Monkey Mia Dolphin Resort Pty Ltd v Western Australia
[2001] NNTTA 50
•22 June 2001
NATIONAL NATIVE TITLE TRIBUNAL
Monkey Mia Dolphin Resort Pty Ltd/Western Australia/Albert Darby Winder and others, [2001] NNTTA 50 (22 June 2001)
Application No:WF01/2
IN THE MATTER of the Native Title Act 1993 (Cth)
- and -
IN THE MATTER of an inquiry into a Future Act Determination Application
Monkey Mia Dolphin Resort Pty Ltd (Applicant/grantee party)
-and-
The State of Western Australia (Government party)
- and -
Albert Darby Winder and others (native title party)
FUTURE ACT DETERMINATION
Tribunal: The Hon C J Sumner, Deputy President
Place: Perth
Date: 22 June 2001
Catchwords: Native title – future act – application for a determination in relation to the taking of native title rights and interests – compulsory acquisition under the Land Administration Act 1997 (WA) – evidence of agreement between the parties – consent determination – Tribunal to be satisfied that informed consent of parties has been given – normally statement by legal representatives is sufficient evidence of consent – ‘the native title party’ is all of the registered native title claimants acting collectively – individual claimants not entitled to separate representation – guidelines for making of consent determinations – act may be done with a condition.
Legislation:Native Title Act 1993 (Cth) ss 24MD(2), 25(4), 29(1), 31(1)(b), 38, 39, 62A, 109, 141, 142, 143, 202
Land Administration Act 1997 (WA) ss 161, 165(1), 170
Cases:Mabo v Queensland No.2 (1991-1992) 175 CLR 1
Western Australia v Thomas (‘Waljen’) 133 FLR 124
Western Australia v Ward [2000] 170 ALR 159
Evans v Western Australia (1997) 77 FCR 193
Risk v National Native Title Tribunal [2000] FCA 1589
Tilmouth v Northern Territory D6025 of 2001, O’Loughlin J, unreported
Western Australia/Ted Coomanoo Evans & Ors and Quinton Tucker & Ors/Townson Holdings NL, NNTT WF98/6, Hon C J Sumner, 11 December 1998
Western Australia/Teddy Roberts & Ors/John Skeffington & Ian Duggan, NNTT WF98/274, Hon C J Sumner, 11 December 1998
Western Australia/Rita Dempster & Ors/Paul Shiner & Ors, NNTT WF98/194, Professor Douglas Williamson, RFD QC, 3 June 1999
Dale Gary Graham & Ors v Western Australia, NNTT WF98/275 and WF98/279, Hon E M Franklyn QC, 28 June 1999
Yallourn Energy Pty Ltd/Terence Ernest Campbell Hood & Ors/Victoria, NNTT VF99/1, Hon C J Sumner, 17 September 1999
WMC Resources Ltd/Western Australia/Richard Evans (Koara people), NNTT WF99/4, Hon C J Sumner, 23 December 1999
Jeffrey James & Ors/Western Australia/Straits Exploration (Australia) Pty Ltd, NNTT WF00/6, Hon C J Sumner, 30 October 2000
Placer (Granny Smith) Pty Ltd and Granny Smith Mines Limited/Western Australia/Ron Harrington-Smith & Ors (Wongatha people), NNTT WF99/5, Hon C J Sumner, 16 February 2000 and 24 February 2000
Words & Phrases: ‘native title party’
REASONS FOR DETERMINATION
Background
On 17 June 1998, the State of Western Australia (the Government party) gave notice in accordance with s 170 of the Land Administration Act 1997 (WA) and s 29(1) of the Native Title Act 1993 (Cth) (the NTA) that it proposed to take all interests including native title rights and interests in land specified in the notice. The land is situated in the Shire of Shark Bay in Western Australia and comprises the land described as:
Edel Location 109 being dedicated road, Volume 3110 Folio 476, an area of 8974 square metres; and
part Edel Location 80 being Reserve 1686 for ‘Recreation’, Volume 3162 Folio 779, an area of 2.3596 hectares. Reserve 1686 is a ‘C’ Class Reserve vested in the Department of Conservation and Land Management and Shire of Shark Bay jointly and is designated as being for ‘recreation’ purposes but there is no power to lease any part of the Reserve.
The land taken will be included into Edel Location 67-Reserve 40727. The care control and management of the land will be placed in the Shire of Shark Bay with power to lease the whole or portions of the Reserve for periods up to 99 years. Monkey Mia Dolphin Resort Pty Ltd (the grantee party/Monkey Mia) is the lessee of Reserve 40727 which is currently used for a Caravan Park, Chalets and Camping. It is proposed that the grantee party will be the lessee and developer over the expanded Reserve 40727. The enlarged Reserve will enable the expansion of existing tourist accommodation and facilities currently operated by Monkey Mia. The proposed tourist development (the Resort) will comprise a hotel, bungalows, backpackers accommodation, motel units, caravan lots, a camping area and associated infrastructure and support facilities including shop, cafe, restaurant and function room.
The taking of the land pursuant to s 165 of the Land Administration Act is a compulsory acquisition of native title rights and interests covered by s 26(1) of the NTA and is a future act to which the right to negotiate provisions of the NTA apply (Subdivision P, Division 3, Part 2 (ss 25-44 NTA)). Unless the provision of the Subdivision are complied with the act will be invalid to the extent that it affects native title (s 25(4) NTA).
The Malgana Shark Bay People’s Application for determination of native title was originally made and placed on the Register of Native Title Claims on 30 March 1998. The claim was subsequently registered under the new registration provisions of the NTA on 18 August 1999. The following persons are the applicants on the claim and hence the registered native title claimants and ‘the native title party’ in respect of this application: Mr Albert Darby Winder, Mr Allen Mitchell, Mr Anthony James Bellotti, Mr Anthony Thomas Bellotti, Mr Charles Mitchell, Mr Gavin Charles Poland, Mr Gavin Clyde Oakely, Mr Glen William Hoult, Mr Greg Edward Mallard, Mr Harold Richard Hoult, Mr Howard Cock, Mr John Winder, Mr Laurence James Mitchell Bellotti, Mr Leslie John Craig Oakley, Mr Ralph Reginald Wear, Mr Revel Oakley, Mr Richard Oakely, Mr Rodney Bellotti, Mr Roy Bellotti, Mr Thomas Charles Poland, Ms Ada Mary Fossa, Ms Christine Maree Wear, Ms Elizabeth Margot Mallard (Mitchell), Ms Francis Sharon Oxenham, Ms Gail Bellotti, Ms Jillian Georgina Oakley, Ms Lorraine Whitby, Ms Maria Bernadette Poland, Ms Marika Kate Hoult, Ms Marion Joyce Oakley, Ms Mona Jessie Oakley, Ms Nelly Cocks, Ms Nora Fossa, Ms Phyllis Ugle McMahon, Ms Rhonda Mitchell, Ms Rosie Wear, Ms Sandra Bellotti, Ms Sylvia Drage.
On 24 May 2001, the grantee party applied under s 35 of the NTA for a future act determination in relation to the taking of interests in the land specified in the s 29 notice. On 30 May 2001, the Tribunal convened a preliminary conference to give directions to the parties for the production of contentions and documents in preparation for an inquiry. The Tribunal was informed that agreement had been reached between the parties about the proposal but the matter could not be finalised because two of the 38 registered native title claimants had not signed the agreement between Monkey Mia and the native title party (the ancillary agreement) nor signed an agreement of the kind mentioned in para 31(1)(b) of the NTA (the State Deed) which is required to be signed by all negotiation parties and lodged with the Tribunal before the arbitral proceedings can be terminated. The Government party has a policy that it will not execute a State Deed unless all the registered native title claimants have also done so. Discussion ensued about whether the Tribunal should make a consent determination that the act may be done leaving the relationship between Monkey Mia and the native title party to be governed by the ancillary agreement. The preliminary conference was adjourned to enable parties to give consideration to this option and for the Tribunal to indicate whether it was prepared to make a consent determination of this kind in these circumstances.
At a reconvened preliminary conference on 13 June 2001 the grantee party, with the consent of the other parties, proposed that the Tribunal make a determination that the act may be done subject to a condition that the grantee party execute and be bound by the ancillary agreement. In support of its proposal it tendered a copy of the ancillary agreement. The grantee party submitted that the agreement provided sufficient evidence of the factors in s 39(1) of the NTA to enable the Tribunal to make a determination in the terms sought. Given the refusal of two of the 38 to sign the ancillary agreement, the grantee party proposed that the Tribunal not rely exclusively on the consent of the parties.
The native title party was represented by Mr David Ritter, Principal Legal Officer of the Yamatji Land and Sea Council, the recognised representative Aboriginal/Torres Strait Islander body appointed under the NTA, the grantee party by Mr Ken Jagger of Freehills, Barristers and Solicitors, and the Government party by Ms Rhonda Howlett of the Crown Solicitor’s Office.
The law
The centrally relevant provisions of the NTA are:
‘38 Kinds of arbitral body determinations
(1)Except where section 37 applies, the arbitral body must make one of the following determinations:
(a) a determination that the act must not be done;
(b) a determination that the act may be done;
(c) a determination that the act may be done subject to conditions to be complied with by any of the parties.
Determinations may cover other matters
(1A)A determination may, with the agreement of the negotiation parties, provide that a particular matter that:
(a) is not reasonably capable of being determined when the determination is made; and
(b) is not directly relevant to the doing of the act;
is to be the subject of further negotiations or to be determined in a specified manner.
Example:The arbitral body could determine that a mining lease may be granted subject to site clearance procedures to be determined by a third person.
Matters to be determined by arbitration
(1B)If:
(a) the manner specified is arbitration (other than by the arbitral body); and
(b) the negotiation parties do not agree about the manner in which the arbitration is to take place;
the arbitral body must determine the matter at an appropriate time.
Profit‑sharing conditions not to be determined
(2)The arbitral body must not determine a condition under paragraph (1)(c) that has the effect that native title parties are to be entitled to payments worked out by reference to:
(a) the amount of profits made; or
(b) any income derived; or
(c) any things produced;
by any grantee party as a result of doing anything in relation to the land or waters concerned after the act is done.
39 Criteria for making arbitral body determinations
(1)In making its determination, the arbitral body must take into account the following:
(a) the effect of the act on:
(i)the enjoyment by the native title parties of their registered native title rights and interests; and
(ii)the way of life, culture and traditions of any of those parties; and
(iii)the development of the social, cultural and economic structures of any of those parties; and
(iv)the freedom of access by any of those parties to the land or waters concerned and their freedom to carry out rites, ceremonies or other activities of cultural significance on the land or waters in accordance with their traditions; and
(v)any area or site, on the land or waters concerned, of particular significance to the native title parties in accordance with their traditions;
(b) the interests, proposals, opinions or wishes of the native title parties in relation to the management, use or control of land or waters in relation to which there are registered native title rights and interests, of the native title parties, that will be affected by the act;
(c) the economic or other significance of the act to Australia, the State or Territory concerned, the area in which the land or waters concerned are located and Aboriginal peoples and Torres Strait Islanders who live in that area;
(e) any public interest in the doing of the act;
(f) any other matter that the arbitral body considers relevant.
Existing non‑native title interests etc.
(2)In determining the effect of the act as mentioned in paragraph (1)(a), the arbitral body must take into account the nature and extent of:
(a) existing non‑native title rights and interests in relation to the land or waters concerned; and
(b) existing use of the land or waters concerned by persons other than the native title parties.
Laws protecting sites of significance etc. not affected
(3)Taking into account the effect of the act on areas or sites mentioned in subparagraph (1)(a)(v) does not affect the operation of any law of the Commonwealth, a State or Territory for the preservation or protection of those areas or sites.
Agreements to be given effect
(4)Before making its determination, the arbitral body must ascertain whether there are any issues relevant to its determination on which the negotiation parties agree. If there are, and all of the negotiation parties consent, then, in making its determination, the arbitral body:
(a) must take that agreement into account; and
(b) need not take into account the matters mentioned in subsection (1), to the extent that the matters relate to those issues.’
The Tribunal’s task is a discretionary one that involves weighing the criteria in s 39 on the basis of the evidence before it to decide which of the determinations provided for in s 38 is appropriate in the circumstances. The Tribunal must have regard to any evidence relating to the criteria and consider the evidence of what the Government and grantee parties propose to do, and how that will effect the matters of interest to the native title party specified in s 39(1)(a).
The evidence
The Tribunal has before it evidence relating to the following:
the nature of the act which the Government party proposes to do and the proposals of the grantee party once the interests in land have been acquired and a lease granted to it by the Shire of Shark Bay;
an extract from the Register of Native Title Claims which sets out the native title rights and interests claimed by the native title party and the area over which they are claimed. The area of the claim is extensive;
a copy of the ancillary agreement entitled ‘Malgana Agreement Monkey Mia – Malgana Claimants and Monkey Mia Dolphin Resort Pty Ltd ACN 009 342 054’ prepared by Freehill, Hollingdale & Page, Barristers and Solicitors (now Freehills); and
the consent of the parties to a determination that the act may be done with a condition conveyed to the Tribunal by their legal representatives and subsequently confirmed by them in writing.
Section 39(1)(a)(i) – enjoyment of registered native title rights and interests
The proposed future act is to take all interests in the land held by persons other than the Crown pursuant to s 165(1) of the Land Administration Act 1997 (see also s 161). The interests to be taken include the native title rights and interests. The act is the compulsory acquisition of any native title rights and interests under the law of a State and extinguishes the whole of the native title rights and interests which exist over the land (s 24MD(2) NTA). Apart from the Register of Native Title Claims there is no evidence of the native title rights and interests which exist over the land. For the purposes of this inquiry I must assume the existence of the native title rights and interests as registered and that they could be affected. However, s 39(1)(a)(i) talks of the effect of the act on the ‘enjoyment’ of the registered native title rights and interests and the Tribunal must consider any evidence of the exercise or enjoyment of the native title rights claimed by the native title party (WMC Resources Ltd/Western Australia/Evans, NNTT WF99/4, Hon C J Sumner, 23 December 1999 at p10-11). It is ordinarily the responsibility of the native title party to produce this evidence (Western Australia v Thomas (‘Waljen’) 133 FLR 124 at 162). The limited objective facts suggest that native title rights are not enjoyed over the land to be acquired. There is no evidence of what specific activities are currently conducted on Reserve 1686 but the fact that it is a ‘C’ Class Reserve for recreation which adjoins the current tourist facility and a relatively small area suggests that native title rights and interests are not enjoyed over it. The area generally is serviced by a road, part of which is also to be acquired. No point has been taken by any party that this road is of a type which extinguishes native title (Fourmile v Selpam & Ors (1998) 152 ALR 294) but even if native title has not been extinguished, it is highly unlikely that native title rights are enjoyed over it (again it is a relatively small area). In these circumstances and taking into account that the native title party, through its solicitors at the Yamatji Land and Sea Council, have not produced evidence of the exercise of native title rights and interests over the land I am entitled to infer that the native title rights and interests are not enjoyed in any practical sense over the area of land to be acquired. The compulsory acquisition will obviously preclude any future enjoyment of them but in the circumstances no great weight can be given this fact. I also take into account that the area to be taken is less than 3 hectares in a large claim area.
Section 39 (1)(a)(ii) - way of life, culture and traditions
Section 39(1)(a)(iii) - development of social, cultural and economic structures
There is no evidence of any negative effects of the proposed acts on either of these criteria. On the other hand the ancillary agreement contains provisions which if fulfilled will be of benefit to the native title party. In particular:
on the granting of the lease by the Shire of Shark Bay to Monkey Mia, Monkey Mia will make available to the native title party a building to enable the native title party to operate an Aboriginal Cultural Centre for the benefit of the Malgana people by way of a business which sells Aboriginal art and artefacts and promotes the traditions of the Malgana people. The Cultural Centre building will comprise an area of approximately 64 square metres and be located near the proposed main reception centre of the Resort (unless otherwise agreed by the parties). It will be fitted out by the grantee party and provided with electricity and water to meet the reasonable requirements of the business. It will be built when the new reception is built for the Resort. The native title party will have the exclusive use of the Cultural Centre building from the date it is ready for occupation during the term of the lease from the Shire to Monkey Mia (unless Monkey Mia terminates the native title party’s right to use the building for failure to comply with their obligations under the agreement). The native title party is to pay to Monkey Mia one fifth of the net income derived from the business operated at the Cultural Centre building and the balance is to be retained by the native title party. Monkey Mia will include references to the Cultural Centre in its promotional material for the Resort and permit such material to be displayed in its main reception area. Monkey Mia will keep the Cultural Centre building in good repair, order and condition.
the grantee party will contribute up to $5,000 towards airfares and costs for the native title party to prepare a business plan to support an application to the Aboriginal and Torres Strait Islander Commission or other reputable financial institutions for working capital to establish and operate the business. It will also provide reasonable assistance in kind to help the application.
the native title party intends to apply for a lease of land within the Shark Bay Shire proposed aquaculture precinct for aquaculture purposes. Monkey Mia undertakes to use its reasonable endeavours to assist the native title party to secure a lease of that land, including by writing to the Minister indicating its strong support for the application and saying that the activities of the native title party on the land will be beneficial for the Shark Bay pearling industry, the Resort and the Malgana people.
Monkey Mia also undertakes to provide ongoing training in all facets of the hospitality industry for the benefit of Aboriginal youth. This involves the provision of the opportunity for two Aboriginal persons to be trained each year in the hospitality industry by following an agreed 52 week program. During the traineeship the students will be employed by Monkey Mia and paid at an agreed rate.
Monkey Mia undertakes to notify the native title party of any vacancies which exist for employment with Monkey Mia and will meet with the native title party to discuss progress on the training program and ways by which the program may be improved for the benefit of Aboriginal youth.
the agreement makes provision for the native title party and Monkey Mia to appoint three persons each to act as representatives in connection with the agreement which representatives are to make certain decisions required by the agreement.
there is provision for Monkey Mia to assign a whole or any part of its interest in the lease or under the agreement but the assignee must enter into a deed of covenant to be bound by the terms of the agreement.
Section 39 (1)(a)(iv) - freedom of access – freedom to carry out rites, ceremonies and other activities
There is no evidence of any current access by the native title party to the land for the purpose of conducting any rites or ceremonies or for any other purpose. The agreement guarantees that all employees and other persons engaged in the running of the Cultural Centre business will have access to the Cultural Centre building subject to complying with directions of Monkey Mia concerning the health, safety and security of other persons at the Resort, the enjoyment of the Resort by its guests and subject to appropriate standards of behaviour in a first class resort.
Section 39(1)(a)(b) – sites of particular significance
There is no evidence of any sites of particular significance to the native title party that will be affected by the act.
Section 39(1)(b) – interests, proposals, opinions or wishes of the native title party
The native title party consents to the determination and condition and their interests will be advanced if and when the Aboriginal Cultural Centre is established.
Section 39(1)(c) - economic or other significance
There is no specific evidence before me of the economic or other significance of the proposed resort development but it is apparent from the agreement that Monkey Mia intends to upgrade their existing facilities to a first class resort. I am entitled to infer that this will involve capital expenditure on building and other infrastructure works and ongoing economic benefits to the grantee party and its employees. The agreement provides that some of these employees will be Aboriginal people and the native title party claim group will benefit from a successful business venture.
Section 39(1)(e) - public interest.
The proposed development has the support of the Shire of Shark Bay and there is no evidence to suggest that the upgrading of Monkey Mia Resort is other than in the general public interest.
Section 39(1)(f) – any other relevant matter
The Government party pointed out that Clause 2.2 of the ancillary agreement requires the native title party and Monkey Mia to execute a State Deed contemporaneously with or as soon as practicable after the execution of the ancillary agreement and that the Government party would not sign such a State Deed until all 38 of the registered native title claimants have signed. The native title party and grantee party advised the Tribunal that they would not seek to enforce Clause 2.2 but that the rest of the rights and obligations contained in the agreement imposed on them would remain.
Conclusion
The Tribunal is satisfied on the basis of the evidence that it is appropriate to make a determination in the terms consented to by all parties. The Tribunal has not relied solely on the consent given but has taken into account the ancillary agreement entered into between the native title party and Monkey Mia and the benefits which will flow to the native title party when and if it is fully implemented. It is unlikely that native title rights and interests are enjoyed on the land and little weight can be given to the effect of the act on them. Considerable weight has been given to the benefits to the native title party which should flow from the proposal as well as to the consent of the parties.
With respect to the consent of the native title party, I am satisfied that I can rely on it even though two of 38 registered native title claimants have declined to sign an agreement (see Placer (Granny Smith) Pty Ltd and Granny Smith Mines Limited/Western Australia/Ron Harrington-Smith & Ors (Wongatha people), NNTT WF99/5, Hon C J Sumner, 16 February 2000 and 24 February 2000 and discussion below). The Yamatji Land and Sea Council is satisfied that the native title party collectively consents to the determination and I have no difficulty on the facts of this case in accepting that the consent has been properly given.
The Tribunal’s approach to consent determinations
The Tribunal is aware that interest has been expressed by a number of parties in the use of consent determinations as a means of finalising agreements following negotiations under s 31(1)(b) of the NTA. Practical problems have been encountered where collectively the native title party has entered into an agreement but been unable to obtain the signatures of all registered native title claimants either to an ancillary agreement or State Deed. In other cases the State Deed has not been executed in a way satisfactory to the Government party, for instance where a witness to a signature was a fellow claimant. Sometimes considerable delays result because of difficulties in finding individual registered claimants who may live in remote localities or be on country away from centres of population. The cost of obtaining signatures in these circumstances is also said to be a problem. The present matter provides one example of the difficulties sometimes encountered in finalising agreements under the right to negotiate. It is therefore important to restate the Tribunal’s position with respect to consent determinations in s 35 applications and to issue some guidelines for the manner in which they will be handled in future. In this matter the Tribunal partially relied on the consent of the parties (including the native title party) but also had other evidence before it to support its determination. This is not always the case. For instance, the parties may be reluctant to make the details of an ancillary agreement available to the Tribunal for confidentiality reasons and not feel that a non-disclosure order under s 155 of the NTA would suffice to protect their interests.
The law and Tribunal practice in relation to consent determinations can be summarised as follows.
The Tribunal has the power and will make a determination with the consent of all parties provided it is appropriate to do so in the circumstances.
In Western Australia/Ted Coomanoo Evans & Ors and Quinton Tucker & Ors/Townson Holdings NL, NNTT WF98/6, Hon C J Sumner, 11 December 1998; Wester Australia/Teddy Roberts & Ors/John Skeffington & Ian Duggan, NNTT WF98/274, Hon C J Sumner, 11 December 1998; and Western Australia/Rita Dempster & Ors/Paul Shiner & Ors, NNTT WF98/194, Professor Douglas Williamson, RFD QC, 3 June 1999, the Tribunal made a determination by consent of the parties that the act may be done without conditions. The native title party was content to rely on the ancillary agreement which it had entered into with the grantee party. In other matters the Tribunal has made a consent determination with agreed conditions (Dale Gary Graham & Ors v Western Australia, NNTT WF98/275 and WF98/279, Hon E M Franklyn QC, 28 June 1999; Yallourn Energy Pty Ltd/Terence Ernest Campbell Hood & Ors/Victoria, NNTT VF99/1, Hon C J Sumner, 17 September 1999; and Placer (Granny Smith) Pty Ltd and Granny Smith Mines Limited/Western Australia/Ron Harrington-Smith & Ors, NNTT WF99/5, Hon C J Sumner, 16 February 2000).
The factors which led the Tribunal to conclude that it had power to make a determination by consent were:
the parties are given an important role in right to negotiate inquiries and ordinarily it will be for the parties to produce evidence and not for the Tribunal to seek it out (ss 141(2), 142, 143 NTA) (see analysis in Western Australia v Thomas (‘Waljen’) 133 FLR 124 at 154-163);
the power is consistent with the requirement in s 109(1) of the NTA for the Tribunal to carry out its functions in a fair, just, economical, informal and prompt way;
s 39(1)(f) of the NTA requires the Tribunal to take into account any matter which it considers relevant and the consent of parties is one such matter; and
s 39(4) introduced by the amendments to the NTA in 1998 which requires any agreement between the parties to be taken into account.
The Tribunal will ordinarily be prepared to act on the consent of the parties as conveyed by their solicitors but there may be circumstances where further information about whether informed consent has been given is required.
In WF98/274 where 93 registered native title claimants were involved the Tribunal received affidavit evidence from four of them deposing to their authority under customary law to enter into the agreement.
In WF98/275 and WF98/279 the Tribunal said that while there may be circumstances that would make it inappropriate to act on the bare request of the parties such as where they were unrepresented, it could see no need to look beyond the consent of the parties where the parties were so represented.
In Jeffrey James & Ors/Western Australia/Straits Exploration (Australia) Pty Ltd, NNTT WF00/6, Hon C J Sumner, 30 October 2000 the Tribunal made a consent determination based on the consent of the native title party and Government party conveyed by their legal representatives. The native title party lodged the s 35 application together with documents consenting to the determination signed by the grantee party and solicitors for the other parties. No further evidence was tendered or required by the Tribunal.
In some matters the Tribunal has relied on other evidence before it to confirm that a consent determination was appropriate.
In WF98/194 Tribunal relied on the fact that the parties were represented by experienced legal practitioners, that it had received a considerable body of oral and other evidence and submissions which led it to the conclusion that there was nothing concerning the interests of any party or the public interest that precluded it acting on the consent of the parties.
In VF99/1, the Tribunal pointed to the fact that there had been extensive negotiations, most of the evidence had been heard and supported a determination that the act may be done, and that the parties had been represented by experienced legal practitioners.
The Tribunal can only impose conditions by consent which are within its power (WF98/274 at 3 and see generally Evans v Western Australia (1997) 77 FCR 193).
where conditions are to be imposed the Tribunal may suggest amendments to them. In WF99/5 the Tribunal was concerned that there would be inadequate protection for the native title party were the mining lease to be assigned.
One of the significant issues which has arisen (as it did in this case) is whether the Tribunal can make a consent determination where some of the registered native title claimants decline to give their consent. In WF99/5 the Tribunal made a determination even though one of 12 registered native title claimants did not consent. The Tribunal decided that a ‘native title party’ is not each registered native title claimant on the same claim but is the registered native title claimants acting collectively as representatives and agents for the claim group (s 62A NTA) and that each individual registered native title claimant is not entitled to separate representation in a right to negotiate inquiry (Placer (Granny Smith) Pty Ltd and Granny Smith Mines Limited/Western Australia/Ron Harrington-Smith & Ors (Wongatha people), NNTT WF99/5, Hon C J Sumner, 24 February 2000 at 5-11). It also follows from this decision that the Tribunal will be prepared to act on the consent given by the native title party collectively unless there is some credible suggestion that this is not appropriate. Lawyers acting for the native title party should normally be in a position to advise the Tribunal that the consent has properly been given, based on the established decision making processes of the native title claim group. The fact that a representative Aboriginal and Torres Strait Islander body is involved in assisting the native title party (s 202 NTA) would add weight to a decision that a consent determination is appropriate.
In WF99/5 (at 11) the Tribunal said that its decision was supported by the fact that native title is generally considered to be held communally. More recently the Federal Court in the context of the registration of a claim under s 190A of the NTA has confirmed that a native title determination application can only be made by a native title claim group (Risk v National Native Title Tribunal [2000] FCA 1589 [30]). The Court (O’Loughlin J [29]) cited Mabo v Queensland No.2 (1991-1992) 175 CLR 1 (Deane and Gaudron JJ at 109-110) that ‘ordinarily, common law native title is a communal title, and the rights under it are communal rights enjoyed by a tribe or other group’; and Western Australia v Ward [2000] FCA 191; 170 ALR 159 [181] where Beaumont and von Doussa JJ affirmed that the ‘NTA plainly contemplates a claim by a group or community of people’. In Tilmouth v Northern Territory D6025 of 2001, O’Loughlin J, unreported, the same principles were applied to decide that an acknowledged subgroup of a registered claimant group did not have a right to make a separate claim. The Tribunal considers that the principles affirmed in these cases support its decision that a ‘native title party’ is the registered native title claimants acting on behalf of the claim group collectively and not each individual registered native title claimant. The Tribunal can see no impediment to proceeding to make a consent determination where the consent is given by the native title party collectively in accordance with its agreed procedures (including traditional law and custom).
It follows from what I have said that I would have been prepared to make a consent determination in this matter without the necessity of receiving evidence of the ancillary agreement and further considering the criteria in s 39. In some cases it may be that parties will wish to provide some evidence in addition to the consent of the parties in order to guard against any possible challenges to the validity of the act. However, the Tribunal is of the view that such evidence would not normally be necessary where it is clear that the consent of the native title party to the doing of the act has been given.
Procedures for making consent determination
In the light of the clearly established practice of the Tribunal which is confirmed by the summary of cases above, the Tribunal in future will adopt the following procedures as guidelines for dealing with applications for a future act determination by consent of all the parties:
The Tribunal may, at any time after the application is made, make a determination with the consent of the parties, if the Tribunal considers it appropriate in the circumstances of the case. Any conditions must be within the power of the Tribunal to impose.
The Tribunal will normally regard it as appropriate to make a consent determination where the parties (and particularly the native title party) are legally represented and the Tribunal has been advised in writing by those representatives of the consent.
The Tribunal will hold a brief hearing to satisfy itself that a consent determination is appropriate. This may occur at the Preliminary Conference.
Determination
The determination of the Tribunal is that the act, namely the taking of all interests including native title rights and interests under the Land Administration Act 1997 (WA) in the land the subject of this application, may be done subject to a condition that the grantee party (Monkey Mia Dolphin Resort Pty Ltd ACN 009 342 054) execute and be bound by the agreement entitled ‘Malgana Agreement Monkey Mia’ between Malgana Claimants and Monkey Mia Dolphin Resort Pty Ltd ACN 009 342 054 prepared by Freehill Hollingdale and Page, Barristers and Solicitors (now Freehills), a copy of which was tendered to the Tribunal in this inquiry.
Hon C J Sumner
Deputy President
22 June 2001
428
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