State of Western Australia/Glen Derrick Councillor and Others on behalf of the Naaguja Peoples; Leedham Papertalk and Others on behalf of the Mullewa Wadjari Community/Bayform Holdings Pty Ltd - [2010] NNTTA 41

NATIONAL NATIVE TITLE TRIBUNAL

State of Western Australia/Glen Derrick Councillor and Others on behalf of the Naaguja Peoples; Leedham Papertalk and Others on behalf of the Mullewa Wadjari Community/Bayform Holdings Pty Ltd, [2010] NNTTA 41 (25 March 2010)

Application No: WF09/23

IN THE MATTER of the Native Title Act1993 (Cth)

- and -

IN THE MATTER of an inquiry into a future act determination application

The State of Western Australia (Applicant/Government party)

- and -

Glen Derrick Councillor and Others on behalf of the Naaguja Peoples (WC97/73)
(First native title party)

and

Leedham Papertalk and Others on behalf of the Mullewa Wadjari Community (WC96/93) (Second native title party)

- and -

Bayform Holdings Pty Ltd (grantee party)

FUTURE ACT DETERMINATION

Tribunal:  Hon C J Sumner, Deputy President
Place:  Perth
Date:  25 March 2010

Catchwords: Native title – future act – application for determination in relation to compulsory acquisition of native title rights and interests – limited contentions and no evidence submitted by the native title parties – parties agreement to determination – determination that the act may be done subject to conditions

Legislation:Native Title Act1993 (Cth), ss 24MD(2), 25-44, 141(2), 150, 151
Land Administration Act 1997 (WA), ss 155, 165, 170
Aboriginal Heritage Act 1972 (WA), ss 16, 17, 18

Cases:Cheinmora v Striker Resources NL & Ors [1996] 1147 FCA; (1996) 142 ALR 21
Evans v Western Australia [1997] 741 FCA; (1997) 77 FCR 193
FMG Pilbara Pty Ltd/Wintawari Guruma Aboriginal Corporation/Ned Cheedy and Others on behalf of the Yindjibarndi People/Western Australia, NNTT WF09/1, [2009] NNTTA 99 (27 August 2009), Daniel O’Dea
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 Mines (WA) v Evans [1998] NNTTA 5; (1998) 163 FLR 274
Re Koara People [1996] NNTTA 31; (1996) 132 FLR 73
Western Australia v Thomas [1996] NNTTA 30; (1996) 133 FLR 124
WMC Resources v Evans [1999] NNTTA 372; (1999) 163 FLR 333

Solicitor for the
Government party:             Mr Matthew Pudovskis, State Solicitor’s Office
Representatives of the         Mr Nick Fabriziani and Ms Lorraine Rushton,
Government party:Department of Regional Development and Lands
Solicitor for the
First native title party:       Mr Greg Young, Yamatji Marlpa Aboriginal Corporation
Solicitor for the
Second native title party:   Mr Ronald Bower, Corser and Corser Lawyers
Representative of the
Second native title party:   Mr Jerome Frewen, Desert Management Pty Ltd
Representatives of the         Mr Tony Anderson
grantee party:  Mr Tony Van Den Dries

REASONS FOR FUTURE ACT DETERMINATION

Introduction

On 17 May 2000, 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 grant of a freehold interest in the Land to Bayform Holdings Pty Ltd (‘the grantee party’).
The s 29 notice identifies Landrow Greenough Ltd and Strawbay Pty Ltd (‘original grantee party’) as the proposed grantee of the Land the subject of the compulsorily acquisition. On 26 May 2006 the Government party, original grantee party and Bayform Holdings Pty Ltd executed a Deed of Novation and Variation whereby Bayform Holdings Pty Ltd agreed to take on all rights and responsibilities of the original grantee party under the Agreement. Bayform Holdings Pty Ltd is effectively the grantee party.
The Land is situated in the Shire of Greenough (now city of Geraldton-Greenough) and is described as the Whole of Victoria Location 11939 on Land Administration Plan 20020, Volume 3099, Folio 680 (Area – 213.8984 hectares). The Land is entirely overlapped by the registered native title claims of the Naaguja Peoples (WC97/73) – registered from 8 September 1997, the Mullewa Wadjari Community (WC96/93) – registered from 19 August 1996 and the Amangu People (WC04/2) – registered from 3 March 2005.
The native title parties in respect of these proceedings are:
Glen Derrick Councillor, Keith Edward Councillor, Lyndsey Graham McDonald, Reginald Councillor, Vincent Councillor, Yvonne Joan Radcliffe and behalf of the Naaguja Peoples (WC97/73) (‘First native title party’‘FNTP’); and
Malcolm Papertalk, Leedham Papertalk, Douglas Comeagain, Robert Flanagan, Charles Collard, Charles Green, Jamie Joseph, Glenda Jackamarra, Karen Jones, Raymond Merritt on behalf of the Mullewa Wadjari Community (WC96/93) (‘Second native title party’/‘SNTP’).

As the Amangu People’s native title claimant application was filed on 19 April 2004, (more than three months after the s 29 notification day) and not registered until 3 March 2005 (more than four months after the notification day), the Amangu People are not a ‘native title party’ or ‘negotiation party’ with respect to these proceedings (ss 30(1)(a)(i), 30A and 141(2) NTA).
The taking of the Land pursuant to s 165 of the Land Administration Act for the purposes specified is a compulsory acquisition of native title rights and interests covered by s 26(1)(iii) of the Act and is a future act to which the right to negotiate provisions of the Act apply (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 29 October 2009, being a date more than six months after the s 29 notice was given, the Government party made an application pursuant to s 35 of the Act for a future act determination under s 38 in relation to the proposed compulsory acquisition.
At the preliminary conference on 18 November 2009, the legal representative for the FNTP, Mr Greg Young, and legal representative for the SNTP, Mr Ronald Bower, advised that neither native title party would challenge that the Government party and grantee party had negotiated in good faith with the native title parties (ss 31(1)(b) and 36(2)). The Tribunal has decided it has power to conduct the inquiry and make a determination (s 36(2)).
On 22 December 2009 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 in January 2010, but no agreement pursuant to s 31(1)(b) of the Act could be reached.
On 18 November 2009 the Tribunal set directions to deal with the substantive inquiry. On 27 January 2010 the Government party lodged its statement of contentions and evidence. The FNTP’s brief statement of contention, dated 17 February 2010, did not dispute the submissions made by the Government party except with respect to the ss 39(1)(a)(v) (sites) and 39(1)(f) (any relevant matter) criteria in the Act and proposed certain conditions be attached to the grant if the Tribunal determines that the act may proceed.

The contentions of the SNTP, lodged on 18 February 2010, support and adopt the submissions of the FNTP. No contentions and evidence have been provided directly by the grantee party but the grantee party’s proposal in relation to the Land are set out in the contentions and evidence of the Government party.
On 25 February 2010, the Government party replied in relation to native title parties’ request for conditions, opposing the conditions proposed by the FNTP and submitted that no conditions were necessary but provided drafts of suggested conditions which could be made if the Tribunal were so minded.
On 3 March 2010, the Tribunal wrote to all parties seeking submissions in response to the two conditions suggested by the Government party. Responses from both native title parties were provided on 8 March 2010 which essentially accepted the position that the act can be done subject to conditions similar to those proposed by the Government party.
The Government party and native title parties agreed that the matter could be determined on the papers without the need for a hearing (s 151(2)(b)). I am satisfied the matter can be adequately determined in this way.

Government party’s evidence

The Government party proposes to compulsorily acquire all interests, including any native title rights and interests, for the purpose of enabling the freehold grant of the Land to the grantee party. The Land, comprised almost entirely of the Southgate Dune (‘the Dune’) located on the coast between Geraldton, the Brand Highway and the mouth of the Greenough River, is to be exchanged for nearby lands, namely Victoria Location 2584, currently held in freehold by the grantee party. The grantee party proposes to develop a foreshore reserve, undertake dune stabilisation and establish a residential subdivision over part of the Land.
The underlying tenure on the Land is unallocated crown land with the exception of a small area of reserve on the southern boundary.
There are no Aboriginal communities identified within the area or in the near vicinity of the proposed compulsory acquisition. Tribunal mapping indicates the nearest Aboriginal communities as Barrel Well some 100 kilometres north of the proposed compulsory acquisition and Bundy Bunna some 100 kilometres east of the proposed compulsory acquisition. I can infer that there will be a considerable number of Aboriginal people living in Geraldton and surrounding areas, some of whom will be members of the relevant claimant group, even though there is no specific evidence of their relationship to the native title parties or the extent to which they exercise any native title rights or frequent the area of the Land.
Department of Indigenous Affairs (‘DIA’) documents provided by the Government party reveals eight sites registered under the Aboriginal Heritage Act1972 (WA) (‘AHA’) overlapping or in the close vicinity of the area of the proposed compulsory acquisition as follows:

Site ID 1063 – Greenough River Midden (ceremonial, artefacts/scatter, midden/scatter, camp – permanent register, open access, no restrictions), almost wholly overlapping the Land;
Site ID 1064 – Southgate Dune (artefacts/scatter – lodged register, open access, no restrictions), significantly overlapping the Land;
Site ID 1067 – Greenough River Well (camp, water source – lodged register, open access, no restrictions), slightly overlapping the southern portion of the Land;
Site ID 4669 – Greenough Mouth (artefacts/scatter, midden/scatter – lodged register, open access, no restrictions), significantly overlapping the Land;
Site ID 5287 – South Gates Burial Site (skeletal material/burial, artefacts/scatter – permanent register, open access, no restrictions), immediately to the north of the Land;
Site ID 17957 – Sga-1 (artefacts/scatter, shell – lodged register, open access, no restrictions), wholly overlapping the Land;
Site ID 17962 – Sgs-1 (shell – lodged register, open access, no restrictions), almost wholly overlapping the Land; and
Site ID 17963 – Sgs-2 (shell – lodged register, open access, no restrictions), almost wholly overlapping the Land.

Government party evidence, numbered GVP1 to GVP21, to which the Tribunal has had regard, includes numerous land tenure and associated maps, the notice of intention to take interests and other associated documents, notification letters to the native title parties, Aboriginal heritage inquiry system reports from the Register maintained under the AHA, an archaeological report for the Cape Burney project dated April 2006 prepared by Quartermaine Consultants, an affidavit of the Manager State Lands Midwest, Lands Division, with the Department of Regional Development and Lands (Mr Steve Burgess), correspondence from the Government party to the native title parties, and other supporting documents.

Background to compulsory acquisition

The affidavit of Mr Steve Burgess, sworn 25 January 2010 (‘SB affidavit’) identifies Southgate Dune as a ‘shifting dune’, which has been moving steadily in a northerly and north-easterly direction for many years (SB affidavit para 6). Mr Burgess says the Department is ‘very concerned’ to stop the encroachment of the Dune which is now extremely close to the Brand Highway and threatening to encroach upon the highway and nearby suburb of Wandina (SB affidavit para 7 and 8). Although temporary sand removal works are currently being carried out to prevent the encroachment Mr Burgess says, that if a permanent solution is not found, it is likely the Dune will encroach upon the highway and suburb of Wandina.
Investigations conducted between 1993 and 1999 established potential costs to the Government party to stabilise the Dune at around $400,000 in addition to a further $3 to $4 million over 15-20 years to revegetate and manage the Dune. The Government party deemed the costs excessive and considered alternative options to stabilise the Dune, namely through agreement with a private company who would be granted freehold title to the Land and agree to works which would stabilise the Dune.
On 28 October 1999, the Government party executed an agreement with the original grantee party by which the Government party agreed to transfer the Land to the original grantee party in exchange for the transfer of nearby Victoria Location 2584 held in freehold by the original grantee party to the Government party. Pursuant to the agreement, the Government party was required to compulsorily acquire any native title rights and interests in the Land.
I accept the Government party’s contentions that negotiations between the parties have taken place and that an in-principle agreement had been reached with the FNTP and that it did not believe the SNTP was opposed to the proposed compulsory acquisition.
The FNTP contentions confirmed that they did not oppose the doing of the act provided that the terms of the in principle agreement were satisfied and proposed the imposition of conditions. The SNTP supported and adopted those contentions. The FNTP subsequently advised on 8 March 2010 that it accepted that the act could be done subject to conditions similar to those suggested by the Government party. The SNTP also advised that it was of the same view as the FNTP and supported their comments. While no formal documents have been filed advising of the native title parties’ consent to a determination I am satisfied that they have both agreed to a determination subject to the Government party’s suggested conditions.

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:

(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:

(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). The Tribunal’s inquiry function is summarised in Waljen (at 162-163) and involves, among other things, the Tribunal making a determination based on logically probative evidence and application of the law.

Section 39(1)(a)(i) – enjoyment of registered native title rights and interests

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 claim area of the native title parties just by virtue of their registration. There is no evidence from either of the native title parties as to past, current or potential exercise or enjoyment of native title rights and interests in the area of the Land. The Government party says that unless evidence is provided of the effects of the proposed compulsory acquisition on the enjoyment of the registered rights and interests, it must conclude that there will be no effects. The FNTP, supported by the SNTP, does not dispute the Government party’s contention (FNTP contentions para 1).

Although the effect of the proposed compulsory acquisition will be to completely extinguish any native title that exists on the Land (s 155 LAA and s 24MD(2) NTA) this will not affect, on the evidence in this matter, the enjoyment of any native title rights and interests.

Section 39(1)(a)(ii) – way of life, culture and traditions

There is no evidence of the effect of the proposed compulsory acquisition on this factor.

Section 39(1)(a)(iii) – development of social, cultural and economic structures

There is no evidence to support a finding of any negative effect of the future act on the social, cultural and economic structures of the native title parties. Any positive effect can be taken into account (Waljen at 170). In my view the proposed compulsory acquisition would have a positive effect if the in principle agreement is confirmed and reserves created by the Government party for the use and benefit of Aboriginal inhabitants (see below under s 39(1)(f)).
Letters from the Government party to the SNTP dated 2 December 2009 and to the FNTP dated 6 October 2008 outline the following terms of the agreement offered to the native title parties by the grantee party.

Recognition of the native title parties through the erection of a plaque or the naming of a park.
The provision of two blocks of land from the subdivision of the Land (one for Naaguja and one for Mullewa Wadjari) within the first five years of the development.
Subject to the appropriateness of selected names, the naming of some parks and streets with Aboriginal names.
Provision and/or funding of job opportunities with the civil contractor engaged to undertake the work on the Land.
Working with the native title parties to develop and/or finance a scholarship program with the Geraldton TAFE.

Although there is no formal executed agreement between the parties, the representative for the grantee party, Mr Tony Anderson, advised the Tribunal in writing on 8 March 2010 that ‘the grantee remains committed to the offer as outlined in these documents.’
In addition, the Government party is now proposing to create two separate reserves of ten hectares within Victoria Location 2584 for the use and benefit of Aboriginal inhabitants in lieu of a previous offer to transfer to them some unallocated Crown land lots in Geraldton. One reserve is to be for use by the FNTP and the other for the SNTP.

Section 39(1)(a)(iv) – freedom of access and freedom to carry out rites and ceremonies

There is no evidence of the native title parties 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.
Although the effect of the proposed compulsory acquisition will be to completely extinguish any native title, the Government party says that this does not necessarily mean that the native title parties will be unable to access or use the whole of the site in the future. I accept that not all of the Dune will be developed for residential purposes and at least part of the Land area will remain accessible and available for use by the native title parties.

Section 39(1)(a)(v) – sites of particular significance

No evidence has been provided by the native title parties of any sites of particular significance to the Naaguja and Mullewa Wadjari native title parties in accordance with their traditions. A relevant site is one of special or more than ordinary significance to the native title claimants (Cheinmora v Striker Resources NL & Ors [1996] 1147 FCA; (1996) 142 ALR 21 at 34-35). The fact that a registered Aboriginal site exists within an area of a registered claim does not necessarily lead to a conclusion that it is a site of particular significance to a native title party in accordance with their traditions.
The AHA provides for the protection of a wide range of Aboriginal sites and objects by making it an offence to excavate, destroy, damage, conceal or in any way alter any Aboriginal site (s 17 AHA). The Act applies to all sites whether or not they are included on the Register. However, the protection given is not absolute. The Registrar of Aboriginal Sites (s 16 AHA) or the Minister may authorise interference with an Aboriginal site (s 18 AHA).
As stated, the Register kept under the AHA shows eight open access sites within the area of the proposed compulsory acquisition. The Register does not purport to be a record of all Aboriginal sites in Western Australia which means that it is possible that there may be other sites on the Land. However, in my view given the fact that the area has been extensively surveyed it is unlikely that any further sites exist.
The FNTP says there are likely to be Aboriginal remains in the area, given the Land comprises an extensive sand dune and sand dunes have been traditionally used by the traditional owners as burial sites. The Register of Aboriginal sites identifies the burial site of South Gates Burial Site (Site ID 5287) which is classified as skeletal material/burial, artefacts/scatter. The site is on the permanent register with open access and no restrictions. According to the report prepared by Quartermaine Consultants entitled ‘Report on an Archaeological Investigation for Aboriginal Sites Cape Burney Project’ dated April 2006 (‘Quartermaine Report’), the location of the South Gates Burial Site, which was registered in 1980, is at the foot of a large sand dune and just to the north of the area of the proposed compulsory acquisition (page 15). The Quartermaine Report notes that the bones were collected and reburied at a location chosen by Aboriginal representatives and that it is of low archaeological significance.
An earlier ethnographic survey commissioned by Landrow Limited and carried out by R. O’Connor with representatives of the Mullewa Wadjari native title party in March 2001 approved the development but noted the concerns of the SNTP that there are likely to be other Aboriginal burial sites in the dune system.
There is no specific evidence which establishes any of the sites on the Register or other possible sites as ones of particular significance to either native title party. Normally a burial site would qualify and despite the lack of evidence relating the South Gates Burial Site to the culture and traditions of the native title parties in any specific way, I am prepared to infer that the burial site is a site of the relevant kind. If there are other burial sites, they are also likely to be of particular significance to the native title parties.
The native title parties contend that if the Tribunal determines that the act may proceed, then the following conditions should be attached to the grant:
‘5.1.The Grantee Party is to be put on notice that the Aboriginal Heritage Act 1972 (“AHA”) applies over all of the Land, irrespective of whether sites have been registered and irrespective of the existence or extinguishment of native title; and’ (‘proposed condition one’)
5.2In order to ensure compliance with the AHA, the Grantee Party must not conduct exploration activities over the Land where there are registered native title rights and interests unless it has first given notice of the location, nature and extent of any proposed ground disturbing activities to the First Native Title Party and has caused a heritage protection survey to be undertaken with an anthropologist and archaeologist acceptable to the First Native Title Party.’ (‘proposed condition two’)’
In regards to proposed condition one, I agree with the Government party that the condition is not in a form that should be imposed by the Tribunal. The AHA is already applicable to the area of the Land and provides an Aboriginal site protection regime irrespective of whether native title has been extinguished. The Tribunal has on numerous occasions considered the protective provisions of the AHA. Pursuant to s 146(b) of the Act I adopt the Tribunal’s findings 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 (‘Maitland Parker’) at [33], [36]-[40]. The grantee party is aware of those sites recorded on the Register and I have no reason to believe that the grantee party will not comply with its obligations under the AHA.
With respect to proposed condition two, the Government party refers to the number of ethnographic and archaeological surveys carried out over the Land with each of the native title parties in support of its contention that the condition is not necessary. The Register records five heritage surveys conducted over the area from 1990 to 1997, four of which are ethnographic. Surveys have also been conducted with each of the native title parties by the original grantee party in 2001 as well as a further survey involving the first native title party in 2004. The archaeological investigation outlined in the Quartermaine Report took place in 2006. In my view the Government party and original grantee party have done everything reasonably possible to ensure that Aboriginal site and heritage issues have been adequately dealt with and it is likely that any known sites of ethnographic significance within the proposed compulsory acquisition would be contained in the Register. I accept that the present grantee party will have regard to any of the findings contained within the reports commissioned by the original grantee party and in the event that other burial sites or skeletal material are uncovered during the development, the grantee party will comply with the AHA in respect of them.
The Government party says a condition along the lines of that imposed by the Tribunal in FMG Pilbara Pty Ltd/Wintawari Guruma Aboriginal Corporation/Ned Cheedy and Others on behalf of the Yindjibarndi People/Western Australia, NNTT WF09/1, [2009] NNTTA 99 (27 August 2009), Daniel O’Dea at [18] could be imposed with the aim of alleviating any concerns of the native title parties with respect to any section 18 notices under the AHA lodged by the grantee party:
‘If the grantee party gives a notice to the Aboriginal Cultural Material Committee under section 18 of the Aboriginal Heritage Act 1972 (WA) it shall at the same time serve a copy of that notice, together with copies of all documents submitted by the grantee party to the Aboriginal Cultural Material Committee in support of the application (exclusive of sensitive commercial and cultural data), on the native title parties.’
Both native title parties have said they accept the Tribunal’s preliminary view that the act can be done subject to conditions similar to those proposed by the Government party. I accept that the Government party’s proposed conditions are appropriate.
Given the nature of the work to be undertaken in subdividing the Land there is a possibility that some of the sites on the Register will need to be disturbed. However, the fact that this can only occur after permission is sought from and granted by the Minister, following a recommendation of the Aboriginal Cultural Material Committee, means that a site will not be interfered with unnecessarily. The fact that the native title parties have agreed to the future act means that they accept the possibility that interference could occur in accordance with the AHA procedures.

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 parties in relation to the management, use or control of the area of Land except the in principle agreement and subsequent confirmation that the act may be done subject to the conditions proposed by the Government party.

Section 39(1)(c) – economic or other significance

The affidavit of Mr Steve Burgess outlines the economic and other significance of the proposed compulsory acquisition to the Government party and local economies of Greenough and Geraldton. Mr Burgess says if the act cannot proceed, the Government party will be in breach of contract and required to stabilise the Dune itself at costs described as ‘prohibitive and not sustainable” (SB affidavit para 8). The Government party contends that the proposed compulsory acquisition will represent a substantial monetary benefit to it.
The Government party also notes that the threat of the encroaching Dune upon the Brand Highway and neighbouring suburb of Wandina may give rise to the risk of legal liability with respect to the users of the highway and residents.
In addition to the benefits of stabilising the Dune, the Government party says the proposed compulsory acquisition will benefit the local economies of Geraldton and Greenough through the proposed residential development of the Land and provision of infrastructure.
I accept the evidence of the Government party which supports a finding that the grant of the proposed compulsory acquisition will result in economic and other benefits to the State of Western Australia and the areas of Geraldton and Greenough through the proposed residential development and infrastructure.
If the in principle agreement is finalised based on the offer made by the grantee party which it remains committed to, then there will be some benefit to the local Aboriginal community. They will also benefit from the designation of reserves by the Government party for the native title parties.

Section 39(1)(e) – public interest

The Government party says the public interest is strongly in favour of the doing the act for the reasons outlined above in s 39(1)(c), namely through the stabilisation of the Southgate Dune which will protect the southern suburbs of Geraldton and the Brand Highway from sand encroachment, and the establishment of a new residential area which will assist to relieve housing pressure in the region. I am satisfied that the public interest is served by the grant of the proposed compulsory acquisition.

Section 39(1)(f) – any other relevant matter

A relevant matter to which I have had regard is the existence of the in principle agreement reached between the Government party, grantee party and FNTP and the advice that both native title parties support a determination subject to the conditions proposed by the Government party.
The Government party initially said a condition along the lines proposed by the FNTP as to the ten hectare portion of Victoria Location 2584 for the use and benefit of the FNTP is unnecessary because ‘the Government Party undertakes to abide by its offer to reserve 20ha of land in Victoria Location 2584 for the “use and benefit of Aboriginal inhabitants”, with 10ha to be allocated to each of the native title parties.’ (GVP replies para 14). This position was also confirmed by Mr Burgess by way of email forwarded to all parties on 3 March 2010 by Mr Matthew Pudovskis, solicitor for the Government party:
‘I note that the Government Party response has been submitted and that this contains the advice that the State intends to honour its undertakings to provide two ten hectare parcels of land from Victoria Location 2584 following the completion of the land exchange.

I wish to confirm, as Manager State Lands Midwest, that it is my intention to provide those parcels of land for and on behalf of the State of Western Australia under delegated authority pursuant to the provisions of the Land Administration Act 1997 as reserves for “Use and Benefit of Aboriginal Inhabitants” upon the surrender of Victoria Location 2584 to the State as part of the land exchange agreement with Bayform. The parcels of land are to be identified in consultation with the two claimant groups.’
I am satisfied that the Government party will honour its undertaking but consider that, while not strictly necessary, a condition to acknowledge the Government party’s agreement should be imposed to reassure the native title parties that it will happen and because the native title parties agree to a determination if such a condition is imposed.
The Government Party must, within a reasonable period of acquiring ownership of Victoria Location 2584 from the Grantee Party, reserve for the use and benefit of Aboriginal inhabitants 20ha of that land. The 20ha is to comprise two parcels each of 10ha, and need not adjoin one another. The specific location of the two parcels is to be agreed following consultation between the Government Party and native title parties.

Section 39(2) – existing non native title rights and interests

As noted previously, the area of the proposed compulsory acquisition is unallocated crown land and as such, there are no relevant non-native title rights and interests in the area of the Land.

Conditions

I have previously discussed the imposition of conditions at ss 39(1)(a)(v) and 39(1)(f) and find that the act may be done subject to the imposition of the two conditions suggested by the Government party.
There is no evidence to justify a condition for a bank guarantee (s 42(5)) or an amount of money to be paid into trust (s 42(5B)) on account of any future claim for compensation. Any right to claim compensation for the extinguishment of the native title rights and interests of the native title parties as a result of the compulsory acquisition could be pursued under the Act or the Land Administration Act if the native title party is successful in obtaining a determination of native title.

Conclusion

The task of the Tribunal in making a determination is a discretionary one which involves weighing the various factors in s 39 based on evidence produced (Waljen at 165-166). I have before me no evidence and limited contentions from the native title parties with respect to any matters to be considered pursuant to s 39 of the Act. The Government party has provided comprehensive evidence of the proposed compulsory acquisition, including the financial benefit to the Government party by way of stabilisation of the Dune, as well as the economic and public benefit of the proposed residential development. I have before me no evidence as to the native title rights and interests of the native title parties which exist either generally or in relation to the proposed compulsory acquisition area. While any native title that exists will be extinguished, the evidence does not permit a finding that there will be any effect on the native title rights and interests of the native title parties. Further, I am satisfied that both native title parties agree to the doing of the act on the undertakings that the Government party reserve a portion of Victoria Location 2584 to the native title parties for their use and benefit, and the condition for any notice under s 18 of the AHA to disturb a site to be given to the native title parties which will have an additional protective effect with respect to the registered sites over the Land or any others which are found to exist.

Determination

The determination of the Tribunal is that the act, namely the proposed compulsory acquisition of whole of Victoria Location 11939 for the purpose of enabling the grant of the Land to Bayform Holdings Pty Ltd, may be done, subject to the following two conditions.
If the grantee party gives a notice to the Aboriginal Cultural Material Committee under section 18 of the Aboriginal Heritage Act 1972 (WA) it shall at the same time serve a copy of that notice, together with copies of all documents submitted by the grantee party to the Aboriginal Cultural Material Committee in support of the application (exclusive of sensitive commercial and cultural data), on the native title parties.
The Government Party must, within a reasonable period of acquiring ownership of Victoria Location 2584 from the Grantee Party, reserve for the use and benefit of Aboriginal inhabitants 20 hectares of that land. The 20 hectares is to comprise two parcels each of 10 hectares, and need not adjoin one another. The specific location of the two parcels is to be agreed following consultation between the Government Party and native title parties.

Hon C J Sumner
Deputy President
25 March 2010