State of Western Australia/Albert Darby Winder and Others on behalf of The Malgana Shark Bay People/Hypermarket Pty Ltd
[2009] NNTTA 173
•22 December 2009
NATIONAL NATIVE TITLE TRIBUNAL
State of Western Australia/Albert Darby Winder and Others on behalf of The Malgana Shark Bay People/Hypermarket Pty Ltd, [2009] NNTTA 173 (22 December 2009)
Application No: WF09/17
IN THE MATTER of the Native Title Act1993 (Cth)
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IN THE MATTER of an inquiry into a future act determination application
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The State of Western Australia (Government party/Applicant)
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Albert Darby Winder and Others on behalf of The Malgana Shark Bay People (WC98/17) (native title party)
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Hypermarket Pty Ltd (grantee party)
FUTURE ACT DETERMINATION
Tribunal: Hon C J Sumner, Deputy President
Place: Perth
Date of determination: 21 August 2009
Date of reasons: 22 December 2009
Catchwords: Native title – future act – application for determination in relation to compulsory acquisition of native title rights and interests – consideration of power to impose conditions – condition ‘subject to’ or ‘pursuant to’ an agreement makes terms of agreement conditions of the determination – condition to ‘be bound by’ or ‘execute’ an agreement is within power and does not make terms of agreement conditions of determination – logistical difficulties in execution of State Deed and ancillary agreement – native title party consents to the determination – consent determination that the act may be done subject to conditions.
Legislation:Native Title Act1993 (Cth), ss 25-44, 51, 52, 203B, 203BB, 203BC
Land Administration Act 1997 (WA), ss 165, 170
Cases:BHP Billiton Minerals Pty Ltd, ITOCHU Minerals & Energy of Australia Pty Ltd and Mistui Iron Ore Corporation Pty Ltd/Angus Abdullah and Others on behalf of Njamal, Ginger Bob on behalf of Birrimaya/Western Australia, NNTT WF05/2, [2005] NNTTA 40 (7 June 2005), Hon C J Sumner
Cable Sands (WA) Pty Ltd/Mr Benjamin Nannup and Others (South West Boojarah People)/Western Australia, NNTT WF02/3, [2002] NNTTA 84 (7 May 2002), Hon C J Sumner
Monkey Mia Dolphin Resort Pty Ltd v Western Australia [2001] NNTTA 50; 164 FLR 361
Dale Gary Graham on behalf of the Murdeeu People; Mercy O’Loughlin on behalf of the Karonie People; Tim Champion on behalf of the Gubrun People; Marjorie Strickland on behalf of the Maduwongga People/Western Australia, NNTT WF98/275, WF98/279, [1999] NNTTA 198 (28 June 1999), Hon E M Franklyn QC
Evans v Western Australia [1997] FCA 741; (1997) 77 FCR 193
Enmic Pty Ltd v Borinelli and Others [2006] NNTTA 29; (2006) 199 FLR 38
Jeffrey James & Ors on behalf of the Martu People/Western Australia/Straits Exploration (Australia) Pty Ltd, NNTT WF00/6, [2000] NNTTA 340 (30 October 2000), Hon C J Sumner
Portman Iron Ore Limited/Alan Jones and Others on behalf of Ballardong People and Carlene Sceghi and Others on behalf of Central West Goldfields People/Western Australia, NNTT WF02/16, [2002] NNTTA 134 (8 July 2002), Hon C J Sumner
Western Australia v Evans [1999] NNTTA 231; (1999) 165 FLR 354
Hearing date: 14 August 2009, 20 & 21 August 2009
Representatives of the Mr Matthew Pudovskis and Mr Rod Wahl, State Solicitor’s Office
Government party: Mr David Lanagan and Mr Nick Fabriziani,
Department of Regional Development and Lands
Representative of the
native title party: Ms Tessa Herrmann, Yamatji Marlpa Aboriginal Corporation
Representative of the
grantee party: Mr Geoffrey Wardle, Hypermarket Pty Ltd
REASONS FOR FUTURE ACT DETERMINATION
On 22 May 2007, the State of Western Australia (‘the Government party’) gave notice of its intention in accordance with s 170 of the Land Administration Act 1997 (WA) to take interests in land to confer interests under written law; and in accordance with s 29 of the Native Title Act 1993 (Cth) (‘the Act’/‘NTA’), to compulsorily acquire native title rights and interests (‘the proposed compulsory acquisition’). A purpose of the proposed compulsory acquisition is to enable the transfer or grant of interests to Hypermarket Pty Ltd (‘the grantee party’).
The land is situated in the Shire of Shark Bay and is described as:
Part of Lot 76 on Deposited Plan 238147 shown as Lot 300 on Deposited Plan 50257, being part of Pastoral Lease 3114/470, Volume 3137 Folio 479 (Area – 2.465 hectares);
Part of Lot 76 on Deposited Plan 238147 shown as Lot 303 on Deposited Plan 50257, being part of Pastoral Lease 3114/470, Volume 3137 Folio 479 (Area – 17.3507 hectares);
Part of Lot 76 on Deposited Plan 238147 shown as Lot 304 on Deposited Plan 50257, being part of Pastoral Lease 3114/470, Volume 3137 Folio 479 (Area – 11.2985 hectares);
Part of Lot 76 on Deposited Plan 238147 shown as Lot 305 on Deposited Plan 50257, being part of Pastoral Lease 3114/470, Volume 3137 Folio 479 (Area – 4.5953 hectares);
Part of Lot 76 on Deposited Plan 238147 shown as easement “Z” on Deposited Plan 50258, being part of Pastoral Lease 3114/470, Volume 3137 Folio 479.
The taking of the land pursuant to s 165 of the Land Administration Act for the purposes specified is a compulsory acquisition of native title rights and interests covered by s 26(1)(iii) of the Act and is a future act to which the right to negotiate provisions of the Act apply (Subdivision P, Division 3, Part 2 (ss 25-44) NTA). Unless the provisions of the Subdivision are complied with the future act will be invalid to the extent that it affects native title (s 25(4) NTA). The proposed compulsory acquisition comprises an area of 0.44 square kilometres located in the Shire of Shark Bay. It is entirely overlapped by the registered native title claim of The Malgana Shark Bay People (‘the native title party’) (WC98/17) – registered from 30 March 1998.
The native title party in respect of these proceedings is:
Albert Darby Winder, Allen Mitchell, Anthony James Bellotti, Anthony Thomas Bellotti, Charles Mitchell, Gavin Charles Poland, Gavin Clyde Oakely, Glen William Hoult, Greg Edward Mallard, Harold Richard Hoult, Howard Cock, John Winder, Laurence James Mitchell Bellotti, Leslie John Craig Oakley, Ralph Reginald Wear, Revel Oakley, Richard Oakely, Rodney Bellotti, Roy Bellotti, Thomas Charles Poland, Ada Mary Fossa, Christine Maree Wear, Elizabeth Margot Mallard (Mitchell), Francis Sharon Oxenham, Gail Bellotti, Jillian Georgina Oakley, Lorraine Whitby, Maria Bernadette Poland, Marika Kate Hoult, Marion Joyce Oakley, Mona Jessie Oakley, Nelly Cocks, Nora Fossa, Phyllis Ugle McMahon, Rhonda Mitchell, Rosie Wear, Sandra Bellotti, Sylvia Drage on behalf of The Malgana Shark Bay People (WC98/17).
On 27 July 2009, being a date more than six months after the s 29 notice was given the Government party made an application pursuant to s 35 of the Act for a future act determination under s 38 in relation to the proposed compulsory acquisition. The Government party requested that the future act determination be made by consent with conditions in the terms sought.
Accompanying the application was a minute of a consent determination in the following terms, executed by Mr Jeff O’Halloran of the State Solicitor’s Office for and on behalf of the Government party, Ms Tessa Herrmann, Solicitor employed by Yamatji Marlpa Aboriginal Corporation (‘YMAC’) for and on behalf of the native title party, and Mr Geoffrey Wardle for an on behalf of the grantee party:
‘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, the Native Title Party and the Grantee Party have complied with the requirements of s.31(1)(b) of the Native Title Act 1993.
3. The Government Party, the Native Title Party and the Grantee Party consent to a determination under s.38 of the Native Title Act 1993 that the ‘act’, being the compulsory acquisition of native title rights and interests, and subsequent grant of interests to the Grantee Party, may be done, subject to the terms and conditions contained in the Deed for Compulsory Acquisition of any Native Title Rights and Interests between the Government Party, the Native Title Party and the Grantee Party dated 22 April 2009, attached to this Minute, and the Ancillary Agreement agreed between the Native Title party and the Grantee Party on 22 April 2009, also attached to this Minute.’
Accompanying the s 35 determination application was a copy of:
Deed for Compulsory Acquisition of any native title rights and interests dated 22 April 2009 between the State of Western Australia, The Malgana Shark Bay People and Hypermarket Pty Ltd (‘State Deed’); and
Agreement between Hypermarket Pty Ltd and The Malgana Shark Bay Native Title Claim (‘Ancillary Agreement’).
The State Deed is not executed by the parties, the Ancillary Agreement is executed by the grantee party.
As the State Deed has not been executed there is no written agreement of the kind mentioned in paragraph 31(1)(b) of the Act (i.e. an agreement between all three negotiation parties, the Government party, grantee party and native title party) which can be formally lodged with the Tribunal (s 41A(1)(a)) and result in the termination of the inquiry proceedings and the Government party being able to do the future act. It is in these circumstances that the Tribunal must consider whether a consent determination is appropriate (s 28(1)(f)(g) NTA).
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 (at 368-371, [17]-[22]) (‘Monkey Mia’)). Depending on the circumstances the Tribunal may consider it appropriate to act on the simple request of the parties and not look behind the consent where for instance the parties are legally represented (Dale Gary Graham on behalf of the Murdeeu People; Mercy O’Loughlin on behalf of the Karonie People; Tim Champion on behalf of the Gubrun People; Marjorie Strickland on behalf of the Maduwongga People/Western Australia, NNTT WF98/275, WF98/279, [1999] NNTTA 198 (28 June 1999), Hon E M Franklyn QC; Jeffrey James & Ors on behalf of the Martu People/Western Australia/Straits Exploration (Australia) Pty Ltd, NNTT WF00/6, [2000] NNTTA 340 (30 October 2000), Hon C J Sumner). This course of action would normally be appropriate where the native title party is legally represented and particularly if the native title party is represented by a solicitor from a recognised native title representative body under the Act.
As the recognised representative body under the Act, YMAC has a formal role in protecting the interests of native title holders (ss 203B(4), 203BC(1)(a)), representing claimants in relation to their claim and related future act matters (s 203BB(1)(b)), being satisfied that persons they represent including native title parties understand and consent to a course of action (s 203BC(1)(b)) in accordance with the requirements of the Act (s 203BC(2)).
The affidavit of Tessa Jeanne Herrmann, solicitor with the YMAC was provided in support of the application, affirmed on 16 July 2009. The affidavit contains detailed information about the processes undertaken to obtain native title party agreement to the proposed compulsory acquisition.
At a Malgana community meeting on 10 February 2009 the Government and grantee parties’ proposals to resolve this matter were explained by Ms Herrmann and resolutions passed for the Malgana claim group to accept the proposals. The resolutions also authorised the Malgana Working Group to negotiate the specific terms of the agreements and direct the persons jointly comprising the applicant (i.e. the native title party) to sign the agreement once the Working Group was satisfied it should be entered into.
At a Malgana Working Group meeting of 22 April 2009 resolutions were passed whereby the Malgana Working Group agreed to enter into the State Deed and the Ancillary Agreement subject to minor drafting changes being made by Yamatji Land & Sea Council (YLSC), the Geraldon region service arm of YMAC. As authorised by the Malgana claim group the Working Group directed the applicants to execute both agreements. Subsequent to these resolutions being passed Ms Herrmann explained to the Working Group the process for obtaining a consent determination and why one may be required in this case to finalise the negotiations. The Malgana Working Group resolved to authorise the YLSC to consent to a determination being made by the Tribunal ‘subject to the substantive terms and conditions embodied’ in the State Deed and the Ancillary Agreement.
Ms Herrmann attested that she was satisfied that the native title party consented to a future act determination in the terms of the consent minute. Ms Herrmann confirmed this consent at the hearings and subsequently confirmed that the native title party consented to a determination in the amended terms which are further considered below.
Ms Herrmann also explained in her affidavit that there were likely to be difficulties in obtaining the signatures of all the Malgana applicants (more accurately all the persons named as part of the applicant for native title) to the State Deed and Ancillary Agreement. There are a large number of applicants (i.e. 38) spread across a large geographical area and while YMAC staff are making efforts to obtain the necessary signatures, this will not happen within the urgent timeframes preferred by the Government party. At least one of the applicant’s whereabouts is unknown.
I accept Ms Herrmann’s evidence that there will be logistical difficulties and delay in obtaining all signatures to the State Deed (something which is required by the Government party if the matter is to be resolved by way of a s 31(1)(b) agreement). As has been commonly accepted by the Tribunal (see for example Monkey Mia at [17]) the existence of such logistical difficulties confirms that a consent determination is appropriate in this case.
The terms of the consent determination
The major issue which arose in this matter was whether the Tribunal could make a determination in terms of the minute of consent determination originally agreed to and lodged with the application.
The original minute said that the consent determination was to be made ‘subject to the terms and conditions contained’ in the State Deed and Ancillary Agreement. This formulation raises the question of whether the determination would make the terms of the agreements conditions of the determination and if so whether the Tribunal had power to make a determination with conditions of this kind. The issue was the subject of oral submissions and the Government party made helpful written submissions (dated 20 August 2009). These submissions and particularly those of the Government party have caused the Tribunal to review and comment on a similar situation which arose in Enmic Pty Ltd v Borinelli and Others [2006] NNTTA 29; (2006) 199 FLR 38 (at [9]-[18] (‘Enmic’).
Section 38(1) of the Act says that the Tribunal must make one of the following determinations – that the act must not be done (s 38(1)(a)); that the act may be done (s 38(1)(b)); or the act may be done subject to conditions to be complied with by any of the parties (s 38(1)(c)). Section 38(2) of the Act prohibits the determination of a condition that has the effect of entitling native title parties to payments worked out by reference to the amount of profits made; any income derived; or any things produced by any grantee party (although the parties can voluntarily enter into an agreement with such terms (s 33 NTA)).
In Evans v Western Australia [1997] FCA 741; (1997) 77 FCR 153 (RD Nicholas J) (‘Evans’) the Federal Court in giving consideration to the power to impose conditions on a determination (i.e. make a determination subject to the conditions) affirmed that this was a broad power when it said:
section 38(2) implies a condition having the effect native title parties are to be entitled to payments not worked out by reference to the subject matters referred to in ss 33 and 38(2) is within the power to impose conditions under s 38(1)(c) (at 203-204); and
there is nothing in s 38(1)(c) which expressly limits the nature of conditions that the Tribunal may impose other than s 38(2) and the subject matter of the conditions appear to be shaped by the broad purpose there is a determination of the act and by the requirement of s 39 that in making its determination the arbitral body must take into account the criteria there listed (at 213).
The Federal Court also expressly acknowledged that there were other limitations on the power to impose conditions. First, Evans (at 207-214) is authority for the proposition that a condition which does not resolve all the issues between the parties and finally determine the matter is not permissible. The conditions, the subject of the appeal in Evans had provided for a further period of negotiation between the parties in certain circumstances. The Federal Court also noted that conditions that required parties to submit to a further arbitration to determine the conditions upon which mining would proceed would be impermissible (at 207-210).
Second, the Federal Court clarified the Tribunal’s power to impose conditions relating to compensation for the effect of a future act on native title rights and interests. In this respect Evans (at 196-205) says that the Tribunal has no power to determine any compensation pursuant to Division 5 (of Part 2) of the Act as a condition of a determination. Compensation under Division 5 is an entitlement on just terms to compensation to the native title holders for any loss, diminution, impairment or other effect of the future act on their native title rights and interests (s 51(1)), and in the case of a compulsory acquisition of native title rights and interests regard may be had to any principles or criteria for determining compensation set out in the law under which the compulsory acquisition takes place (s 51(2)). Such a determination can only be made by the Federal Court following a determination of native title. What the Tribunal has the statutory power to do is to impose a condition for a bank guarantee (s 41(3)) or a trust amount (s 41(5)) on account of a future determination of compensation. (Note: following the 2009 amendments to the Act both options are available.) If such a determination is made the bank guarantee or trust amount monies are dealt with in the way specified in either s 52 (bank guarantee) or s 52A (trust amount) of the Act including that the amount can be paid to the native title party in settlement of any claim for compensation if the relevant parties agree (ss 52(2), 52A(1)(c)).
In the Federal Court’s words (Evans at 205):
‘... Section 38(1)(c) is properly to be understood as giving the Tribunal the power to impose a condition requiring the determination of compensation otherwise than in accordance with the procedure and criteria in Division 5. Such compensation is to be held in trust in accordance with s 41(3) until it is paid in accordance with s 52.’
Since Evans the Tribunal has consistently (and without any Court challenge) said that if a payment proposed to be made to a native title party, is properly characterised as compensation then any condition relating to it will need to be a bank guarantee or trust condition (see for instance Western Australia v Evans [1999] NNTTA 231; (1999) 165 FLR 354 (at 364-373)).
Payments which are not in the nature of compensation and which do not offend s 38(2) may be directed to be paid by way of a condition under s 38(1)(c). Payment to a native title party for the conduct of a heritage survey would be permissible for instance.
In cases where the Tribunal has made a determination by consent ‘subject to’ or ‘pursuant to’ an agreement; the Tribunal has been of the view (supported by the Government party) that such a condition probably makes the terms of the agreement conditions of the determination. In these circumstances the Tribunal has required production of the agreement to assure itself that there are no terms of the agreement which the Tribunal is not empowered to impose as conditions. Sometimes the parties have agreed to a bare determination (i.e. without any conditions) on the basis that the agreement is binding as between the parties and making its terms conditions of the determination does not in a practical sense add anything to the validity or enforceability of the agreement. Section 41(1) of the Act provides that any conditions of a determination have effect as if the conditions were terms of a contract among the negotiation parties (Enmic at [14]).
In the present matter I have perused the Ancillary Agreement and consider that there are no terms in it which are beyond the Tribunal’s power to impose as conditions and am satisfied that the determination proposed by the original minute and reaffirmed in the revised minute is appropriate (i.e. a determination ‘subject to’ the agreement).
With respect to the State Deed the situation is less clear. It includes provisions for the Government party to create certain reserves ‘For the Use and Benefit of Aboriginal People’ and in respect of some of this land to grant in perpetuity or fee simple Crown land pursuant to the Land Administration Act 1997 (WA) to an approved body corporate once it has been established under that Act by the native title party. (Clause 3.2(a)). Clause 4 provides that any compensation entitlement under Clause 3.2, any ancillary agreement or otherwise will be taken into account in determining and offset against any compensation claim.
Because of concern about whether the benefits provided for could be characterised as compensation the parties agreed to reconsider the terms of the determination which was revised by the Government party as follows.
‘3.The Government Party, the Native Title Party and the Grantee Party consent to a determination under s.38 of the Native Title Act 1993 that the ‘act’, being the compulsory acquisition of native title rights and interests, and subsequent grant of interests to the Grantee Party, may be done:
(a) Subject to the terms and conditions contained in the Ancillary Agreement agreed between the Native Title Party and the Grantee Party on 22 April 2009, attached to this Minute.
(b) On the condition that the Native Title Party, the Grantee Party and the Government Party are bound by the Deed for Compulsory Acquisition of any Native Title Rights and Interests between the Government Party, the Native Title Party and the Grantee Party dated 22 April 2009, attached to this Minute, as if it had been executed by all parties, on and from the date of the consent determination.’
All parties indicated their consent to a determination in these terms at the hearing on 21 August 2009.
In Enmic the Tribunal was initially asked to make a determination in similar terms to that now proposed which would have been impermissible if the formulation used had the effect of making the terms of the agreement a condition of the determination. The Ancillary Agreement in that matter between the native title party and grantee party provided for payment of compensation based on the amount of mining resource produced which is clearly an impermissible condition. As a consequence of the concerns expressed by the Government party and the Tribunal the parties filed an amended minute executed by each of them in which they agreed to be bound by the relevant agreement despite it not having been executed by all the named registered claimants and agreed to a determination that the act may be done without conditions. The Tribunal noted this agreement in its reasons and then made a bare determination that the act may be done (i.e. without conditions) (Enmic [13], [17]-[21]).
The Tribunal has made a number of consent determinations of a similar kind to that now sought by the parties with the consent of all parties.
Subject to a condition that the grantee party execute and be bound by the agreement (Monkey Mia; Cable Sands (WA) Pty Ltd/Mr Benjamin Nannup and Others (South West Boojarah People)/Western Australia, NNTT WF02/3, [2002] NNTTA 84 (7 May 2002), Hon C J Sumner).
Subject to a condition that upon:
(i)delivery to the Grantee Party of the counterpart of the Land Use Agreement partially executed by the Ballardong Native Title Party; and
(ii)the undertakings of the Ballardong and Central West Goldfields Native Title Parties to be bound by the Land Use Agreement upon its execution by the Grantee Party (despite it not having been executed by Mr Robin Yarran),
the Grantee Party execute and be bound by the Land Use Agreement (Portman Iron Ore Limited/Alan Jones and Others on behalf of Ballardong People and Carlene Sceghi and Others on behalf of Central West Goldfields People/Western Australia, NNTT WF02/16, [2002] NNTTA 134 (8 July 2002), Hon C J Sumner).
Subject to the following conditions to be complied with by the Grantee Party and Njamal Native Title Party:
(a)The Njamal Native Title Party (subject to condition (b)) is bound by the Yarrie Continued Operations and Infrastructure Works Agreement (Njamal Yarrie Agreement) as if it had been executed by all parties (including by Johnson Taylor, Barry Taylor and Eddie McPhee) on and from the date of the consent determination and any reference in the Njamal Yarrie Agreement to the date of the execution of the agreement by all parties or to the “Commencement Date” are to be read as if they were a reference to the date of the consent determination.
(b)The Grantee Party (subject to condition (a)) is bound by the Njamal Yarrie Agreement as if it had been executed by all parties (including by Johnson Taylor, Barry Taylor and Eddie McPhee) on the date of the consent determination and any reference in the Njamal Yarrie Agreement to the date of the execution of the agreement by all parties or to the “Commencement Date” are to be read as if they were a reference to the date of the consent determination.
(c)The Njamal Native Title Party must use its best endeavours to procure the full execution of the Njamal Yarrie Agreement by the Njamal Native Title Party as soon as possible after the date of the consent determination.
(d)The Grantee Party must execute the Njamal Yarrie Agreement upon satisfaction of condition (c) (BHP Billiton Minerals Pty Ltd, ITOCHU Minerals & Energy of Australia Pty Ltd and Mistui Iron Ore Corporation Pty Ltd/Angus Abdullah and Others on behalf of Njamal, Ginger Bob on behalf of Birrimaya/Western Australia, NNTT WF05/2, [2005] NNTTA 40 (7 June 2005), Hon C J Sumner).
In each of these cases the Tribunal considered that a condition that the parties execute and/or be bound by the terms of an agreement did not make the terms of the agreement conditions of the determination. The submissions of Mr Pudovskis in the present matter are to the same effect despite the reservations expressed previously by the Government party in Enmic.
On a reconsideration of the views expressed in Enmic and taking account of the submissions from the parties in the present matter (and particularly from the Government party which has an interest on behalf of the community in ensuring that any future act is valid) I am now satisfied that there is a distinction between a determination made ‘subject to’ or ‘pursuant to’ an agreement and one made on condition that the parties are bound by it. While there may be some question about whether such a condition is strictly necessary where there is evidence that an agreement has been entered into (even if not actually executed by all the named claimants) I am satisfied that a conditional determination of the kind sought in the revised minute is not beyond power.
Given the parties’ agreement and the Tribunal’s acceptance that a determination in terms of the revised minute can be made there is no need to consider the Government party’s submission that the nature of the consideration in the State Deed, referred to above, did not constitute compensation under the NTA and hence was not an impermissible condition if the determination was made subject to it. Suffice it to observe that if the Tribunal is correct in its interpretation of the effect of Evans and parties seek a determination by consent ‘subject to’ or ‘pursuant to’ an agreement which involves the payment of monies to or conferring of other benefits such as the transfer of land to a native title party, the Tribunal will need to be satisfied that such payment or benefits do not amount to compensation under the NTA.
Summary
In summary, when the Tribunal is requested to make a future act determination by consent the following applies.
There is no impediment to a bare determination being made even though the agreement between the relevant parties may contain terms which could not be imposed as a condition of a determination (e.g. for payments of the kind referred to in s 33 and prohibited by s 38(2)). In such a case there is no need for the Tribunal to see the unexecuted or incompletely executed agreement. Parties may be content to resolve the application in this way and no question about the validity of the determination and conditions arises.
If the request of the parties is for a consent determination to be made ‘subject to’ or ‘pursuant to’ an unexecuted or incompletely executed agreement it is likely that the terms of the agreement will become conditions of the determination. Before such a determination can be made, the Tribunal will need to see the agreement and satisfy itself that it contains no terms which the Tribunal could not impose as conditions.
If the parties make a request for a determination that the parties be bound by an unexecuted or incompletely executed agreement or in similar terms to the consent determinations referred to above in para [31], the Tribunal will not regard this as incorporating the terms of the agreement as conditions of the determination. The Tribunal will not need to see the agreement and given the wide powers to make a determination subject to conditions explained in Evans will consider it appropriate to make a determination. In proposing a determination in these terms the parties would need to consider whether it satisfies their respective requirements.
It is also open to the parties to propose a bare determination but advise the Tribunal and have it recorded as a matter of evidence in the reasons for the determination that the parties agree to the terms of the relevant agreement despite any deficiencies in the manner and by whom it may have been executed.
As already stated, where a consent determination is requested, the Tribunal must be satisfied that the native title party (i.e. the applicant for native title and registered native title claimant, but not necessarily each named person) has consented to the determination.
Determination
By consent the determination of the Tribunal under s 38 of the Native Title Act 1993 is that the 'act', being the compulsory acquisition of native title rights and interests, and subsequent grant of interests to the grantee party, may be done:
Subject to the terms and conditions contained in the Ancillary Agreement agreed between the native title party and the grantee party on 22 April 2009.
On the condition that the native title party, the grantee party and the Government party are bound by the Deed for Compulsory Acquisition of any Native Title Rights and Interests between the Government party, the native title party and the grantee party dated 22 April 2009, as if it had been executed by all parties, on and from the date of the consent determination.
Hon C J Sumner
Deputy President
22 December 2009
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