Western Australia/Arthur Dimer & Ors on behalf of the WA Mirning People/R A Higgins & T F Higgins

[2013] NNTTA 46

NATIONAL NATIVE TITLE TRIBUNAL

Western Australia/Arthur Dimer & Ors on behalf of the WA Mirning People/R A Higgins &      T F Higgins [2013] NNTTA 46 (23 April 2013)

Application No:         WF2013/0003

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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Arthur Dimer, Jean McKenzie, John Graham, Les Tucker, Wendy Lawrie, Clem Lawrie, Robert Lawrie and David Hirschausen on behalf of the WA Mirning People (WC2001/001) (native title party)

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R A Higgins and T F Higgins (grantee party)

FUTURE ACT DETERMINATION

Tribunal:                   Daniel O’Dea, Member

Place:  Perth
Date:  23 April 2013

Catchwords: Native title – future act – application for determination for acquisition of land – logistical difficulties with signing s 31(1)(b) agreement – native title party as a whole consents to the determination – consent determination that the act may be done.

Legislation:Native Title Act1993 (Cth), ss 29, 31(1)(b), 35, 38, 61(2), 62A, 109, 151(2), 253

Land Administration Act1997 (WA), s 170

Cases:Albert Little and Others on behalf of Badimia/Tantalum Australia NL and Mawson West Ltd/State of Western Australia [2006] NNTTA 22

Alexander Brown and Others on behalf of the Ngarla People/Westralian Nickel Pty Ltd/Western Australia [2004] NNTTA 1

Badimia Native Title Claimants/Gindalbie Gold NL/Western Australia [2003] NNTTA 102

Dimer v Stewart (2006) 200 FLR 385

Evelyn Gilla and Others on behalf of the Yugunga-nya People; Kevin Walley and Others on behalf of the Ngoonooru Wadjari People/John Wilson/Western Australia [2006] NNTTA 4

Foster v Copper Strike Ltd (2006) 200 FLR 182

Monkey Mia Dolphin Resort Pty Ltd v Western Australia (2001) 164 FLR 361

Placer (Granny Smith) Pty Ltd v Western Australia (2000) 170 FLR 469

Hearing Date:  Determined on the papers

Representatives of the      Jeff O’Halloran, State Solicitor’s Office

Government Party:            Rod Wahl, State Solicitor’s Office

Representative of the        Monica Franz, Goldfields Land and Sea Council

native title party:               

Representative of the        Bill McKenzie, McKenzie & McKenzie Lawyers

grantee party:  

REASONS FOR FUTURE ACT DETERMINATION

1. On 25 June 2012, the Director-General of the Department of Regional Development and Lands under delegation from the Minister for Lands and on behalf of State of Western Australia (‘the Government party’) gave notice under s 29 of the Native Title Act1993 (Cth) (‘the Act’) and s 170 of the Land Administration Act1997 (WA) of a future act. The future act involves the compulsory acquisition of all registered and unregistered interests (including any native title rights and interests) in land described as the Whole of Lot 46 on Deposited Plan 73748 Volume LR3162 Folio 158 (‘the land’). The purpose of the proposed acquisition is to amalgamate the land with the adjoining Lot 25 on Deposited Plan 73749 Volume LR3162 Folio 157 so that it may be converted to freehold and transferred or granted to R A and T F Higgins (‘the grantee party’), who currently hold a lease over Lot 25 for residential purposes. The Land is unallocated Crown land and is currently used as an access track.

2. The land comprises an area of 2192 square metres situated in the Shire of Dundas.  The land is entirely within the boundaries of the registered claim of the WA Mirning People (WC2001/001 – registered from 4 September 2001).  The registered native title claimants for the WA Mirning people are Arthur Dimer, Jean McKenzie, John Graham, Les Tucker, Wendy Lawrie, Clem Lawrie, Robert Lawrie and David Hirschausen (‘the native title party’).  The land is not subject to any other registered native title claim or determination of native title.

3. On 27 February 2013, being a date more than six months after the s 29 notice was given, the Minister for Regional Development and Lands on behalf of 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 acquisition. The application states that the native title party has agreed to the proposed acquisition, but is unable to complete an agreement of the kind referred to in s 31(1)(b) of the Act due to the wide geographic spread and ill health of the native title claimants, which has made the execution of the document logistically difficult.

4. Attached to the application was a minute of consent, signed by Jeff O’Halloran of the State Solicitor’s Office on behalf of the Government party.  The minute has since been signed in counterpart by Bill McKenzie of McKenzie & McKenzie Lawyers on behalf of the grantee party and by Mark Rumler, Principal Legal Officer of the Goldfields Land and Sea Council (‘GLSC’) on behalf of the native title party. The minute of consent is made in the following terms:

DRAFT PROPOSED CONSENT DETERMINATION UNDER SECTION 38 OF

THE NATIVE TITLE ACT 1993 (CTH)

1.The Government Party issued a section 29 notice pursuant to the Native Title Act 1993 (‘NTA’) which specified a Notification Day of 25 July 2012. Six months has passed since the Notification Day and the parties are seeking a consent determination in respect of the section 35 application that was lodged with the National Native Title Tribunal (‘NNTT’) on 27 February 2013.

2.The section 29 notice is located within the claim area of the WA Mirning People’s registered native title claim. There are no other registered native title claimants or registered native title bodies corporate in respect of the section 29 notice.

3.The Goldfields Land and Sea Council (‘GLSC’) advised the Department of Regional Development and Lands (‘RDL’) on 7 December 2012 that the Grantee Party and the Native Title Party finalised an ancillary agreement.

4.The Native Title Party comprising the applicants for the WA Mirning registered claim, are geographically dispersed over a large area and are in ill health. For practical reasons and given that the parties are all legally represented, the GLSC has requested that the matter be concluded through a section 38 consent determination rather than a section 31 State deed under the NTA. The Grantee Party and the Government Party agree that it is the appropriate course of action in the circumstances.

5.The Native Title Party consents to the taking of all registered and unregistered interests (including any native title rights and interests) in the land, being the whole of Lot 46 on Deposited Plan 73748 Volume LR3162 Folio 158, for the purpose of conferring interests on Mr and Mr and Mrs [sic] R.A. and T.A. [sic] Higgins.

1. The Tribunal is entitled make a determination with the consent of the parties and it will normally be appropriate to do so where the parties (and particularly the native title party) are legally represented, and where those representatives have informed the Tribunal of the consent.  The GLSC is the recognised Native Title Representative Body (‘NTRB’) for the region and represents the native title party in these proceedings.  The Tribunal will consider submissions from parties to satisfy itself that the consent determination is appropriate (Monkey Mia Dolphin Resort Pty Ltd v Western Australia (2001) 164 FLR 361).

2. In the support of the application, the native title party provides an affidavit affirmed by Mr Rumler on 16 April 2013.  Paragraphs 3 to 13 set out the history of the matter and explain why a consent determination is sought:

   3.On 7 July 2004, the Applicant Government Party issued a Notice of Intention to Take (NOITT) for land within lot 25 within an existing access track (the Access Track).  A true copy of that notice is annexed and marked “MR1”.

   4.On 17 May 2006, a meeting of the Native Title Party was held at which the Access Track was discussed and it was resolved that a heritage survey would be conducted over the Access Track.  A true copy of the extract of the minutes of that meeting is annexed and marked “MR2”.

   5.I am informed by the GLSC files that a field trip was conducted on or around 5 November 2006 by representatives of GLSC and the Native Title Party.  On that field trip, the participants viewed the existing Access Track the subject of the NOITT.  A true copy of a photo taken during that field trip is annexed and marked “MR3”.

   6.On 8 November 2006, a meeting of the Native Title Party was held in Eucla at which the results of the field trip and the NOITT were discussed.  The claim group resolved to allow the NOITT to proceed on the basis that a heritage survey would need to be conducted for any ground disturbing works in the area.  A true copy of the extract of the minutes of that meeting is annexed and marked “MR4”.

   7.On 17 November 2006 a letter was sent to DPI relaying the outcome of the meeting of the Native Title Party held on 8 November 2006.  A true copy of that letter is annexed and marked “MR5”.

   8.I am informed by the GLSC files that as a result of that outcome an Ancillary Agreement was entered into between the Grantee Party and the Native Title Party which covered the condition referred to in the minutes annexed at “MR4”.  The Ancillary Agreement is dated 7 September 2011.  An extract from minutes of a Mirning working group meeting on 15 September 2010 authorising the signing of the Ancillary Agreement is annexed and marked “MR6”.

   9.On 25 June 2012, the Applicant Government Party reissued the NOITT for the Access Track.  I am informed by the GLSC files that the NOITT was reissued as a result of an error in the description of the land in the original NOITT.  A true copy of the reissued NOITT is annexed and marked “MR7”.

   10.I am informed by the GLSC files that as a result of the amendments to the description of the land in the reissued NOITT, amendments to that description needed to be made in the Ancillary Agreement.  I am informed by the GLSC files that an amended Ancillary Agreement, accurately describing the land in the reissued NOITT, was entered into by the Grantee Party and Native Title Party on 13 November 2012.

   11.On 7 December 2012, Dante Mavec, lawyer at the GLSC who had carriage of the matter at that time, informed the Applicant Government Party that he had instructions to consent to the compulsory acquisition of the land within the amended NOITT.  A true copy of this correspondence is annexed and marked “MR8”.

   12.I am informed by the GLSC files that four of the members of the Mirning Applicant reside in South Australia and for this reason it is logistically difficult as well as unduly expensive to obtain all signatures of the Mirning Applicant for a section 31 State Deed.

   13.I am informed by Monica Franz, claim lawyer for the Mirning claim group, that there is no scheduled meeting of the Mirning claim group in the near future at which the signature of the Mirning Applicant could be obtained.

3. The native title party is free to arrange its internal decision-making process in accordance with its traditions or as it otherwise sees fit. For example, day-to-day decision-making may be conferred upon a working group. However, the statutory framework of the Act makes it clear that only the person or persons comprising the applicant are authorised to bring a native title application and deal with matters arising from it (ss 61(2) and 62A). Part 2 of Division 3 of the Act, which deals with future acts, specifies that a ‘native title party’ is either a Registered Native Title Body Corporate, in the case of an area where a determination of native title had been made, or the Registered Native Title Claimant, where a native title application has been accepted for registration but not yet determined (s 29(2)). The ‘Registered Native Title Claimant’ is defined in s 253 of the Act as:

   ... a person or persons whose name or names appear in an entry on the Register of Native Title Claims as the applicant in relation to a claim to hold native title in relation to the land or waters.

4. In circumstances where one or more members of the applicant group are unable or unwilling to sign the relevant State Deed, the question for the Tribunal is whether the applicant gives consent for the act to be done.  The Tribunal has held on previous occasions that the persons comprising the applicant must act jointly or collectively as the representatives and agents of the claim group and are not entitled to act in a personal capacity (see for example Placer (Granny Smith) Pty Ltd v Western Australia (2000) 170 FLR 469; Foster v Copper Strike Ltd (2006) 200 FLR 182; Dimer v Stewart [2006] 200 FLR 385). Where a consent determination is sought, the legal practitioner representing the native title party must be satisfied (and satisfy the Tribunal) that the person or persons comprising the applicant, acting collectively, consent to the doing of the particular act.

5. The Tribunal must carry out its functions in an informal and prompt way. The Tribunal is not bound by technicalities, legal forms or rules of evidence (s 109 of the Act). No evidence has been presented which indicates that the necessary consent has not been given. As such, the Tribunal will accept evidence from the native title party’s solicitors that the consent was properly given, particularly when the solicitors are engaged by an NTRB (Albert Little and Others on behalf of Badimia/Tantalum Australia NL and Mawson West Ltd/State of Western Australia [2006] NNTTA 22 at [11]).

The inquiry

1. On the basis of the information contained in the application, the affidavit of Mr Rumler and the executed minute, I am satisfied that the matter can be adequately determined on the papers (that is, without a hearing) in accordance with s 151(2) of the Act. None of the parties has objected to that approach.

Findings

1. The Tribunal has accepted that logistical difficulties in obtaining the signatures of the registered native title claimants is a legitimate basis for seeking a consent determination (see for example Badimia Native Title Claimants/Gindalbie Gold NL/Western Australia [2003] NNTTA 102; Alexander Brown and Others on behalf of the Ngarla People/Westralian Nickel Pty Ltd/Western Australia [2004] NNTTA 1; Evelyn Gilla and Others on behalf of the Yugunga-nya People; Kevin Walley and Others on behalf of the Ngoonooru Wadjari People/John Wilson/Western Australia [2006] NNTTA 4). In the present matter, I accept that obtaining the signatures of the four members of the applicant group who reside interstate would be logistically challenging and unduly expensive, and justifies the making of a consent determination.

2. The history of the matter outlined by Mr Rumler demonstrates that the ancillary agreement was entered into with the full and informed consent of the native title party through an established decision-making process.  The native title party was legally represented throughout that process.  There is no evidence of any irregularities in the decision-making process or internal division about the proposed acquisition.

3. Based on the evidence before me, I am satisfied that the persons comprising the applicant, acting collectively, agree to the proposed acquisition and consent to a determination in the terms sought.

Determination

1. By consent, the determination of the Tribunal is that the act, namely the acquisition of the Whole of Lot 46 on Deposited Plan 73748 Volume LR3162 Folio 158, may be done.

Daniel O’Dea
Member
23 April 2013