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

[2004] NNTTA 78

NATIONAL NATIVE TITLE TRIBUNAL

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, [2004] NNTTA 78 (2 September 2004)

Application No:        WF04/16

IN THE MATTER of the Native Title Act 1993 (Cth)

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IN THE MATTER of an inquiry into a Future Act Determination Application

Minister for Planning and Infrastructure, State of Western Australia (Applicant/Government party)

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Cedric Anderson and Others on behalf of the Ballardong People (WC97/56) (native title party)

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S and N Crees and Sons (grantee 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 “sale of land” to the grantee party – consent determination that the act may be done.

Legislation:  Native Title Act 1993 (Cth), ss 29, 31(1)(b), 35, 38

Land Administration Act 1997 (WA), s 87, s 170

Cases:Dixon v Northern Territory [2001] NNTTA 29; (2001) 166 FLR 29

Monkey Mia Dolphin Resort Pty Ltd v Western Australia [2001] NNTTA 50; (2001) 164 FLR 361

Mt Gingee Munjie Resources Pty Ltd/Victoria/Graham (Bootsie) Thorpe, Lindsay Gordon Mobourne, Regina Lillian Rose, Robert James Farnham, on behalf of the Gunai/Kurnai People, NNTT VF03/1, [2003] NNTTA 125 (22 December 2003), Hon C J Sumner

Northern Territory of Australia/ Bill Risk on behalf of the Larrakia People and Anor/Phillips Oil Company Australia, NNTT DF97/1, [1998] NNTTA 11 (29 September 1998), Prof. Douglas Williamson QC

Placer (Granny Smith) v WA [2000] NNTTA 75; (2000) 170 FLR 469

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

Representative of                 
Robin Yarran:  Mr Peter David, Noongar Land Council

Representative of the          Mr Rod Wahl, State Solicitor’s Office
Government party:              Ms Roz Davies, Department of Planning and Infrastructure

Representative of the
Grantee party:  Mr Rodney M Crees

REASONS FOR FUTURE ACT DETERMINATION

1. The Government party proposes pursuant to the Land Administration Act 1997 (WA) to take (compulsorily acquire) interests in certain land (Whole Avon Location 20721 on Land Administration Original Plan Northam 2299, being unallocated Crown land Volume 3011, Folio 1; Area 4.8309 hectares; DOLA Ref: 961704) for the purposes of the sale of the land to S & N Crees and Sons (‘the grantee party’).

2. 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 also 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.

3. 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.

1. 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.

2. 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).

Acceptance of the s 35 application and jurisdiction

1. The Tribunal is required to accept a s 35 application (s 77) if it complies with s 76 of the Act. Prior to conducting an inquiry and making a determination the Tribunal must also be satisfied that it has jurisdiction to hear the matter. The giving of proper notice provided for by s 29 of the Act is a jurisdictional precondition to the conduct by the Tribunal of an inquiry. Clause 6(5)(a) of the Native Title (Notices) Determination 1998 requires that the s 29 notice provide “a clear description of the area that may be affected by the act”. The Tribunal must therefore consider whether the proposed act has been notified in the determined way pursuant to s 29(3) of the Act in order to establish whether it has jurisdiction (Dixon v Northern Territory [2001] NNTTA 29; (2001) 166 FLR 29).

2. An issue arose at the acceptance stage in relation to the s 29 notice because of a misdescription in it. The Tribunal decided that the application could be accepted. Further, no party has challenged the jurisdiction of the Tribunal and I am satisfied that there is no impediment to conducting an inquiry and making a determination. The s 35 application states the area of land to be within the Shire of Merredin in Western Australia. However, the s 29 notice says the land subject to this determination is in the Shire of Lake Grace.

3. Geospatial analysis has revealed that the area of land subject to this determination, being Avon Location 20721, is indisputably situated in the Shire of Merredin. The Government party has also confirmed this to be the case and advised that the information provided in the s 29 notice was incorrect.

4. In considering whether the s 29 notice in this case was validly given I have given attention to the full description of the area of land concerned. It has been established that Avon Location 20721 is a unique location within the State of Western Australia which effectively removes any doubt as to the location of the relevant area of land. Further I have received no indication from the native title party that they were in any way misled as to the location of the proposed act.

5. I am satisfied that the location of the area is adequately described by the Location number and plan references in the s 29 notice and therefore the notice remains substantially compliant and validly given. As a consequence I find that the Tribunal does have jurisdiction to hear and determine this matter.

Background facts

1. The land to be acquired is described as whole Avon Location 20721 and is Unallocated Crown Land. The s 29 notice advises that the purpose of the acquisition is for the sale of land to S and N Crees and Sons for amalgamation with Avon Location 20720. The s 35 applicant says that the proposed act will allow for the maintenance of the land as a “shelter belt”, that is the existing areas of bush will provide windbreaks for stock.

2. Any native title rights and interests will be extinguished as a result of the proposed act.

3. As a consequence of negotiations between the Government 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.

1. 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.

2. 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” may be done.’

The grantee party

1. As previously noted, the s 29 notice states that the proposed disposition or grant of the land is for “sale to S and N Crees and Sons.” The s 29 notice further states “Mr Crees has applied to purchase the land which has been isolated by the closure of Crees Road”.

2. Section 87 of the Land Administration Act 1997 (WA) (‘the LAA’) states:

   ‘Minister may convey in fee simple or lease Crown land for subsequent amalgamation with adjoining land
   (1) In this section — 
   “the adjoining land” means the land referred to in subsection (2)(b) or (3)(b), as the case requires.
   (2) Whenever the Minister considers that a parcel of Crown land is — 

   (a) unsuitable for retention as a separate location or lot, or for subdivision and retention as separate locations or lots, because of its geographical location, potential use, size, shape or any other reason based on good land use planning principles; but
   (b) suitable for — 
   (i) conveyance in fee simple to the holder of the fee simple; or
   (ii) disposal by way of lease to the holder of a lease granted by the Minister under this Act,
   of land adjoining that parcel,

   the Minister may, with the consent of that holder and on payment to the Minister of the price, or of the initial instalment of rent, as the case requires, agreed with that holder, by order convey that parcel in fee simple or lease that parcel to that holder and amalgamate that parcel with the adjoining land.’

The provisions of s 87 of the LAA indicate that Western Australian legislation allows the acquisition of Crown land for the purpose of sale and amalgamation into adjoining freehold land held by persons other than the Crown.

1. Section 29(2)(c) of the Native Title Act 1993 (Cth) identifies the grantee party as a person who has requested or applied for the doing of the future act. The grantee party in this matter is therefore S and N Crees and Sons.

2. The Tribunal has previously considered the role of a grantee party in compulsory land acquisitions (Northern Territory of Australia/ Bill Risk on behalf of the Larrakia People and Anor/Phillips Oil Company Australia, NNTT DF97/1, [1998] NNTTA 11 (29 September 1998), Prof. Douglas Williamson QC). In this matter Professor Williamson found that the company to whom the acquired land was to be sold constituted the grantee party, and that as a negotiation party it must negotiate in good faith with a view to reaching agreement (s 31(b)(i)). A grantee party is a negotiation party pursuant to s 30A of the Act.

3. Rodney Mark Crees has signed the State Deed on behalf of the grantee party with respect to the acquisition of the land and in doing so has agreed that the act may be done.  This consent was confirmed by Mr Crees at the hearing.

The Hearing

1. On 30 August 2004 the Tribunal conducted a hearing.  Mr Len Luxford of SWALSC represented the native title party, Mr Rod Wahl and Ms Roz Davies appeared for the Government party and Mr Rodney Crees appeared for the grantee party.  At the hearing Mr Wahl and Mr Luxford confirmed their clients’ consent to the future act determination in the terms sought.

2. Mr Robin Yarran also participated with his representative Mr Peter David.  The Tribunal has previously found that Robin Yarran did not have the authority of the Ballardong native title party to lodge objections to the expedited procedures (Yarran & Others v Western Australia and Another [2003] NNTTA 99; (2003) 177 FLR 34). This case confirmed that a native title party is all the persons named as part of the applicant and registered native title claimant and not each individual named person. On this basis the Tribunal has found that it is not open to individuals named as applicants to appear separately in an inquiry into a right to negotiate application and take a position which is contrary to that taken by other named applicants who are acting with the authority of native title claim group (Placer (Granny Smith) v WA [2000] NNTTA 75; (2000) 170 FLR 469; Mt Gingee Munjie Resources Pty Ltd/Victoria/Graham (Bootsie) Thorpe, Lindsay Gordon Mobourne, Regina Lillian Rose, Robert James Farnham, on behalf of the Gunai/Kurnai People, NNTT VF03/1, [2003] NNTTA 125 (22 December 2003), Hon C J Sumner). Despite this well established position I permitted Mr Robin Yarran and Mr David to appear and make submissions.

3. Mr David advised the Tribunal that according to traditional Noongar law one person alone is unable to represent all sectors of Noongar people and for this reason Robin Yarran and the Noongar Land Council represent certain members of the broader Ballardong native title party.  Mr David and Mr Yarran further advised that Mr Yarran had not been consulted by the SWALSC with respect to the proposed act under discussion, and asserted that named applicants who had signed the State Deed would have been unaware of what they were signing.  No evidence was provided to support these submissions and I regard them as another manifestation of the long standing dispute within the Ballardong native title claim group which was evident in Yarran v WA. I also note that SWALSC is the designated representative body under the Act with a mandate, among other things, to assist holders and claimants of native title in relation to future acts and that the Noongar Land council no longer has such status. Mr David also challenged whether the law in Western Australia permitted compulsory acquisitions of the kind contemplated here. For the reasons specified above I can see no basis for this submission.

4. 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 has no standing on his own to oppose the determination.  The native title party is assisted by SWALSC and is legally represented and there is nothing in the facts of this matter which makes a consent determination inappropriate.

5. I also note that the area concerned is to be kept as natural bush and is relatively small (4.8309 hectares) and largely surrounded by freehold land.  These facts also suggest that the determination is appropriate.

Determination

1. 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 961704), may be done.

Hon C J Sumner

Deputy President

2 September 2004