79). This is disputed by the Government party and the grantee party, who submit that both the annotated and unannotated versions of the Form LAA-1029 refer to the same proposed acquisition (GP Reply, paragraph 17).
The affidavit of Ms Passante explains the circumstances in which the annotation was made. Ms Passante states that she is the Senior Registration Officer in the Crown Subdivisions Section of Landgate. Ms Passente is also designated as an Assistant Registrar under the Transfer of Land Act 1893 (WA). Ms Passante deposes that she made the handwritten annotation on 13 August 2012, when the document was lodged at Landgate by State Lands Services (now Department of Lands). Ms Passante explains that the handwritten notation reflects the narrative description in the ‘Description of Land’ panel (Passante Affidavit, paragraphs 1 and 6-7).
Ms Passante says the annotation was made in part because the information is usually recorded as part of Landgate’s administrative practice in the ‘Extent’, ‘Volume’ and ‘Folio’ panels, rather than the ‘Description of Land’ panel (Passante Affidavit, paragraphs 7 and 9). Ms Passante states that the annotation also served as ‘a reminder to Landgate staff, of the need to make notations about the Document on both the Crown Lease and also the Crown Land Title for that Crown Lease’ (Passante Affidavit, paragraph 9). According to Ms Passante, the annotation ‘did not change the substantive information conveyed by the Document’ and it is ‘common practice to make handwritten notations on documents lodged with Landgate for registration, in circumstances like these’ (Passante Affidavit, paragraph 11).
I am satisfied that the notice given to the native title party did not contain the handwritten annotation in respect of Area 1. I am also satisfied that the annotation was made in the course of Landgate’s usual administrative practice and did not alter the substance of the information presented in the Form LAA-1029, although it is not clear why this was not done in respect of the other NOITTs. I do not accept the native title party’s interpretation of the annotation (that is, that it purports to add a further portion of Crown Lease 56/1967 to the land to be acquired). The narrative description of the land clearly indicates that the land to be acquired is part of Crown Lease 56/1967. The land to be acquired is also illustrated on the deposited plan, which the Raven Letter enclosed with the relevant NOITT. If there was any confusion on the part of the native title party as to the effect of the annotation, it could have made enquiries with Landgate or the Department of Lands. In any event, I do not accept that the registration of the annotated Form LAA-1029 created any ambiguity about the land to be acquired.
Whatever the effect of the annotation, the critical issue for the Tribunal’s jurisdiction is whether the notice given to the native title party complied with s 29 of the Act. It is not suggested that the description of the land to be acquired contained in the notice was unclear. Rather, the native title party’s submission hinges on the discrepancy between the unannotated NOITT that accompanied the Raven Letter and the annotated NOITT included in Attachment 1 to the s 35 application. If the annotation purported to expand the area proposed to be taken, then the Raven Letter would not have constituted effective notice for the purposes of the Act. This is because s 29 requires notification ‘of the act’, which itself requires a description of the land the subject of the act (see Dixon v Northern Territory at [11]). That is not the case in the present matter. It is not disputed that the unannotated notice accurately describes the land to be acquired. In the circumstances, there is nothing to suggest that the notice was not given in accordance with s 29. Accordingly, the Tribunal has jurisdiction to deal with the matter.
The Inquiry
Directions for inquiry and written submissions
Directions for the inquiry required each party to provide a statement of contentions and documentary evidence in relation to the criteria in s 39 of the Act. The directions also set dates for the hearing of the matter.
The Government party and the grantee party filed a statement of contentions on 9 September 2013 (‘GP Contentions’), together with supporting documentary evidence. These were subsequently tendered as exhibits during the hearing of the application and are listed as GP1 to GP88 in Appendix 1.
In addition to the supporting documentary evidence that accompanied their statement of contentions, the Government party and the grantee party also provided the following affidavits:
(a) Affidavit of Vaughan Peter Murray Brazier, sworn 5 September 2013 (‘Brazier Affidavit 1’);
(b) Affidavit of Ben William Graham, sworn 6 September 2013 (‘Graham Affidavit’); and
(c) Affidavit of Christopher John Clark, sworn 6 September 2013 (‘Clark Affidavit’).
The Government party and the grantee party also filed a letter on 7 October 2013 to supplement their statement of contentions (‘GP Letter’). This letter concerned the Tribunal’s conclusion in Western Australia v Gordon at [36]-[41] regarding the extinguishing effect of certain compulsory acquisitions, which was recently referred to by the Federal Court in Banjima People v Western Australia (No 2) at [1366].
The native title party filed a ‘statement of effect of future acts’ on 18 October 2013 (‘NTP Statement’). The documents accompanying the NTP Statement are set out as NTP1 to NTP8 in Appendix 2, but it is convenient for present purposes to note that the documents included a report entitled ‘Discussion of the Heritage Values of the Onslow Area to the Thalanyji’ by Fiona Hook and published in October 2012 (‘Hook Report’).
To assist with the preparation for the hearing, the Tribunal wrote to parties by email on 29 October 2013 requesting an indication of the likely location of the hearing and whether any site visits would be required; the number of witnesses intended to be called; whether parties would be seeking leave to cross-examine the witnesses; the likely duration of the hearing; and other others matters of which the Tribunal or the other parties should be aware.
On 1 November 2013, the Tribunal received an email from the State Solicitor’s Office acting on behalf of the Government party and the grantee party proposing that the hearing should be held at the Tribunal’s offices in Perth and estimating that the hearing would take one day, including evidence and oral submissions. The email indicated that the Government party and the grantee party:
·intended to rely on the three affidavits filed on 9 September, as well as a further affidavit of Mr Brazier sworn 1 November 2013 (‘Brazier Affidavit 2’) and provided later the same day, and did not intend to call the deponents to give oral evidence;
·sought leave to cross-examine Dr Hook in relation to the report; and
·noted that the native title party had not filed any further evidence, and would be proceeding on the understanding that the documents provided by the native title party on 18 October 2013 comprise the entirely of its contentions and evidence in the matter.
A listing hearing was held on 4 November 2013. At the listing hearing, the native title party indicated its intention to file a further affidavit. I indicated that the Tribunal would accept the affidavit so long as the deponent is made available for the hearing. I also directed the native title party to ensure that Dr Hook is available for the hearing. The native title party was also directed to confirm whether it intended to cross-examine any of the Government party and the grantee party’s witnesses. The hearing was set down 12 November 2013.
On 7 November 2013, the native title party provided the affidavit of Meachum Kelly affirmed 7 November 2013 (‘Kelly Affidavit’ – this affidavit was erroneously dated 6 November 2013, but no party objected to the error). The following day, Corser & Corser Lawyers informed the Tribunal on behalf of the native title party that it intended to cross-examine Mr Clark, Mr Brazier and Mr Graham.
Details of hearing – 11 November 2013
The first hearing commenced on Tuesday 12 November 2013 at 9:30am, and was held in the Tribunal’s offices in Perth. The Government party and the grantee party were represented by Mr Stephen Wright (Francis Burt Chambers), appearing with Mr Beetham and Ms Sophia Woodrow (State Solicitor’s Office). The native title party was represented by Ms Huynh of Corser & Corser Lawyers.
The following witnesses gave evidence at the hearing: Mr Graham, Mr Brazier, Mr Clark and Dr Hook. Leave was given to cross-examine the witnesses.
In the course of the hearing, the documents provided to the Tribunal prior to the hearing were accepted into evidence. The exhibit numbers assigned to the documents are indicated in the Appendixes. The following exhibits were also tendered by the Government party and the grantee party:
(a) Exhibit GP88A: Map of Onslow - Residential Section 18 Survey Area, Application Area and Proposed Development Footprint, dated 25 October 2012.
(b) Exhibit GP88B: Map of Onslow Development Plan Staging Plan, dated 21 June 2012.
(c) Exhibit GP89: Graham Affidavit.
(d) Exhibit GP90: Brazier Affidavit 1.
(e) Exhibit GP91: Brazier Affidavit 2.
(f) Exhibit GP92: Clark Affidavit.
(g) Exhibit GP93: Australian Archaeological Association, Code of Ethics (extract from accessed 11 November 2013).
(h) Exhibit GP94: Letter from State Solicitor’s Office to Corser & Corser dated 13 December 2012.
Although Mr Kelly had initially been unavailable to attend the hearing, arrangements were made for his attendance by telephone. However, on the day of the hearing, Ms Huynh informed the Tribunal that Mr Kelly had fallen ill and was unable to participate in the hearing. After hearing from the parties on the issue and in particular the Government party and the grantee party’s objection to the receipt of the affidavit, I indicated that I would receive the evidence but, unless Mr Kelly was made available for cross-examination, little weight may be given to the affidavit.
In the alternative, Ms Huynh proposed that an affidavit in substantially the same terms could be obtained from another member of the native title party, who would be available for cross-examination the following week. As the Government party and the grantee party did not object to this proposal, I accepted this as an appropriate course of action and directed the native title party to provide the additional affidavit. Accordingly, the hearing was adjourned to 19 November 2013.
Details of hearing – 19 November 2013
On 15 November 2013, the native title party provided the affidavit of Ms Trudy Hayes sworn 15 November 2013 (‘Hayes Affidavit’), along with Annexure TH1, being a map of the ANSIA and the proposed acquisitions. Ms Hayes gave evidence at the hearing on 19 November 2013 in person and leave was given to cross-examine.
Ms Hayes is a Thalanyji person. Ms Hayes is considered to be a senior person of the group, and conducts cultural awareness programs for people who wish to come onto Thalanyji land to carry out activities. Ms Hayes said she lived in the Onslow area for 30 years and knows the Onslow area and the Thalanyji people who live there very well. Although she now resides in South Hedland, Ms Hayes said she visits Onslow every second week.
During cross-examination, Ms Hayes was asked to look at a satellite photographic map of Onslow and the surrounding areas and mark the locations of specific places referred to in her evidence. This map was subsequently tendered by the Government party and the grantee party, becoming Exhibit GP95. The native title party also tendered the Kelly Affidavit (Exhibit NTP9) and the Hayes Affidavit (Exhibit NTP10), though the former was only accepted into evidence on the basis that it would have little or no weight, particularly in light of the evidence given by Ms Hayes.
The hearing concluded with closing oral submissions from the Government party and the grantee party and the native title party.
Hayes Map
As noted above at [76], Ms Hayes was shown and asked to mark up a map of Onslow and the surrounding areas (Exhibit GP95). Following the hearing, this map could not be located and the Tribunal made enquiries to determine whether the map or a copy was in the possession of the parties. The parties confirmed that they did not possess the document.
On 4 February 2014, Ms Huynh contacted the Tribunal by email attaching a copy of the map marked up with annotations she made during the hearing on 19 November 2013. Ms Huynh said she had conferred with Ms Hayes, who had confirmed that the annotations were generally correct. Ms Huynh also reported comments made by Ms Hayes in relation to specific locations which she had marked on the map. The email attached what was described as a copy of the map marked up with Mr Wright’s annotations during the hearing, though Ms Woodrow subsequently clarified that the annotations were made by Mr Wright the previous week relying on the transcript of the hearing and his own recollections. The Tribunal subsequently located another copy of the map, which Tribunal staff had marked up based on the annotations made by Ms Hayes.
Though it is regrettable that the exhibit has not been located, it appears that the three copies of the map currently in the Tribunal’s possession are consistent with each other and the evidence given Ms Hayes at the meeting. As such, I am satisfied it is appropriate to rely on the copies in substitution for the original exhibit.
The Proposed Acquisitions
Interests to be acquired
The proposed future acts involve the compulsory acquisition of all registered and unregistered interests (including any native title rights and interests) in Areas 1, 2, 6 and 7 other than:
(a) the interests of the Crown; and
(b) all existing rights created by the grant of mining tenements under the Mining Act 1978 (WA) (‘Mining Act’) and all existing petroleum or geothermal energy rights granted under the Petroleum and Geothermal Energy Resources Act 1967 (WA) (‘PGER Act’).
Underlying tenure
Area 1 is currently part of pastoral lease 3114/661 (Minderoo station). The whole of area is also subject to existing exploration licences granted under the Mining Act, being E08/2059 and E08/2009, as well as Petroleum Exploration Permit EP 110 R 5 granted under the PGER Act.
Area 2 is comprises parts of Minderoo station and pastoral lease 3114/765 (Urala station). The area is wholly covered by EP 110 R5 and Geothermal Exploration Permit GEP 35 granted under the PGER Act.
Area 6 currently comprises unallocated Crown land. The whole of Area 6 is covered by EP 110 R5.
Area 7 is wholly within Minderoo station and is subject to E08/2059 and EP 110 R5.
Purpose of acquisitions and proposed development
Ashburton North Strategic Industrial Area
The purpose of the proposed acquisitions is to support the development of the ANSIA, associated industry and the town of Onslow.
The background to the establishment of the ANSIA and current status of the ANSIA are outlined in the affidavit of Mr Clark at paragraphs 6-25 and Mr Brazier’s affidavit of 5 September 2013 at paragraphs 6-17. Mr Clark is the Executive Director Strategic Infrastructure (Ashburton North) at the Department of State Development (‘DSD’) and has been responsible for the overall planning and development of the ANSIA since his appointment in January 2011. Mr Brazier is engaged by the grantee party as its Business Manager, Strategic Industrial. Mr Brazier has been responsible for managing the grantee party’s interests in the ANSIA since April 2011, and was involved in the initial development of the ANSIA project between October 2007 and April 2011.
The ANSIA was identified as one of several Strategic Industrial Areas (‘SIAs’) as part of the Government party’s Heavy Use Industrial Land Strategy, the aim of which is to prepare key areas for development as industrial estates. According to Mr Clark, the strategy ‘aims to ensure that land in the SIAs is ready for the development of industrial projects’ by obtaining the necessary statutory and planning approvals. The strategy is ‘designed to attract investment in major industrial projects to Western Australia by reducing the time needed by proponents of such projects to establish those projects’ (Clark Affidavit, paragraphs 7-8).
Mr Clark states that an area had previously been identified for the establishment of an SIA approximately five kilometres from the town of Onslow, and had been intended to cater for anticipated industrial development associated with the discovery of gas reserves in the nearby Carnarvon Basin and Exmouth Gulf (Clark Affidavit, paragraph 10). However, constraints on land use associated with the area’s proximity to the town meant that only a limited amount of land was available for development.
Following expressions of interest from various companies in developing gas processing facilities at Ashburton North for the purpose of commercialising nearby gas fields, the Government party ‘formed the view that the proposed Onslow SIA was inadequate to accommodate multiple industry proponents and related support industries’ (Clark Affidavit, paragraph 13). In October 2009, the Government party announced that it would support the establishment of the ANSIA as a gas processing precinct to facilitate the exploitation of natural gas reserves in the Carnarvon Basin and Exmouth Gulf. In December of the following year, the Shire of Ashburton’s Town Planning Scheme was amended to include the ANSIA as a ‘Special Control Area.’ It is anticipated that the ANSIA will provide land for infrastructure and other facilities required for processing liquid natural gas (‘LNG’) and other hydrocarbon products, including natural gas for the domestic market.
There are currently two major projects located within the ANSIA, namely the Macedon Domestic Gas Project and the Wheatstone LNG and Domestic Gas Project. The proponent of the Wheatstone project is Chevron Australia Pty Ltd (‘Chevron’) and the proponent of the Macedon project is BHP Billiton Petroleum Pty Ltd (‘BHP’). Final investment decisions were made in respect of the Macedon and Wheatstone projects in September 2010 and September 2011 respectively, and the requisite approvals were obtained in 2011. Pursuant to agreements reached with BHP and Chevron, the native title party entered into deeds for the compulsory acquisition of any native title rights and interests in connection with the Macedon and Wheatstone projects in December 2010 and November 2011 respectively. It is understood that, at the time of the hearing of this matter, the Macedon project had already been constructed, and the Wheatstone project was under construction.
According to Mr Brazier, a site has been also allocated for a potential third major project, known as the Scarborough project, which is a joint venture of Esso Australia Resources Pty Ltd and BHP and would be situated between the existing Macedon and Wheatstone sites (Brazier Affidavit 1, paragraphs 11-12). Mr Clark and Mr Brazier also refer to the possibility of establishing downstream processing industries in the future (Clark Affidavit, paragraph 32; Brazier Affidavit 1, paragraphs 13-14).
Mr Clark and Mr Brazier note that Chevron plans to construct a multi-user port in the ANISA as part of its Wheatstone project. Although the port will mainly be used for the export of LNG and other hydrocarbon products, it will also be operated as a public port servicing industry operating in the ANSIA and Onslow and as a marine supply base for offshore oil and gas operations. Once completed, it is intended that ownership and control of the port will be passed to the Dampier Port Authority, save for certain infrastructure specific to Chevron (Clark Affidavit, paragraphs 30-31; Brazier Affidavit 1, paragraphs 10, 41).
The role of the Government party and the grantee party in the proposed development
The grantee party is a statutory authority established under the WALA Act. The objects of the WALA Act are set out in s 3 and include ‘the provision and development of industrial, commercial, residential and other land in a range of localities to meet the social and economic needs of the State.’ One of the grantee party’s functions is to provide or improve land, infrastructure, facilities or services for centres of population (see s 16(e) WALA Act).
Mr Brazier states that, in fulfilling its statutory role, the grantee party ‘seeks to develop land in advance of demand to facilitate positive economic and social outcomes for the State and avoid critical industrial land supply shortage and land supply price spikes’ (Brazier Affidavit, paragraph 19). In particular, the grantee party ‘seeks to ensure the supply of industrial land where demand for industrial land is unlikely to be met by the private sector’ (Brazier Affidavit 1, paragraph 20). According to Mr Brazier, the grantee party has identified Areas 1, 2 and 7 as priorities for facilitating the further development of the ANSIA in the immediate to medium term following the approval of the Macedon and Wheatstone projects (Brazier Affidavit 1, paragraph 16).
Section 19 of the WALA Act requires the grantee party to act on commercial principles and ensure it meets a specified rate of return on the projects it undertakes. Accordingly to Mr Brazier, if it is anticipated that a project will not achieve the specified rate of return, it cannot proceed unless the grantee party seeks a contribution from the State Government. Mr Brazier states that the grantee party anticipates that a Government contribution will be required to meet the specified rate of return in developing Area 1, 2 and 7 (Brazier Affidavit 1, paragraphs 21-22).
Mr Clark describes DSD’s role as ‘to work with proponents, LandCorp, the Department of Planning, the Western Australian Planning Commission (‘WAPC’), the Department of Lands and the Shire of Ashburton to facilitate development within the ANSIA and related development in Onslow to improve amenity and infrastructure as well as providing for the expansion of the Onslow townsite’ (Clark Affidavit, paragraph 18).
Area 1
Area 1 is proposed to be used for general industrial purposes. The area is required due to anticipated demand for general industrial land associated with the construction and operation of the Macedon and Wheatstone projects, which is expected to come from businesses in the support service industries, such as plant and equipment hire, transport and logistics, vehicle repair and pipeline maintenance (Brazier Affidavit 1, paragraph 24). Mr Brazier states that there are no areas within the town of Onslow suitable for general industrial development and Area 1 was selected due to its proximity to existing projects in the ANSIA; the existence of a suitable buffer zone from areas designated for gas projects and heavy industry; and its level of elevation compared with surrounding areas. The size of the area has been determined by the grantee party as the amount of land necessary to accommodate expected demand for support services in the ANSIA (Brazier Affidavit 1, paragraphs 26-29, 43).
The area comprises two parts, both of which will be granted to the grantee party as freehold title. It is intended that the eastern part will be developed first to meet expected demand associated with the construction of the Wheatstone project, followed by the western part when demand requires. It is expected that the initial development will require extensive earth works to remove sand and create a level base for the construction of roads and separate lots. These lots will then be leased. As the land is not connected to power and water services, lessees will be required in the short term to provide their own utilities; however, it is anticipated that power and water facilities will be constructed by Chevron. Once these facilities become operational, they will be connected to Area 1 to create serviced lots, at which point the grantee party will sell the lots as freehold title (Brazier Affidavit 1, paragraph 31).
Area 2
Area 2 is proposed to be used as a port supply base and for general industrial purposes. The area is located south of the proposed port and Wheatstone project areas, a short distance to the east of the Macedon project area and immediately adjacent to the existing infrastructure corridor. The land is required as a laydown area for the port and for general industrial use associated with the port, and was selected due to its elevation and proximity to the port. The size of the area has been determined by the grantee party as the amount of land necessary to provide a port supply area (Brazier Affidavit 1, paragraphs 41, 45).
The grantee party will be granted freehold title over Area 2, upon which it will develop the area before offering it for lease or sale to third parties. The grantee party intends to have Area 2 developed and on the market by the time the port commences operations, which is expected to occur around 2016 (Brazier Affidavit 1, paragraph 42).
Area 7
Area 7 is proposed to be used for transient worker accommodation purposes. The area is located immediately south of the existing Wheatstone project construction camp. The area is required due to the current and expected growth in demand associated with the construction of the Wheatstone project and the limited amount of workforce accommodation presently available in the ANSIA and the town of Onslow. Mr Brazier notes that Area 7 is separated from the gas processing and heavy industry areas in the ANSIA, which he says is ‘desirable from an occupational health and safety point of view.’ The size of the area has been determined by the grantee party as the amount of land necessary to accommodate expected demand for support services in the ANSIA (Brazier Affidavit 1, paragraphs 34-38, 43).
It is proposed that freehold title over Area 7 will be transferred to the grantee party. The grantee party will then lease the area to one or more proponents or accommodation providers. There is no intention to sell the land in freehold at this time (Brazier Affidavit 1, paragraph 39).
Area 6
The purpose of Area 6 is outlined in the affidavit of Mr Graham. Mr Graham has been employed by the grantee party since 2008 and has held the position of Project Manager for the proposed development of the Onslow townsite from 2009.
Area 6 comprises three parcels of land (lots 72, 79 and 350) just outside the current Onslow townsite boundary, which are proposed for residential development. The area will be used primarily for housing, though it may also be used in part for roads, parks and other infrastructure associated with residential development. Area 6 is part of a larger area to be used for residential development and in respect of which native title has been determined not to exist or has already been acquired. The development is required due to the growth in the population of Onslow and associated demand for the expansion of the Onslow townsite generated by the Wheatstone and Macedon projects. Mr Graham also noted the significance of the potential expansion of local industry, including Onslow Salt’s industrial salt operations, which are located 5 kilometres to the east of the ANSIA (Graham Affidavit, paragraphs 5, 6, 7-10).
It is proposed that freehold title over Area 6 will be transferred to the grantee party, after which it will either develop the area for sale or sell the area as undeveloped land to facilitate residential development. Mr Graham also indicates that Lot 350 will initially be utilised as bulk offsite works to assist with the development of a super lot to accommodate operational workers associated with the Wheatstone project, but will eventually be developed for residential use (Graham Affidavit, paragraph 18-19).
The planning process and regulatory framework
Areas 1, 2 and 7
The planning process for the Areas 1, 2 and 7 and the ANSIA generally is outlined in Mr Brazier’s affidavit of 5 September 2013 (at paragraphs 49 to 65).
In February 2010, the Shire of Ashburton initiated an amendment to its town planning scheme (Scheme Amendment No 9) designating the ANSIA as a ‘Special Control Area’ and establishing criteria for the rezoning and development of the area. This amendment was granted final approval by the Minister for Planning on 14 December 2010.
The grantee party and DSD commissioned Arup Pty Ltd in 2010 to undertake a Concept Design Planning Study for the ANSIA. This study was the first to identify the need for land to be set aside for general industry, worker accommodation and supply base uses to support the development of the ANSIA.
In the same year, Chevron lodged the ANSIA Structure Plan for approval with the Shire of Ashburton, which was granted final approval by the WAPC in October 2011. The structure plan established the framework for the ANSIA and designates sites for domestic gas and LNG projects, a port area, a multi-user infrastructure corridor and transient workforce accommodation. The structure plan also provides for the development of the ANSIA in stages, due to timeframes associated with the development of various project components.
The Structure Plan divides the ANSIA into three stages:
·Stage 1A, consisting of the port area, the Wheatstone LNG and Domestic Gas Plant, the multi-user access and infrastructure corridor, and the Wheatstone transient workforce accommodation.
·Stage 1B, consisting of the Macedon Domestic Gas Plant, ‘Future Industry Area’ and secondary transient worker accommodation.
·Stage 2, containing general industrial areas previously designated as Stage 1C. The north-western portion of Stage 2 is intended as a buffer between heavy industry areas and the light industry and accommodation area and may contain compatible industrial and other land uses.
In 2010, the Shire of Ashburton initiated another amendment to its town planning scheme (Scheme Amendment No 10) to rezone the areas in Stage 1A from ‘rural’ to ‘strategic industry’, ‘other purposes – infrastructure’ and ‘special use – transient workforce accommodation’ to accommodate the Stage 1A development. The amendment was granted final approved by the Minister for Planning on 25 October 2011. In February 2011, Chevron lodged the ANSIA Stage 1A Development Plan for approval with the Shire of Ashburton, and this was granted final approval by the WAPC on 10 October 2010.
In April 2012, the Shire initiated Scheme Amendment No 17 and 18 to rezone the Stage 1B and 1C areas from ‘rural’ to ‘strategic industry’, ‘other purposes – infrastructure’, ‘special use – transient workforce accommodation’ and ‘industry’. At the time of Mr Brazier’s affidavit, these amendments had been approved by the Shire and were with the WAPC and Minister for Planning for final approval. Area 1 falls within the Scheme Amendment No 18 area, while Areas 2 and 7 fall within the area of Scheme Amendment No 17.
At the same time, the grantee party lodged the ANSIA Stage 1B and 1C Development Plan for approval with the Shire of Ashburton. These plans have been approved by the Shire and, at the time of Mr Brazier’s affidavit, were with the WAPC for final approval. The plans were supported by a range of studies commissioned by the grantee party concerning the environmental and social impact of the proposed development.
According to Mr Brazier, a determining factor in selecting these areas for development was ‘the identification of areas which could be developed without affecting the prevailing hydrology of the ANSIA.’ Mr Brazier states that extensive work was carried out to identify flood hazards and likely water levels affecting different areas within the ANSIA, which identified only a limited number of areas as being suitable for development.
Another determining factor was the decision to design the ANSIA in accordance with industrial ecology objectives, which contemplate the integration of different industries within a particular development in order to minimise environmental impacts and maximise industrial outcome and optimise outcomes for surrounding communities. The decision to design the ANSIA in accordance with these principles lead the grantee party to commission an industrial ecology strategy, which subsequently informed plans for development.
In February 2013, the grantee party lodged the ANSIA General Industrial Area – Eastern Portion, Outline Development Plan for approval with the Shire of Ashburton. This plan aims to provide a greater level of detail about the subdivision and development of the eastern portion of Stage 1C, which includes Area 7. The plan has been approved by the Shire subject to conditions and, at the time of Mr Brazier’s affidavit, had been sent to the WAPC for final approval.
Area 6
The affidavit of Mr Graham outlines the planning process in respect of Area 6.
In July 2010, the Shire of Ashburton formally adopted its Onslow Townsite Strategy, which was subsequently endorsed by the WAPC in March 2011. This strategy identified an area that includes the whole of lots 72 and 79 and part of lot 350 as an area for possible development. In 2012, the Shire of Ashburton, the grantee party and other agencies published an expansion plan to seek public comment on specific projects that were proposed or underway. This expansion plan included the majority of Area 6, which was proposed for development as part of the townsite expansion.
In 2013, the grantee party published an Onslow Townsite Expansion Stage 1 Development Plan, which was subsequently adopted by the WAPC in March 2013 and includes a proposal for the development of a nine hectare superlot for the construction of worker accommodation for the Wheatstone LNG plant. The Stage 1 Subdivision Plan for the superlot was conditionally approved by the WAPC in 2013, and designates Lot 350 as a ‘bulk offsite works’. According to Mr Graham, these offsite works will be completed as part of Stage 1 to assist with reducing the future costs of developing Lot 350 for residential use.
The grantee party has also prepared a Full Development Plan which includes each of the lots comprising Area 6 and, together with the Stage 1 Development Plan, provides for the staged expansion of the Onslow townsite. The Full Development Plan was reviewed by the Environmental Protection Authority in August 2013, which decided that the plan did not require assessment. At the time of Mr Graham’s affidavit, the Full Development Plan was still to be publically advertised by the Shire of Ashburton.
Aboriginal communities and Aboriginal cultural heritage
Aboriginal communities
The Bindi Bindi Aboriginal Community is located within the town of Onslow. There does not appear to be any other residential Aboriginal communities in the vicinity of Onslow and the ANSIA.
In light of the evidence of Mr Clark, I am satisfied that the proposed development in Area 6 is in the public interest, notwithstanding the expected increase in the population of Onslow.
Section 39(1)(f) – any other relevant matters
The term ‘any other matter’ provides the Tribunal with a broad charter to take into consideration a range of matters that may be of relevance in making a s 38 determination.
Environmental impact
The Tribunal may have regard to the environmental impact of the proposed future act, as well as the relevant State and Federal environmental protection regimes (see WMC Resources v Evans at [81]; Minister for Mines v Evans at [53]-[58]).
The Government party and the grantee party submit that the Tribunal should take into account the fact that the proposed acquisitions and the ANSIA generally have been the subject of an extensive planning exercise to minimise the environmental impact and maximise the public utility of the areas (GP Contentions, paragraphs 98, 138, 177 and 212). I have considered and given weight to these matters.
In its statement of effect, the native title party (at NTP Statement, paragraph 6) submits that Areas 1, 2 and 7 will destroy native flora and fauna, ecosystems and vegetation that are unique to the determination area. The native title party refer specifically to six threatened terrestrial fauna habitats that are likely to be cleared in the ANISA, as well as four threatened species of flora (namely, Abutilon uncinatum, helichrysum oligochaetum, carpobrotus sp. Thenard Island and Triumfetta echinata).
In reply, the Government party and the grantee party refer to studies commissioned by the grantee party during the planning process and listed in Mr Brazier’s affidavit of 5 September 2013. These studies include a biological desktop review of the ANSIA, as well as flora and fauna surveys, all of which were prepared by ENV Australia Pty Ltd (GP16: Annexures 2, 3 and 4). According to the Government party and the grantee party, these studies concluded there were no threatened species or particular habitats that would be threatened by development.
The biological desktop review indicates that three habitat types occur in the ANSIA, namely samphire claypan, tussock on clay and sand/loam plain, and low sandy dunes with poorly defined drainage lines. The review concludes that these habitat types are ‘widespread in the Onslow region and not of elevated conservation significance,’ though 44 fauna species of conservation significance had been recorded within 50 kilometres of the study area and were considered likely to occur in the area. Furthermore, the report concluded that four species listed by the Department of Environment and Conservation as ‘priority flora’ (namely, atriplex flabelliformis, eremophila forrestii subsp. viridis, Triumfetta echinata and Vigna sp. Central) were likely to occur in the area and one species listed as ‘threatened’ under the Environment Protection and Biodiversity Conservation Act 1999 (Cth), Eleocharis papillose, was considered to possibly occur. Although Abutilon uncinatum, helichrysum oligochaetum, carpobrotus sp. Thenard Island were recorded between 15 and 50 kilometres from the study area, these species were considered unlikely to occur as the area was not considered a suitable habitat.
I accept that the proposed development may have some effect on species of fauna and flora that are considered to have conservation significance, including a threatened species of flora. However, I have also taken into account the fact that significant development has already occurred in the ANSIA, and it is likely this has already had an effect on these species. The proposed acquisitions represent a small part of the broader development in the ANSIA and the Onslow area and, while the proposed development may have some effect on the flora and fauna in the area, the impact is unlikely to be significant.
Previous investment by the grantee party
The Government party and the grantee party contend that the grantee party has already invested significant time and resources in the development of proposed acquisitions and the ANSIA generally (GP Contentions, paragraphs 98, 138 and 177).
The Tribunal is entitled to take into account the interests of the grantee party, including the previous expenditure associated with the proposed development (see Western Australia v Thomas at 176; Weld Range Metals v Western Australia at [332]).
It is clear from the discussion above at [107]-[121] that the grantee party has engaged in a lengthy and involved planning process in respect of the proposed acquisitions and the ANSIA generally. In his affidavit of 5 September 2013, Mr Brazier states that the grantee party ‘has invested significant time and resources to assist the State in securing the technical information and approvals necessary to make Areas 1, 2 and 7 ready ahead of the main construction period of the Wheatstone LNG Plant.’ Mr Brazier notes that the grantee party has spent ‘in the order of $1.5 million’ on the planning process and the associated studies. In my view, it is appropriate to give some weight to these matters.
Staged approach to development
In the submission of the Government party and the grantee party, it is also relevant that the ANSIA is being developed in a staged way such that native title is only extinguished as and when required (GP Contentions, paragraph 99).
Mr Brazier states that the size of Areas 1, 2 and 7 were determined on the basis of the land actually required in the immediate and medium term to support and complement the development of the Macedon and Wheatstone projects and the creation of the port (Brazier Affidavit 1, paragraph 46). Mr Clark indicates that the Government party has also taken the deliberate approach of limiting the acquisition of land in the ANSIA, including native title rights and interests, to areas actually required for current projects and related industry. According to Mr Clark, this staged approach ‘reduces the potential impact on all parties with an interest in the land’ and ‘ensures ongoing opportunities to benefit for all parties with an interest within the ANSIA, including the Thalanyji, should further proponents comes forward in future and more land be required for industrial development’ (Clark Affidavit, paragraphs 40-44).
The native title party contended that, by taking the land in such a piecemeal way, it is possible to lose sight of the total reduction in the land available for the exercise and enjoyment of the native title party’s registered rights and interests. There is some merit in this contention. However, it is only relevant to the extent that it may possibly form part of discussions with the State and proponents or, alternatively, to the extent it is relevant to the exercise of the Tribunal’s discretion in proceedings such as these.
In the present matter, I have concluded that the proposed acquisitions will not have a direct effect on the exercise or enjoyment of the native title party’s registered rights and interests or a significant impact on its way of life, culture and traditions. I accept that the proposed acquisitions will reduce the area available for the exercise or enjoyment of the native title party’s rights and interests. However, the policies adopted by the Government party and the grantee party mean that no further reduction will occur unless required, in which case the native title party will have further opportunities for consultation. In this regard, it is legitimate to give some weight to these policies.
Consultation with the native title party
Another matter that was raised in the inquiry was the degree of consultation with the native title party in relation to the proposed acquisitions, particularly with respect to heritage. Although this matter is relevant to ss 39(1)(a)(i), 39(1)(a)(v) and 39(1)(b), I appreciate that it also has relevance apart from these specific criteria. Nevertheless, I am satisfied the issue is dealt with sufficiently in my reasons above at [182]-[184] and [233]-[236].
Conditions
Although the Tribunal has a broad discretion to impose conditions, it must be exercised by reference to the s 39 criteria and it is controlled by the subject matter, scope and purpose of the Act (see Re Koara People at 93). Conditions will not normally be imposed unless the evidence suggests a need for them (see Magnesium Resources v Puuntu Kunti Kurruma and Pinikura at [92]-[96]).
Conditions proposed by the native title party
The native title party submits that, if the proposed acquisitions are to be done, they should be made on the following conditions:
1. A prohibition on damage to or interference with, and an obligation to report, Aboriginal sites and significant Aboriginal areas or objects.
2. The grantee party entering into the native title party’s standard heritage agreement and carrying out heritage surveys pursuant to the agreement prior to the proposed acquisitions.
3. Each third party proponent applicable to the proposed acquisitions entering into the native title party’s standard heritage agreement and carrying out heritage surveys pursuant to the agreement prior to the proposed acquisitions.
4. The grantee party providing work programmes to the native title party.
5. Minimisation of environmental impact and rehabilitation of disturbed areas.
6. Ongoing consultation between the native title party, anthropologists, archaeologists and the grantee party in regard to the carrying out of future heritage surveys.
7. Ongoing consultation between the native title party, anthropologists, archaeologists and the grantee party in regard to the recording of significant sites on the Aboriginal Heritage Inquiry System.
8. Ongoing consultation between the native title party, anthropologists, archaeologists and the grantee party in regard to the proposed disturbance of any sites which are significant to the native title party.
9. Permits for grantee party personnel to enter the area, prescribing conditions of entry.
10. Cooperation between the grantee party in the development and avoidance of disruption of Aboriginal social, cultural and economic structures.
11. Use of roads and grantee party facilities by the native title holders.
12. Freedom of movement and pursuit of traditional and customary activities on the land by the native title holders, where possible and applicable.
13. Instruction of grantee party personnel in Aboriginal culture.
14. Prohibition of liquor in the area without the consent of the native title party.
15. Employment and contract preferences to the native title party, taking into account cultural needs and trading in job skills and accommodation to Aboriginal employees.
16. Regulation of transport, access and accommodation within the area.
17. Rights of the native title party to inspect and gather information concerning the grantee party’s activities, subject to confidentiality conditions.
The Government party and the grantee party observed that the conditions proposed are fairly formulaic in terms of being standard heads of agreement that might be found in a native title agreement, but in any event are not supported by the evidence. It was also observed that several conditions would be inappropriate for the development of residential and industrial estates; Condition 9 for example, requires permits for access.
As for the proposed heritage conditions (Conditions 1-3 and 6-8), there is no evidence to suggest there are any areas or sites of particular significance to the native title party that are likely to be affected by the proposed development. Although there was evidence that archaeological sites such as artefact scatters and shell middens may have some significance to the native title party in terms of providing evidence of the historical occupation of the Onslow area, I am satisfied the grantee party has taken and will take further steps to comply with its obligations under the AHA, which will ensure that any sites are identified and given appropriate protection. Although the native title party was not involved in previous surveys commissioned by the grantee party, I am satisfied that the grantee party will continue to seek the participation of the native title party in future surveys and consult with them on heritage issues.
While I accept there may be further negotiation as to the terms on which future surveys might be conducted, it will essentially be a matter for the native title party as to whether they choose to participate in those surveys. Although the conditions proposed by the native title party contemplate that surveys will be undertaken on the terms of its standard heritage agreement, that agreement has not been put before the Tribunal and no evidence has been adduced as to what might constitute reasonable rates. In the present case, the evidence does not support the imposition of any specific heritage conditions.
Several of the conditions (namely, Conditions 5, 10 and 16) do not offer any certainty as to the obligations imposed on the parties. For example, there is no method of measuring whether the environmental impact has been minimised to an acceptable standard. There is also a question of what rehabilitation would involve in the context of developing industrial and residential estates. Similar questions may be posed in relation to cooperation on the development of social, cultural and economic structures and the regulation of transport, access and accommodation.
Other conditions are, as the Government party and the grantee party note in relation to Condition 9, inappropriate for this kind of development. In relation to Condition 9, it is also unclear what purpose the permits would serve, as the native title party has not outlined the kind of conditions that might be attached to them. Conditions 11 and 12, to the extent that they give native title holders the right to enter areas or use roads and facilities that would not otherwise be open to the public, are similarly incompatible with the intended use of the areas.
In relation to the conditions regarding the provision of work programmes (Condition 4), instruction in Aboriginal culture (Condition 13), the prohibition on liquor without the consent of the native title holders (Condition 14), and the right to inspect and gather information on the grantee party’s activities (Condition 17), the native title party has not sought to explain why these conditions are necessary and I do not consider the evidence supports them.
Condition 15 contemplates a system of preferential employment and contracting for members of the native title party. I agree with Deputy President Sumner in Minister for Lands v Strickland that there must be doubt about the capacity of the Tribunal to require the Government party to give preference in employment to Aboriginal people. In that matter, specific conditions relating to contracting and employment were imposed by the Tribunal in relation to the development of the Mungari Industrial Park near Kalgoorlie. Those conditions required the Government party to give information and assistance to entities nominated by the native title parties to enable them to identify contract opportunities and apply for pre-qualification to tender for contracts for major works. The conditions also required the Government party to include in all tender documents any list provided by the native title parties of eligible persons seeking employment and training.
The conditions imposed in Minister for Lands v Strickland were based upon evidence of the Government party’s general policy on Aboriginal employment in respect of the Park. There was no such evidence in the present matter, nor was it suggested that similar conditions be imposed in respect of the proposed acquisitions.
Compensation
Section 38(2) of the Act prohibits the Tribunal from imposing any condition that has the effect that a native title party is entitled to payments worked out by reference to the amount of profits made, any income derived or any things produced by the grantee party. However, it may be appropriate to impose conditions involving the payment of money if it is necessary to give effective protection to native title rights and interests and other matters of concern to the native title party by reference to the criteria in s 39 of the Act: see Adani Mining v Diver at [127], referring to Western Australia v Thomas at 151; Minister for Mines v Evans at 284.
The Act provides that native title holders are entitled to compensation on just terms for the compulsory acquisition of their native title rights and interests. If just terms compensation is provided for under a law of the State, then compensation provisions in Part 2 Division 5 of the Act do not apply: see ss 24MD(2)(d) and (e) NTA. The Government party and the grantee party submit that the LAA provides for compensation for the compulsory acquisition of native title and satisfies the just terms requirement in the Act (GP Contentions, paragraphs 56-57). The native title party did not dispute this. Pursuant to ss 166 and 167 of the LAA, the State is liable to pay any compensation in connection with the proposed acquisitions.
the Tribunal may impose a condition requiring an amount to be paid in trust until it can be dealt with under s 52A of the Act, or requiring a party to secure an amount by bank guarantee in favour of the native title registrar until it can be dealt with under s 52 of the Act: see ss 41(3) and (5) NTA.
The Government party and the grantee party contend (at GP Contentions, paragraph 216) that a condition of this nature should not be imposed because:
·the State has and will continue to have sufficient resources to meet any compensation liability; and
·in the absence of any judicial authority as to the likely amount of compensation payable for the extinguishment of native title, there is no basis upon which the Tribunal could determine the amount to be held in trust or secured by bank guarantee.
The submissions of the Government party and the grantee party are consistent with the Tribunal’s findings Xstrata Coal Queensland v Albury at [270], to which I subsequently referred in Adani Mining v Diver at [125]. The native title party has not offered any reasons why I should depart from those findings and, in any event, I am satisfied the State will be able to meet any future liability arising from the proposed acquisitions.
Conclusion
The ANSIA is a project of considerable economic importance and will deliver a range of economic benefits to the nation and the State of Western Australia, as well as the town of Onslow and the wider region. I am satisfied that the areas proposed to be acquired are needed for the future development and expansion of the ANSIA and will facilitate the construction and operation of industries within the ANSIA. I am also satisfied that the proposed acquisitions will relieve pressures on residential and industrial land within Onslow and create direct and indirect benefits for local communities. For these reasons, I accept that the proposed acquisitions are in the public interest.
The native title party contends that Thalanyji people were not adequately consulted about the proposed acquisitions. This is difficult to accept, given that good faith was not raised as an issue in the inquiry. While it appears the parties were unable to come to an agreement on the proposed acquisitions, this does not on its own justify a determination that the proposed acquisitions must not be done. Much time and effort was spent on the point that Thalanyji people did not participate in heritage surveys commissioned by the grantee party. However, it is clear that both the Government party and the grantee party went to considerable effort to obtain the participation of Thalanyji people. That the parties were unable to reach agreement on the terms of Thalanyji’s involvement does not mean the acts should not proceed.
The native title party also placed particular emphasis on the argument that land available for the Thalanyji’s cultural activities will be reduced as a consequence of the proposed acquisitions. This argument was not contested. However, the evidence in this inquiry suggests that existing industrial and residential development in the ANSIA and the Onslow area has already had a considerable impact on the enjoyment of the native title party’s registered native title rights and interests in the relevant areas. Although the native title party will not, for the most part, be able to access the land and waters concerned due to the nature of the proposed development, the evidence does not suggest these areas are significant for the performance of the native title party’s cultural practices. In the context of the existing development, the effect of the proposed acquisitions on the native title party’s way of life is likely to be marginal. On the other hand, the proposed acquisitions will create opportunities that are likely to be enjoyed by Aboriginal people residing in Onslow and the wider region, and may contribute to the social and economic development of the Thalanyji people and their communities.
In terms of impact on Aboriginal heritage, there is evidence of a considerable number of archaeological sites such as artefact scatters and shell middens in the surrounding area, and it is possible that similar sites can be found in the areas proposed to be acquired. The surveys commissioned by the grantee party identified several of these sites, though they were classified as being of low or low-to-medium significance. While Dr Hook disagreed with or expressed reservations about how some of the sites were classified, she did not disagree with the methodology used in the surveys. Although I accept that some archaeological sites may have greater significance than others in terms of providing a record of the Thalanyji people’s occupation of the area, there was no evidence that any of the sites identified in the surveys are sites of this kind. I am satisfied that the grantee party is aware of its obligations under the AHA and will seek to consult with the native title party in relation to areas that have yet to be surveyed so that sites are identified and appropriately managed.
There is no doubt the proposed acquisitions will have some effect on native title and the natural environment. However, this is far outweighed by the public interest in the proposed development and the potential economic benefits that will accrue to the nation, the State, the region and local Aboriginal people. In light of these matters, I have concluded that the proposed acquisitions may be done without conditions.
Determination
The determination of the Tribunal is that the proposed acquisitions, being the future acts described in the August 2012 notices, may be done.
Raelene Webb QC
President
18 August 2014
APPENDIX 1:
LIST OF GOVERNMENT PARTY & GRANTEE PARTY EXHIBITS
GP1Ashburton North Strategic Industrial Area: Factsheet – Onslow Infrastructure
GP2Ashburton North Strategic Industrial Area: Factsheet.
GP3Western Australian Planning Commission, Statutory Planning Committee Minutes 22 March 2011.
GP4Shire of Ashburton, Town Planning Scheme No. 7 incorporating the entire district of the Shire of Ashburton, original Town Planning Scheme gazettal 24 December 2004 (updated to include AMD 14 GG - 23 April 2013).
GP5Western Australian Planning Commission, Endorsement of Ashburton North Strategic Industrial Area Structure Plan, receipt date 17 October 2011.
GP6ARUP, Ashburton North Strategic Industrial Area: Concept Design Planning Study, September 2010.
GP7Topography map of Area 6 and Onslow town site boundary.
GP8Topography map of Areas 1, 2, 6 and 7 (block shaded).
GP9Topography map of Areas 1, 2, 6 and 7 (outlined).
GP10Mining Tenement Map.
GP11LandCorp, Onslow Expansion Plan: The Star of the North, Building blocks for a vibrant, sustainable and prosperous future, 2012.
GP12Shire of Ashburton, Amendment No. 9 to the Shire of Ashburton Town Planning Scheme No. 7, November 2010.
GP13Taylor Burrell Barnett, Shire of Ashburton, Local Planning Scheme No. 7, Amendment 10, August 2011.
GP14LandCorp, Ashburton North Strategic Industrial Areas EOI Survey Results, September 2011.
GP15Taylor Burrell Barnett, Ashburton North Strategic Industrial Area Structure Plan, December 2010.
GP16TPG, Ashburton North Strategic Industrial Area Stage 1B and 1C Development Plan Report, November 2012.
GP17Urbis, Ashburton North Expressions of Interest: Summary of Outcomes, June 2012.
GP18Taylor Burrell Barnett (for Chevron), Wheatstone Project: Wheatstone Development Plan, July 2012.
GP19Land Access Solutions, Section 18 Archaeological Survey and Ethnographic Desktop Study for the Proposed Onslow Development Area: Area 3, Pilbara, WA, October 2012.
GP20TPG, Shire of Ashburton Local Planning Scheme No 7. Amendment No. 17 Report, November 2012.
GP21TPG, Shire of Ashburton Local Planning Scheme No. 7. Amendment No. 18 Report, November 2012.
GP22Letter from Minister for Indigenous Affairs to LandCorp regarding Section 18 Application for Areas 1 and 7 dated 10 January 2013.
GP23Urbis, Ashburton North Strategic Industrial Area: General Industrial Area – Eastern Portion Outline Development Plan, April 2013.
GP24Deed for Compulsory Acquisition of any Native Title Rights and Interests (Macedon) between the State of Western Australia, Buurabalayji Thalanyji Aboriginal Corporation and BHP Billiton Petroleum Pty Ltd dated 17 December 2010, signed in counter-part.
GP25Deed for Compulsory Acquisition of any Native Title Rights and Interests (Wheatstone) between the State of Western Australia, Buurabalayji Thalanyji Aboriginal Corporation and Chevron Australia Pty Ltd dated 9 November 2011.
GP26Land Access Solutions, Section 18 Archaeological Survey and Ethnographic Desktop Study for the Proposed Onslow Development Area: "Expanded Area", Pilbara, WA, October 2012.
GP28Letter from Minister for Indigenous Affairs to LandCorp regarding Section 18 Approval dated 10 January 2013.
GP29Shire of Ashburton, Onslow Townsite Strategy Background Report, January 2010.
GP30Shire of Ashburton, Onslow Townsite Strategy, July 2011.
GP31Western Australian Planning Commission, Onslow Regional Hotspots Land Supply Update, November 2011.
GP32TPG, Onslow Townsite Expansion Stage 1 Development Plan, January 2013.
GP33Letter from Department of Premier and Cabinet to Desert Management Strategy dated 18 November 2011.
GP34Letter from Department of State Development to Buurabalayji Thalanyji Aboriginal Corporation RNTBC dated 23 April 2012.
GP35Letter from LandCorp to Desert Management Strategy dated 26 June 2012.
GP36Letter from State Solicitor's Office to Templeton Knight Lawyers dated 31 July 2012.
GP37Department of Mines, Mining Tenement Summary Report, Miscellaneous Licence 08/40, dated 20 August 2013.
GP38Department of Mines, Mining Tenement Summary Report, Exploration Licence 08/888, dated 20 August 2013.
GP39Department of Mines, Mining Tenement Summary Report, Exploration Licence 08/2059, dated 20 August 2013.
GP40Department of Mines, Mining Tenement Summary Report, Exploration Licence 08/2009, dated 20 August 2013.
GP41Department of Mines, Mining Tenement Summary Report, Miscellaneous Licence 08/41, dated 20 August 2013.
GP42Geothermal Exploration Permit No. GEP 35.
GP43Department of Mines, Mining Tenement Summary Report, General Purpose Lease 08/62, dated 20 August 2013.
GP44Smartplan of Areas 1, 2 and 7.
GP45Smartplan of Area 6.
GP46Smartplan of Lot 79 (part of Area 6).
GP47Certificate of Crown Land Title Volume 3054 Folio 771 for Lot 72 on Deposited Plan 214441.
GP48Certificate of Crown Land Title Volume 3054 Folio 772 for Lot 79 on Deposited Plan 214441.
GP49Certificate of Crown Land Title Volume 3020 Folio 843 for Lot 350 on Deposited Plan 72964.
GP50Certificate of Crown Land Title Volume 3098 Folio 710 for Lot 152 on Deposited Plan 220265.
GP51Certificate of Crown Land Title Volume 3135 Folio 585 for Lot 153 on Deposited Plan 220110.
GP52Renewal of Exploration Permit No. 110 (R5).
GP53Department of Aboriginal Affairs, Aboriginal Heritage Inquiry System: Aboriginal Sites Database and Survey Report Catalogue, for Area 1.
GP54Department of Aboriginal Affairs, Aboriginal Heritage Inquiry System: Aboriginal Sites Database and Survey Report Catalogue, for Area 2.
GP55Department of Aboriginal Affairs, Aboriginal Heritage Inquiry System: Aboriginal Sites Database and Survey Report Catalogue, for an area including Area 6.
GP56Google Earth Topography map of Areas 1, 2, 6 and 7, and Wheatstone and Macedon.
GP57Topography map of Areas 1, 2, 6 and 7, and Wheatstone and Macedon (block shaded).
GP58Topography map of Areas 1, 2, 6 and 7, and Wheatstone and Macedon (outlined).
GP59Department of Aboriginal Affairs, Aboriginal Heritage Inquiry System: Aboriginal Sites Database and Survey Report Catalogue, for an area including Area 7.
GP60Department of Aboriginal Affairs, Aboriginal Heritage Inquiry System: Screen shot for Area 1.
GP61Department of Aboriginal Affairs, Aboriginal Heritage Inquiry System: Screen shot for Area 2.
GP62Department of Aboriginal Affairs, Aboriginal Heritage Inquiry System: Screen shot for Area 6.
GP63Department of Aboriginal Affairs, Aboriginal Heritage Inquiry System: Screen shot for Area 7.
GP64Topography map of Area 1, 2, 6 and 7 showing registered Aboriginal Sites.
GP65Topography map of Area 6 - Onslow showing registered Aboriginal Sites.
GP66Native Title Determination of Thalanyji People, No WAD 6113 of 1998, made by Justice North on 18 September 2008.
GP67Letter from Department of Regional Development and Lands dated 20 August 2012 to Buurabalayji Thalanyji Aboriginal Corporation.
GP68Letter from Desert Management Pty Ltd dated 17 October 2012 to Department of Regional Development and Lands.
GP69Bevis Yeo, Chevron Secures Wheatstone Native Title Agreement, Energy News Bulletin dated 29 July 2010.
GP70Chevron Australia, Chevron Welcomes Native Title HOA for Wheatstone Gas Project, Chevron Media Statement dated 18 July 2010.
GP71Map of Onslow Townsite as at 23 December 1996, certified by LandGate on 29 August 2013.
GP72Satellite Photograph Showing Section 18 Application Areas – Context.
GP73LandCorp, Section 18 Notice Application, 26 October 2012.
GP74Map Pilbara Projects.
GP75Land Access Solutions, Aboriginal Site Recording Form, 19 October 2012.
GP76Department of Regional Development and Lands, Letter of Authority to Appoint Agent for Section 18 Approval, 26 October 2012.
GP77Whelans, Map of Onslow – Industrial Section 18 Survey Area, Application Area and Proposed Development Footprint, 25 October 2012.
GP78Topography map of Macedon State Development Agreement.
GP79Western Australian Planning Commission, Approval of the Wheatstone Stage 1A Development Plan, 11 October 2012.
GP80Onslow Townsite Expansion Development Plan.
GP81Shire of Ashburton, Minutes of Ordinary Council Meeting – 21 August 2013, Item 14.8 – Outline Development Plan (Eastern Portion Ashburton North General Industrial Area) for Adoption.
GP82Shire of Ashburton, Attachments to Minutes of Ordinary Council Meeting – 21 August 2013, Attachment 14.8B – Summary of Submissions, Draft Ashburton North Strategic Industrial Area Eastern Portion – Outline Development Plan.
GP83Map of the Onslow Townsite Full Development Plan.
GP84National Native Title Tribunal Map – Urala Station Onslow Pastoral Lease (CL330/1967; LR3135/584).
GP85National Native Title Tribunal Map – Minderoo Pastoral Lease (CL56/1967; LR3098/710).
GP86Land Access Solutions, Section 18 Archaeological Survey and Ethnographic Desktop Study for the Proposed Onslow Residential and Industrial Area: Area 1, Pilbara, WA, October 2012.
GP87Map of Chevron Superlot Subdivision.
GP88aWhelans, Map of Onslow – Residential Section 18 Survey Area, Application Area and Proposed Development Footprint, 25 October 2012
GP88bTPG, Map of Onslow Development Plan Staging Plan, 21 June 2012
GP89Affidavit of Ben William Graham, sworn 6 September 2013
GP90Affidavit of Vaughan Peter Murray Brazier, sworn 5 September 2013
GP91Affidavit of Vaughan Peter Murray Brazier, sworn 1 November 2013
GP92Affidavit of Christopher John Clark, sworn 6 September 2013
GP93Australian Archaeological Association, Code of Ethics (extract from accessed 11 November 2013)
GP94Letter from State Solicitor’s Office to Corser & Corser dated 13 December 2012
GP95Map of Onslow and surrounding areas marked by Trudy Hayes on 19 November 2013
APPENDIX 2:
LIST OF NATIVE TITLE PARTY EXHIBITS
NTP1Map of Thalanyji Native Title Claim indicating places of cultural significance, dated 20 April 2005
NTP2Search of Aboriginal Sites Database maintained by the Department of Aboriginal Affairs for registered sites within the determination area
NTP3Search of Aboriginal Sites Database for ‘Other Heritage Places’ within the determination area
NTP4Search of Aboriginal Sites Database for registered sites within Areas 1, 3 and 7
NTP5Search of Aboriginal Sites Database for ‘Other Heritage Places’ within Areas 1, 3 and 7
NTP6Search of Aboriginal Sites Database for registered sites within Areas 4, 5 and 6
NTP7Search of Aboriginal Sites Database for ‘Other Heritage Places within Areas 4, 5 and 6
NTP8Fiona Hook ‘Discussion of the Heritage Values of the Onslow Area to the Thalanyji’ (October 2013)
NTP9Affidavit of Meachum Kelly, sworn 7 November 2013
NTP10Affidavit of Trudy Hayes, sworn 15 November 2013
- AGLC
- Minister for Lands, State of Western Australia and Another v Buurabalayji Thalanyji Aboriginal Corporation RNTBC [2014] NNTTA 85
- Case
- [2014] NNTTA 85
- Decision Date
CaseChat Overview and Summary
The legal issues at the core of the dispute involved jurisdictional challenges and the appropriate procedures for handling applications concerning the extinguishment of native title rights. The primary question was whether the Federal Court had the jurisdiction to hear an application for a determination regarding the compulsory acquisition of native title rights and interests under the Native Title Act 1993. Additionally, the court needed to decide whether it should refer a question of law to the Full Court concerning the interpretation of the provisions of the Act.
The court ruled that it had jurisdiction to hear the application for a determination concerning the compulsory acquisition of native title rights and interests. However, the court found that there was no necessity to refer a question of law to the Full Court, as the issues raised were within the court's competence to resolve. The court emphasised that the application for a determination should be heard and decided by the Full Court, but there was no immediate need for a referral of a specific question of law. The decision underscored the importance of jurisdictional clarity in cases involving native title rights and the procedures for addressing such matters within the framework of the Native Title Act.
The court ultimately declined to refer a question of law to the Full Court, finding that the issues could be resolved by the court itself. The decision clarified the jurisdictional scope of the court in handling applications concerning the extinguishment of native title rights and provided guidance on the appropriate procedures for such applications. The case highlighted the need for careful consideration of jurisdictional matters and the procedural steps required in cases involving native title determinations.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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