Minister for Planning and Infrastructure, State of Western Australia/Cedric Anderson and Others on behalf of the Ballardong People
[2004] NNTTA 79
•2 September 2004
NATIONAL NATIVE TITLE TRIBUNAL
Minister for Planning and Infrastructure, State of Western Australia/Cedric Anderson and Others on behalf of the Ballardong People, [2004] NNTTA 79 (2 September 2004)
Application No: WF04/17
IN THE MATTER of the Native Title Act 1993 (Cth)
- and –
IN THE MATTER of an inquiry into a Future Act Determination Application
Minister for Planning and Infrastructure, State of Western Australia (Applicant/Government party)
- and -
Cedric Anderson and Others on behalf of the Ballardong People (WC97/56)
(native title party)
FUTURE ACT DETERMINATION
Tribunal: Hon C J Sumner, Deputy President
Place: Perth
Date: 2 September 2004
Catchwords: Native title – future act – application for determination for the compulsory acquisition of native title rights and interest for the purpose of “roadhouse” – consent determination that the act may be done.
Legislation: Native Title Act 1993 (Cth), ss 31(1)(b), 35, 38
Land Administration Act 1997 (WA), s 170, s 51
Cases:Minister for Planning and Infrastructure, State of Western Australia/Cedric Anderson and Others on behalf of the Ballardong People/S and N Crees and Sons, NNTT WF04/16, [2004] NNTTA 78 (2 September 2004), Hon C J Sumner
Monkey Mia Dolphin Resort Pty Ltd v Western Australia [2001] NNTTA 50; (2001) 164 FLR 361
Yarran and Others v Western Australia and Another [2003] NNTTA 99; (2003) 177 FLR 34
Hearing date: 30 August 2004
Counsel for the
native title party: Mr Len Luxford, South West Aboriginal Land & Sea Council
Representatives of the Mr Rod Wahl, State Solicitor’s Office
Government party: Ms Roz Davies, Department of Planning and Infrastructure
REASONS FOR FUTURE ACT DETERMINATION
The Government party proposes pursuant to the Land Administration Act 1997 (WA) to take (compulsorily acquire) interests in certain land (Part Roe Location 3118 on Reserve Diagram 904 as shown as Roe Location 3152 on Land Administration Diagram 94952, being Reserve 21238, ‘Recreation’ Volume 3093 Folio 421; Area 8703 square metres; DOLA Ref: 956481) located in the Shire of Lake Grace for the purpose of the sale of the land.
On 27 December 2000, the Government party gave notice under s 170 of the Land Administration Act 1997 (WA) of its proposal to take the land and under s 29 of the Native Title Act 1993 (Cth) (‘the Act’) of a future act namely to compulsorily acquire any native title rights and interests.
The native title party in respect of these proceedings is:
Alan Jones, Cedric Anderson, Dianne Taylor, Doug Nelson, Reg Hayden, Reg Yarran, Rickie Nelson, Robert Riley, Robin Yarran, Saul Yarran, Tim Riley and Winnie McHenry on behalf of the Ballardong People.
On 9 August 2004, being a date more than six months after the s 29 notice was given, the Minister for Planning and Infrastructure made an application pursuant to s 35 of the Act for a future act determination under s 38. The determination sought is that the future act be done by consent of the parties.
The National Native Title Tribunal (‘the Tribunal’) has power to make a determination with the consent of the parties and it will normally be appropriate to do so where the parties (and particularly the native title party) are legally represented and those representatives have advised the Tribunal of the consent. The Tribunal will hear the parties to satisfy itself that the consent determination is appropriate (Monkey Mia Dolphin Resort Pty Ltd v Western Australia [2001] NNTTA 50; (2001) 164 FLR 361).
Background facts
The s 29 notice advises that the land the subject of this determination application is to be acquired then sold for the purpose of building a roadhouse in the locality of Lake King, which is within the Shire of Lake Grace. Information provided by the Government party at the hearing was that the land will be sold to the Shire, which will be responsible for the development.
Native title rights and interests will be extinguished as a result of the proposed act.
As a consequence of negotiations between the Government party and native title party the following facts have been established:
Eleven of the twelve persons currently comprising the applicant, registered native title claimant and Ballardong native title party, namely Cedric Anderson, Reg Hayden, Alan Jones, Winnie McHenry, Doug Nelson, Rickie Nelson, Robert Riley, Tim Riley, Dianne Taylor, Reg Yarran (deceased) and Saul Yarran consent to the proposed act being done and have signed a State Deed; that is an agreement of the kind mentioned in s 31(1)(b) of the Act.
Two persons who were previously named as part of the applicant and Ballardong native title party but who are now deceased (William Riley and Alec Yarran) also executed the State Deed.
One of the persons comprising part of the applicant and the Ballardong native title party (Robin Yarran) has declined to sign the State Deed.
Because Robin Yarran has not signed the State Deed this matter cannot be concluded by way of a s 31(1)(b) agreement. It is for this reason that the Tribunal must consider whether it is appropriate to resolve this matter by way of a consent determination.
The Tribunal has before it a minute of a consent determination signed by Ms Lynette Lund of the South West Aboriginal Land and Sea Council (‘SWALSC’) and Mr Jeff O’Halloran of the State Solicitor’s Office on behalf of the native title party and Government party respectively. The Minute is expressed in the following terms:
‘CONSENT DETERMINATION UNDER SECTION 38 OF
THE NATIVE TITLE ACT 1993 (CTH)
1. The Government Party has complied with the requirements of s.31(1)(a) of the Native Title Act 1993.
2. The Government Party and the Native Title Party have complied with the requirements of s.31(1)(b) of the Native Title Act 1993.
3. The Government Party and the Native Title Party consent to a determination under s.38 of the Native Title Act 1993 that the ‘act’ being the sale of land for “Roadhouse” may be done.’
The Hearing
On 30 August 2004 the Tribunal conducted a hearing. Mr Len Luxford of SWALSC represented the native title party and Mr Rod Wahl appeared for the Government party. At the hearing these persons confirmed their consent to the future act determination in the terms sought.
Mr Robin Yarran also participated with his representative, Mr Peter David. Despite the well established position that a native title party is all the persons named as part of the applicant for native title and registered native title claimant and not each individual named person and that such individual persons have no right of appearance or to be separately represented in right to negotiate inquiries (see for example Yarran & Others v Western Australia and Another [2003] NNTTA 99; (2003) 177 FLR 34 at [30]-[34]) I permitted Mr Robin Yarran and Mr David to appear and make submissions.
Mr David repeated submissions which I have dealt with in Minister for Planning and Infrastructure, State of Western Australia/Cedric Anderson and Others on behalf of the Ballardong People/S and N Crees and Sons, NNTT WF04/16, [2004] NNTTA 78 (2 September 2004), Hon C J Sumner at [24]. He also said that the land should not be sold but leased, presumably to try to ensure that native title was not extinguished. The Tribunal has no evidence before it of the practicality of dealing with the development proposal in this way. In any event the Government party has gone through the correct procedures under the Native Title Act 1993 (Cth) and apart from Mr Yarran, the claim group represented by the balance of the named applicants support the proposal. Mr David then asserted that another one of the named applicants (Mr Saul Yarran) had advised that he didn’t mean to sign the State Deed and had contacted the Tribunal about it. There is no evidence to support this submission and the Tribunal’s Case Manager (Mr Sara Burke) is not aware of any contact from Mr Saul Yarran in relation to this matter.
My finding is that on the basis of the evidence referred to above the claim group as a whole consent to the determination. Eleven of the twelve persons named as the applicant have signed the State Deed thereby confirming that they consider the agreement has the support of the claimant group. Mr Yarran is the only dissentient person and for the reasons explained above he is not a native title party and he has no standing on his own to oppose the determination. The native title party is assisted by SWALSC (the designated Native Title Representative Body under the Act) and legally represented and there is nothing in the facts of this matter which makes a consent determination inappropriate.
Determination
By consent the determination of the Tribunal is that the act, namely the compulsory acquisition of native title rights and interests in the parcel of land the subject of this application (DOLA Reference 956481), may be done.
Hon C J Sumner
Deputy President
2 September 2004
0
3
0