Ngalpil v State of Western Australia
[2003] FCA 1098
•9 OCTOBER 2003
FEDERAL COURT OF AUSTRALIA
Ngalpil v State of Western Australia [2003] FCA 1098
NATIVE TITLE – determination of native title – prescribed body corporate – whether requirements of Native Title (Prescribed Bodies Corporate) Regulations 1999 satisfied – whether prescribed body corporate duly nominated – whether prescribed body corporate had given its written consent to nomination.
Native Title Act 1993 (Cth)
Native Title (Prescribed Bodies Corporate) Regulations 1999PALMER GORDON NGALPIL & ORS v STATE OF WESTERN
AUSTRALIA & ORS
WAG 160 OF 1997CARR J
9 OCTOBER 2003
PERTH
IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
WAG160 OF 1997
BETWEEN:
PALMER GORDON NGALPIL & ORS
APPLICANTSAND:
STATE OF WESTERN AUSTRALIA & ORS
RESPONDENTJUDGE:
CARR J
DATE OF ORDER:
9 OCTOBER 2003
WHERE MADE:
PERTH
THE COURT ORDERS THAT:
1.Pursuant to ss 55 and 56 of the Native Title Act 1993 (Cth) the Court determines that Tjurabalan Native Title Land Aboriginal Corporation is to hold the rights and interests from time to time comprising the native title the subject of the Determination made on 20 August 2001 in trust for the common law holders identified in that Determination.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
WAG160 OF 1997
BETWEEN:
PALMER GORDON NGALPIL & ORS
APPLICANTSAND:
STATE OF WESTERN AUSTRALIA & ORS
RESPONDENT
JUDGE:
CARR J
DATE:
9 OCTOBER 2003
PLACE:
PERTH
REASONS FOR JUDGMENT ON NOMINATION OF PRESCRIBED
BODY CORPORATE
On 20 August 2001 I made, by consent, a determination of native title in this matter.
With a view to complying with the requirements of s 56 of the Native Title Act 1993 (Cth) (“the Act”) I also made the following orders:
‘9.A representative of the common law holders of the native title rights and interests is requested to indicate within three months of the date these orders are made whether they intend to have the native title held in trust and if so by whom. That representative is invited to do so by:
(a)nominating in writing to the Federal Court a prescribed body corporate to be trustee of the native title; and
(b)including with the nomination the written consent of the body corporate.
10.If a prescribed body corporate is nominated in accordance with Order 9, it will hold the native title rights and interests, referred to in Order 1, from time to time comprising the native title in trust for the common law holders of the native title rights and interests.
11.If a prescribed body corporate is not nominated in accordance with Order 9, the native title rights and interests, referred to in Order 1, from time to time comprising the native title will be held by the Tjurabalan People (as defined in this determination) in respect of the Determination Area as the common law holders of the native title rights and interests.
12.If a prescribed body corporate is not nominated in accordance with Order 9 and native title is therefore held by the Tjurabalan People in accordance with Order 11, then the matter is to be relisted by the Registrar in order that the Court can consider the making of orders in accordance with section 57(2) of the Native Title Act.’
On 30 November 2001, by a further consent order, the time for compliance with paragraph 9 above was extended until 20 February 2002 “… to allow the incorporation of a proposed prescribed body corporate to be finalised.”
On 28 February 2002 another consent order was made extending that time for a further 4 months until 12 June 2002 “… to allow the inaugural meeting of the Tjurabalan Native Title Land Aboriginal Corporation to take place and at that meeting to seek the Corporation’s formal consent to its nomination to the Federal Court as the prescribed body corporate to hold the native title of the Tjurabalan community of native title holders”.
On 12 June 2002 a solicitor employed by the Kimberley Land Council (acting for the applicants) filed a document headed “Nomination of the Tjurabalan Native Title Land Aboriginal Corporation as the Prescribed Body Corporate”.
That document identified its author as being the solicitor having the carriage of legal matters on behalf of the applicants, made reference to s 56(2)(a) of the Act and also some of the orders referred to above. The remaining two paragraphs of that document were in the following terms:
‘4.The Tjurabalan Native Title Land Aboriginal Corporation was incorporated on 7 January 2002. A copy of the Certificate of Incorporation is provided at Attachment A and a copy of the Approved Rules are provided at Attachment B. As set out in Article 6(b) of the Rules, one of the objects of the corporation is to be a prescribed body corporate for the purpose of a native title determination. The inaugural general meeting was held at Sturt Creek, near the Bililuna Community, on 9-10 May 2002 and Office Bearers elected in accordance with Articles 9 (sic) of the Rules of the Corporation.
5.On 10 June 2002, the Chairperson David Skeahan wrote to me nominating the Tjurabalan Native Title Land Aboriginal Corporation as the prescribed body corporate to be trustee of the Tjurabalan native title. The letter is provided at Attachment C.’
Attachment A to that document was a photocopy of a certificate issued by the Acting Registrar of Aboriginal Corporations to the effect that Tjurabalan Native Title Land Aboriginal Corporation had been incorporated under the Aboriginal Councils and Associations Act 1976 (Cth) on 7 January 2002.
Attachment B was a photocopy of a document headed “The Objects and Rules of the Tjurabalan Native Title Land Aboriginal Corporation” indicating that the rules had been approved by a Registrar (presumably, and I so infer, under the Aboriginal Councils and Associations Act) on 7 January 2002.
Attachment C to the abovementioned document was a photocopy of a letter on the letterhead of Tjurabalan Native Title Land Aboriginal Corporation from a Mr David Skeahan, described below his signature, as Chairperson. That letter referred to certain formal matters relating to approval under the Aboriginal Councils and Associations Act of the Tjurabalan Native Title Land Aboriginal Corporation, and to certain of its rules. The letter concluded as follows:
‘In accordance with sub-paragraph 56(2)a(ii) Native Title Act, as elected Chairperson of the Tjurabalan Native Title Land Aboriginal Corporation, I nominate that Corporation as the prescribed body corporate to be trustee of the Tjurabalan native title.’
On 27 June 2002, at my request, a Deputy District Registrar of this Court wrote to the applicant’s solicitor seeking confirmation of:
· the basis upon which Mr Skeahan purported to make the nomination referred to above; and
· the date by which evidence of the written consent of the prescribed body corporate to be the trustee of the Tjurabalan native title would be furnished to the Court.
I was concerned to ascertain whether the facts upon which orders 9 and 10 above would operate had in fact happened.
As I then saw the matter, it seemed to me that there were three questions. The first was whether a representative of the common law holders had made the nomination in writing. The nomination appeared to be contained in the last paragraph of Attachment C which I have set out above. It appeared from Attachment C that Mr Skeahan was the Chairperson of the Tjurabalan Native Title Land Aboriginal Corporation. It seemed to me that he might well also be a representative of the common law holders of the native title rights and interests, but that was not certain.
The second question was whether the Tjurabalan Native Title Land Aboriginal Corporation (“the Corporation”) was a “prescribed body corporate”. Section 59 of the Act provides that regulations may prescribe the kinds of bodies corporate that “may be determined” under ss 56 or 57 of the Act. The relevant regulations are the Native Title (Prescribed Bodies Corporate) Regulations 1999 (“the PBC Regulations”). I return below to this question.
The third question was whether the Corporation had given its written consent to be the trustee of the native title rights and interests. On one view, the nomination of the Corporation by its Chairperson might be taken to be such consent. But I thought that it was important to clarify the position. The assumption by a trustee of the duties of that office in relation to any property is normally not something that should be left to implication.
Various documents have since been filed by the applicant’s solicitor. They include her affidavit dated 23 October 2002, a further document signed by her and dated 8 May 2003 setting out (but not deposing to) various factual matters and annexing an affidavit from Ms Julie Margaret Melbourne a solicitor also employed by the Kimberley Land Council. Attached, in turn, to Ms Melbourne’s affidavit were two letters (each dated May 2003) on the letterhead of the Corporation and signed by Mr Skeahan.
I now turn to the three questions.
WHETHER MR SKEAHAN, AS A REPRESENTATIVE OF THE COMMON LAW HOLDERS OF THE NATIVE TITLE RIGHTS AND INTERESTS, HAS MADE THE NECESSARY INDICATION
I accept that the final paragraph of Mr Skeahan’s letter of 10 June 2002 constitutes his nomination of the Corporation as the prescribed body corporate to be trustee of the Tjurabalan native title.
Although that nomination was expressed by Mr Skeahan as “elected Chairperson” of the Corporation I am satisfied that, at the time when Mr Skeanhan made that nomination, he was also the representative of the common law holders for the purpose of making that nomination. In that regard I rely on the evidence contained in paragraph 3 of the affidavit of Ms Krysti Justine Guest affirmed on 23 October 2002 and paragraph 9 of Ms Melbourne’s affidavit affirmed on 6 May 2003.
Accordingly, in my view, the answer to the first question is: yes.
WHETHER THE CORPORATION IS A PRESCRIBED BODY CORPORATE
Regulation 4 of the PBC Regulations prescribes the relevant requirements. There are four such requirements.
First, the Corporation must be an Aboriginal Association incorporated under the Aboriginal Councils and Associations Act on or after 30 December 1994 (Regulation 4(1)(a)). I am satisfied from the copy certificate of incorporation to which I have referred above that the Corporation was so incorporated on 7 January 2002.
Secondly, all members of the Aboriginal Association must be included, or proposed to be included, as native title holders in the Native Title Determination (Regulation 4(2)(a)). The native title holders are defined in paragraph 3 of the orders made on 20 August 2001 and the Third Schedule to the Determination also made on that date.
Clause 8(a) of the Rules of the Corporation stipulates as follows:
‘All adult members of the Tjurabalan People shall be eligible to be members of the Association and only members of the Tjurabalan shall be entitled to be members.’
The term “Tjurabalan People” is defined in clause 2 of the Rules as follows:
‘“Tjurabalan People” means those people who hold in common the body of traditional law and culture governing the Determination Area and who:
(a) are members of the Walmajarri, Jaru or Nyininy language groups; and(b)have a common and inclusive cultural and geographic association with the Determination Area which includes: Gregory Salt Lake (Paruku) and Sturt Creek (Tjurabalan) and the adjacent portions of the Tanami Desert (Ngaluwan) and Gardiner Range (Lirrankarni).’
The “Determination Area”, referred to in the above definition, is also defined in clause 2 of the Rules to mean the land and waters subject to the Tjurabalan Native Title Determination made in this application.
Those definitions mirror the definitions of “Tjurabalan People” and “Determination Area” in the Third and First Schedules respectively to the Determination. Both sets of definitions are framed in exclusive and exhaustive terms.
I am satisfied that all members of the Tjurabalan Corporation are included in the Native Title Determination as native title holders.
Thirdly, the objects of the Aboriginal Association must expressly state that its purpose is to become a registered native title body corporation (Regulation 4(2)(b)).
Clause 6(b) of the Rules of the Corporation specifies the following object:
‘6(b)To be and to perform the functions of a prescribed body corporate, as defined in the Native Title Act, for the purposes of being the subject of a nomination and or determination under section 56 of the Native Title Act.’
I am satisfied that this criterion has been fulfilled.
Fourthly, at all times after a determination under ss 56 or 57 of the Act is made, all members of the Association must be persons who have native title rights and interests in relation to the land or waters to which the native title determination relates – Regulation 4(2)(c). Clause 8 of the Rules of the Corporation expressly confines membership to Tjurabalan People (as defined in clause 2). As the membership clause does not allow for the possibility of anyone other than the holder of the relevant native title rights and interests becoming a member, I am satisfied that the requirements of Regulation 4(2)(c) are met – see James on behalf of the Martu People v State of Western Australia (No 2) [2003] FCA 731 at [19] per French J.
Accordingly, in my view, the answer to this question is also: yes.
WHETHER THE CORPORATION HAS GIVEN ITS WRITTEN CONSENT
I am prepared, in all the circumstances, to accept Mr Skeahan’s letter of 10 June 2002 as being both his nomination, as a representative of the native title holders, of the Corporation and also as being the written consent of the Corporation to be trustee of the Tjurabalan native title. As I have noted above, the letter is under the letterhead of the Corporation. It also carries the heading “Consent of Tjurabalan Native Title Land Aboriginal Corporation”.
The letter, correctly, refers to specific Rules of the Corporation reflecting that one of the objects of the Corporation is to be a prescribed body corporate for the purpose of being nominated under s 56 of the Act.
I rely further upon the evidence contained in Ms Guests’ affidavit of 23 October 2002 as to what took place at a meeting of the Tjurabalan People on 5/6 December 2001 and at the inaugural general meeting of the Corporation on 9/10 May 2002.
Clauses 7, 9, 10 and 13 of the Rules of the Corporation relevantly provide procedures for the making of decisions. It appears from Ms Melbourne’s affidavit that the Corporation held an annual general meeting on 15 and 16 April 2003 which specifically addressed the question of its consent to being the trustee of the Tjurabalan native title rights and interests. I am satisfied from that affidavit that the resolution passed at that meeting formally consenting to the Corporation being a trustee of the Tjurabalan native title rights and interests amounted to ratification of the consent which I have found to have been given by Mr Skeahan, as its chairperson, by the letter dated 10 June 2002.
Accordingly the answer to this third question is also: yes.
CONCLUSION
I am satisfied that the Corporation has been nominated in accordance with paragraph 9 of the orders made on 20 August 2001. I am inclined to think that paragraph 10 of those orders is self-executing and takes effect without any further order. However, I have been asked to make an express further determination that the Corporation is to hold the native title rights and interests from time to time comprising the native title in trust for the common law holders. I shall do so.
I certify that the preceding thirty-eight (38) numbered paragraphs are a true copy of the Reasons for Judgment herein of Justice Carr. Associate:
Dated: 9 October 2003
Counsel for the Applicants: Mr M P O’Donnell Counsel for the First Respondent: Mr S J Wright and Mr G J Ranson Solicitor for the First Respondent: Crown Solicitor for the State of Western Australia Counsel for the Second Respondent: Mr M T Spillane Solicitors for the Second Respondent: Messrs Mullins Handcock Solicitor for the Third Respondents: Mr D J O’Dea Counsel for the Fourth Respondent AngloGold Australia Ltd: Mr G S Gishubl Solicitors for the Fourth Respondent AngloGold Australia Ltd: Messrs Jackson McDonald Counsel for the Fourth Respondents
Glengarry Mining NL, Glengarry Resources NL and Tanami Gold NL:Mr M T McKenna Solicitors for the Fourth Respondents
Glengarry Mining NL, Glengarry Resources NL and Tanami Gold NL:Messrs Hunt & Humphry Counsel for the Fifth Respondents: Mr J A Thomson Solicitor for the Fifth Respondents: Messrs Blake Dawson Waldron Date of Judgment: 9 October 2003
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