State of Western Australia/Cyril Gordon & Others on behalf of the Kariyarra People/Pilbara Livestock Depot
[2010] NNTTA 152
•23 September 2010
NATIONAL NATIVE TITLE TRIBUNAL
State of Western Australia/Cyril Gordon & Others on behalf of the Kariyarra People/Pilbara Livestock Depot, [2010] NNTTA 152 (23 September 2010)
Application No: WF09/32
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
The State of Western Australia (Applicant/Government party)
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Cyril Gordon & Others on behalf of the Kariyarra People (WC99/3) (native title party)
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Christopher Murray Paterson and Carey Rae Paterson trading as Pilbara Livestock Depot (grantee party)
FUTURE ACT DETERMINATION
Tribunal: Hon C J Sumner, Deputy President
Place: Perth
Date: 23 September 2010
Catchwords: Native title – future act – application for determination in relation to compulsory acquisition of native title rights and interests – jurisdictional issues – whether conflict with the Racial Discrimination Act 1975 (Cth) – notice under the Land Administration Act1997 (WA) expired – whether purpose of compulsory acquisition misstated in the notice – whether there is a valid proposal to do a future act – procedures under the Land Administration Act1997 (WA) and Native Title Act1993 (Cth) are separate procedures – valid notice under the Land Administration Act1997 (WA) not a prerequisite to notice under s 29 of the Native Title Act – s 29 notice valid – s 24MD(2) of the Native Title Act does not apply to the future act – s 24MD(3) of the Native Title Act and non-extinguishment principle applicable – decision that grantee party negotiated in good faith reconsidered and affirmed – limited effect on enjoyment of registered native title rights and interests – no effect on sites of particular significance – existing non-native title rights and interests held by grantee party – determination that the act may be done.
Legislation:Native Title Act1993 (Cth), ss 7, 23, 24MA-24MD, 24GA(a), 25-44, 75, 146(b), 148(a), 150, 151, 238, 251C(1)
Land Administration Act 1997 (WA), ss 122, 155, 165, 170, 171, 175
Racial Discrimination Act 1975 (Cth)
Mining Act 1978 (WA), ss 95, 96
Aboriginal Heritage Act 1972 (WA)
Cases:Australian Manganese Pty Ltd/Western Australia/David Stock and Others on behalf of the Nyiyaparli People, NNTT WF09/30, [2010] NNTTA 101 (16 July 2010), Hon C J Sumner
Dann and Others (Amangu People) v Western Australia and Another [2006] NNTTA 126; (2006) 208 FLR 357
Evans v Western Australia [1997] 741 FCA; (1997) 77 FCR 193
FMG Pilbara Pty Ltd vCox and Others [2009] FCAFC 49; (2009) 175 FCR 141; (2009) 255 ALR 229
Griffiths v Minister for Lands, Planning & Environment [2008] HCA 20; (2008) 235 CLR 232
Gulliver Productions Ply Ltd & Ors v Western Desert Lands Aboriginal Corporation & Ors [2005] NNTTA 88; (2005) 196 FLR 52
Jabiru Metals Ltd/State of Victoria/Sandra Middleton Patten, Olive Tregonning, Albert Mullett and Graham John (Bootsie) Thorpe on behalf of the Gunai/Kurnai People, NNTT VF10/1, [2010] NNTTA 138 (30 August 2010), Hon C J Sumner
Maitland Parker and Others on behalf of Martu Idja Banyjima/Western Australia/Derek Noel Ammon, NNTT WO05/753, [2006] NNTTA 65 (2 June 2006), Hon C J Sumner
Minister for Lands, Planning & Environment v Griffiths & Ors [2004] NTCA 5; (2004) 14 NTLR 188
Minister for Lands, State of Western Australia/Marjorie May Strickland and Others, NNTT WF97/4, [1998] NNTTA 2 (20 February 1998), Hon C J Sumner
Minister for Mines (WA) v Evans [1998] NNTTA 5; (1998) 163 FLR 274
Moore & Ors v Mungeranie & Ors [2005] NNTTA 55; (2005) 193 FLR 62
Parker on behalf of the Martu Idja Banyjima People v State of Western Australia [2007] FCA 1027
Parker v State of Western Australia [2008] FCAFC 23; (2008) 167 FCR 340
Re Koara People [1996] NNTTA 31; (1996) 132 FLR 73
Townson Holdings Pty Ltd and Joseph Frank Anania/Ron Harrington-Smith & Ors on behalf of the Wongatha People; June Ashwin & Ors on behalf of the Wutha People/Western Australia, NNTT WF03/2, [2003] NNTTA 82 (9 July 2003), Hon C J Sumner
Western Australia vDimer [2000] NNTTA 290; (2000) 163 FLR 426
Western Australia & Anor v Hayes & Ors [2001] NNTTA 41; (2001) 163 FLR 384
Western Australia v Taylor [1996] NNTTA 34; (1996) 134 FLR 211
Western Australia v Thomas [1996] NNTTA 30; (1996) 133 FLR 124
Western Australia/Cyril Gordon & Others on behalf of the Kariyarra People/Pilbara Livestock Depot, NNTT WF09/32, [2010] NNTTA 55 (19 April 2010), Hon C J Sumner
Western Desert Lands Aboriginal Corporation v State of Western Australia and Others [2008] NNTTA 22; (2008) 218 FLR 362
WMC Resources v Evans [1999] NNTTA 372; (1999) 163 FLR 333
Solicitor for the
Government party: Mr Trevor Creewel, State Solicitor’s Office
Representatives of the Ms Lorraine Rushton and Mr Nick Fabriziani,
Government party: Department of Regional Development and Lands
Solicitors for the Mr Rainer Mathews and Mr Colin McKeller,
native title party: Yamatji Marlpa Aboriginal Corporation
Representative of the Ms Maimbo Chilala,
native title party: Yamatji Marlpa Aboriginal Corporation
Representatives of the Mr Christopher Paterson and Ms Carey Paterson,
grantee party: Pilbara Livestock Depot
REASONS FOR FUTURE ACT DETERMINATION
Introduction
On 22 November 2006, 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) (LAA) 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) in certain land (the Land). The purpose of the proposed compulsory acquisition is to enable the issuing of a Lease for the purpose of “Stock Holding Yards” over the Land to Christopher Murray Paterson and Carey Rae Paterson trading as Pilbara Livestock Depot (PLD/the grantee party).
The Land is situated in the Town of Port Hedland (but not within a town or city as defined in s 251C(1) of the Act) and is described as Whole Lot 3003 on Deposited Plan 46738, being part of Pastoral Lease 3114/618 (Boodarie Station), Volume 3128 Folio 641 (Area – 142.4106 hectares).
The native title party in respect of these proceedings is Cyril Gordon, Donny Wilson, Kerry Robinson and Teddy Roberts on behalf of the Kariyarra People (Native Title Claim No. WC99/3 – registered from 22 April 1999). The Kariyarra People’s native title claim entirely overlaps the proposed compulsory acquisition area.
The taking of the Land pursuant to s 165 of the LAA 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 (Part 2, Division 3, Subdivision P, ss 25-44). 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).
On 24 December 2009, being a date more than six months after the s 29 notice was given, the Government party made an application pursuant to ss 35 and 75 of the Act for a future act determination under s 38. The application was made on the basis that the Government party and the native title party have not reached agreement as to the doing of the act.
The native title party’s challenge to the Tribunal’s jurisdiction (or power) to conduct an inquiry and make a determination on the basis that the grantee party had not negotiated in good faith (ss 31(1)(b), 36(2)) was rejected and reasons handed down on 19 April 2010 (Western Australia/Cyril Gordon & Others on behalf of the Kariyarra People/Pilbara Livestock Depot, NNTT WF09/32, [2010] NNTTA 55) (good faith decision). The native title party’s attempt to re-open this issue was rejected for the reasons given below.
On 20 January 2010 I directed pursuant to s 150 of the Act that conferences be held to attempt to resolve matters relating to the inquiry. Separate conferences were convened by a member of the Tribunal however no agreement of the kind mentioned in s 31(1)(b) of the Act could be reached and the s 150 assistance was terminated on 16 March 2010.
Following amendments to the original directions for the substantive inquiry, parties lodged contentions and submissions as outlined below:
Native title party submissions
·Native title party’s Submissions (NTPS) and supporting documents NTP1 to NTP8, and affidavit of Ms Diana Robinson, lodged 6 May 2010.
·Native title party’s further Submissions in response to Government party and grantee party’s submissions (NTPS2) and further Submissions in regards to the jurisdiction of the Tribunal (NTPS3), lodged 9 July 2010.
·Native title party’s further Submissions (NTPS4) pursuant to directions made at the Listing Hearing on 20 July 2010, lodged 30 July 2010.
Government party submissions
·Government party’s Statement of Contentions (GVPSC) and supporting documents GVP1 to GVP3, lodged 6 April 2010.
·Government party’s further Statement of Contentions (GVPSC2), lodged 18 June 2010.
·Government party’s further Statement of Contentions (GVPSC3) pursuant to directions made at the Listing Hearing on 20 July 2010, lodged 30 July 2010.
·Government party’s further Statement of Contentions (GVPSC4), lodged 6 August 2010.
Grantee party submissions
·Grantee party advised on 7 April 2010 that they would be relying on the Government party’s submissions for the purpose of the inquiry.
·Grantee party’s submissions (GPS) in response to NTPS, lodged 21 June 2010.
·Grantee party’s further submissions (GPS2) in response to NTPS3, lodged 16 July 2010.
The Tribunal has also had regard where relevant to evidence provided for the purpose of the good faith hearing. All parties agreed that the matter could be determined on the papers without the need for a hearing (s 151(2)(b)) and I am satisfied the matter can be adequately determined in this way.
Evidence in relation to the proposed future act
The Land is located on the Great Northern Highway, approximately 15 kilometres south of Port Hedland. Underlying tenure of the Land is pastoral lease (Boodarie Station), held by BHP Direct Reduced Iron Pty Ltd since 1995. The Land is also completely overlapped by miscellaneous licence L45/158 held by Fortescue Metals Group Ltd under the Mining Act1978 (WA).
The Government party says that the purpose of the acquisition is to permit PLD, as it has done since 2000, to continue to use the Land for the purpose of stock holding yards, which is currently carried out pursuant to a sub-lease from BHP Direct Reduced Iron Pty Ltd to PLD. The sub-lease provides that the lessee will use the premises ‘for the purposes of livestock holding and agistment only’. Relevant Government party approvals were obtained for the sub-lease including from the WA Pastoral Board. In the good faith challenge the native title party argued that the sub-lease was not valid because it did not fall within the definition of pastoral purposes and no application was made under Part 7, Division 5 (s 122) of the LAA for a permit for non-pastoral use of enclosed or improved land. Further, the native title party said the sub-lease was a future act under the NTA which was invalid because it did not comply with s 24GA(a) of the Act which permits the doing of a future act involving primary production activity over a non-exclusive pastoral lease.
These submissions were not pursued in the substantive hearing but in any event it is not the role of the Tribunal in these proceedings to adjudicate on these matters. On the face of it the sub-lease is valid and the Tribunal has proceeded on this basis. The Tribunal has made its determination on the basis that there are non-native title rights and interests in the form of a pastoral lease which historically existed over the Land and, since 2000, a valid sub-lease for livestock holding and agistment purposes to PLD.
Although the evidence from the grantee party is not entirely consistent on this point I am satisfied that the total number of cattle held at any one time is up to approximately 4500, and the work is said to be seasonal so does not operate throughout the year. Infrastructure on a relatively small part of the total area of the Land includes a house, a weigh bridge, office, ablution block, general purpose shed and stock holding yards. The balance of the area of the proposed compulsory acquisition is fenced into paddocks which PLD says will be used to allow grazing of stock held prior to shipment.
There are no Aboriginal communities identified within the area of the proposed compulsory acquisition. Tribunal mapping indicates the nearest Aboriginal community as Kaparrkurra, some twelve kilometres north east of the proposed compulsory acquisition. I can infer that there will be a considerable number of Aboriginal people living in Port Hedland and surrounding areas, some of whom will be members of the relevant claimant group.
Tribunal mapping reveals there are no sites registered under the Aboriginal Heritage Act1972 (WA) (AHA) overlapping the area of the Land.
Native title party evidence
Native title party submissions included the affidavit of Ms Diana Robinson (DR affidavit), affirmed on 5 May 2010, made in the following terms:
‘I, Diana Robinson, Unit 5, 124 Anderson St, Port Hedland, manager, affirm and declare as follows:
1.I am a Kariyarra woman, Diana Robinson Marapikurrinya. I am a traditional owner of Marapikurrinya and, with my brother Kerry Robinson, I speak for Marapikurrinya country/clan estate. Marapikurrinya country is within the Kariyarra Claim. Marapikurrinya clan estate covers where the Pilbara Livestock Depot (PLD) is situated.
2.Before the PLD was there we would go onto that area and hunt animals and collect plants for food and medicine. Now they put up fences and gates, and keep us out. We still go to the area around the PLD.
3. I am concerned about the loss of our native title over the area of PLD.
4.There are valuable bush medicine plants within the area of PLD, and around it. I collect medicine from this area. I do this when people get sick within our family. Most years I go there to collect medicine about three times.
5.About twice a month I camp at the Turner River (jililingu). When we camp there, my husband or brother hunts goanna, kangaroo, echidna, turkey and occasionally python in the area around PLD. There are lots of places around there where you can dig up frogs (jangkangu).
6.The area around the PLD is some of the closest country where we can still hunt and collect. Most of the area closer has been disturbed by the town and by mining companies, and we can not use it.
7.We negotiated with PLD because we were forced by the Native Title Act. If we don't, we are told we have to negotiate. If it was up to us, none of this development would happen on our country.’
Ms Diana Robinson deposes to be a Kariyarra woman. The record shows that Mr Kerry Robinson, who Ms Robinson attests is her brother, is named as one of the persons comprising the applicant for native title on behalf of Kariyarra. Her evidence is uncontested by the Government and grantee parties. I am satisfied that Ms Robinson has authority to speak on behalf of the native title party for the area of the proposed compulsory acquisition.
Legal principles
I rely on the principles enunciated in the following Tribunal future act determinations:
Re Koara People [1996] NNTTA 31; (1996) 132 FLR 73 (Koara 1);
Evans v Western Australia [1997] 741 FCA; (1997) 77 FCR 193 (Evans). Federal Court, RD Nicholson J – an appeal from the Tribunal determination in Koara 1;
Minister for Mines (WA) v Evans [1998] NNTTA 5; (1998) 163 FLR 274 - Tribunal determination following the successful appeal in Evans;
Western Australia v Thomas [1996] NNTTA 30; (1996) 133 FLR 124 (Waljen); and
WMC Resources v Evans [1999] NNTTA 372; (1999) 163 FLR 333 (WMC/Evans).
Section 38 of the Act sets out the types of determination that can be made and relevantly 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
...
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.’
Section 39 lists the criteria for making such a determination:
‘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 duty in making a determination requires a weighing of the various effects and interests referred to in the s 39 criteria in accordance with the circumstances before it (Waljen at 165-166).
Preliminary issues
The native title party raised a number of preliminary issues which, if upheld, mean the Tribunal should dismiss the future act determination application for want of jurisdiction, power or authority to deal with the application (s 148(a) NTA). The issues are that:
the act would be an invalid future act under the Native Title Act1993 (Cth) because it is contrary to the Racial Discrimination Act1975 (Cth);
the act would be an invalid future act under the Native Title Act1993 (Cth) because the requirements for validity have not been met under that Act in that the requirements of s 24MD(2) have not been complied with and s 24MD(3) is not applicable to the present circumstances;
there is currently no notice of intention to take interests in land to confer interests under written law pursuant to s 170 of the LAA as the notice has expired and in the absence of such a notice there is no proposal to do a future act covered by the right to negotiate provisions; and
the notice as currently formulated is invalid as it misstates the purpose of the compulsory acquisition.
The native title party also sought to re-open the decision that the grantee party had negotiated in good faith on the basis that the grantee party withheld relevant information about its intentions during the negotiations.
The relevant parts of the notice of intention to take (compulsorily acquire) (NOITT) given by the Government party under s 170 of the LAA and s 29 of the NTA on 22 November 2006 are as follows.
NOTICE OF INTENTION
TO TAKE INTERESTS IN LAND TO CONFER INTERESTS UNDER WRITTEN LAW LAND ADMINISTRATION ACT 1997 (WA) SECTION 170
AND TO COMPULSORILY ACQUIRE NATIVE TITLE RIGHTS AND INTERESTS
NATIVE TITLE ACT 1993 (CTH) SECTION 29
I Alannah Joan Geraldine MacTiernan, MLA, Minister for Lands, HEREBY GIVE NOTICE in accordance with Section 170 of the Land Administration Act (LAA) 1997 that it is proposed to take those interests in the land described in the Schedule for the purposes specified.
AND for and on behalf of the State of Western Australia HEREBY GIVE NOTICE in accordance with Section 29 of the Native Title Act 1993 (as amended) (NTA), that any native title rights and interests in the land described in the Schedule are to be compulsorily acquired for the purposes specified.
It is proposed to grant the estates, interests and rights specified in the Schedule in respect of the land described in the Schedule as authorised by Order(s) issued under Section 165 of the LAA.
SCHEDULE
LAND DESCRIPTION: Whole Lot 3003 on Deposited Plan 46738, being part of Pastoral Lease 3114/618 (Boodarie Station) Volume 0000 Folio 000 Area: 142.4106 hectares. PLAN/DIAGRAM: DEPOSITED Plan 46738. LAND SITUATED IN: Town of Port Hedland. NATURE OF INTERESTS TO BE TAKEN: All registered and unregistered Interests (Including any native title rights and Interests) In the land under the heading "Land Description" other than Interests of the Crown. All rights created by the grant of existing mining tenements under the Mining Act are also excluded. PURPOSE OF PROPOSED GRANT FOR WHICH THE LAND IS PROPOSED TO BE DESIGNATED: Stock Holding Yard. PROPOSED DISPOSITION/GRANT: Issuing of a lease for the purpose of "Stock Holding Yards". REASON WHY THE LAND IS SUITABLE FOR, OR IS NEEDED FOR, THE PROPOSED GRANT: Land has been identified as suitable for Stock Holding Yards. DATE FROM WHICH LAND IS LIKELY TO BE REQUIRED: 1 October 2006.
DPI FILE: 50895-2006-02RO DPI REF.:040017
It is common ground that the NOITT under the LAA is no longer current as it only remains current for 12 months from the date that it was given (s 170(7) LAA). It is also common ground that while the interests in the pastoral lease will be acquired there is an existing mining tenement under the Mining Act being miscellaneous licence L45/158 currently held by Fortescue Metals Group Ltd which will not be taken or compulsorily acquired.
The Government party has advised that it remains its intention to do the future act and that it will give a fresh notice of it under the LAA once the processes of the NTA have been concluded and that the future act will be the same as stated in the original notice. This is clear from the following.
The Government party’s original contentions (GVPSC at para 2) describe the proposed future act as follows:
‘The act is the compulsory acquisition of all interests in the whole of Lot 3003 on Deposited Plan 46738, being part of Pastoral Lease 3114/618 (Boodarie Station) Volume 3128 Folio 641 (the "Land"), including any native title rights and interests, for the purpose of enabling the grant of a lease over the Land to Pilbara Livestock Depot ("PLD"; the "Grantee Party"). PLD proposes to use the Land for the purposes of "Stock Holding Yards".’
In GVPSC2 (at para 3) the Government party confirms that this is still the proposed future act.
In GVPSC3 (at paras 36, 37) the Government party says:
‘The intended future act is accurately described in the NOITT. It is the Government party’s intention to compulsorily acquire the native title and other rights in order to issue a lease for the purpose of “Stock Holding Yards” and upon the successful completion of procedures under the NTA and LAA, that will be the Government party’s course of action. The Government party cannot account for the ambitions of the Grantee party, but will expect the Grantee party to comply with the conditions of the lease which will be issued.’
The Government party intends to proceed by way of compulsory acquisition as this is the only method under the NTA by which such a title can be granted to the Grantee party.’
The Tribunal’s determination is made on the basis set out in the NOITT and the Government party’s contention as to the nature and scope of the future act.
It is also common ground that:
the compulsory acquisition passes the freehold test in that it could be done if the native title holders held ordinary title (relevantly freehold title) to the Land (s 24MD NTA).
Subdivision M of Part 2 of Division 3 of the NTA – acts passing the freehold test – applies to the proposed future act (ss 24MA - 24MD NTA).
Subdivision P of Part 2 of Division 3 of the NTA which deals with the right to negotiate also applies to the proposed future act as the compulsory acquisition of native title rights and interests is for the purpose of conferring rights or interests in relation to land on persons other than the Government party and is not for an infrastructure facility (s 26(1)(c)(iii) NTA); and does not relate solely to land wholly within a town or city (s 26(2)(f) NTA).
Invalidity because of conflict with the Racial Discrimination Act1975 (Cth) (RDA)
With respect to any submissions made that the grant will be contrary to the RDA because of the operation of s 7 of the NTA, the Tribunal adopts the findings in Western Desert Lands Aboriginal Corporation v State of Western Australia and Others [2008] NNTTA 22; (2008) 218 FLR 362 (WDLAC) (esp. at [28]-[44]) which deals with the interaction between the NTA and RDA. As is clear from the High Court decisions cited in WDLAC, s 7 of the NTA is only intended to clarify that the RDA applies to the performance of functions and the exercise of powers conferred by or authorised by the NTA and to construe the NTA in the case of ambiguity (s 7(2)). If the right to negotiate provisions of the NTA are followed, the future act will be valid even if it affects native title in a way that conflicts with the RDA.
Invalidity because of a failure to comply with s 24MD NTA
Section 24MD of the NTA (which is found in Subdivision M) relevantly says:
‘24MDTreatment of acts that pass the freehold test
Validation of act
(1)If this Subdivision applies to a future act, then, subject to Subdivision P (which deals with the right to negotiate), the act is valid.
Extinguishment of native title by compulsory acquisition
(2)If:
(a)the act is the compulsory acquisition of the whole or part of any native title rights and interests under a law of the Commonwealth, a State or a Territory that permits both:
(i)the compulsory acquisition by the Commonwealth, the State or the Territory of native title rights and interests; and
(ii)the compulsory acquisition by the Commonwealth, the State or the Territory of non‑native title rights and interests in relation to land or waters; and
(b)the whole, or the equivalent part, of all non‑native title rights and interests, in relation to the land or waters to which the native title rights and interests that are compulsorily acquired relate, is also acquired (whether compulsorily or by surrender, cancellation or resumption or otherwise) in connection with the compulsory acquisition of the native title rights and interests; and
(ba)the practices and procedures adopted in acquiring the native title rights and interests are not such as to cause the native title holders any greater disadvantage than is caused to the holders of non‑native title rights and interests when their rights and interests are acquired;
then:
(c)the compulsory acquisition extinguishes the whole or the part of the native title rights and interests; and
(d)if compensation on just terms is provided under a law of the Commonwealth, a State or a Territory to the native title holders for the compulsory acquisition, and they request that the whole or part of any such compensation should be in a form other than money, the person providing the compensation must:
(i)consider the request; and
(ii)negotiate in good faith in relation to the request; and
(e)if compensation on just terms is not provided under a law of the Commonwealth, a State or Territory to the native title holders for the compulsory acquisition, they are entitled to compensation for the acquisition in accordance with Division 5.
Note 1:Subdivision P (which deals with the right to negotiate) applies to some acquisitions.
Note 2:This subsection only deals with the case where native title rights and interests are compulsorily acquired. It is also possible for native title rights and interests to be acquired voluntarily by means of an indigenous land use agreement or an agreement covered by subsection (2A). In such cases, non‑native title rights and interests could be acquired either compulsorily or by some other means (e.g. voluntarily).
(2A)If:
(a)notice of a proposed compulsory acquisition of native title rights and interests is given in accordance with section 29 or with an equivalent alternative provision applicable under section 43 or 43A; and
(b)an agreement arose out of negotiations in relation to the proposed compulsory acquisition of the native title rights and interests; and
(c)the agreement includes a statement to the effect that an act consisting of the surrender of the whole or part of the native title rights and interests is intended to extinguish the whole or the part of the native title rights and interests;
then:
(d)the surrender extinguishes the whole or the part of the native title rights and interests; and
(e)no native title holder who is entitled to any benefit provided under the agreement is entitled to any compensation for the act under this Act, other than compensation provided for in the agreement; and
(f)any other native title holder is entitled to compensation for the act in accordance with Division 5.
Non‑extinguishment and compensation
(3)In the case of any future act to which this Subdivision applies that is not covered by subsection (2) or (2A):
(a)the non‑extinguishment principle applies to the act; and
(b)if the following conditions are satisfied:
(i)the similar compensable interest test is satisfied in relation to the act; and
(ii)the law mentioned in section 240 (which defines similar compensable interest test) does not provide for compensation to the native title holders for the act;
the native title holders are entitled to compensation for the act in accordance with Division 5.’
The High Court explained the effect of s 24MD(2) in Griffiths v Minister for Lands, Planning & Environment [2008] HCA 20; (2008) 235 CLR 232 a Northern Territory case involving the compulsory acquisition of native title rights and interests under the Land Acquisition Act (NT):
‘3 The evident concern of these three conditions of the operation of the substantive provisions of s 24MD(2) relating to extinguishment of native title rights and interests, and compensation, is to avoid racial discrimination. Paragraphs (a), (b) and (ba) address potential kinds or sources of discrimination.’ (per Gleeson CJ)
‘45 If Subdiv M applies to a future act then, subject to the provisions in Subdiv P dealing with the right to negotiate, that act is valid. This follows from s 24MD(1). The critical provision is s 24MD(2). This provides (par (c)) that a compulsory acquisition will extinguish the whole or part of the relevant native title rights and interests if three conditions are satisfied. These are contained in pars (a), (b) and (ba). First, the act must be the compulsory acquisition of the whole or part of any native title rights and interests under a law (in the present case of the Territory) that permits both the compulsory acquisition by the Territory of native title rights and interests and the compulsory acquisition of non‑native title rights and interests in relation to land or waters (par (a)). The LAA is such a statute. Secondly, the practices and procedures adopted in acquiring the native title rights and interests must not be such as to cause the native title holders a disadvantage which is greater than that caused to the holders of non‑native title rights and interests when their rights and interests are acquired (par (ba)).’ (Per Gummow, Payne and Heydon JJ)
On the basis of the High Court decision I accept that if the three conditions specified in paras (a), (b) and (ba) of s 24MD(2) are not met then the consequence of the compulsory acquisition cannot be to extinguish native title. The native title party says that there is no other way for a compulsory acquisition to proceed except by the extinguishment of native title and accordingly the Government party cannot proceed with it and the Tribunal should dismiss the application.
The Government party initially contended (GVPSC para 27) that by virtue of s 24MD of the NTA and s 155 of the LAA (which says that any native title right or interest is extinguished to the extent permitted by the NTA), the effect of the compulsory acquisition would be to completely extinguish any native title that exists on the Land. It said that this was because the requirements of s 24MD(2) had been complied with.
The native title party contended (NTPS paras 3-6) that s 24MD(2)(b) had not been complied with in that not all non-native title rights and interests in the Land would be compulsorily acquired as miscellaneous licence L45/158 was excluded from the notice of the proposed future act. There was no evidence that this licence would be relinquished or surrendered prior to the doing of the future act (for instance pursuant to ss 95, 96 of the Mining Act).
The Government party responded to this contention (GVPSC2, paras 5-12) by saying that if a new NOITT were to be issued and sought to acquire the whole or the equivalent part of all non-native title rights and interests then s 24MD(2)(a) would apply to the taking and native title would be extinguished and the native title holders would be entitled to compensation either under the relevant law of the State or under Division 5 of the NTA (GVPSC para 6). While this may be a course of action open to the Government party, it is not the Government party’s current intention.
The Tribunal’s determination is based on the Government party’s stated intention to compulsorily acquire the Land on the same basis as specified in the original NOITT (see above para [26]). Based on this intention the Government party made the following submissions.
If a NOITT were to be issued, as currently proposed, so as to take all interests other than those held by the Crown or granted by the Mining Act then because of the conditions in s 24MD(2)(b) the proposed act would not be covered by s 24MD(2). As the proposed act would not involve surrender of native title, s 24MD(2A) would not be relevant. On this basis the proposed future act would not be covered by either subsections (2) or (2A) of s 24MD and s 24MD(3) would apply. In other words in the terms of s 24MD(3) the compulsory acquisition would be a future act to which Subdivision M applies (i.e. the freehold test is applicable to it) but one that is not covered by subsections (2) or (2A) of s 24MD.
If s 24MD(3) of the NTA applies to the future act, then the future act is valid but the non-extinguishment principle (s 238 NTA) applies to the act, being the taking of the native title rights and interests including rights under the pastoral lease in respect of the land affected but excluding the interests under the Mining Act 1978 for the purpose of the taking. Compensation would be payable as specified in s 24MD(3)(b).
In my view the Government party’s contentions have merit based on the plain meaning of s 24MD. However, the native title party argued (NTPS3, paras 2-12) that the 1998 amendments to the NTA which inserted s 24MD were designed to ensure that all compulsory acquisitions extinguished native title and that it was not the intention of Parliament to allow the non-extinguishment principle to continue to apply to a future act of this kind. The native title party says the amendments arose out of problems with s 23 of the original NTA which said that the non-extinguishment principle applied to a compulsory acquisition of the whole or part of any native title rights and interests but that any act done to give effect to the purpose of the acquisition could extinguish native title rights and interests. The problems in having, in effect, two stages to a compulsory acquisition in terms of its effect on native title were discussed by the Tribunal in Minister for Lands, State of Western Australia/Marjorie May Strickland and Others, NNTT WF97/4, [1998] NNTTA 2 (20 February 1998), Hon C J Sumner (at 29-35).
The High Court in Griffiths at [37]-[44] provides an analysis of the basis for the 1998 amendments which it summarised as follows:
‘43 What is apparent from these Parliamentary materials is a legislative proposal to proceed on the basis provided by the previous s 23, permitting future compulsory acquisition of native title rights, but also to ensure that where, as it now appeared to be feasible, native title rights subsisted concurrently with non‑native title rights, any power of acquisition was exercised in a non‑discriminatory fashion by acquiring and extinguishing both species of rights.’ (per Gummow, Hayne and Heydon JJ)
The native title party relies on the Explanatory Memorandum to the Native Title Amendment Bill 1997 (table 15.2 on p 126 and table 16.1 on p 132) and the Hansard record of the Government Minister in charge of the Bill (Senator Nick Minchin) of 4 December 1997 to say that, because of its very nature, compulsory acquisition could not be subject to the non-extinguishment principle and hence that s 24MD(3) did not apply to it. I accept that there is no specific reference in the Explanatory Memorandum to s 24MD(3) applying in some cases to a compulsory acquisition. On the other hand, there is nothing which says that the intention is specifically to exclude its application. Senator Minchin’s comments (4 December 1997), made when responding to an amendment that would have reinserted the effect of the original s 23, certainly appear to be critical of the idea that the non-extinguishment principle could apply to a compulsory acquisition. However, there is no reference in these extrinsic aids which specifically assists the native title party in the present circumstance. The emphasis in the Explanatory Memorandum and Hansard is to make clear that native title can be extinguished if the compulsory acquisition takes place on a non-discriminatory basis. There is nothing in them that directly contradicts the interpretation of s 24MD and applicability of s 24MD(3) argued for by the Government party.
In any event, it is not necessary or appropriate to resort to these extrinsic sources to interpret the relevant sections in their ordinary meaning as there is no ambiguity in them. The essence of the 1998 amendments was that compulsory acquisition should proceed on a non-discriminatory basis as between the holders of native title and freehold title and in my view that is what is achieved by them. In the circumstances of s 24MD(2) native title is extinguished in the same way as it would be in relation to freehold title and compensation is payable. On the other hand if compulsory acquisition proceeds in accordance with s 24MD(3) (because ss 24MD(2) and 24MD(2A) do not apply) then there is no question of it being a discriminatory acquisition because native title is not extinguished by it. The Government party points out that this is an appropriate result in a case such as the present one where the intention is not to compulsory acquire native title rights and interests for the purposes of making a freehold grant to another person but is for the purposes of granting a lease. If the lease subsequently lapses then the native title rights that had been suppressed by virtue of the compulsory acquisition and grant of the lease would be revived.
The Tribunal’s conclusions on the interpretation of s 24MD receive judicial support from the Northern Territory Court of Appeal in Minister for Lands, Planning & Environment v Griffiths & Ors [2004] NTCA 5; (2004) 14 NTLR 188 where Mildren J (at [74]) said:
‘If s 24MD(2)(b) applies only where there is an acquisition of all interests other than the Crown’s interests in the land, and cannot apply where the only interest in the land other than the Crown's interest is a native title interest, that does not invalidate the notice of acquisition. In those circumstances the “non-extinguishment principle” would apply (see s 24MD(3) and s 238 of the NTA). The consequences of s 24MD(6A) would still apply to this situation and so the LAA would still apply (see s 5A(l )(a)). The effect of these provisions is to suppress the native title rights until such time as the acquisition or the effects of the acquisition are later wholly or partly removed or wholly or partly cease to operate.’
The native title party also contended (NTPS4 paras 17-22) that the giving of the notice under s 170 of the LAA would be in conflict with s 24MD(2)(ba) of the NTA. This is said to be because s 175 of the LAA allows persons who hold non-native title interests in land an opportunity to object following the issuing of a NOITT which must be considered by the Minister. No such process would be available to the native title party in the event of a new notice. It is not necessary to deal further with this submission in light of my finding that s 24MD(2) does not apply to this compulsory acquisition. Suffice it to say that if there is any complaint from the native title party about compliance with the LAA whether because of its own terms or those terms supplemented by the RDA this is a matter to be pursued in an appropriate Court.
The Government party pointed out (GVPSC3 paras 27-31) that earlier decisions of the Tribunal could be interpreted to mean that s 24MD(3) is only applicable to the grant of mining tenements or petroleum titles and that, as argued for by the native title party, s 24MD(2) was the only provision relevant to a compulsory acquisition (see for example Western Australia & Anor v Hayes & Ors [2001] NNTTA 41; (2001) 163 FLR 384 at [24]; Moore & Ors v Mungeranie & Ors [2005] NNTTA 55; (2005) 193 FLR 62 at [84] and Gulliver Productions Ply Ltd & Ors v Western Desert Lands Aboriginal Corporation & Ors [2005] NNTTA 88 (2005) 196 FLR 52 at [41]). The Tribunal accepts that in all these matters the Tribunal did not have to consider the compulsory acquisition of native title rights and interests, and did not have the benefit of the arguments presented in the present case. In my view those statements can no longer be regarded as correct.
Whether absence of current NOITT means there is no proposal to do a future act
Section 170(1) of the LAA says:
‘Subject to this section, if it is proposed to take interests in land without agreement under this Part, the Minister must issue a notice of intention to take the interests, in accordance with this section.’
The native title party contends (NTPS3, paras 3-6) that:
unless there is a valid NOITT then consistent with s 170(l) the Government party cannot be proposing to take any interest in land and there is no proposed future act which attracts the Tribunal’s jurisdiction; and
the Government party's submissions on this matter show it is unsure what form a replacement NOITT (if it is issued) might take which further demonstrates that it does not have a clear intention to take land and that in the event that the Government party chooses to issue a new NOITT it is obliged to issue a new s 29 notice under the NTA.
The Government party responded (GVPSC4 at paras 12-18) to these contentions in the following way.
The procedures under the NTA and the LAA are completely separate procedures, one in the Tribunal and the other before the Minister for Lands. Both procedures have to be completed if a compulsory acquisition of native title interests is to be validly achieved. Principally for reasons of convenience, the Government party through its relevant agency issues a single combined notice, which simultaneously gives notice under s l70 of the LAA and s 29 of the NTA but, despite this the procedures which follow such a notice are separate procedures.
The expiry of the original notice given under s 170 of the LAA does not affect the validity of the notice given under s 29 of the NTA because s 29 notices do not have limited periods of validity as do notices under s 170 of the LAA.
The expiry of the original notice given under s 170 of the LAA brings to an end any compulsory acquisition procedures under the LAA in respect of the Land. The procedures under the LAA can be recommenced in respect of the Land by the issue of a new notice under s 170 of the LAA. This in no way affects the rights of the various parties in the s 29 NTA procedures, which continue uninterrupted in the Tribunal.
I accept the Government party’s contentions. Section 170(1) contemplates that the future act of taking or compulsory acquisition can be identified before a notice under the LAA is given. It can be identified and if resolved by agreement there is no need to give the notice and start the taking proceedings under the LAA (see also s 24MD(2A) NTA).
The Tribunal recently dealt with similar submissions in Jabiru Metals Ltd/State of Victoria/Sandra Middleton Patten, Olive Tregonning, Albert Mullett and Graham John (Bootsie) Thorpe on behalf of the Gunai/Kurnai People, NNTT VF10/1, [2010] NNTTA 138 (30 August 2010), Hon C J Sumner at [16]:
‘[16] More fundamentally, the Tribunal is not aware of any authority to say that before the Tribunal has jurisdiction to consider a proposed future act under the right to negotiate provisions (i.e. to mediate or conduct inquiries into expedited procedure objections or a future act determination application) it must be satisfied that there is a valid application under relevant mining legislation including the MR(SD) Act. Any challenge to the validity of an application under that Act should be made in an appropriate Court. Provided proper notice is given under s 29 then the primary requirements of the NTA in respect of jurisdiction are satisfied. Any issues about the details of what is proposed to be done pursuant to the grant of a mining licence may be relevant in deciding whether good faith negotiations have occurred or in determining whether or not the future act may be done but they do not mean there is a lack of jurisdiction.’
Although in the present matter the jurisdictional challenge is based on lack of a valid notice by the Government party under the Western Australian LAA rather than the validity of a grantee party’s application to do a future act, the applicable principles are the same. The Tribunal is concerned with a proposed future act as identified in the s 29 notice not with State processes leading up to it or indeed whether State legislation requires further procedures to be complied with following those of the NTA.
The Tribunal is concerned with the content of the s 29 notice and whether it complies with the NTA. A valid s 29 notice is a necessary pre-condition to the Tribunal’s jurisdiction in a right to negotiate inquiry (see for example Dann and Others (Amangu People) v Western Australia and Another [2006] NNTTA 126; (2006) 208 FLR 357). Once there is a proper notice of a future act under the NTA (irrespective of what procedures might be required by other legislation) the Tribunal has jurisdiction to deal with it. In order properly to consider the factors in s 39 of the NTA the Tribunal will need to be provided with evidence of the nature and extent of the activities to be carried out if the future act is done but this is not a requirement of the Tribunal’s jurisdiction. If in the conduct of an inquiry it appears that the proposal is not in fact the one for which notice was given then a jurisdictional issue could arise at that point. It could also be that questions about the validity of the future act could arise if a future act was done which was different to the one considered by the Tribunal (see Australian Manganese Pty Ltd/Western Australia/David Stock and Others on behalf of the Nyiyaparli People, NNTT WF09/30, [2010] NNTTA 101 (16 July 2010), Hon C J Sumner at [17]-[34]). However, at this point in the process the Tribunal has before it a valid s 29 notice and clear statements from the Government party in its contentions about the nature of the future act (see para [26] above) which confirms the information in the s 29 notice. On this basis the Tribunal can proceed to an inquiry and make a determination.
Whether notice is invalid due to the misstated purpose in the NOITT
The native title party also contends (NTPS3 paras 7-9) that the NOITT is invalid on the basis that the requirement in s 171(1)(c) of the LAA, that the content of the notice of intention is to provide particulars of the disposition on grant to any person, has not been met because the information in the NOITT is not accurate.
The NOITT says that the taking is for the purpose of ‘Stock Holding Yards’. In their submissions of 21 June 2010, the grantee party (GPS paras 3-4) said their plans for the Land included a small scale portable abattoir; turf farming/horticulture; and growing medicinal herbs. The native title party contends that these purposes are outside the purpose as set out by the NOITT and the NOITT is invalid because the NOITT does not properly comply with s 171(c) of the LAA. The native title party submits that the failure to comply with s 171(c) invalidates the NOITT; that without a valid NOITT the Government party cannot issue a taking order; and without the possibility of a taking order, there is no future act.
For the reasons already given these submissions are not accepted. The Tribunal is concerned with the validity of the notice under s 29 of the NTA and on the basis of the clear statements of intention made by the Government party (see para [26] above) the purpose of the proposed compulsory acquisition does not extend beyond the purposes stated in that notice.
Failure to negotiate in good faith – whether to re-open the issue
The native title party (NTPS3 paras 12-25) sought to re-open the issue of whether the grantee party had negotiated in good faith on the basis that the information provided during the negotiations was false or misleading and the grantee party did not therefore act honestly and reasonably in the negotiations. Failure to act in such a way is an indication of bad faith (Western Australia v Taylor [1996] NNTTA 34; (1996) 134 FLR 211) including the Njamal indicia which assist to assess whether a Government party or grantee party have negotiated in good faith; Western Australia vDimer [2000] NNTTA 290; (2000) 163 FLR 426 at 445). In FMG Pilbara Pty Ltd vCox and Others [2009] FCAFC 49; (2009) 175 FCR 141; (2009) 255 ALR 229 at [27] the Federal Court referred to ‘deliberate delay, sharp practice, misleading negotiating or other unsatisfactory or unconscionable conduct’ as indicative of a failure to negotiate in good faith.
The Tribunal must remain satisfied that it has jurisdiction or power to conduct an inquiry up until the time a determination is made. In some circumstances the Tribunal is required to re-examine a decision previously made that the Government party and grantee party had negotiated in good faith (Townson Holdings Pty Ltd and Joseph Frank Anania/Ron Harrington-Smith & Ors on behalf of the Wongatha People; June Ashwin & Ors on behalf of the Wutha People/Western Australia, NNTT WF03/2, [2003] NNTTA 82 (9 July 2003), Hon C J Sumner at [11]-[15]). Allegations that there is fresh evidence that the grantee party had behaved in a misleading manner during negotiations could be one such circumstance and on this basis I have considered it appropriate to re-consider the good faith decision.
The native title party contentions are that the grantee party’s conduct was misleading in two ways. First, because the evidence now is that the grantee party proposes to expand its operations beyond that which was revealed during the negotiations. The grantee party now has plans for an abattoir, turf farming/horticulture and growing medicinal herbs. The native title party says that in the grantee party’s contentions (GPS) of 21 June 2010 the grantee party concedes that the original PLD plan allowed for diversity and that developing businesses beyond the export of stock (which was seasonal) was a necessity. As the original plan was known to the grantee party at the time of the negotiations the details of the proposed expansion should have been revealed during the negotiations, the native title party says.
In my view, there would be some merit in this argument if the current proposal did in fact involve an expansion of operations beyond the current ‘Stock Holding Yards’ but on the evidence of the Government party this is not the case and the terms of the lease to PLD will be confined to this purpose. While this would enable the grantee party to upgrade the facilities it would not allow it to expand into new business ventures beyond the scope of the lease.
During the negotiations on 10 June 2008 the grantee party provided a history of the PLD development to the Government party and native title party in which it said that at the time of the excision and sub-lease it sought freeholding of the Land and that this is still being sought. It said that freehold land is necessary in commercial operations as seeking loans, overdrafts and investments on leasehold is virtually impossible without other assets for security and that this is the case for PLD. This information was provided in the knowledge that the Government party only proposed to lease the Land to PLD. No doubt this statement could have been explored if negotiations had continued in a satisfactory manner but this did not happen largely because of the attitude of the native title party to resuming the negotiations (good faith decision at [27]). Because PLD’s expansion plans are not contemplated by this future act and will not be permitted by the lease to it, and there is no proposal to freehold the Land I do not consider that statements about the issue misled the native title party during the negotiations.
The second issue is that the native title party says the grantee party provided inaccurate information during the negotiations about the size of PLD’s operation, its income and the profitability of the current operation. The grantee party has described itself as a very small operation. At a meeting with the native title party on 17 April 2008 Ms Laurie Lehman-Bybyk, the Government party negotiator from the Department for Planning and Infrastructure, said in the presence of Mr Chris Paterson that PLD was ‘not making a profit currently’. At that meeting Mr Chris Paterson advised that the number of head of cattle going through the yards was from approximately 1,000 to 5,000 and that approximately $1.00 to $1.50 per head were charged for them. Mr Chris Paterson also said that due to the drought cattle production is no longer expanding and he does not see his business growing.
In the PLD document provided to the native title party on 10 June 2008 further details were provided in conjunction with the grantee party’s offer set out in the good faith decision (at [20]). This document asserts that from May-September 2007 approximately 10,500 head of cattle went through the yards and from July-November 2006 approximately 7,500 head of cattle went through them. The native title party says that on these calculations the income in 2007 would be between $10,000 and $15,000 depending on the rate per head that is charged.
In contrast to the information presented during negotiations the native title party contends that the grantee party's submission of 21 June 2010 (GPS at p 7) says that the business is viable, and supported a family with three children for 10 years which is testament to its potential and viability. The native title party provided documents from the University of Queensland which estimates the minimum cost of raising a single child in Perth to be approximately $180 per week, or about $9,400 per year. The cost of keeping the other two children, the cost of rent, or the cost of living for the parents would add considerably to the total cost for a family. The native title party says this amount is considerably more than the income details PLD gave to the NTP during the meeting in April 2008.
I accept the native title party’s contention that there is a discrepancy in the grantee party’s evidence which is difficult to explain by resort to the documents. However, I do not think the discrepancy is enough to lead to a finding that during the negotiations the grantee party intentionally misled the native title party about the nature and profitability of the project which at present is confined to the operation of stock holding yards. There is no doubt that PLD is a small operation with quite a small turnover and that this was the case at the time of the negotiations and is likely to remain the case under the Government party’s current proposal to grant a lease for the continuation of the stock holding yards and agistment business. Again this issue could have been explored if negotiations had progressed but the native title party delayed for over 12 months in responding to the grantee party’s offer and did not meet again with the Government and grantee parties despite requests to do so. I confirm that the grantee party has negotiated in good faith as required by s 31(1)(b) of the Act.
Section 39(1)(a)(i) – enjoyment of registered native title rights and interests
The following rights and interests have been registered in respect of the area of the compulsory acquisition:
‘1.the right to ingress and exit, occupy, possess, use, enjoy and live upon the land of their ancestors upholding custom and Aboriginal law;
2.the right to manage and maintain the fauna and flora together with the land and waters according to traditions and complying with Aboriginal law and culture which has been passed down from generation to generation to sustain existence and the environment upon their traditional lands;
3.the right to forage for food, medicine and for such other items used for customary practices including fauna and flora on or under the land and waters, and the right to protect them from degradation;
4.the right to participate at meetings for social and cultural gatherings within the group or with other groups to enforce customary laws and practices and hold traditional ceremonies, arrange marriages organise ceremonies, mediate and carry out punishments, barter for food, tools, materials, equipment, utensils, access to water, hunting and burial grounds on the land;
5.the right to lay away the dead upon their land and the right to bring the dead of the claim group for traditional ceremonies;
6.the right to camp, hunt, fish, gather traditional foods, and building materials, utensils, tools, equipment and weapons;
7. the right to use, manage, maintain and care for the water resources on the land;
8.the right to extract and collect flints, clays, salts, soils, sand gravel, stones, ochres and such other substances in, on or under the land for use or trade as it was done by their ancestors in title;
9.the right to use such resources and materials (animate and inanimate) growing, living and occurring in on or under the land and waters together with the right to receive a portion of any such resources taken by others, as it was done by their ancestors in title, for use or barter;
10.the right to manage and protect their sites, their secret societies and lodges or fraternities to ensure that rituals of religious significance, mystery and solemnity relating to the Dreamtime can continue which gives authority to the survival instruction or activities that have evolved over centuries and will allow for the gathering of people to come together to carry out ceremonies and activities required under customary law and culture;
11.the right to freely move upon their land to teach their young about their country, culture and traditions, how to look after the fauna and flora for both sustenance and to protect the land, waters, the environment and the natural habitat;
12.the right to construct camps, dwellings and other structures.’
For the purposes of the right to negotiate provisions of the Act, determined, claimed and registered native title rights and interests are treated as being on the same footing. Claimed and registered native title rights are assumed to exist as if they had been determined. However, there is still a need under s 39(1)(a)(i) of the Act for evidence on how those native title rights and interests are actually enjoyed or exercised in the particular locality of the future act and of the other matters in s 39(1)(a) (see Waljen at 166-167 and WMC/Evans at 339-341). In other words a determination is not based on a worst case scenario where all the registered native title rights and interests are assumed to exist and be exercised or enjoyed equally over the whole of the native title party’s claim area just by virtue of their registration.
The Tribunal’s task is to examine the native title rights and interests which are enjoyed by the native title party over the relevant area and which would be affected in the way described by the proposed compulsory acquisition. I have before me some limited evidence from the native title party as to the past exercise or enjoyment of native title rights and interests around and including the proposed compulsory acquisition area. Ms Robinson says that the native title party continues to use the area around the Land for the exercise of various native title rights and interests including hunting, gathering and camping but that this does not now include the PLD area which has been fenced off and closed with gates (DR Affidavit, para 4-6).
The underlying tenure of the Land consists of pastoral lease 3114/618 (Boodarie Station), whereby any exclusive native title rights were extinguished. The existence of pastoral activities over the years may also have had a practical effect on the enjoyment of other native title rights and interests. The operation of stock holding yards pursuant to what is a valid sub-lease since 2000 by PLD means the capacity of the native title party to exercise their native title rights and interests over the Land has already been greatly restricted (DR affidavit para 2). I accept that the native title party exercises some of their native title rights and interests around the area of the proposed compulsory acquisition area but that since 2000 this no longer occurs over the Land itself.
The compulsory acquisition will not result in a further reduction in the exercise of native title rights and interests over the Land in a practical sense. For the reasons already given the Tribunal makes its determination on the basis that the existing non-native title rights and interests in the form of stock holding yards (which have already affected native title rights and interests) will continue but subject to a lease from the Crown for these purposes rather than pursuant to the current sub-lease from BHP Direct Reduced Iron Ore Pty Ltd. Native title was partially extinguished by the grant of the pastoral lease but no further extinguishment was effected by the grant of the sub-lease to PLD. The present future act will have the further effect of suppressing native title but not extinguishing it.
Section 39(1)(a)(ii) – way of life, culture and traditions
There is insufficient evidence provided by the native title party about the way of life, culture and traditions enjoyed within the area of the proposed compulsory acquisition to support a conclusion that the proposed compulsory acquisition will affect the native title party except as already described in relation to s 39(1)(a)(i).
Section 39(1)(a)(iii) – development of social, cultural and economic structures
The native title party has provided no evidence in relation to the impact of the proposed compulsory acquisition on its social, cultural and economic structures.
Section 39(1)(a)(iv) – freedom of access and freedom to carry out rites and ceremonies
There is no evidence of the native title party having access to or carrying out any rites, ceremonies or other activities of cultural significance on the Land which would be affected by the doing of the future act. The fact that the Land has been used for stock holding and is designated as a quarantine facility means there has been no access to the Land in recent times.
Section 39(1)(a)(v) – sites of particular significance
There are no Aboriginal sites recorded on the Department of Indigenous Affairs (DIA) Site Register for the purposes of the Aboriginal Heritage Act1972 (WA) on the proposed compulsory acquisition. I accept that the Site Register is not an exhaustive list of all Aboriginal sites and that other sites might exist and be affected by activities on the Land. However, there is no evidence provided by the native title party identifying other sites within the area of the proposed compulsory acquisition.
The evidence of Ms Robinson suggests that the Turner River, or jililingu, is a place often visited by her and her family. The entire river is listed on the DIA Site Register but extends a considerable distance, does not overlap the proposed compulsory acquisition area and is some three to four kilometres from it at its closest point. I do not believe this site will be affected.
The Tribunal has, on numerous occasions, considered the protective provisions of the Aboriginal Heritage Act 1972 (WA) (AHA). Pursuant to s 146(b) of the Act I adopt the Tribunal’s findings in Waljen on this topic (at 209-211). I also adopt the findings of the Tribunal in Maitland Parker and Others on behalf of Martu Idja Banyjima/Western Australia/Derek Noel Ammon, NNTT WO05/753, [2006] NNTTA 65 (2 June 2006), Hon C J Sumner at [31]–[38], [40]-[41]. (See also the Federal Court dismissal of a native title party appeal from this determination in Parker on behalf of the Martu Idja Banyjima People v State of Western Australia [2007] FCA 1027 and Parker v State of Western Australia [2008] FCAFC 23; (2008) 167 FCR 340.)
There is no evidence that any sites of particular significance will be affected by the proposed future act and the protective provisions associated with the AHA will apply to any sites found to exist. In the good faith negotiations the PLD exhibited an awareness of its obligations under the AHA by agreeing to carry out a site survey.
Section 39(1)(b) – interests, proposals, opinions or wishes of the native title party in relation to the management, use or control of land or waters
There is no detailed evidence of any interests, proposals, opinions or wishes of the native title party in relation to the management, use or control of the area of the Land. The Government party contended (GVPSC para 38) that the native title party was prepared to enter into an agreement to allow the future act to be done and had not objected in principle to it.
The native title party’s position is that they only entered into negotiations because they were forced to by the NTA and that their preference is for the development not to occur (DR affidavit para 7). This is not a case where there is a documented in principle agreement prepared after detailed negotiations and given the evidence of Ms Robinson this is not a case where the Tribunal gives great weight to the fact that the native title party was prepared to enter into an agreement. The only importance of its willingness to agree is that there appears to be no cultural basis for saying that there should be no development at all (for instance because of the existence of a very important site). I observe that although obliged to enter into negotiations there is no requirement on any party in good faith negotiations to agree or capitulate from a position which is held on reasonable and sustainable grounds. In the good faith negotiations the native title party made no submissions when invited to do so on the effect of the act on their native title rights and interests which suggests that there was no overarching cultural impediment to its proceeding. My determination has taken the preparedness of the native title party to enter into an agreement into account but in the circumstances of this case it is only of limited weight.
Section 39(1)(c) – economic or other significance
The Government party contends that the economic and other significance of the act lies in the better establishment of the stock holding yard operation and the amenity which it offers to the cattle industry in the region (GVPSC, para 39).
The native title party contends that the proposed compulsory acquisition holds no financial benefit to the region or Australia, and is contrary to the public interest for the following reasons:
the land is unnecessarily large, and is more than what is required by the business;
the business is very marginal and provides negligible benefit to the community;
the business is unnecessary as other providers are available;
the current business has been operating on its current tenure for 10 years and there is no justification for the taking; and
the business operates near the largest bulk commodity port in the world using land would more efficiently be used by mining companies.
The grantee party says that:
the total area currently occupied by PLD is needed for the longer holding of livestock and to allow grazing, which can reduce the recovery time of sick or unfit to travel livestock and that additional land beyond the actual stock yards provides a safe guard from bio-security threats and is a quarantine area (GPS, p 4).
the other provider, the South Hedland Yards, is located within the Town of Port Hedland’s strategic industry zone and therefore will eventually require relocation. As such the grantee states that South Hedland Yard being another provider is unviable; and
under current sub-lease arrangements PLD are unable to attract finance which in turn has restricted growth of the business. The grantee party says that this is a vital factor for the long term sustainability of the business.
The evidence of the different views about this issue is only contained in documentary evidence and not entirely clear. Nevertheless, I am satisfied that PLD is a small scale operation and on the current evidence likely to remain so. Based on the current evidence and proposed use of the land I do not think its economic significance to Australia, Western Australia, the local area or Aboriginal people will be very great. Nevertheless, I accept that the current operation has some limited economic significance to the local area and provides some support for the Australian live stock export trade. I accept that the current proposal of a general lease direct from the Crown will bring with it concomitant advantages in providing a means of raising funds for improved facilities for the purposes specified in the proposed lease.
Section 39(1)(e) – public interest
The Government party says the public interest will be served by the promotion and improvement of the economy of the area as afforded by the proposed stock holding yard operation. For the reasons given above, I am satisfied that the public interest is served by the proposed compulsory acquisition. In this case there are no compelling public interest considerations based on the native title party’s interests in the Land.
Section 39(2) – existing non-native title interests
As already explained, I have taken into account that there are valid non-native title rights and interests in existence including the rights of PLD to conduct a stock holding yard and agistment business and that the proposal is to enable them to continue to do this.
Conclusion
In weighing the various factors which the Tribunal is required to take into account I have had regard to the fact that, to a large extent, the registered native title rights and interests will already have been affected over the Land as a result of the past and particularly the current use of it. At least since 2000 the native title party has not enjoyed any of its registered native title rights and interests over the Land. Native title will be suspended during the currency of the lease from the Crown to PLD but not permanently extinguished. The native title party has a right to compensation if a determination of native title is made. Further, there is insufficient evidence to say that areas or sites of particular significance will be interfered with by the proposed compulsory acquisition.
On the current evidence of the Government party’s proposal I am satisfied that there will only be limited economic or other benefit to Australia, the State and locality and this is not likely to be much greater, if at all, than the benefits which arises from the current use of the Land. However, I accept that a direct lease from the Crown will provide the grantee party with greater security and capacity to raise funds for the operation of the business. No conditions were sought by the native title party. On balance I have decided that the evidence justifies a determination that the act may be done without conditions.
I cannot leave this matter without expressing some misgivings about the processes as between the Government and grantee parties and evidence in relation to the purposes of the compulsory acquisition. There does appear to be a discrepancy between the Government party’s current proposal and the grantee party’s long term plans. The Government party should consider whether this is likely to cause problems for the future valid use of the Land. I reiterate that the determination is made on the basis of the evidence from the Government party as to the purpose of the compulsory acquisition and that the lease to PLD will be confined to this purpose (see para [26] above). I point out that if there is a proposal to grant freehold title of the Land to the grantee party to facilitate any future expansion plans and which would extinguish native title then this would constitute a separate future act to which the right to negotiate provisions of the NTA would apply.
Determination
The determination of the Tribunal is that the act, namely the proposed compulsory acquisition of Whole Lot 3003 on Deposited Plan 46738 for the purpose specified in the NOITT of enabling the issuing of a Lease for the purpose of “Stock Holding Yards” to Christopher Murray Paterson and Carey Rae Paterson trading as Pilbara Livestock Depot, may be done.
Hon C J Sumner
Deputy President
23 September 2010
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