State of Western Australia/ Allan Bolton and Others on behalf of Southern Noongar/ Glen Colbung and Others on behalf of Wagyl Kaip/Graham Ayres - [2007] NNTTA 12

NATIONAL NATIVE TITLE TRIBUNAL

State of Western Australia/ Allan Bolton and Others on behalf of Southern Noongar/ Glen Colbung and Others on behalf of Wagyl Kaip/Graham Ayres, [2007] NNTTA 12 (2 February 2007)

Application No: WF06/67

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

The State of Western Australia (applicant and Government party)

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Allan Bolton and Others on behalf of Southern Noongar (WC96/109) (Southern Noongar native title party)

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Glen Colbung and Others on behalf of Wagyl Kaip (WC98/70) (Wagyl Kaip native title party)

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Graham George Parker Ayres (grantee party)

FUTURE ACT DETERMINATION

Tribunal: Daniel O’Dea

Place: Perth
Date: 2 February 2007

Catchwords: Native title — future act — native title — future act — application for determination for the compulsory acquisition of native title rights and interest for the purpose of sale to the grantee party — consent determination that the act may be done.

Legislation:Native Title Act 1993 (Cth), ss 29, 35, 38, 39, 109, 203B(4), 203BB(1)(b), 203BC(1)(a), 203BC(1)(b), 203BC(2).

Cases:James Dimer on behalf of Esperance Nyungar People (WC96/64)/Paul Winston Askins /James Ian Stewart/Western Australia 2006, NNTT WF05/14 [2006] NNTTA 70 (8 June 2006) Member O’Dea
Bradley Foster & Ors (Waanyi People QC99/23)/Copper Strike/QLD 2006, NNTT QF06/1 and QF06/2 [2006] NNTTA 61 (19 May 2006) Member Sosso
Galaxy Resources Ltd/ Allan Bolton and Others on behalf of Southern Noongar/ Alan Bolton and Others on behalf of Wagyl Kaip/ State of Western Australia, NNTT WF06/23, [2006] NNTTA 84 (6 July 2006) Member O’Dea
Gary Dimer and Others on behalf of the Widji People/Elizabeth Sambo, Dennis Sambo, Carlene Sceghi, Linda Champion and Nancy Wilson/Anne Joyce Nudding and Marjorie May Strickland on behalf of the Maduwongga People/Western Australia/Charles Joseph Boyes, NNTT WF03/16 and WF03/17 [2003] NNTTA 117 (18 November 2003) Hon CJ Sumner
Monkey Mia Dolphin Resort Pty Ltd v Western Australia [2001] NNTTA 50; (2001) 164 FLR 361

Hearing dates: 21 August 2006, 22 September 2006, 21 December 2006, 29 January 2007

Representatives of the

native title parties: Ettienne Van Tonder and Stefan Le Roux, South West Aboriginal Land and Sea council

Representative of the
grantee party: Graham Ayres

Representative of the

Government party: Lorraine Rushton, Laurie Lehmann-Bybyk and Kate Morton, Department for Planning and Infrastructure;
Domhnall McCloskey, State Solicitor’s Office

REASONS FOR FUTURE ACT DETERMINATION

Background

On 27 December 2000, the Government party gave notice under s 29 of the Native Title Act 1993 (Cth) (‘the Act’) of a future act namely the compulsory acquisition of all registered and unregistered interests (including any native title rights and interests) in Plantagenet Location 7565 (being unallocated Crown land Vol 3112, Folio 52) under the Land Administration Act 1997 (WA) to for the proposes of sale to Graham George Parker Ayres (‘the grantee party’). Mr Ayres is the owner of an adjoining parcel of land (Plantagenet Location 1962) and it is proposed that Plantagenet Location 7565 will be amalgamated with this existing holding.
The native title parties in respect of these proceedings are:

Aden Eades, Allan Bolton, Dallas Coyne, Glen Colbung, Joyce Winsley and Rita Dempster on behalf of Southern Noongar (WC96/109); and
Alan Bolton, Glen Colbung, Hazel Brown, Ken Colbung, Kevin Miller, Mingli Wanjurri-Nungala, Rita Dempster, Rose Pickett and Sam Miller on behalf of Wagyl Kaip (WC98/70)

On 31 July 2006, 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.
In the application the Government party stated that the parties had not been able to reach agreement and requested that the Tribunal make a determination. It asserted that the Tribunal was empowered to do so as more than six months had elapsed since the s 29 notice was issued and it had negotiated in good faith with both native title parties. The Government party subsequently advised that agreement had in fact been reached with the Wagyl Kaip native title party, and there existed a partially executed State Deed. The Tribunal was further advised by Ettienne Van Tonder, the native title party’s solicitor, that the refusal of one named applicant to sign the State Deed was preventing finalisation of the matter in the usual way and that no instructions had been received from either native title party that authorised their representatives to seek a consent determination.
Mr Van Tonder advised that although he was aware that the partially executed State Deeds existed, South West Aboriginal Land and Sea Council’s records did not reveal that any ancillary agreements had been entered into by the parties nor whether any resolutions had been passed by the claim groups’ working parties relevant to this matter. For these reasons, South West Aboriginal Land and Sea Council (SWALSC) was not in a position at the time to agree to a consent determination in this matter.

The Inquiry

A preliminary conference was convened on 21 August 2006. As copies of the partially executed State Deeds were tendered by the Government party shortly before this hearing, I raised the issue of whether a consent determination might be appropriate in this matter. At the request of the parties, I adjourned this matter to allow the Government and native title parties’ representatives an opportunity to clarify what issues remained outstanding between them and to allow SWALSC an opportunity to clarify its instructions.
On 22 September 2006 I convened the adjourned preliminary conference and as SWALSC had been unable, as a consequence of funding constraints, to clarify its instructions from either of the native title parties, I set directions to facilitate a formal inquiry into this matter. Although mindful of the constraints faced by SWALSC in obtaining instructions, I included in the directions provision for the native title parties to take issue with the assertion of the Government and grantee parties that they had negotiated in good faith. The directions required that contentions and evidence relating to this jurisdictional question be lodged on or before 29 September 2006.
On 3 October 2006, SWALSC wrote to the Tribunal reaffirming that its funding constraints had continued to prevent it taking instructions from either native title party. Given this, it advised that it was not in a position “to make any submissions pertaining to the question whether the Government Party and the Grantee Party did indeed negotiate in good faith.” However, it was unclear to the Tribunal whether this issue might be taken up by either native title party if the funding constraints were alleviated or indeed whether this communication amounted to an implied request to extend the period for the raising of the issue of good faith beyond 29 September. The directions remained unaltered.
On 1 November 2006 the Government party requested that the directions be amended to allow both it and the grantee party (who was subject to the same compliance date of 3 November 2006) further time in which to lodge submissions addressing the criteria set out in s 39 of the Act. In response, SWALSC again advised that it had no instructions and, therefore, could offer no comment in relation to the Government party’s request. SWALSC also indicated that it intended to seek instructions from the Wagyl Kaip native title party on the ‘good faith’ issue at a Working Party Meeting then scheduled for 16 November 2006, not withstanding that the original date for submissions from either native title party on this issue had passed. The grantee party advised that he had no objection to the Government party’s proposal and sought to be excused from making submissions on the grounds that he intended to rely on those lodged by the Government party.
As there was no objection to the Government party’s request, I amended directions allowing the Government party until 17 November 2006 to lodge its contentions and evidence. I also noted the grantee party’s stated intent to rely on those submissions.
On 5 December 2006, the Tribunal received correspondence from SWALSC advising that the SWALSC Region 4 Working Party (which involves both native title parties) meeting had occurred as planned. SWALSC advised that during this meeting, the Wagyl Kaip and Southern Noongar native title parties resolved to agree to the compulsory acquisition of Plantagenet Location 7565 and instructed SWALSC “not to take issue with the question whether “negotiations in good faith” did occur.” SWALSC concluded by stating it had been instructed not to lodge any contentions or evidence in relation to this matter.
As it now appeared that the native title parties might be willing to proceed with this matter as a consent determination, I convened a further hearing on 21 December 2006 to again explore this issue. SWALSC again advised that its instructions were limited and was prepared to say only that neither native title party would object to the proposed compulsory acquisition. However, SWALSC expressed confidence that it could provide affidavit evidence setting out the particulars of the native title parties’ consent and clarifying whether any conditions might be sought if the Tribunal were to make a determination pursuant to that consent.
Given there remained unresolved issues relating to both native title parties, I set further directions requiring; interalia,
1.    On or before 5 January 2007 the native title party is to provide to the Tribunal and each of the other parties an affidavit of consent.
2.    In the alternative, on or before 5 January 2007 each native title party is to provide to the Tribunal, the Government party and the grantee party:
(a)a statement of the effect (if any) of the proposed compulsory acquisition upon the following matters (referred to in section 39(1)(a) of the Native Title Act 1993):
(i)     the enjoyment by the native title party of their registered native title rights and interests;
(ii)     the way of life, culture and traditions of the native title party;
(iii)    the development of the social, cultural and economic structures of the native title party;
(iv)    the freedom of access by the native title party to the land or waters concerned and their freedom to carry out rites, ceremonies or other activities of cultural significance conducted 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 party in accordance with their traditions.
(b)a statement of the interests, proposals, opinions or wishes of the native title party in relation to the management, use or control of the land or waters in relation to which there are registered native title rights and interests of the native title party that will be affected;
(c)a statement of whether the native title party contends that any of the matters referred to in section 39(1)(c) to (f) are relevant to the inquiry and, if so, an outline of the native title party’s contentions in relation to each of those matters;
(d)contentions on whether the Tribunal should impose a condition for an amount to be paid into trust on account of a future determination of compensation;
(e)a statement of the evidence to be given by any witness for the native title party, verified where possible by affidavit, and the details of where the party proposes that the evidence be heard if the matter is not to be heard on the papers;
(f)a list of the documentary evidence intended to be produced in relation to the matters referred to in paragraphs (a) to (d) above (with copies of documents being made available to the Tribunal) - where practicable copies of documents should be made available to the other parties; and
(g)where there is an issue relating to the confidentiality of documents or evidence and whether evidence will need to be given in restricted circumstances, a statement of the nature of the documents and evidence and the proposed arrangements for the hearing of the evidence.
5. A listing hearing will be held on 29 January 2007. At the listing hearing the parties should be prepared to report on:
(a)any agreements relating to the issues before the inquiry, the facts and documents to be relied on;
(b)procedures for its conduct, including the need for confidentiality, interpreters, or any other special arrangements; and
(c)an agreed list of exhibits to be tendered at the inquiry.
6. The hearing is listed for the week commencing 5 February 2007.
7. Liberty is given to apply to vary these directions or for a re-listing of this hearing.
Pursuant to these directions, on 28 December 2006 an affidavit affirmed by Mr Simon Blackshield, Principal Legal Officer of the SWALSC was tendered to the Tribunal. In this affidavit, Mr Blackshield deposed as follows:
‘On 22 December 2006 I, Simon Blackshield, c/- the South West Aboriginal Land and Sea Council Aboriginal Corporation (‘SWALSC’), 1490 Albany Highway Cannington in the State of Western Australia, Solicitor, do solemnly affirm:
1.   I am the Principal Legal Officer of the South West Aboriginal Land and Sea Council, and am the solicitor for the native title parties in this matter.
2.   On 16 November 2006 SWALSC’s Region 4 Working Party (which covers an area which includes the area which is the subject of this future act application) resolved not to oppose the Compulsory Acquisition of native title rights and interests in the subject area known as Plantagenet Location 7565.
3.   As of today’s date, three of the registered claimants for the Southern Noongar application WC96/109 and five of the registered claimants for the Wagyl Kaip application WC98/17 had executed a deed of consent to the compulsory acquisition. To the best of my knowledge and belief, none of the registered claimants for either application except for Mr Kevin Miller have voiced any opposition to the compulsory acquisition.
4.   On the basis of the above, I am satisfied that the Future Act Determination Application filed by Alannah McTiernan, Minister for Planning and Infrastructure, for and on behalf of the State of Western Australia with the National Native Title Tribunal under WF06/67, is not opposed by either of the native title parties.
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).
Whilst the affidavit of Mr Blackshield was unequivocal about the position of the Southern Noongar native title party, paragraph 3 of the affidavit could be construed as suggesting Mr Kevin Miller, a Wagyl Kaip named applicant, actively opposed a consent determination in this particular matter. The Tribunal has previously found that no decision-making process adopted by the claim group as a whole can override the authority conferred on the named applicants (see para [17], Galaxy Resources Ltd/ Allan Bolton and Others on behalf of Southern Noongar/ Alan Bolton and Others on behalf of Wagyl Kaip/ State of Western Australia, NNTT WF06/23, [2006] NNTTA 84 (6 July 2006) Member O’Dea). However, a consent determination may be appropriate notwithstanding that there may be some dissent in the applicant group where the claim group as a whole (including the majority of the applicant group) have agreed to the doing of the act and determination in the terms proposed. There is a difference between the refusal of an applicant to agree to a determination because of specific concerns relating to the impact of the act or the conditions under which it is proposed to be allowed and a general dissent related to collateral issues associated with the claim generally. (See for example Gary Dimer and Others on behalf of the Widji People/Elizabeth Sambo, Dennis Sambo, Carlene Sceghi, Linda Champion and Nancy Wilson/Anne Joyce Nudding and Marjorie May Strickland on behalf of the Maduwongga People/Western Australia/Charles Joseph Boyes, NNTT WF03/16 and WF03/17 [2003] NNTTA 117 (18 November 2003) Hon CJ Sumner; Bradley Foster & Ors (Waanyi People QC99/23)/Copper Strike/QLD 2006, NNTT QF06/1 and QF06/2 [2006] NNTTA 61 (19 May 2006) Member Sosso; and James Dimer on behalf of Esperance Nyungar People (WC96/64)/Paul Winston Askins /James Ian Stewart/Western Australia 2006, NNTT WF05/14 [2006] NNTTA 70 (8 June 2006) Member O’Dea).
In order to clarify whether Mr Miller did indeed actively oppose the compulsory land acquisition, I convened a further hearing on 29 January 2007. During that hearing, Mr Stefan Le Roux, solicitor employed by SWALSC, confirmed that, to the best of his knowledge, information and belief, Mr Miller did not oppose this compulsory land acquisition, but rather routinely refused to execute any agreements entered into by the Wagyl Kaip native title party. The Government party’s representative submitted that I should accept the assertion of the native title party. The reasons for Mr Miller’s refusal have been canvassed by the Tribunal previously in Galaxy Resources Ltd/ Allan Bolton and Others on behalf of Southern Noongar/ Alan Bolton and Others on behalf of Wagyl Kaip/ State of Western Australia, NNTT WF06/23, [2006] NNTTA 84 (6 July 2006) (Member O’Dea) para [14], and I adopt those findings for the purposes of this inquiry.

Findings

As the designated representative body under the Act, SWALSC 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 Tribunal is to carry out its functions in an informal and prompt way (s 109(1)) and is not bound by technicalities, legal forms or rules of evidence (s 109(3)). Unless there is anything to suggest the contrary the Tribunal is entitled to accept as evidence the advice of legal representatives engaged by a representative body on whether the appropriate consent has been given by a native title party. Accordingly, I accept Mr Le Roux’s clarification of Mr Miller’s position and am satisfied as to the consent of both native title parties to the doing of the act and the issuance of a consent determination by the Tribunal.

Determination

By consent the determination of the Tribunal is that the act, namely the compulsory acquisition of native title rights and interests in Plantagenet Location 7565 and sale of that land to Graham George Parker Ayres may be done.

Daniel O'Dea
Member

2 February 2007