1998] NNTTA 2 (20 February 1998)

NATIONAL NATIVE TITLE TRIBUNAL

Minister for Lands, State of Western Australia/Marjorie May Strickland and Anne Joyce Nudding on behalf of the Maduwongga People; Brian and Dave Champion, Cadley and Dennis Sambo, George Wilson and Clem Donaldson for their respective (Gubrun) families; Dorothy Dimer, Ollan Dimer and Henry Richard Dimer on behalf of Mingarwee (Maduwonjga) People, [1998] NNTTA 2 (20 February 1998)

Application No.: WF97/4

IN THE MATTER of the Native Title Act 1993 (Cth)

- and -

IN THE MATTER of a Future Act Determination Application

Minister for Lands, State of Western Australia (Government party) - and - Marjorie May Strickland and Anne Joyce Nudding on behalf of the Maduwongga People (Maduwongga Native Title Party) -and- Brian and Dave Champion, Cadley and Dennis Sambo, George Wilson and Clem Donaldson for their respective (Gubrun) families (Gubrun Native Title Party) -and- Dorothy Dimer, Ollan Dimer and Henry Richard Dimer on behalf of Mingarwee (Maduwonjga) People (Mingarwee Native Title Party)

REASONS FOR DETERMINATION

Tribunal: The Hon C J Sumner, Member Place: Perth Date: 20 February 1998

Catchwords: Native title - future act - application for a determination for the compulsory acquisition of native title rights and interests - compulsory acquisition that confers interests on third parties under Land Acquisition and Public Works Act 1902 (WA). Propositions relating to future act determination inquiries.

Evidence - whether evidence should be heard in camera and publication prohibited.

NNTT - jurisdiction - whether proposed compulsory acquisition is a permissible future act - compulsory acquisition and the subsequent steps to give effect to purpose is one act for purposes of future act provisions - application of the non-extinguishment principle to 2 compulsory acquisition - meaning of ‘the purpose of the acquisition’ in s 26(1)(d) - jurisdiction satisfied where the predominant purpose of the acquisition is for the conferral of rights and interests on third parties.

Effect of act on native title rights and interests and other matters in s 39 - future act can be done subject to conditions.

Conditions - s 38(1)(c) - condition relating to persons other than native title parties not authorised - condition for non-monetary compensation to be held in trust not authorised.

Legislation: Native Title Act 1993 (Cth), ss 23, 26, 38, 39, 41, 52, 235, 238, 253 Land Acquisition and Public Works Act 1902 (WA), ss 9L, 9J, 9N, 17, 18, 33 Western Australian Land Authority Act 1992 (WA), ss 5, 24

Cases: Ted Comanoo Evans v Western Australia, Federal Court, unreported, Nicholson J, 8 August 1997 Mabo v State of Queensland (No. 2) (1992) 175 CLR 1 Mineralogy Pty Ltd v National Native Title Tribunal & Ors, Federal Court, unreported, Carr J, 10 February 1997 North Ganalanja Aboriginal Corporation v Queensland (1996) 135 ALR 225 Re Koara (1996) 132 FLR 73 Western Australia v Thomas & Ors (1996) 133 FLR 124

Words and phrases: “purpose”

REASONS FOR DETERMINATION

1. INTRODUCTION

This matter involves an application to the National Native Title Tribunal (‘the Tribunal’) under s 35 of the Native Title Act 1993 (Cth) (‘the Act’) for a determination in relation to a future act. The act is a proposal by the State of Western Australia (‘the Government party’) to compulsorily acquire native title rights and interests for the purpose of conferring rights or interests in relation to the land or waters concerned on persons other than the Government party to establish a heavy industrial estate - the Mungari Industrial Park (‘the Park’) - near Kalgoorlie.

This matter is the first s 35 application involving the compulsory acquisition of native title rights and interests and was treated as a test case by the Tribunal and parties. The Tribunal has previously made determinations in test cases involving proposals to grant mining leases in Western Australia - (WA v Thomas & Ors (1996) 133 FLR 124 (‘Waljen’) and Re Koara People (1996) 132 FLR 73 (‘Koara’)).

Because of its status as a test case the Tribunal heard legal argument in relation to a number of issues and the Tribunal has commented on them even where strictly not necessary for a decision on the facts of this case. This has been done in the interests of providing as much information as possible about the workings of the Act to interested parties and some guidance for future Tribunal inquiries of this kind.

The inquiry was conducted in Perth and Kalgoorlie and involved visiting the area proposed for the Park. The Tribunal’s tentative conclusions and a draft determination and conditions were provided to the parties for comment.

The Government party was represented by Mr Stephen Wright (instructed by the Crown Solicitor), the Maduwongga native title party by Mr Greg McIntyre (instructed by Newton Vincent), the Gubrun native title party by Mr Dion Harrington (of Zilkens & Co) and the Mingarwee native title party by Mr Michael Rynne (of the Goldfields Land Council).

2. THE LAW

(a) The Native Title Act 1993 - The Right To Negotiate provisions - Summary

Section 26(1) of the Act provides that where the Commonwealth, a State or Territory (‘the Government party’) proposes to do a permissible future act covered by s 26(2) in relation to an onshore place the ‘right to negotiate’ provisions in Subdivision B, of Division 3, of Part 2 (ss 26-44) of the Act apply, and must be followed to ensure that the act can be validly done (s 28). The acts covered by s 26(2) include:

‘(a) the creation of a right to mine, whether by the grant of a mining lease or otherwise; ... (d) the compulsory acquisition of native title rights and interests under a Compulsory Acquisition Act, where the purpose of the acquisition is to confer rights or interests in relation to the land or waters concerned on persons other than the Government party.’

In summary, the right to negotiate provisions provide that the Government party must give notice of its intention to do the act (s 29). A ‘native title party’ is any registered native title body corporate (s 29(2)(a)) or any registered native title claimant (s 29(2)(b)) in relation to the land or waters that will be affected by the act and any person who within two months of the notice being given becomes a registered native title claimant or any body corporate who becomes a registered native title body corporate within the same period (s 30). A ‘grantee party’ is a person who has requested or made application for the act to be done (s 29(3)(d)). Provision is made for the act to attract the expedited procedure in the circumstances set out in s 237 (ie. where the act does not interfere with the community life of the native title parties, or sites of particular significance to them, or does not involve major disturbance to any land or waters concerned) in which case the act may be done without the negotiations otherwise required (s 32). Where the expedited procedure is not attracted, the Government party must negotiate in good faith with the native title parties and the grantee parties (s 31(1)(b)) who are all ‘negotiation parties’ (s 253) with a view to obtaining the agreement of the native title parties to the doing of the act, with or without conditions to be complied with by any of them. In the case of a proposal for the compulsory acquisition of native title rights and interests for the purposes of conferring rights or interests on persons other than the Government party (ie. on third parties) any negotiation party may apply to the arbitral body (in this case the Tribunal) for a determination in relation to the act if there is no agreement within six months of the notice under s 29 being given (s 35).

Unless an agreement is reached by the negotiation parties and a copy of it given to the Tribunal (ss 34 and 37), the Tribunal must conduct an inquiry and make one of the following determinations, namely, that the act must not be done, that the act may be done, or that the act may be done subject to conditions to be complied with by any of the parties (s 38). In the case of a compulsory acquisition, the Tribunal must take all reasonable steps to make a determination within six months of an application being made and advise the Commonwealth Minister if it does not do so (s 36(2)). Section 39 sets out the matters that the arbitral body must take into account in making a determination. The determination can be overruled by the Minister (s 42).

(b) Propositions relating to a future act determination application inquiry

In making the determination I have been guided by the following key propositions which have been derived principally from the previous test cases of the Tribunal (Koara and Waljen) and the Federal Court decision in Ted Comanoo Evans v Western Australia, Federal Court, unreported, Nicholson J, 8 August 1997 (‘Evans’) which was an appeal from the Tribunal’s determination in Koara. Although Koara and Waljen involved a proposal by the State of Western Australia to grant mining leases under the Mining Act 1978 (WA) (ie. acts covered by s 26(2)(a) of the Act), many of the principles enunciated in them are equally applicable to this case.

Statutory interpretation

1. The relevant provisions of Subdivision B are to be construed so that, as far as possible, the Act will operate in harmony with the existing State and Territory regimes of land management including mining legislation (Koara at 80).

2. The Tribunal should give a beneficial construction to provisions which are designed to protect native title so as to give the fullest relief which the fair meaning of the language of the Act will allow (Koara at 81; North Ganalanja Aboriginal Corporation v Queensland (1996) 185 CLR 595 at 614-615, 653 (‘North Ganalanja’)).

3. Given the extraordinary circumstances surrounding the passage of the Act through the Parliament it is not surprising that some anomalies are to be found in the legislation (Minister for Mines (NSW)/Associated Gold Fields NL/Alkane Exploration NL, NNTT, NF94/1, Olney J, 6 February 1995, at 1-2).

4. In the absence of case law or general principle, the terms and purpose of the Act can be the only guide to its interpretation (North Ganalanja at 265). Section 3 of the Act provides that two of its main objects are to provide for the recognition and protection of native title (s 3(a)) and to establish ways in which future dealings affecting native title may proceed and set standards for those dealings (s 3(b)).

5. A literal approach to some of the provisions would lead to anomalous results and an undermining of the purpose of the Act (Waljen at 137).

6. The Act attempts to strike a balance between the protection of native title rights and interests and the interests of the broader community. The legislation was enacted with the knowledge of the importance of the mining industry and the uses to which compulsory acquisition is put. It was intended to deal with ongoing proposals for mining and certain compulsory acquisitions (Waljen at 150). Native title holders have a right to be asked about actions affecting their land but are not given a veto (Koara at 80). A decision that an act may not be done can only be made by a Tribunal determination following the process of negotiation and arbitration set out in the Act or by a decision of the Minister to overrule a determination.

The Tribunal’s inquiry function

7. The Tribunal's determination must be based on logically probative evidence and by application of the law (Waljen at 162).

8. There is no onus of proof as such but there is a common sense approach to evidence which in practical terms means that parties will produce evidence to support their contentions, especially when the facts are peculiarly within their own knowledge. Ordinarily the parties have the primary responsibility for presenting evidence and, in general, if they fail to do so, they cannot complain if the Tribunal gives little or no weight to their contentions (Waljen at 162).

Jurisdiction

9. The Tribunal must be satisfied that it has jurisdiction to proceed to an inquiry and determination (Mineralogy Pty Ltd v National Native Title Tribunal & Ors, Federal Court, unreported, Carr J, 10 December 1997 at 8-9, 15).

10. One of the necessary preconditions to jurisdiction is that the proposed act is a permissible future act covered by s 26(2) of the Act. A future act is one which affects native title (s 233) and the Tribunal will assume for the purposes of jurisdiction in an inquiry which involves registered native title claimants (as opposed to determined native title holders) that native title exists and will be affected by the proposed act (Waljen at 163-166).

11. It is also a necessary precondition to the Tribunal’s jurisdiction that the Government party has fulfilled its obligation to negotiate in good faith with the native title parties and the grantee parties as required by s 31(1) of the Act (Walley v The State of Western Australia & Ors (1996) 67 FLR 366 (‘Walley’)).

12. The Tribunal will normally accept that it has jurisdiction to conduct an inquiry unless the parties take issue with it or there is an obvious issue of fact or law which questions it (Walley at 572-3. Western Australia/Strickland (Maduwongga) NNTT WF97/4, Hon C J Sumner, 10 December 1997 at 7 (‘Maduwongga’)).

Section 38 - Kinds of determination - conditions

‘Kinds of determination Kinds of determination 38.(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.

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.’

13. There is nothing in s 38(1)(c) which expressly limits the nature of conditions other than s 38(2). The conditions must be attached to a “determination that the act may be done” subject to the conditions (Evans at 25).

14. The subject matter of the conditions is to be shaped by the broad purpose that there be a determination of the act and by the requirements of s 39 that in making its determination the arbitral body must take into account the criteria there listed (Evans at 25).

15. There is a requirement of linguistic certainty in the conditions imposed because, absent it, the conditions could not operate as in contract and provisions for payment could fail (Evans at 25-26).

16. It is inherent in s 38 that the arbitral body not leave the outstanding issues between the parties unresolved (Evans at 26).

17. The facts and submissions in this matter gave rise to the question whether the Tribunal can impose conditions under s 38(1)(c) relating to or for the benefit of Aboriginal people generally, for registered native title claimants who are not native title parties or eventual holders of native title who were not native title parties. The Government party argued that it did not. The objects of the Act include the recognition and protection of native title and the establishment of ways in which future dealings affecting native title may proceed (s 3(a) and (b)). The right to negotiate provisions are designed to ensure that future dealings can occur within defined timeframes and with the involvement of defined parties. A period of two months from the date of the Government party’s notice is allowed for a person to become a registered native title claimant and receive status as a native title party and a negotiation party. The Government party must negotiate with the native title party but there is nothing in the Act to suggest that the obligation to negotiate in good faith extends to negotiating with persons who are not native title parties or negotiating about the provisions of benefits to persons who are not native title parties. In the arbitration phase the parties are defined and a condition may impose an obligation on any of them. There is nothing specific in the Act which authorises the imposition of conditions on them to do things in relation to other persons. Section 41 seems to contemplate that the Tribunal conditions will only apply as between parties. A determination has effect as if the conditions were terms of a contract among the negotiation parties (s 41(1)). Section 41(3) provides that if a condition is imposed on the Government party or a grantee party to pay compensation to any native title party, the compensation is held in trust. It is difficult to see how a condition relating to compensation could be imposed for the benefit of a person who is not a native title party (and thus avoid the trust provisions) and therefore why s 38(1)(c) should be interpreted in a way which permits other types of conditions to be imposed in relation to a person who is not a native title party. Most of the criteria in s 39 refer to native title parties, although ss 39(1)(a)(i) and 39(1)(f) do not. However, s 39 is not the source of power for the imposition of conditions but prescribes the matters to be taken into account in making a determination and imposing conditions.

Native title rights and interests and the existence of other registered native title claimants are relevant to the exercise of power but do not authorise conditions which are otherwise outside the scope and purpose of the Act.

Mr Rynne and Mr McIntyre argued that the power in s 38(1)(c) when read with the objects in s 3(a) and (b) authorises conditions to be imposed in relation to all registered claimants. While a condition may incidentally relate to persons other than the native title parties - for instance, a condition for environmental protection, it is my view that the power in s 38(1)(c) does not extend to imposing conditions requiring the Government party specifically to do things in relation to the public generally, Aboriginal people or registered native title claimants who are not native title parties. Insofar as a condition anticipates that there will be determined native title holders, a condition can only relate to native title parties who eventually become native title holders.

The structure of the Act is designed to ascertain who are parties for the purpose of the right to negotiate and it is to those parties that the provisions (including s 38(1)(c)) apply. It is one of the ways that the Act strikes a balance between the protection of native title and the interests of the broader community.

The Section 39 Criteria

‘Criteria for making determinations Criteria 39.(1) In making its determination, the arbitral body must take into account the following: (a) the effect of the proposed act on: (i) any native title rights and interests; and (ii) the way of life, culture and traditions of any of the native title 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 lands or waters concerned and their freedom to carry out rites, ceremonies or other activities of cultural significance on the lands 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; and (vi) the natural environment of the land or waters concerned; (b) any assessment of the effect of the proposed act on the natural environment of the land or waters concerned: (i) made by a court or tribunal; or (ii) made, or commissioned, by the Crown in any capacity or by a statutory authority; (c) the interests, proposals, opinions or wishes of the native title parties in relation to the management, use or control of the lands or waters concerned; (d) the economic or other significance of the proposed act to Australia and to the State or Territory concerned; (e) any public interest in the proposed act proceeding; (f) any other matter that the arbitral body considers relevant.

Laws protecting sites of significance etc. not affected (2) Taking into account the effect of the proposed 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.’

18. The Tribunal’s duty in making a determination requires a weighing of the various effects and interests referred to in s 39 in accordance with the circumstances before it and there is no statutory indication that any one effect or interest is to be afforded any greater weight than any other (Koara at 81; Waljen at 165-166).

19. The Tribunal’s duty in making a determination involves weighing the various criteria by giving proper consideration to them on the basis of the evidence presented. The matters considered are not limited only to the specified criteria. The Tribunal is enabled by virtue of s 39(1)(f) to take into account any other matter it considers relevant (Waljen at 166).

Section 39 (1)(a)(i) - native title rights and interests

20. It is not appropriate to establish any test which must be met before the Tribunal can take account of the effect of the act on any native title rights and interests. The Tribunal will give weight to the effect of the proposed act on those rights and interests by reference to the evidence with respect to native title and the proposed act, without either assuming that there will be an effect just because certain rights and interests are claimed or establishing an evidentiary threshold test which must be met (Waljen at 166-167).

Mr McIntyre and Mr Rynne challenged this proposition and disputed the Government party’s contention that the hunting and gathering found to occur in this case was too spasmodic to constitute more than limited native title rights and interests, and did not justify a finding of more extensive rights such as a right of exclusive possession. They argued that the evidence of native title rights and interests in this case could give rise to a full occupational right and beneficial communal title to the land and that the Tribunal in these proceedings was justified in looking at the effect of the act on native title rights and interests in that sense.

While not the codification of the common law, the definition of native title in the Act (s 223) uses similar terms to those used by the High Court in Mabo v State of Queensland (No. 2) (1992) 175 CLR 1 (‘Mabo No 2’) at 57 per Brennan J where native title is described as the “interests or rights of indigenous inhabitants in land, whether communal, group or individual, possessed

under the traditional laws acknowledged by and the traditional customs observed by the indigenous inhabitants.” The definition in s 223 includes hunting and gathering.

A full inquiry into whether native title, as defined in s 223, exists and in what form is not appropriate in these proceedings. In circumstances where native title is not determined and where the Tribunal cannot make a determination of native title, it is not necessary or practicable to consider contested argument about the proof of native title or the scope of it. The facts of this case demonstrate the difficulties involved in adopting such a course of action. A future act determination application inquiry could be turned into a full blown inquiry involving the examination of contested issues of law and fact which are currently before the Courts.

21. Where evidence of effects is produced, there would also have to be evidence of those native title rights and interests which it is claimed exist and will be affected. There needs to be sufficient evidence to demonstrate which native title rights and interests will be affected and how they will be affected (Waljen at 167; Koara at 282).

22. Where the law is unclear it is not practical to take into account the question of the possibility of extinguishment in future act proceedings For the purpose of future act proceedings the Tribunal will proceed on the basis that, as a matter of law, there has been no extinguishment of native title by virtue for instance of the granting of pastoral leases or prior mining tenements This does not mean that the Tribunal cannot look at the practical effect of activities such as pastoral or mining activities as a matter of fact (Waljen at 169).

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

23. The social, cultural and economic structures of Aboriginal societies are not static. A compulsory acquisition proposal could have either a negative or a positive effect on the development of these structures. If the Tribunal were to decide that the act can be done then conditions could be imposed to minimise any adverse effect on, or to promote the development of, these structures (Waljen at 170).

Section 39 (1)(a)(v) - areas or sites of particular significance

24. The meaning of the words 'particular significance' is 'distinguished or different from others or from the ordinary; noteworthy, marked, unusual', 'exceptional or especial' (Waljen at

171-173; Dann v Western Australia, Federal Court, unreported, Carr J, 19 December 1996 at 21-24).

25. The Tribunal will have to make a value judgment about whether, from the native title point of view, the area or site is special or different from the other land in respect of which native title parties say they have native title rights and interests. This interpretation is consistent with the view that all of a native title holder's land is significant to the native title holder, and that persons may speak of areas or sites that are of 'particular significance' in accordance with their traditions (Waljen at 173-174).

26. The Tribunal’s function involves wider considerations than those which arise under heritage protection legislation (Koara at 95).

27. It should not be assumed by native title parties that the fact that there are sites on the Register maintained in accordance with the Aboriginal Heritage Act 1972 (WA) is sufficient on its own to establish that these sites are of particular significance in accordance with the traditions of the native title party (Waljen at 174).

Section 39(1)(a)(vi) - the natural environment

28. The natural environment of the land and waters concerned comprises all aspects of the natural environment (whether or not they are significant to native title parties) which may be affected by the proposed act. The Tribunal is entitled to look at the whole undertaking of which the relevant activity forms a part, to understand the cumulative and continuing effect of the activity on the environment. The "environment" includes the geographic location in which the activity is to be carried out and the area of which it is physically a part (Waljen at 174-175).

29. Section 39(1)(a)(vi) requires the Tribunal when making a determination to take into account the effect of the proposed act on the natural environment viewed both from an Aboriginal perspective and from the perspective of the broader community (Evans at 97).

Section 39(1)(d) - economic or other significance

30. The words 'or other significance' are not to be limited in any way by the word 'economic'. The economic or other significance of the proposed act is to be demonstrated by the evidence produced (Waljen at 175).

31. It is the economic or other significance of the act itself that must be considered (Waljen at 175).

32. The ordinary meaning of the words ‘significance of the proposed act’ requires the Tribunal to consider the proposed acts upon their own merits (Evans at 97).

Section 39(1)(e) - public interest

33. Section 39(1)(e) is a broader provision than s 39(1)(d) and requires the Tribunal when making a determination to take into account both the public interest in the protection of native title and also evidence of the public interest in the act being done (Koara at 98). The statutory interpretation of s 39(1) did not limit the words ‘any public interest’ in their scope, and there is no express or implied reason why the reference in the Act to the public interest should be read down (Evans at 27-28).

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

34. If the Tribunal considers that there is any other relevant matter, the Tribunal must take it into account when making a determination. A matter can only be relevant if it falls within the subject matter, scope and purpose of the Act (Evans at 98).

35. The Tribunal may consider the interests of a grantee party. Although the interests of a grantee party are not specifically mentioned in s 39(1), those interests may be relevant in a particular case and could be taken into account under s 39(1)(f) (Waljen at 177).

Compensation

36. The Act talks of two types of compensation. Firstly, final determinations of compensation for acts affecting native title which are dealt with in Part 2, Division 5 (ss 48- 54) and Part 3 which sets out procedures for making Native Title and Compensation applications. Secondly, ‘negotiated compensation’ which is compensation held in trust, pursuant to a condition imposed under s 38(1)(c).

Subsection 41(3) provides:

‘Determined compensation to be held in trust (3) Subject to subsection (4), in the case of a determination by the arbitral body, if the conditions require the Government party or any grantee party to pay compensation to any native title party, the compensation is held in trust, in accordance with the regulations, until it is paid in accordance with section 52.’

Subsection 41(4) provides that final determinations of compensation made in accordance with Division 5 or on just terms under a Compulsory Acquisition Act do not require a trust.

Section 52 prescribes the circumstance in which the negotiated compensation is to be paid out of trust:

‘52.(1) This section applies if compensation (the ``negotiated compensation") in respect of a proposed act is being held in trust in accordance with subsection 41(3) or paragraph 42(5)(b) and any of the following happens: (a) an approved determination of native title is made to the effect that there is no native title in relation to the area concerned immediately before the act takes place; (b) the Government party informs the trustee in writing that it no longer proposes to do the act; (c) the following requirements are satisfied: (i) an approved determination of native title is made to the effect that the native title parties concerned are (disregarding any holding of the native title in trust under Division 6) the native title holders in relation to the area affected by the act; and

(ii) the registered native title body corporate advises the trustee that it wishes to accept the negotiated compensation instead of any compensation to which the native title holders may be entitled under Division 2, 3 or 4 for the act; (d) a determination is made, on a claim for compensation in respect of the act: (i) in accordance with this Division; or (ii) on just terms under a Compulsory Acquisition Act; that a person is entitled to compensation, or that no compensation is payable to any person; (e) none of paragraphs (a), (b), (c) and (d) applies and the Federal Court decides, on application by any person, that it would be just and equitable in all the circumstances to pay the negotiated compensation to that person or another person. Paragraph (1)(a) or (b) case (2) In a paragraph (1)(a) or (b) case, the trustee must: (a) repay the negotiated compensation to the person who paid it to the trustee; or (b) if that person no longer exists  apply to the Federal Court for a direction as to the payment of the negotiated compensation. Paragraph (1)(c) case (3) In a paragraph (1)(c) case: (a) the trustee must pay the negotiated compensation to the body corporate; and (b) subject to section 53, there is no entitlement to compensation under Division 2, 3 or 4 for the act. Paragraph (1)(d) case where monetary compensation (4) In a paragraph (1)(d) case where the determination is that a person is entitled to an amount of monetary compensation: (a) if the negotiated compensation is the same as the amount determined  the trustee must pay the negotiated compensation to the person; or (b) if the negotiated compensation is less than the amount determined  the trustee must pay the negotiated compensation to the person and the Government party must pay the shortfall to the person; or (c) if the negotiated compensation is more than the amount determined  the trustee must: (i) pay the person so much of the negotiated compensation as equals the amount determined; and (ii) refund the excess to the person who paid the negotiated compensation to the trustee or, if that person no longer exists, apply to the Federal Court for a direction as to its payment. Paragraph (1)(d) case where non-monetary compensation (5) In a paragraph (1)(d) case where the transfer of property or the provision of goods or services constitutes some or all of the compensation, the trustee must apply to the Federal Court for a direction as to the payment of the negotiated compensation. Paragraph (1)(d) case where no compensation (6) In a paragraph (1)(d) case where the determination is that no compensation is payable or to be given to any person, the trustee must repay the negotiated compensation to the person who paid it to the trustee or, if that person no longer exists, apply to the Federal Court for a direction as to its payment. Paragraph (1)(e) case (7) In a paragraph (1)(e) case, the trustee must pay the negotiated compensation in accordance with the decision of the Federal Court mentioned in that paragraph.’

37. Section 38(1)(c) gives the Tribunal power to impose a condition relating to compensation (called ‘negotiated compensation’) on a determination that the act may be done (Evans at 16).

38. Negotiated compensation is held in trust in accordance with s 41(3) until it is paid out in accordance with s 52. Negotiated compensation can only be paid to a native title party

after it has been determined to hold native title (s 52(1)(c) and (d)) or the Federal Court determines that it would be otherwise just and equitable (s 52(1)(e)).

39. Negotiated compensation does not have to be determined in accordance with the procedure and criteria in Part 2, Division 5 of the Act, which relates only to the determination of Compensation applications (Evans at 16).

This means that if the Tribunal decides to impose a negotiated compensation condition on a determination that the act may be done pursuant to s 38(1)(c), it is not obliged at law to calculate it by reference to “just terms” criteria in the case of compulsory acquisition (ss 23(3)(c) and 51(2)) or the “similar compensable interest test” (ss 23(4), 240 and 51(3)) in the case of the grant of a mining tenement as these criteria are applicable to the determination of a Compensation application.

Although not an issue in this case because no condition relating to compensation is justified (see below), I am of the view that the Tribunal is entitled but not obliged when calculating a monetary amount of negotiated compensation to have regard to the principles of just terms compensation and the similar compensable interest test. Not to do so would mean the Tribunal making an assessment of negotiated compensation without any guidance. It would also mean that native title holders could receive different amounts of compensation depending on whether the compensation was for a past act, a future act to which s 23(6) applies or a future act to which the right to negotiate applies. Compensation for a past act is governed by Division 5. It would be incongruous for native title parties to be able, in the case of a future act to which the right to negotiate applies, to have access to compensation which may exceed just terms purely on the basis that the act was subject to the right to negotiate. This could occur where a native title holder decided to take the negotiated compensation after a determination of native title in full settlement of its compensation claim as provided for in s 52(1)(c) and s 52(3).

40. A condition for the payment of negotiated compensation does not preclude the native title holders from pursuing a claim for compensation for compulsory acquisition under the relevant Compulsory Acquisition Act in which case there is an entitlement to compensation on just terms but if the relevant State law does not provide for it, the native title holders are entitled to compensation in accordance with Division 5 (s 23(3)(c)).

41. The main issue to be decided in relation to negotiated compensation in this case is whether s 38(1)(c) authorises the Tribunal to make a determination that the act may be done subject to a non-monetary compensation condition.

The Government party argued that the Tribunal did not have power to make a determination that the act may be done subject to a non-monetary compensation condition as such a condition would be outside the scope and purpose of the Act as revealed in ss 51, 52, 79 and paragraph (c) of the definition of “Compulsory Acquisition Act” in s 253. With respect to a Division 5 determination of compensation, s 51(5)-(8) of the Act provides that compensation may only consist of the payment of money although a court assessing compensation may recommend non monetary compensation. If that recommendation is not complied with then monetary compensation must be determined. Section 79 provides that non-monetary compensation may be requested as part of negotiations in relation to an application, that the request must be considered and good faith negotiations occur in relation to it. The Government party argued that the policy of the Act not to permit a determination of non- monetary compensation is applicable to a negotiated compensation condition under s 38(1)(c). The wording of the relevant sections is inconsistent with their applicability to non- monetary compensation. Section 41(3) talks of a requirement ‘to pay’ compensation. The use in s 52(2), (3), (4) and (5) of the words ‘repay’, ‘payment’ and ‘pay’ when directing what is to happen to the negotiated compensation held in trust contemplates that only money can be paid into trust under s 38(1)(c). There is no mechanism in s 52 to deal with non-monetary compensation.

The Maduwongga and Mingarwee native title parties argued that s 38(1)(c) was an unlimited plenary power to impose conditions, including a condition for negotiated compensation and that this approach was consistent with the Federal Court’s decision in Evans. In Evans Nicholson J said (at 25) there ‘is nothing in s 38(1)(c) which expressly limits the nature of conditions other than s 38(2)’.

In my view, the Government party’s argument is to be preferred. Evans is not direct authority for the native title parties’ submission. While there is no express limit in s 38 on the conditions which can be imposed, the wording in s 41(3) and s 52 and procedures for dealing with negotiated compensation do not contemplate it being held in trust in a non- monetary form. The native title parties did not suggest that the Native Title Act enabled a

condition to be made which provided non-monetary negotiated compensation without the need for it to be held in trust.

The High Court has said that the acceptance of a native title claim and the consequent application of the right to negotiate provisions to it is designed to maintain the status quo pending a final determination (North Ganalanja at 235, 236). The provision of benefits to native title parties in the nature of compensation (even if not described as such) would not be consistent with this proposition. This does not mean that some payments which cannot be characterised as compensation cannot be imposed, such as the cost of a native title parties participation in a site survey, or the cost of relocating dwellings or water supply where the act will interfere with them.

Section 38(1)(c) does not authorise the imposition of a condition for non-monetary compensation to be held in trust.

Prior to the Gubrun native title party giving evidence Mr Harrington sought the following orders:

• pursuant to s 154(3) of the Act that his client’s evidence be given in private in the presence of the Government party representatives only;

• pursuant to s 155 of the Act that the evidence not be disclosed to any other person other than the Government party; and

• an order that the findings on the evidence not be disclosed other than to the Government party.

The orders sought the exclusion not only of the other native title parties but their legal representatives as well. The basis of the submission was that the Park area is subject to a number of overlapping and competing native title claims which are yet to be determined and that his clients wished to lead extensive evidence in these proceedings which they did not wish to disclose to other parties. Further, because there is a considerable history of tension and mistrust relating to native title within the Aboriginal community in the Kalgoorlie region Mr Harrington’s clients were wary of giving evidence in advance of any Federal Court

hearing. The other parties opposed the orders and I declined to make them at that stage of the inquiry.

My reasons can be summarised as follows. Section 143 of the Act says that a party may appear in person, or may be represented by a barrister, solicitor or another person. Section 152, subject to s 154, gives a party to an inquiry the right to appear at hearings held for the purposes of the inquiry. Section 154(1) says that subject to ss 154(3) an inquiry must be held in public. The heading to s 154 is ‘Inquiries to be held in Public except in Special Circumstances’. Although the words ‘special circumstances’ do not appear in the text of the section, the heading is a reasonable summary of what the section means. That is, the normal rule is that inquiries are to be held in public. That view is reinforced by s 154(2) which deals with a person participating in a hearing by telephone when the Tribunal is obliged to take such steps as are reasonably necessary to ensure the public nature of the hearing is preserved.

Section 154(3) provides for private inquiries - the Tribunal may of its own initiative, or on the application of a party if it is satisfied that it is appropriate to do so, direct that an inquiry or part of an inquiry be held in private and give directions as to the persons who may be present. Section 155 of the Act gives a discretion to the Tribunal to prohibit the disclosure of evidence and documents and could be used in conjunction with s 154 to ensure that the intent of a private hearing was realised.

Section 154(4) says that in determining whether an inquiry is to be held in private, the Tribunal must have due regard to the cultural and customary concerns of Aboriginal peoples. This is the only specific guidance given to the Tribunal under this section as to how to exercise what is a broad general discretion and must therefore be taken to be one of the most important factors to consider.

The reasons advanced by the Gubrun native title party do not specifically relate to their cultural and customary concerns. They are essentially tactical considerations which are not generally valid reasons for ordering a private hearing. The justification for a private inquiry where there are genuine cultural and customary concerns of Aboriginal people needs to be considered on a case by case basis.

The orders sought by Mr Harrington also included exclusion not only of the other native title parties but also their legal representatives. As a matter of procedural fairness that submission could not be acceded to. The other native title parties’ position may be affected by the

20 evidence. Evidence given in private by one native title party could challenge evidence of other native title parties. Indeed, it could go to the extent of saying that other parties have no native title rights and interests that could be affected or that none of the other factors in s 39 are relevant to those other native title parties. If evidence of that kind were given or submissions of that kind made then I think the native title parties against whom those arguments are advanced have a right to hear what they are and to respond to them.

The Federal Court has shown that there is considerable flexibility available to ensure that the cultural and customary concerns of indigenous people are recognised when receiving evidence (Western Australia v Ward. Hill, Branson, Sudberg JJ (1997) 145 ALR 512). Even so, the circumstances in which counsel (as well as the parties) would be excluded from a hearing would be very exceptional circumstances indeed although the power to do it seems specifically to be conferred by s 154(3). If it was considered appropriate to exclude parties, but enable their counsel to hear the evidence, but not disclose it to their clients or other persons, then obviously orders would need to be carefully fashioned to achieve that objective. Adequate notice of any such request would need to be given.

I ruled that I was not prepared to conduct the inquiry in private or make an order prohibiting the disclosure of evidence unless it became necessary for cultural and customary reasons and that such an order could not generally deprive other parties and their counsel from being informed of the evidence.

Although not necessary to decide the point, it is not clear that there is provision in the Act to prohibit the disclosure of findings of fact which the Tribunal is obliged to make as part of its determination (s 162(2)).

As a consequence of my ruling the Gubrun native title party declined to give evidence on the basis of concern that evidence in the public domain would be misappropriated by other native title claimants and of the history of mistrust including allegations made privately and in public against the validity of the Gubrun claim. Mr Harrington advised the Tribunal that his client disputed the claims of the other native title parties and would produce evidence to substantiate its claim in the Federal Court. Mr Harrington continued to participate in the inquiry for the purpose of making submissions.

3. FACTS AND CONCLUSIONS

(a) Background and Jurisdiction

Notice of intention under s 29

The Minister for Lands, on behalf of the Government party on or before 11 April 1996, gave notice in accordance with s 29 of the Act of its intention to do the proposed act. The Public Notice, which appeared in the Government Gazette on 29 March 1996, was a Notice of Intention to take land to grant estates, interests and rights under written law and was given under both the Land Acquisition and Public Works Act 1902 (WA) (‘LAPWA’) and the Native Title Act 1993 as follows:

‘The Minister for Works gives notice in accordance with section 17(2) of the Land Acquisition and Public Works Act that it is intended compulsorily to take under section 17(1) of that Act the land described in the Schedule (“land”) to grant estates, interests and rights under written law. The intended action is authorised by an order of the Governor under section 33C of the Land Acquisition and Public Works Act.’

The Schedule to the Notice contained the following information:

• ‘Locality/Local Government/Region’ ‘(Coolgardie (Shire)’ • ‘Description of land affected’ ‘Jaurdi Locations 80, 81 and 82 being vacant Crown land excluding existing mining tenements under the Mining Act (1185.3508 hectares).’ • ‘Interest holder/Registered native title claimant’ ‘1. Crown 2. DIMER Dorothy, DIMER Ollan and DIMER Henry Richard (WC96/10) 3. CHAMPION Tim on behalf of the Champion, Sambo, Donaldson and Wilson (Gubrun) families (WC95/27) 4. STRICKLAND Marjorie May and NUDDING Anne Joyce (WC94/3).’ • ‘Use/Purpose’ ‘1. Subdivisional development including the provision of services (such as water, power, roads) and land for industrial and public purposes 2. Sale of lots ’ Other salient parts of the Notice were:

• ‘NATURE OF ACT: The compulsorily taking of the land to grant estates, interests and rights under written law for the purpose specified in the Schedule (and ancillary purposes)’. • ‘COMMENCEMENT OF ACT: The taking of the land is subject to the procedural requirements of Part 2 Division 3, Subdivision B of the Native Title Act 1993 (Commonwealth) and Section 17(2) of the Land Acquisition and Public Works Act. The taking of the land will proceed if: (1) there is no “native title party” (as defined by the Native Title Act) in relation to the taking of the land or, if there is a native title party, the taking may validly proceed under the Native Title Act; and (2) the Minister for Works decides to proceed with the taking upon completion of the procedures provided by section 17(2) of the Land Acquisition and Public Works Act.’ • ‘TIME DURING WHICH THE ACT WILL CONTINUE TO BE DONE - Following the taking of the land estates in fee simple, conditional purchase leases, licenses to occupy, leasehold estates for periods of up to 99 years and leases in perpetuity will be granted in relation to the land either by public auction, invitation of applications or tenders, private treaty or some other process.’

• ‘KIND OF DISTURBANCE TO LAND - Disturbance to the land may thereafter be caused by the use and/or construction on the land consistent with the purpose(s) specified in the Schedule by the persons receiving the grants.’

The rights of native title parties and other interest holders under both Acts were briefly described and the 11 June 1996 given as the closing date by which a person must become a native title party. No specific issue was taken in relation to the Notice although Mr McIntyre argued that unless all the Locations included in the notice are covered by s 26(2)(d) then the notice is defective and the Tribunal does not have jurisdiction to make a determination (see below).

The proposal

The Government Party proposes to compulsorily acquire all the native title rights and interests in the areas described in the s 29 Notice. The land from west to east is Jaurdi Location 81 (451.83 hectares), Jaurdi Location 80 (423.48 hectares) and Jaurdi Location 82 (310.03 hectares) and is located approximately 13 kilometres north east of Coolgardie and 26 kilometres south west of Kalgoorlie.

The purpose of the acquisition is described in the s 29 Notice. The lots will be made available to private operators (‘third parties’) for the purpose of establishing the Mungari Industrial Park. The Park will be on Jaurdi Locations 80 and 82, and Jaurdi Location 81 will be a buffer zone. For reasons explained below it is proposed that two separate pieces of land on Jaurdi Location 80 be kept as conservation zones, one to assist the protection of the native habitat including two species of flora and the other to protect an Aboriginal site.

The Park is bounded on the northern side by the Transcontinental railway line and the Great Eastern Highway from Coolgardie to Kalgoorlie runs a short distance from its southern boundary. The Park will be surrounded by Mt Burges Pastoral Station to the north and west and Mungari Pastoral Station to the south and east. Jaurdi Locations 80 and 81 were formerly part of Mt Burges Pastoral Lease and Jaurdi Location 82 part of Mungari Pastoral Lease but the pastoral lease interests have now been acquired by the Government party. There will be a buffer zone of 1 kilometre width around the Park. To the west Jaurdi Location 81 will constitute the buffer zone and separate the Park from Mt Burges Station. To the north the buffer zone will be part of Mt Burges Station and to the east and part of the south it will be part of Mungari Station. Outside the Park area, but adjoining it along part of

its southern boundary, is Ngalbain Location 109 which was formerly part of Mungari Pastoral Lease but the pastoral interests have now been acquired. It is not proposed to compulsorily acquire the native title rights and interests in this land, which will remain vacant Crown land and form part of the buffer zone. LandCorp has obtained zoning approval from the Shire of Coolgardie for Jaurdi Locations 80 and 82 (special use - industrial) and the buffer zone including Jaurdi Location 81 (special control). In the buffer zone houses would not be permitted but there may be other compatible uses, such as mining and light industry. In Jaurdi Loc 81 there is a current mining lease being used for the mining of granite. An application for subdivisional approval has been made.

An access road from the Great Eastern Highway has already been built and the proposed subdivision provides for public roads to service the Park, one of which will traverse the Park from the Great Eastern Highway in the south to the Transcontinental railway line in the north. Other service corridors will also enable the building of railway lines to connect with the Transcontinental line. It is proposed to develop the Park in stages but no development work will be undertaken until there is at least one firm proposal to locate a facility at the Park.

At the same time as notice for this proposal was given the Government party also gave notice of its intention to acquire the native title rights and interests in land immediately to the north of the Park for an Explosives Reserve and Solid Industrial Waste Disposal Site. This proposal was subsequently withdrawn but it is the intention of the Government party to proceed with it at some time in the future.

On acquisition the Minister of Lands will grant freehold title to the Western Australian Land Authority (‘LandCorp’) a statutory authority established by the Western Australian Land Authority Act 1992 (WA), which will develop, subdivide and dispose of the land to third parties. The evidence was that this would be done by the grant of freehold or leasehold title although I note that the s 29 Notice contemplates that it may be done by a licence to occupy. Section 5 of the Western Australian Land Authority Act establishes LandCorp as ‘an agent of the Crown in right of the State’ and s 24 provides that the ‘Minister for Lands may give directions [to LandCorp] ... either generally or in relation to a particular matter’. The Government party has treated the compulsory acquisition which is effected by the Governor in Executive Council under the LAPWA and the subsequent transfer of interests in land to LandCorp as effectively one act. I regard LandCorp as part of the Government party and consider it appropriate and consistent with the purposes of the Act that the Government party

24 has treated the compulsory acquisition and subsequent transfer of interests to LandCorp as in effect one act and utilised the right to negotiate provisions. That is, it has not attempted to avoid the right to negotiate provisions by treating the act as a compulsory acquisition for Government purposes (ie. the transfer to LandCorp) in which case the right to negotiate provisions would not apply. As LandCorp is part of the Government party and in any event there is no evidence that it or any other person has requested or made application for the act to be done, there is no grantee party in these proceedings.

The compulsory acquisition is being effected pursuant to LAPWA. LAPWA permits the compulsory acquisition of land, not only to the Crown for public works (s 17(1)), but for the purpose of the grant under written law of any estate, interest or right, power or privilege in, over or in relation to the land (s 33C(1)) where the purpose of the grant is to enable the use or development of the land in a way that, in the opinion of the Governor, confers an economic or social benefit on the State or the relevant region or locality (s 33C(2)). Before the Governor declares that land may be set apart, taken or resumed (s 17(1)), the Minister must publish a notice of intention in the Government Gazette and in a local newspaper and serve a copy on owners and occupiers of the land (s 17(2)(b) and (c)). Provision is made for an owner or occupier to make a written objection to the Minister within 30 days of the notice (s 17(2)(d)(i)). After considering any objection or representation the Minister may cancel or amend the notice of intention (s 17(2)(d)(iii)), or allow it to remain in its original form (s 17(2)(c)).

It is during this period of notification and consideration by the Minister that the right to negotiate provisions of the Act are complied with where the acquisition involves a proposal to grant interests to a third party.

Following compliance with these procedures, the Governor may publish a notice in the Government Gazette declaring that the land has been set apart, taken or resumed (s 17(1)). Section 18(1) provides that upon the publication in the Government Gazette of the notice the land is vested in the Crown or the local authority for an estate in fee simple in possession or such lesser estate expressed in the notice, freed and discharged from all liens, mortgages, charges, obligations, estates, interests, rights-of-way or other easements. By s 18(2) the acquired interest is converted into a claim for compensation.

Part 1B of LAPWA enacts provisions relating to native title, the objective of which is to ensure that where the taking of land affects native title, the taking is a permissible future act under the Act; that LAPWA is a Compulsory Acquisition Act for the purposes of the Act; and that LAPWA is consistent with the procedural requirements of the Act (s 9J(1)(a)-(c)). References in LAPWA (s 9L) to an interest or estate in land includes native title rights and interests thus according native title holders the same rights as owners of the land. Section 9N provides that the giving of a notice of the intended acquisition under s 29 of the Act satisfies the obligation which the Minister would otherwise have to give notice to native title holders under s 17(2)(c)(ii). Section 2 defines ‘native title’, ‘native title holders’ and ‘native title rights and interests’ as having the same meaning as they do in the Act.

Other jurisdictional facts

On 19 April 1994 Marjorie May Strickland and Anne Joyce Nudding on behalf of the Maduwongga peoples (‘the Maduwongga native title party’) made an application for a determination of native title (WC94/3).

On 27 July 1995 Brian and Dave Champion, Cadley and Dennis Sambo, George Wilson, and Clem Donaldson for their respective (Gubrun) families (‘the Gubrun native title party’) made an application for a determination of native title (WC95/27).

On 2 February 1996 Dorothy Dimer, Ollan Dimer and Henry Richard Dimer on behalf of the Mingarwee (Maduwongga) people (‘the Mingarwee native title party’) made an application for determination of native title (WC96/10).

The Maduwongga and Gubrun native title parties were registered by the Tribunal as native title claimants in relation to the whole of the land to which the compulsory acquisition related and were so registered at the time that the notice under s 29 was given. The Mingarwee native title party was registered as a native title claimant in relation to part of the land in Jaurdi Location 81 and was so registered at the time that the notice under s 29 was given.

Since the time within which to become a native title party in relation to this proposal expired, a further eleven groups have become registered native title claimants over the whole (or part) of the Park area. These claimants did not obtain the right to negotiate and are not parties to these proceedings. I give consideration to the relevance of those overlapping claims below.

On 20 August 1997, being a date more than six months after the Government party gave notice of its intention to do the proposed act, the Government party applied to the Tribunal for a determination in relation to the proposed compulsory acquisition.

No agreement between the Government party and the native title parties as to the doing of the proposed act has been given to the Tribunal.

On 5 December 1997 the Tribunal decided that the Government party had fulfilled its obligation under s 31(1) of the Act to negotiate in good faith with the native title parties (Maduwongga - Reasons published on 10 December 1997).

Is the proposed act a permissible future act?

The most difficult issue of jurisdiction which arose was whether the proposed compulsory acquisition of native title rights and interests is a permissible future act which is covered by s 26(2)(d) of the Act.

The Tribunal heard considerable argument about the nature of the proposed act. At various times these arguments seemed to be directed to the question of jurisdiction, at others to the question of the effect of the act on native title rights and interests, one of the factors in the Act (s 39(1)(a)(i)) that the Tribunal is required to take into account in making its determination. Positions taken during oral submissions were later modified. In particular an early challenge to the Tribunal’s jurisdiction by the Gubrun native title party was later withdrawn. In the end no party formally challenged the Tribunal’s jurisdiction but as certain potential jurisdictional issues were raised and drawn to my attention, it is necessary to deal with them, particularly given the test case nature of the proceedings.

The Tribunal must be satisfied that the act is a permissible future act covered by ss 26(1) and 26(2)(d) of the Act. The following statutory provisions are relevant.

Section 22 provides that subject to ss 24 and 25 (which are of no relevance in these proceedings) if an act is an impermissible future act, then it is invalid to the extent that it affects native title. Section 236 defines an impermissible future act as any future act that is not a permissible future act.

Section 23 provides for the validation of permissible future acts.

‘Permissible future acts Coverage of section 23.(1) This section applies if an act is a permissible future act, other than one to which section 24 or 25 applies. Validation of act (2) Subject to Subdivision B (which deals with the right to negotiate), the act is valid. Extinguishment of native title by compulsory acquisition (3) If the act is the acquisition, under a Compulsory Acquisition Act, of the whole or part of any native title rights and interests: (a) the non-extinguishment principle applies to the acquisition; and (b) nothing in this Act prevents any act that is done in giving effect to the purpose of the acquisition from extinguishing the native title rights and interests; and (c) if the Compulsory Acquisition Act does not provide for compensation on just terms to the native title holders for the acquisition, they are entitled to compensation for the acquisition in accordance with Division 5. Note: Subdivision B (which deals with the right to negotiate) applies to some acquisitions under Compulsory Acquisition Acts ... Procedural rights (6) In the case of any act to which this section applies (other than a low impact future act or one to which Subdivision B applies), the native title holders have the same procedural rights as they would have in relation to the act on the assumption that they instead held: (a) to the extent that the act is in relation to an onshore place  ordinary title to any land concerned and to the land adjoining, or surrounding, any waters concerned; or (b) to the extent that the act is in relation to an offshore place  any corresponding rights and interests in relation to the offshore place that are not native title rights and interests.’

Section 226(1) defines an “act” to include a variety of non-legislative acts and is broad enough to include any of the acts with which the Tribunal is potentially concerned in these proceedings - the compulsory acquisition; the granting of freehold title to LandCorp; the grant of freehold or leasehold title to the tenants of the Park.

Section 227 provides that an act affects native title if it extinguishes the native title rights and interests or if it is otherwise wholly or partly inconsistent with their continued existence, enjoyment or exercise.

Section 233 defines a future act to include a non-legislative act which affects native title or would, if valid, affect native title.

Section 235 defines a non-legislative future act in relation to an onshore place as a permissible future act if the act could be done in relation to the land concerned if the native title holders concerned instead held ordinary title to it. Section 253 relevantly defines ordinary title as a freehold estate in fee simple. These sections create what is often referred to as the freehold equivalent test, which gives effect to the policy expressed by Prime Minister Keating in his second reading speech that “Generally, governments may make grants over native title land

28 only if those grants could be made over freehold title”. (Hansard, House of Representatives, 16 November 1993, p.2880).

Section 238 defines the non-extinguishment principle which is referred to in various parts of the Act including relevantly s 23(3)(a).

‘Effect of references 238.(1) This section sets out the effect of a reference to the non-extinguishment principle applying to an act. Native title not extinguished (2) If the act affects any native title in relation to the land or waters concerned, the native title is nevertheless not extinguished, either wholly or partly. Rights and interests wholly ineffective (3) In such a case, if the act is wholly inconsistent with the continued existence, enjoyment or exercise of the native title rights and interests, the native title continues to exist in its entirety but the rights and interests have no effect in relation to the act.

Rights and interests partly ineffective (4) If the act is partly inconsistent with the continued existence, enjoyment or exercise of the native title rights and interests, the native title continues to exist in its entirety, but the rights and interests have no effect in relation to the act to the extent of the inconsistency. Who the native title holders are (5) Despite the fact that the native title rights and interests have no effect (as mentioned in subsection (3)) or have only limited effect (as mentioned in subsection (4)) in relation to the act, the persons who are entitled in accordance with the traditional laws and customs, as applying from time to time, to possess those rights and interests continue to be the native title holders, subject to Division 6 of Part 2 (which deals with the holding of native title on trust). Complete removal of act or its effects (6) If the act or its effects are later wholly removed or otherwise wholly cease to operate, the native title rights and interests again have full effect. Partial removal of act or its effects (7) If the act or its effects are later removed only to an extent, or otherwise cease to operate only to an extent, the native title rights and interests again have effect to that extent. Example of operation of section (8) An example of the operation of this section is its application to a category C past act consisting of the grant of a mining lease that confers exclusive possession over an area of land or waters in relation to which native title exists. In such a case the native title rights and interests will continue to exist but will have no effect in relation to the lease while it is in force. However, after the lease concerned expires (or after any extension, renewal or re-grant of it to which subsection 228(3), (4) or (9) applies expires), the rights and interests again have full effect.’

The Courts and Tribunal have commented previously on some of the difficulties involved in interpreting the Act. The Tribunal must keep in mind the purpose of the legislation, its beneficial intentions for indigenous Australians, and consistent with the wording of the Act, seek to avoid interpretations which lead to absurdity or militate against the workability of the Act, having regard to its overall purpose.

The first suggested jurisdictional issue is whether or not the act is a future act. This argument involves treating each of the stages in the compulsory acquisition and realisation of its purposes as separate acts, which are each subject either to the ordinary future act provisions (ss 23(3) and 23(6)) or the right to negotiate provisions, and looking at the consequences of applying the non- extinguishment principle in s 238 to them.

On this argument the initial compulsory acquisition is not a future act, because it does not affect native title. It does not affect native title because the non-extinguishment principle operates and the native title is neither wholly nor partly extinguished (s 238(2)). Nor is it otherwise “affected” as there is nothing in the act of compulsory acquisition which is wholly or partly inconsistent with the continued existence, enjoyment or exercise of native title rights and interests if they have not been extinguished. On this analysis the compulsory acquisition is valid because it does not affect native title which survives until the next step is taken. The future act and the right to negotiate provisions are only necessary to ensure validity when the Government party proposes to transfer freehold title to LandCorp (when it would need to give the native title holders the

30 same procedural rights as a holder of freehold title (s 23(6)) or when LandCorp proposes to confer rights or interests on a tenant of the Park (when it would need to follow the right to negotiate provisions). In summary, the suggestion is that the compulsory acquisition is not a future act because it does not affect native title but the subsequent steps done pursuant to the compulsory acquisition are future acts.

This leads to the second suggested problem that, whether you see the compulsory acquisition and subsequent steps as effectively one act or three separate acts, there is an impermissible element to it.

The basis of the argument is that the grant of freehold to LandCorp is an impermissible future act because it fails the freehold equivalent test. Because the non-extinguishment principle operates, native title is not extinguished by the compulsory acquisition and its continued existence prevents the next step being taken, on the basis that if you can’t grant freehold title over freehold title, then you can’t grant freehold title over native title. Further, even assuming that the grant of freehold to LandCorp is valid such a grant does not extinguish native title because the non-extinguishment principle applies and/or it is a Crown to Crown grant which doesn’t extinguish native title (see argument below) so that the subsequent grant of freehold to the tenants of the Park would also be impermissible.

Suffice it to say, that if these literal arguments are correct, it would have catastrophic consequences for the workability of the Act and the achievement of its overall purpose. In the present case, the Government party could not do what it proposes or alternatively would need to comply with the future act provisions at each of the three steps involved in giving effect to its proposal.

In my view the compulsory acquisition and the subsequent steps to give effect to its purposes must be treated as one act for the purpose of ensuring its validity through the future act provisions. There is obviously an assumption throughout the Act that the compulsory acquisition of native title rights and interests is a permissible future act. (see ss 23(3), 26(2)(d) and ss 41(4) and 51(2) dealing with compensation). The most directly relevant sections (s 23(3)(b) and s 26(2)(d)) assume that the act is not just the compulsory acquisition but includes the subsequent steps to give effect to the purpose of it. It was argued that s 23(3)(b) does not contain a positive authorisation for the doing of future acts which may be invalid. It merely confirms that extinguishment can occur in accordance with the common law where the act is

31 otherwise valid. In my view the effect of s 23(3)(b) is to enable any steps taken to give effect to the purposes of the compulsory acquisition validly to be done and for them to extinguish native title where the common law provides for it. Section 26(2)(d) applies the right to negotiate provisions to a compulsory acquisition for ‘the purpose’ of conferring rights and interests on third parties and reinforces the view that the relevant act is the compulsory acquisition and the steps taken to give effect to its purpose. Obviously, different considerations would apply if what the Government party intended to do went outside the purposes for which the compulsory acquisition was sought. This conclusion is consistent with that reached by the Tribunal in the context of the grant of mining leases where the Tribunal treats the act as the grant of the lease and the conferral and exercise of rights under it (Waljen at 35).

The above arguments achieve whatever respectability they have from the operation of the non- extinguishment principle, the effect of which needs to be considered in more detail. The Government party argued that in the case of freehold title the compulsory acquisition means that the freehold title is acquired and transferred to the Crown. With respect to native title it argued that such an interest in the land is inalienable except to the Crown (‘Mabo No. 2’). The compulsory acquisition is the compulsory surrender of the native title to the Crown whereupon native title is extinguished and the Crown’s radical title is expanded to absolute ownership. Consistent with this the Native Title Bill as introduced by the Commonwealth Government originally provided (in clause 22) that the compulsory acquisition of native title extinguished that native title. The Government party argued that the non-extinguishment principle was not intended to apply to a compulsory acquisition but rather was intended to equate native title with freehold title such that native title could continue to exist, notwithstanding the grant of an interest over it, such as a mining lease, albeit that the native title would be subject to the other interest. The specific example of the application of the non-extinguishment principle in s 238(8) relates to a mining lease. The Government party’s argument as to the original intention of the Native Title Bill is supported by the explanatory memorandum.

The problem arises because of the application of the non-extinguishment principle to compulsory acquisition, which occurred as a result of the insertion by amendment in the Senate of s 23(3)(a) and (b). The Government party, in attempting to rationalise a compulsory acquisition with the non-extinguishment principle, argued that the compulsory acquisition of native title is wholly inconsistent with its continued existence and that

32 therefore the native title rights and interests have no effect (s 238(3)). They would only have an effect if the compulsory acquisition is wholly removed or otherwise wholly ceases to operate (s 238(6)). For example, under LAPWA (s 21) a notice resuming the native title rights and interests may be annulled. In other words, the non-extinguishment principle was introduced as a fail-safe mechanism limited to this type of circumstance because it would be unfair for the native title to be extinguished by the compulsory acquisition if the compulsory acquisition did not proceed.

There is considerable merit in the Government party’s argument based on an ordinary meaning of the word ‘acquisition’. The Macquarie Dictionary (2nd ed, 1991) at 14 defines the verb ‘to acquire’ as ‘to come into possession of; get as one’s own’ which seems to be inconsistent with the continued exercise of native title rights. Further the general law relating to compulsory acquisition is clear - a notice of acquisition which seeks to acquire land operates to acquire all interests, estates and rights in or over land except those interests that are already held by the acquiring authority (Brown D Land Acquisition, 3rd ed, 1991, at 18). In Wik v State of Queensland (1996) 187 CLR 1 Toohey J said (at 122) that when land is acquired by the Crown for the purposes of public works, the title of the registered proprietor is extinguished by force of the notice of acquisition or resumption.

What has to be decided is whether the Parliament intended to modify the ordinary and natural meaning of the words ‘compulsory acquisition’ by applying the non-extinguishment principle to it and thereby permitting the continued exercise of native title rights over the land. There are strong arguments to suggest that it did. The Parliamentary Debates (Hansard, Senate, 16 December 1993 pp 5194-5207) are instructive and anticipated to some extent the arguments referred to above. The argument in favour of the insertion of ss 23(3)(a) and (b) was that the act of compulsory acquisition should not extinguish native title because the purpose for which the acquisition was effected might not be implemented. There was a suspicion that compulsory acquisition statutes would be used to acquire land and native title rights but the land not then used for the stated purpose thus permitting extinguishment of native title by stealth over vast tracts of land. The obvious response that the compulsory acquisition would not be valid (under a Compulsory Acquisition Act) if it was used for unintended purposes was not raised in debate.

Senator Chamarette, the mover of the amendment explained them in these terms (at 5194):

‘While the phrasing may be somewhat difficult to understand, it does indicate that the compulsory acquisition powers of the State are available but without extinguishment of native

title, until the point at which the land is used for the purpose for which it has been acquired and only to the extent that the purpose is inconsistent with native title rights.’

The Government Minister in charge of the Bill (Senator Gareth Evans) supported this purpose (at 5194):

‘The amendment makes it clear that, in the case of compulsory acquisition, the non- extinguishment principle will apply. What all this means in practice is that, in the first place, native title rights will be able to be exercised to the extent that they are not inconsistent with the acquisition or, in particular, with acts done pursuant to the acquisition. If an act done in giving effect to the purpose of the acquisition - for example, the building of a road or a hospital - would at common law have the effect of extinguishing native title, then it would extinguish native title.’

Senator Evans later said (at 5199):

‘When an act is not essentially the same but consists of two quite distinct component parts, namely, a fact of acquisition and then the taking of a step pursuant to that acquisition, it is only the taking of the step that has consequences for the extinguishment.’

The following exchange is recorded (at 5207):

‘Senator Alston - So you accept that it would be an impermissible future act to purport to grant a lease that had native title rights attached to it? Senator Gareth Evans - In the absence of (aa), yes, but (aa) makes it permissible. That is the point of (aa).’ [Note: ‘aa’ is now s 23(3)(b)]

It seems clear from the Parliamentary Debates that Parliament intended the non-extinguishment principle to apply to compulsory acquisitions (no matter how incongruous that might seem based on a common understanding of what compulsory acquisition involves) and that as a consequence native title could continue to exist in full, and rights be exercised, until there was a further extinguishing act.

There is obviously a difficulty in reconciling the definitions in the Act with this view. A future act by definition is one that affects native title (s 233); an act affects native title if it extinguishes the native title rights and interests or if it is otherwise wholly or partly inconsistent with their continued existence, enjoyment or exercise (s 227); but the non-extinguishment principle applies to compulsory acquisition so that native title rights are not extinguished and, at that stage, the compulsory acquisition is not wholly or partly inconsistent with the continued exercise, enjoyment or exercise of native title rights and interests (s 238(2), (3) and (4)). This difficulty would be resolved by resorting to the ordinary meaning of the verb ‘to affect’ as ‘to act on; produce an effect or change in’ (The MacQuarie Dictionary, 2nd ed at 26). In this sense the compulsory acquisition affects native title because it makes it vulnerable to acts which

extinguish or are inconsistent with it. The Crown is given rights the exercise of which will ‘affect’ native title as defined.

Whatever the difficulties thrown up by the definitions in the Act which seem to have occurred because of the application of the non-extinguishment principle to compulsory acquisition, there is, as pointed out above, a clear assumption in the Act that a compulsory acquisition will affect native title and the application of the non-extinguishment principle to it does not alter that fact.

Judicial statements may support this view. In WA v Commonwealth (1995) 183 CLR 373, in the context of the nature and effect of a permissible future act under the Act, the majority stated (at 458):

“The effect of a permissible future act on native title depends on the nature of the act. If a Commonwealth, State or Territory law provides for the compulsory acquisition of native title and other interests in relation to land or waters and for compensation in money or a form other than money, acquisition under the law is valid and an act done “in giving effect to the purpose of the acquisition” may extinguish native title s23(3). But the mere acquisition of native title or the doing of any other permissible future act does not extinguish native title; it merely suspends native title rights and interests so far and for so long as was necessary to allow the permissible future act to operate and have effect.”

The object of the Act to protect native title and the need to give a beneficial construction to it, supports an interpretation which permits extinguishment and prohibits the exercise of rights only where it is necessary to enable the purpose for which the land was compulsorily acquired to proceed. The importance of applying the non-extinguishment principle to compulsory acquisition where no subsequent act inconsistent with native title is done is demonstrated by the facts of this case. It is intended that Jaurdi Location 81 and the two conservation zones be compulsorily acquired and leaving aside the question of the grant of freehold to LandCorp (see below), there is unlikely to be a subsequent step in relation to them which would extinguish the native title rights and interests. I conclude that the non-extinguishment principle does not have the limited application argued for by the Government party, but acknowledge that it is an arguable question.

The extracts from Hansard also confirm the conclusion reached above from the terms of the Act that Parliament intended that the acquisition and any steps taken to give effect to it be treated as the one act for the purposes of the future act provisions (including the right to negotiate). It follows that, in the case of a compulsory acquisition, once the native title holders are given the same procedural rights applicable to holders of freehold title (s 23(6)) or the right to negotiate procedures are followed (ss 26-44) then the Government may validly compulsorily acquire the

35 native title rights and interests and validly do anything necessary to give effect to the purpose of the acquisition.

The third suggested jurisdictional issue was that the act is an impermissible future act on the basis that, a compulsory acquisition for purposes which involve subsequent sale of land to private interests, could not be done in relation to freehold land. While some jurisdictions in Australia may only permit compulsory acquisition for public purposes, the LAPWA authorises the compulsory acquisition of freehold land for the purposes proposed in this case provided they are for the economic and social benefit of the State, region or locality. On the facts of this case I conclude that the act is not an impermissible future act.

The fourth jurisdictional point raises more difficult issues. It arises in relation to Jaurdi Location 81, the two conservation zones and any proposed public works such as roads and requires an examination of whether under s 26(2)(d) the purpose of the acquisition is to confer rights or interests on persons other than the Government party (‘third parties’). If the purpose of the acquisition is not to confer rights or interests on third parties then the Tribunal has no jurisdiction to make a determination in relation to it. Whether the compulsory acquisition could validly proceed would then depend on whether the native title holders were given the same procedural rights under LAPWA as the holders of freehold title as required by s 23(6) of the Act.

In relation to Jaurdi Location 81, the evidence of Mr Wiencke (the project manager for the Park) was that the area will be used in the same way as Ngalbain Loc 109, that is, will be vacant Crown land which will be allowed to go back to bush. The rationale behind acquiring the pastoral lease interests was because the pastoral lessee said he did not want to retain it if it was going to be a buffer zone. Although Mr Wiencke stated that it was the only area into which the Park could extend in the future and is where it would go if more land was needed in years to come, this was not the rationale or purpose of acquiring it. On the basis of this evidence, the compulsory acquisition of native title rights and interests in Jaurdi Location 81 is not for the purpose of conferring rights or interests on persons other than the Government party.

In relation to the two conservation zones the evidence is that the native title rights and interests will be compulsorily acquired but the land not transferred to any third party. There was some argument about their ultimate status but the purpose of their acquisition is not for the purpose of conferring rights or interests on persons other than the Government party.

The same can be said of any land for public works some of which presumably will remain the property of the Crown although there may be a possibility that for instance the roads will be transferred to local government. There is no evidence of who will own or operate the proposed railways but presumably there is a possibility of this land being transferred to third parties

On the basis of these findings the there are two aspects of the acquisition - firstly, to confer rights or interests on persons other than the Government party (the grant of freehold or leasehold title to the tenants of the Park) and secondly, to secure land for public purposes (for the Jaurdi Location 81 buffer zone, conservation zones, and public works).

There are a number of possible approaches to this issue. The first is to take the narrow view that, for the act to come within s 26(2)(d), the sole purpose of the compulsory acquisition must be to confer rights or interests on third parties. The consequence of this interpretation could be that Aboriginal people would lose the right to negotiate where a compulsory acquisition was partly, but not solely, for third party purposes. Alternatively, it could be argued that any proposal to compulsorily acquire native title rights or interests for third party purposes must be separated from a compulsory acquisition for other purposes, to ensure that the right to negotiate applies to it. Neither consequence could have been intended by Parliament - the first would seriously undermine the right to negotiate, the second would create problems for the workability of the Act by requiring a subdivision of the kind proposed in this case to be fully surveyed and notice given only in relation to the acquisition for third party purposes.

The second approach is that the Tribunal has jurisdiction to make a determination in relation to the whole of the land to be acquired on the basis that the predominant purpose of the acquisition is to confer rights or interests on third parties. Jurisdiction is conferred on the Tribunal by s 26(2)(d) by a finding that the predominant purpose of the act is a subdivision for the sale or lease of land to third parties even though there are also incidental, collateral or subsidiary purposes - the public works such as roads and service areas, the conservation zones and the buffer zone.

A consequence of this approach is that if the predominant purpose is an acquisition for non-third party purposes, then the right to negotiate does not apply even if part of the purpose (which may be of importance to native title parties) is for the conferring of rights or interests on third parties.

The approach of looking at the predominant or substantial purpose was recently adopted by the Tribunal (Northern Territory/Bill Risk (Larrakia), Tibby Quall (Danggalaba)/Phillips Oil Co (NNTT DF97/1, Professor Douglas Williamson QC, 9 February 1998, (‘Wickham Point’))

37 where the native title parties challenged the jurisdiction of the Tribunal on the basis that in some parts of the compulsory acquisition area native title rights and interests are to be acquired for purposes other than conferring rights and interests on third parties and that, as these areas were not specified in the s 29 notice, the notice had not properly been given. The Tribunal concluded (24-25):

‘Assuming that the terms of the notice may be construed by reference to external evidence, there is the point that the "real" purpose, as revealed by the evidence, is something more than simply granting estates to third parties. It includes the use of some of the area for Government or public purposes. The question is whether the provisions of s26(2)(d) accommodate a situation where the substantial purpose of the acquisition is to confer third party rights or interests, but there is also an ancillary purpose, being the provision of facilities and services essential to development by third parties (roads, power, water, port facilities) or at least reasonably appropriate to the development (buffer zone). In my opinion it is proper, in the full context of the provision, to take a broad view of s26(2)(d) and consequently the notice itself. The section is designed to facilitate the provision of land for non- Government use. However, the conferring of rights or interests to enable third party development would be an empty gesture under the scheme if it were not possible for the Government to provide the essential framework within which development may take place. An industrial site without public services may be useless. A limit to this approach may be reached if the essential purpose is overtaken by other factors, so that the essential character of the acquisition becomes something different. That will involve a question of balance. In the present matter, the low-lying nature of the land, the present lack of public facilities, the nature of the particular use proposed by Phillips as to a significant part of the developable land, and the proposal for development by others persons as well, all point to the need for Government infrastructure, and the appropriateness of a buffer zone. The latter features would facilitate and enhance the principal purpose of conferring rights and interests to enable non-Government development, rather than detract from it. In my view, an acquisition of native title rights and interests in an area of land and waters for the purpose of conferring rights or interests on third parties "in relation to" that land and waters does not undergo a change of character or purpose as an acquisition simply because the Government party proposes to use part of the land and waters for Government purposes directed to enabling and facilitating the taking up of rights or interests in the area by third parties. Mr. Pauling QC submitted on behalf of the Government party that if it were necessary to specify which parts of the land and waters within the acquisition area were going to be offered to third parties, and which were going to be retained by the Government for public purposes, the scheme within s26(2)(d) would be unworkable. There would be the need for advanced planning of land use before acquisition, and then there would be the need to invoke dual processes under s26(2)(d) and s23(3) in relation to the respective non-public and public uses. This would be an irrational and highly inconvenient requirement. Further, the degree of particularity required as to non-public and public use might not be sufficiently developed at the time when acquisition is needed. His submission underlined the desirability of construing s26(2)(d) in a way that is workable, rational and practical if that approach is properly open, in preference to a construction that is unworkable. In the present matter I consider that because the essential character and third party purpose of the proposed acquisition does not change in the circumstances described previously, the fact that the land or waters to be used for Government purposes are not precisely identified is of no material consequence.’

Whichever approach is adopted, I agree with the Tribunal’s conclusion that a requirement for the Government party to specify precisely in its notice the land to be transferred to third parties, would be a serious impediment to the workability of the Act. It is in the nature of subdivisional development that there should be some flexibility to deal with changed circumstances.

A third approach is that the Tribunal has jurisdiction where any one of the purposes of the proposal is to confer rights or interests on third parties. The Tribunal would make a determination which related only to the compulsory acquisition for third party purposes. Any non-third party purpose would be dealt with under the relevant Compulsory Acquisition Act and would be a valid permissible future act if the Compulsory Acquisition Act accorded the same procedural rights to native title holders as would be accorded to a holder of ordinary title (s 23(6)). This argument acknowledges that the Tribunal only has a role under the Act in relation to the particular type of acquisition referred to in s 26(2)(d) and only has jurisdiction to say that the act may or may not be done in those circumstances. The compulsory acquisition is not carried out under the Native Title Act but under the relevant Commonwealth, State or Territory Compulsory Acquisition Act. The role of the Tribunal is limited to deciding whether the acquisition can or cannot validly proceed in relation to one category of compulsory acquisition.

The advantage of this approach is that the right to negotiate would apply in all circumstances where an element of the proposal was a compulsory acquisition for third party purposes thus furthering the object of the Act to protect native title. It would also avoid the need for the Tribunal to make what might be difficult findings of fact about whether the third party purpose was the predominant purpose.

On this approach it would not be necessary for the Government party to identify in its notice of intention the precise areas of land to which the right to negotiate applies although it would need to ensure that the notice is expressed in such terms that any registered native title claimant or holder is made aware of the native title that will be affected. In this case the notice of intention was given in relation to defined Locations, which left no doubt as to the areas to be acquired and where native title could be affected even though not all of the area was to be acquired for the purpose of conferring an interest on a third party. The determination could be expressed in the general terms of s 26(2)(d), thus leaving the validity of the acquisition for non-third party purposes to be determined by s 23(6) of the Act.

One obvious difficulty with this approach on a literal reading of the section is that Parliament could easily have provided for it be using the words ‘a purpose’ thus removing any ambiguity. A further difficulty raised by the Government party is whether the Tribunal would have power to impose conditions in relation to the non-third party land, when it did not have jurisdiction to make a determination in relation to it. In my view the power in s 38(1)(c) is sufficiently broad to authorise the imposition of a condition on the Government party (which it is capable of

performing) in relation to the land which is not specifically the subject of the determination. For instance, a public road (over which the Tribunal has no jurisdiction to make a determination that it may or may not be done) which is part of a broader proposal involving the sale of land to third parties (over which the Tribunal does have jurisdiction) might, as proposed, pass through a site of particular significance. There should be no impediment to imposing a condition to protect the site by requiring the realignment of the road. Obviously, the condition would need to fall within the scope and purpose of the Act and there would need to be a relevant connection between the land to which the condition related, and the land the subject of the determination.

The tentative conclusions which I made available to the parties for comment were based on the third approach, namely that the Tribunal has no jurisdiction to make a determination in relation to the acquisition for non-third party purposes (the Jaurdi Location 81 buffer zone, the conservation zones and the public works), and that the validity or otherwise of these parts of the acquisition would be determined by reference to s 23(6) of the Act. The consequence of this conclusion would have been that the Mingarwee claimants would no longer be a native title party as their claim only covers Jaurdi Location 81. In general the submissions from the parties did not support my tentative conclusions and I have also now had the benefit of Member Williamson’s decision in Wickham Point. In the circumstances, I intend to adopt the second approach to resolution of the question of jurisdiction. Whether the third approach has merit will need to be reconsidered in other factual circumstances.

I find that the predominant (or substantial) purpose of the compulsory acquisition is to confer rights or interests on persons other than the Government party, and conclude that the Tribunal has jurisdiction to make a determination in relation to the whole of the area over which the native title rights and interests are to be acquired.

(b) The Section 39 Criteria

Section 39(1)(a)(i) - native title rights and interests

Maduwongga

The Maduwongga native title claim (WC94/7) is over 21,082 square kilometres of land and waters around Kalgoorlie extending from Coolgardie in the south to Menzies in the north. The claim is expressed in the following terms:

‘The Applicants claim the right to exclusively possess, occupy, use and enjoy the land and waters under the traditional laws and customs observed by the Applicants and other Maduwongga Peoples including hunting, gathering and fishing rights and interests. The Maduwongga peoples have occupied and continue to occupy the whole of the land and waters claimed and have been physically present upon the same continuously, from time to time.

The Maduwongga Peoples, including the Applicants are descendants of the indigenous inhabitants and have maintained their traditional connection with the Maduwongga area continuously. Without affecting the generality of the foregoing the native title rights and interests of the Maduwongga Peoples in relation to the area covered by the application, include, subject to and in accordance with their traditional laws and customs observed by the Applicants and other Maduwongga Peoples and their ancestors, inter alia:

(1.) the right to possession of the land, waters and the resources and attributes of the land and waters ("resources"), to the exclusion of all others; and (2.) the right to occupation, use and enjoyment of the land, waters and resources, to the exclusion of all others; and (3.) further or in the alternative the right to subsist upon or sustain themselves within the area; and (4.)the right to - (a) own and control information comprising and concerning the traditional laws and customs of the Maduwongga People in relation to the land, waters and resources; (b) conduct ceremonies on the land and in relation to the land, waters and resources; (c) speak language about and sing songs concerning the land; (d) hold meetings concerning the land; (e) live on and erect residences and other infrastructure on the land and gather the materials necessary for same; (f) move freely about the land and waters; (g) visit and/or camp at particular places on the land and waters; (h) hunt and fish on and from the land and waters and otherwise gather and collect food from the land and waters; (i) take from the land and use, the resources of the land, including the plants and animals of the land and all other components and attributes of the land useful to people; (j) take from the waters and use, the resources of the waters, including the plants and animals (including fisheries) of the waters, the water and all other components and attributes of the waters useful to people; (k) share and exchange resources derived on and from the land and waters; (l) dig for, take from the land and waters and use minerals and ores, and extractive minerals and quarry materials including flints, clays, soil, sand, gravel, rock, and all like resources; (m) collect plants and other materials from the land and waters for medicinal purposes; (n) manufacture materials, tools and weapons from the products of the land, waters and resources; (o) collect timber, resin, grass and shell from the land and waters to make tools, utensils and implements for obtaining and preparing food and conducting ceremonies; (p) dispose of products of the land, waters and resources, and manufactured products, by trade or exchange; (q) exchange and storage of sacred objects concerning the land and waters; (r) manage, conserve, maintain and care for the land, waters and resources and protect them from degradation; (s) manage, maintain and protect sacred sites; (t) grant or refuse permission to any other person to do some or all of (a) - (s) either at all or subject to terms and conditions; (u) inherit native title rights and interests; (v) bestow and acquire native title interests; and (w) resolve as amongst themselves any disputes concerning land, waters and resources.

The Maduwongga Peoples identify with a common cultural heritage, including what they regard as the language, traditional law and customs and including bodies of religious law of their ancestors.

The Applicants claim that native title in the area claimed herein, described as the Maduwongga area, is held by the Maduwongga Peoples. The Maduwongga Peoples, including the Applicants, regard the land and waters claimed, described as the Maduwongga area, as Maduwongga territory in accordance with Aboriginal tradition including Maduwongga laws and customs. The Maduwongga Peoples, including the Applicants, and their ancestors have maintained a traditional connection with the Maduwongga area claimed from prior to and since British colonisation to the present time. The Maduwongga Peoples, including the Applicants, have continued to acknowledge the laws and observe the customs based on the traditions of the Maduwongga Peoples whereby their traditional connection with the land has been maintained. The traditional laws and customs inter alia relate to the native title rights and interests and inheritance, the transmission or acquisition of rights and interests on death or marriage, the transfer of rights and interests in land and the grouping of persons to possess rights and interests in land. There is an identified community of Maduwongga Peoples, the members of which are identified by one another as members of that community. These rights and interests are possessed by the Applicants and other Maduwongga Peoples and their ancestors, the indigenous inhabitants. The Maduwongga Peoples, including the Applicants and their ancestors, have an organised society creating and sustaining rights and duties. They have been continuously present on the land and waters described as the Maduwongga area.’

The Tribunal will ignore any arguments about extinguishment of native title where the law is unclear and look for evidence of the existence of native title rights and interests and the effect of the act on them. There was very little evidence of most of the claimed incidents of native title in the application.

Evidence was given by the registered claimants, Mrs Marjorie Strickland and Mrs Joyce Nudding. Mrs Strickland was born in Coolgardie and has lived in Laverton, Menzies, Kalgoorlie and Perth (to study). She currently lives in a home in Boulder. Their status as Maduwongga people is derived through their father and paternal grandmother, Kitty Bluegum. Their mother was a Waljen person, whose country was to the north east of Maduwongga country and separated from it by Lake Raeside. They provided some details of the claim area including a dreaming story involving the Wannabi (snake) in the northern part of it and the seven sisters dreaming, which is related to the 568 mile peg site near the Park.

The evidence of claimed native title rights and interests which could be affected is limited to access and hunting and gathering activities. The claimants have hunted, gathered fruit, dug for witchetty grubs and camped on various parts of the whole claim area, although in recent times this has occurred less frequently. With respect to the Park area, the claimants have historically carried out these activities, but the hunting is now infrequent. Mrs Strickland has not hunted there for over ten years, although Mrs Nudding and her husband hunted only two

months ago. The evidence supports a finding of current intermittent access to the Park area for the purpose of hunting, gathering fruit and digging for witchetty grubs.

Gubrun

The Gubrun native title claim (WC95/27) is over 66,760 square kilometres of land and waters covering the towns of Kalgoorlie and Coolgardie and extending generally to the west of those towns. The claim includes the right to possession, occupation, use and enjoyment of the land, waters and the resources to the exclusion of all others and specifies a number of rights which are similar to those claimed by the Maduwongga native title party.

For the reasons given, the Gubrun native title party decided not to present evidence to this inquiry and it is not possible to make any specific findings on native title rights and interests which might be affected by the proposed Park although documentary evidence pointed to their interest in the area and concern about sites.

Mingarwee

The Mingarwee native title claim covers the western part of the Park (Most of Jaurdi Location 81) and extends to the west covering the town of Coolgardie. The native title rights and interests claimed as against the whole world include the possession, occupation, use and enjoyment of the claim area.

Evidence was given by two of the registered claimants, Dorothy Dimer and her husband Ollan who live at Coolgardie. Mrs Dimer claims native title through her mother and maternal grandfather, King Billie. Her husband Ollan is a Ngadju person.

As with the Maduwongga native title party the evidence of native rights and interests which could be affected by the Park is limited to access, hunting and gathering which occur on a very infrequent basis.

While there is some evidence of past activity of this kind which occurred on the Park area, the evidence of current activity is minimal. Mr and Mrs Dimer were there about two or three months ago and before that in 1995, but not for hunting or gathering purposes. For Mr and Mrs Dimer, the main areas of past and current attachment which were visited for camping and hunting are a swamp area about three kilometres away from the Park and in areas around

Coolgardie. Mr and Mrs Dimer have 12 children, 48 grandchildren and 17 great- grandchildren but they do not regularly hunt, gather or camp with them.

Effect of the proposed act

I have partly dealt with this issue above under Jurisdiction. I have concluded that the act of compulsory acquisition does not preclude the exercise of native title rights over the land until a subsequent extinguishing or inconsistent act occurs.

The Government party also argued that the grant of freehold title to LandCorp was an act which would extinguish native title on the basis that no exception should be made in the case of Crown to Crown grants to the general rule that the grant of freehold title is the most absolute estate known to the law and extinguishes any native title. It relied on a number of authorities, including Mabo No. 2 at 68, 89, 110, 195-6; Western Australia v The Commonwealth (Native Title Act Case) 1995 183 CLR 373 at 422, and Wik v. Queensland (1996) 141 ALR 129.

The Tribunal has dealt with the question of the extinguishing effect of Crown to Crown grants in the context of whether to accept applications for determination of native title. It will not accept applications over private freehold land, but it does do so over Crown freehold land where there has been no previous grant of private freehold title which has extinguished native title. The Tribunal dealt with the issue in this context in the Gurubana-Gunggardji Peoples Application NNTT QC94/8, French J, President, 17 February 1995) when he said (at 17):

‘The general principle of the extinguishment of native title outlined in the judgments in Mabo (No. 2) includes the proposition that clear and unambiguous words are required to support an intention to extinguish native title. Legislation which regulates Crown lands generally does not fall into that category. Executive acts of the Crown under Crown lands legislation are presumed not to have been intended to derogate from native title. In my opinion, the same principles apply to the grant by the Crown in right of the State of Crown land to the Crown in right of the Commonwealth. It is not to be presumed that where the Crown is the recipient of such a grant, it is intended by the Crown in right of the State or the Crown in right of the Commonwealth that underlying native title be extinguished. The issue did not arise in Mabo (No. 2). I do not consider that this is an occasion on which to express a concluded view on the law. I am not prepared to conclude that the grant to the Crown is, on the face of it, inconsistent with the survival of native title rights and interests.’

Whether a grant of freehold title to the Crown extinguishes native title is not an issue which has been judicially determined and must be open to doubt.

My conclusion is that there are arguable questions of law involved in the issues of whether the compulsory acquisition prohibits the exercise of native title rights or the grant of freehold title to LandCorp extinguishes native title. However, the next step in the process of giving effect to the purpose of the acquisition will extinguish native title. The evidence is that the industrial blocks will be sold (with a buy-back clause in case they are not used for the nominated industrial purpose) or leased to tenants of the Park. By the operation of the common law related to extinguishment, native title would be extinguished by a grant of freehold or leasehold with exclusive possession for purposes inconsistent with native title.

The Tribunal’s decision and expression of opinion in these matters is only relevant in assessing the effect of the act on native title rights and interests in these proceedings, and to the imposition of conditions. No decision or expression of opinion on these issues can finally determine the issue for other purposes. The disputed issues will have to be determined in judicial proceedings and would come up for consideration in the Federal Court on the application for determination of native title or compensation.

For the purpose of these proceedings the Tribunal is entitled to act on the basis that the Park will be fully developed and native title will be extinguished over large parts of it.

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

There is no evidence of the effect of the act on these matters apart from that described above.

Section 39(1)(a)(iii) - social, cultural and economical structures

There is a possibility that the Park may have a positive affect on the economic structures of the native title parties by improving the prospects for employment. For instance, ICI Australia who have expressed interest in the Park gave a commitment to the creation of a training and apprenticeship program and the employment of suitably skilled Aborigines if they proceed.

Kurrawang Aboriginal community is located some 7 kilometres to the east of the Park. There is no evidence that any members of the native title parties are resident at or part of the Kurrawang community. LandCorp has shown an awareness of its responsibilities to this community by involving people from it in heritage surveys and consulting it as part of its environmental impact assessment.

Section 39(1)(a)(iv) - freedom of access

The evidence relating to this matter is described above. If the Park is fully developed, access will be effectively denied to the native title parties to most parts of the Park area. Access could at law be denied earlier if the Government party is right in its contentions that the exercise of native title rights does not survive compulsory acquisition or the freehold grant to LandCorp. I return to this issue below, under Conditions.

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

The Aboriginal Heritage Act 1972 (WA) 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. The Act applies to all sites whether or not they are included on a Register kept by the Aboriginal Affairs Department. There is an Interim Register and Permanent Register containing both archaeological and ethnographic sites. Sites on the Permanent Register have been formally assessed under the Act. Sites are classified according to the level of access permitted and degree of significance.

A search of the Register revealed only two sites of direct relevance.

Site No. WO2076 - Mungari (‘the gnamma hole’) is an archaeological site (on the Interim Register) with an Open Access Code with a Significance designation of Open. It is on Jaurdi Location 80 and will be incorporated in one of the conservation zones.

Site No. WO1433 (‘the 568 Mile peg’) is an ethnographic site (on the Interim Register) with a Closed Access Code (Restricted) and is designated as Significant. It is situated on Mungari station(and possibly partly on the Ngalbain Location 109 buffer zone ) outside but approx 1 kilometre from the south west corner of the Park.

In December 1992 the Wati Yinangu Tjuturdpa Mirl Mirl Association (‘the Wati Association’) prepared for the Goldfields-Esperance Development Authority a Report of an Aboriginal Site Survey carried out on the Park. McDonald Hales & Associates were commissioned by the Wati Association to assist with the preparation of the report. A number of senior Aboriginal men who had associations with and were knowledgeable about the Park area were interviewed by Mr Bill Wesley of the Wati Association. Mr Wesley had an association with and knowledge of sites of significance in the Kalgoorlie area. The Report reviewed two sites which are on the Register of sites kept by the Aboriginal Affairs Department. The first is the Seven Mile rock hole which is several kilometres west of the buffer zone surrounding the Park and is of no relevance to these proceedings. The other site is the 568 mile peg, which is associated with the seven sisters myth complex represented by granite outcrops which at that time straddled the Great Eastern Highway. The site has been damaged by roadworks. The Report recommended that as it was the opinion of the cultural custodians consulted that there were no traditional Aboriginal sites which would be directed impacted upon by the Park, the development be permitted to proceed and that the proponents

hold further consultation with the Wati Association in respect of the protection of the 568 mile peg site.

In May 1993 McDonald Hales and Associates prepared for the Goldfields-Esperance Development Authority a Report of an Aboriginal Heritage Site Survey on the Park. This was an archaeological survey undertaken as a follow up to the ethnographic survey conducted by the Wati Association. The survey resulted in the gnamma hole site and a number of isolated artefacts being located and recorded. The site is a discontinuous outcrop of weathered granitic rock and located on Jaurdi Location 80. It covers a total area measuring approximately 85 metres north-south and 25 metres east-west and contains a number of shallow water filled depressions and one gnamma hole with an approximate water storage capacity of some 20-30 litres. In addition, a total of 11 artefacts were recorded, six were sparsely distributed across the southern portion of the outcrop and five more discretely associated with the gnamma hole. A further six isolated artefacts were recorded some distance to the north of the gnamma hole area and two to the west on the Jaurdi Location 81 buffer zone. Two of the Aboriginal informants for this survey were members of the Gubrun organisation and one a key member of the Wati Association. They all considered that the site should be protected even though it was considered to be of low archaeological significance by the Report’s authors. In accordance with the wishes of the informants the Report recommended that the site not be disturbed and that it should be fenced off allowing a ten metre buffer and incorporated into open space within the Park. The Report also recommended that the isolated findings did not represent an impediment to development as they had been adequately recorded and could provide no more information. This opinion was also shared by the Aboriginal spokespersons consulted.

In September 1997 Australian Interaction Consultants were engaged by LandCorp to conduct a follow up ethnographic survey of the Park to ascertain whether or not any location affected by the survey might presently or at a future time be subject to the Aboriginal Heritage Act or its requirements. The Report notes that the early survey was completed by the Wati Association but as it was dated December 1992 it did not allow for consultation with current native title claimants. It again identified the 568 Mile peg site and confirmed that it did not impinge on the Park area.

The Report noted a number of native title claims (including those of the native title parties) over the Park area at the time the Report was prepared and consultation occurred or was

attempted with them and representatives of the Coonana Community and the Kurrawang Community. The Report concluded that no additional ethnographic sites were identified and that the development of the Park posed no threat to any known site under the Aboriginal Heritage Act.

The Maduwongga and Gubrun native title parties submitted that a further site survey of the area should be conducted and imposed as a condition of a determination that the act may be done. Mrs Strickland disputed a statement in the 1997 Report that she told the authors that Maduwongga claimants had previously cleared the area as not presenting a danger to any Aboriginal sites. I do not regard this as sufficient basis for requiring another site survey. In evidence Mrs Strickland said there were no special spots on the Park area and acknowledged Mr Wesley of the Wati Association as a person knowing a lot about the Maduwongga people.

The Gubrun native title party submitted that the May 1993 report was inadequate as the methodology was defective. The argument was based on the fact that the survey methodology which involved a series of systematic foot traverses spaced 100 metres apart resulting in 30-40% of the actual Park area being inspected and traverses along vehicle tracks resulting in 10-15% of the buffer zone being inspected was inadequate. They also relied on a suggestion in the report that the archaeological potential of the area had not been fully realised. I do not regard these criticisms and comments in the report as providing sufficient basis for requiring another survey to be done. The survey was carried out by competent professionals in accordance with accepted methodology. The reference to the archaeological potential of the area not being fully realised related to the Goldfields area generally and the report was clear in its conclusion that the only archaeological material and sites of interest were those described above.

Although there was no evidence from the Gubrun native title party, Mr Harrington submitted that his clients believed that there may be sites of significance to them on the Park area which they had not had the opportunity of inspecting as part of the survey reports. Members of the Gubrun native title party group were consulted in relation to the May 1993 and September 1997 reports. LandCorp and any tenant of the Park will be bound by the Aboriginal Heritage Act. Further information can be provided to them by the Gubrun native title party or any other claimant group.

In my view the Government party has done everything reasonably possible to ensure that Aboriginal site issues have been adequately dealt with. Three surveys have been conducted by competent professionals, two ethnographic and one archaeological, and the September 1997 survey was specifically conducted to deal with the existence of native title claimants under the Act over the Park area.

I conclude that the 568 mile peg is a site of particular significance to the Maduwongga native title party but that it will not be directly affected by the creation of the Park; and that on the basis of the 1993 Report and their anxiety to have it protected, the gnamma hole is a site of particular significance to the Gubrun native title party. LandCorp have agreed that a 4.6 hectare conservation zone will be created around the gnamma hole with a buffer zone of 50 metres on either side of it. This is a larger buffer zone than the 10 metres recommended in the May 1993 Report and should ensure that there is no direct effect on the site from the development of the Park.

It is sufficient in this case to impose a condition requiring the Government party to notify tenants of the Park of the existence of the sites and of their obligations under State legislation.

Section 39(1)(a)(vi) - natural environment; S 39(1)(b) - assessment of effect on the natural environment

Section 38 of the Environmental Protection Act 1986 (WA) provides for a proposal that appears likely to have a significant effect on the environment to be referred to the Environmental Protection Authority (‘the EPA’). On referral the EPA will determine the level of assessment which it regards as appropriate to the project. These range from no assessment or advice, to informal review with advice which is not binding.

LandCorp referred the Park proposal to the EPA on 20 August 1992 and a Consultative Environmental Review (‘CER’), one of the levels of formal assessment available under the Environmental Protection Act was decided upon. LandCorp prepared and published a CER on 16 November 1992 and four weeks was allowed for public comment. The CER dealt with a range of topics and identified a number of potential environmental issues - noise, air quality, public safety management, methods of waste disposal, methods of stormwater drainage and erosion control, groundwater impact, conservation values, and the transport system. It also contained social impact information covering population and employment

50 characteristics, social infrastructure, tourism, the town of Coolgardie, the Mungari Homestead, the Karrawong Aboriginal Community and the construction workforce.

A Biological Survey Report commissioned by LandCorp was incorporated into the CER and concluded that no declared rare or endangered flora or fauna species would be adversely affected and that the project would have no significant impact on the fauna of the region. Fourteen recommendations were made to preserve the biological environment as much as is possible given the proposed use of the Park for industrial purposes including a recommendation that an area be set aside as a conservation zone to assist in the protection of natural habitat including two species of flora.

In March 1993 the EPA made public its Report on the project, concluding that it was environmentally acceptable and making a number of recommendations to manage the environmental impact.

On 5 July 1993 the Minister for the Environment issued a Statement that the proposal may be implemented subject to conditions which generally mirrored the commitments given by LandCorp and the recommendations of the EPA. A copy of the Minister’s statement was served on LandCorp. The Environmental Protection Act binds the Crown and if LandCorp implements the proposal otherwise than in accordance with the Minister’s conditions then it commits an offence. The Minister’s conditions require LandCorp to fulfil certain commitments made in the CER. The Park is to be developed according to all relevant Government statutes and agency requirements. LandCorp is to ensure that leases or transfers of land to occupiers/purchasers within the Park are only made if the development proposed can be shown to meet the Environmental Criteria for Establishment of Industries in the Industrial Park at Mungari, as amended from time to time by the EPA. The conditions deal with solid and liquid waste management, noise limits, atmospheric emissions, risks and hazards and decommissioning.

The social commitments are:

‘1. The proponent will establish an advisory board for the Mungari Industrial Park made up of representatives from Government agencies, community representatives and other appropriate agencies (ie. workers, industry). 2. Ongoing community consultation will be one of the tasks of the advisory board. 3. Encouragement of the development of local employment strategies will be one of the tasks of the advisory board. 4. The advisory board will ensure the Environmental Protection Authority is notified of firm proposals by industries offering to locate in the Park.’

The effect of the Minister’s conditions is that LandCorp and/or the advisory board will notify the EPA of an industry proposal to locate at the Park and will not sell, lease or transfer the land until the EPA has completed an assessment of the proposal. This assessment will be carried out in accordance with EPA normal procedures. The level of review or formal assessment will be determined by the EPA but the Government party expects, based on previous statements by the EPA in respect of heavy industry estates such as Mungari, that the level of assessment will be at least a CER which is the lowest level of formal assessment. This level of assessment involves a public review of the project and the opportunity for citizens to make submissions to the EPA and the Minister. The EPA is independent of Government and is not subject to direction by the Minister in respect of these matters

The Minister’s conditions also require a management body to be set up to take responsibility for environmental issues and the preparation and implementation of an Environmental Management Program to ensure that significant impacts on the environment resulting from the project are detected, reported on and managed. This program was prepared in July 1994. In May 1993, the Mungari Industrial Park Landscape Plan was prepared.

The CER prepared by LandCorp is an assessment of the effect of the act on the natural environment commissioned by the Crown or a statutory authority (s 39(1)(b)). The scheme of the Act requires the Tribunal to take into account such an assessment when examining the effects of the act on the natural environment (s 39(1)(a)(vi)). The Parliament did not intend that the Tribunal would be required to conduct a full environmental assessment as a normal part of these inquiries. The Act is concerned with the protection of native title (s 3(a)) and the references to the effect of the act on the natural environment must be seen in that context. The Tribunal is entitled to have regard to the State’s regulatory regime and any reports prepared under it. At an inquiry the Tribunal will look for evidence of environmental impacts which are of concern to the native title parties and make a decision about whether conditions additional to those imposed by the State are necessary.

In this case the evidence from the native title parties is again of a limited nature. The Maduwongga native title party expressed concern about cyanide getting into the water table and clay pans and about trees being chopped down which would affect bird life and hunting. The Mingarwee native title party expressed concern about the flow of water in and around the project. There was no criticism of the Government party’s environmental assessment process

52 or the recommendations from it. The water issues have been dealt with in the CER and the Environmental Management Plan. Trees will only be cleared as required, vegetation will be maintained between lots and in the designated conservation areas. The Biological Survey Report concluded that there would be no adverse effect on bird life in the general region.

I have had regard to the CER and other reports commissioned by the Government party and to the steps taken to deal with environmental issues. It is obvious that the establishment of the Park will have an adverse environmental effect on the immediate locality if large numbers of industries are established on it. However, the Government party has taken appropriate steps to minimise those effects, consistent with the requirements of heavy industry.

Section 39(1)(c) - interests, proposals, opinions or wishes of the native title parties

The native title parties’ evidence on this criterion is dealt with elsewhere in these Reasons (see under Conditions below). The Mingarwee native title party supported the Park proposals and the others did not oppose it. Aboriginal people have not generally benefited from the economic development and prosperity of the Kalgoorlie region and the native title parties wish to share in any economic benefits which flow from the Park. In particular there is a concern about employment opportunities.

Section 39(1)(d) - economic or other significance

In the early 1990s the Western Australian government embarked on a regionalisation policy which required Government departments (including LandCorp and the Department of Resources Development) to identify suitable sites and establish industrial parks in all of the major regional centres, including Kalgoorlie. The rationale for the regionalisation policy is to create employment in the regions of Western Australia and thus improve the employment situation generally. An industrial park near Kalgoorlie, which is an area of major mining activity, would provide the opportunity for value added processing to occur in the Kalgoorlie region and diversify its industrial base. The region currently is a significant contributor to the economies of Australia and Western Australia, but is heavily reliant on the mining industry. A successful park for heavy industry will enhance the regions economic potential. There are considerable advantages to Government, the community and industry in establishing a park for heavy industry. It enables synergies to be created between industries, with one relying on the waste products of the other; the sharing of Government provided infrastructure, thus reducing overall costs; and enables more effective monitoring of any environmental impact.

A number of sites in the Kalgoorlie region were examined and Mungari decided on as the best site because of its proximity to the two major towns (Kalgoorlie and Coolgardie), the availability of infrastructure, including road, rail and power lines and water, while at the same time being environmentally acceptable because of its distance from the population centres of Kalgoorlie and Coolgardie and the Karrawong Aboriginal Community. The Park area proper was identified as an area of low mineral prospectivity, a major factor in assessing its suitability and a declaration has been made under the Mining Act exempting it from mining. Once established it is expected that the park will operate for a minimum of 50 years but could be up to 200 years with the recycling of sites.

LandCorp has already spent $700,000 on the project. The estimated total cost of the Park to LandCorp is estimated to be $24.7 million with the Stage 1 subdivision of some 170 hectares to cost $1.8 million. Of the 734 hectares acquired for the Park 520 hectares will be available for sale to industry. The proposal is likely to be a loss-making venture for LandCorp. The full development of the Park would involve considerable expenditure by Government, including possibly the need to improve the water and power supplies and rail access, as well as expenditure on the subdivisional development. Any industry established would involve

54 further expenditure. There is a multiplier effect from this direct expenditure which would flow into the local economy.

An established industrial park provides an incentive to industry to locate on it as it removes the need for industry to identify and establish its own site. It also enables the Government to market the Park when a window of opportunity emerges in a particular industry on the basis that land is readily available. Without the Park, it could take five years to secure a site, whereas an industry could obtain land within three months if the Park is established. The timely availability of land enhances the chances of attracting industry and improves the Australian and Western Australian competitive position. One firm expression of interest to establish a sodium cyanide plant was received from ICI Australia but for reasons relating to the sale of ICI Australia and the gold price no final commitment has been made at this stage.

This criterion refers to the ‘economic or other significance’ of the proposed act. In one sense it has no economic significance at this stage, because there is no firm commitment to expenditure because there is currently no confirmed interest in establishing an industry on the Park. The evidence points to its potential economic significance. In considering this criterion along with that relating to the public interest (s 39(1)(e)) I think considerable weight must be given to the elected Government’s view of the public interest and its policy objectives, particularly as they seem to have the general support of the local community. Governments are entitled, indeed the community expects them, to plan to encourage economic growth and employment opportunities.

Section 39(1)(e) - public interest

The evidence on this matter has been dealt with elsewhere. No submissions were made that it would be contrary to the public interest for the Park to be established.

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

It appears that the following additional eleven native title claims have been registered over all or part of the Park area:

WC96/81 (27 June 1996) - Judith Ann Slater on behalf of the Tjeraridjal People.

WC97/25 (26 March 1997) - Rollick Dimer and Edna Reid on behalf of the Kalaako People, including Rollick Dimer and family, Edna Reid and family, Edward Dimer and family, Ollan

Dimer and family, Colin Dimer and family, Johnny Beck and family, Daisy Rundle and family, the Donaldson families, Colin Tucker and family, and other members of the Kalaako People.

WC97/53 (8 July 1997) - Martin Allan Trott on behalf of all Judabi people.

WC97/76 (10 September 1997) - Denis Sambo, Elizabeth Sambo, Linda Sambo on behalf of the blood descendants of Lucy Sambo.

WC97/81 (30 September 1997) - Mercy O’Loughlin, Merle Forrest and William Arthur McKenzie on behalf of the Karonie People.

WC97/74 (9 September 1997) - Glenn Arthur Dimer and Kevin Michael Dimer including the Nullarbor people and the families of Glenn and Kevin Dimer.

WC97/88 (15 October 1997) - Donald Vincent Ballinger O’Donoghue and Philip Edward O’Donoghue on behalf of Donald Ballinger O’Donoghue and Family, Philip O’Donoghue and Family, Philomena Stack and Family, Isobel Clews and Family, and other members of the Maduwongga Ballinger People descended from the late Kitty Bluegum.

WC97/99 (24 November 1997) - Trevor Donaldson, Clem Donaldson and Roma Bendessi on behalf of Dick Donaldson (Ngoornie) direct descendants, Henry Donaldson, Bob Donaldson, Trevor Donaldson, Clem Donaldson, Roma Bendessi.

WC97/100 (25 November 1997) - George Angus Champion, James Champion, Darren John Champion, Simon Champion, Lionel Champion Tobias Werz, Darren Indich, on behalf of Kalamaia Kabu(d)n People, George Angus Champion, James Champion, Darren John Champion, Tobias Werz, Darren Indich, Simon Champion, Lionel Champion.

WC98/3 (27 January 1998) - Daphne Ann Lynch and Troy Mark Lynch, Descendants of the late Miwa Nora Brown, including Nelie Lynch and her descendants, members of the Warta Dika People.

WC98/4 (2 February 1998) - Colin Clem Dimer and Peter John Dimer, Marion Dimer and family, Ruby Cooper, Alice Panaia, Lesley Dimer, Leonie Dimer, Saul Sambo, Murray Dimer, Colin Dimer, Jake M Garlett, Max Garlett and family.

There are a number of observations to make about these overlapping claims. Firstly, the claimants did not lodge their claims in time to obtain the right to negotiate and are not parties in these proceedings.

Secondly, in some cases the claims seem not to come from different tribes, clans or groups but as a consequence of disputes within families, or between different families acknowledged to be part of the same group. For instance, the claimants in Claim WC97/88 claim as descendants of Kitty Bluegum who is also Mrs Strickland and Mrs Nudding’s grandmother and through whom they claim their native title rights and interests as Maduwongga people. Mrs Strickland acknowledged that these claimants are also Maduwongga people and it appears their claim was lodged following a dispute with her. Claim WC97/76 appears to include some of the same people who are part of the Gubrun native title party claim. Claims WC97/99 and WC97/100 appear to cover exactly the same area as the Gubrun native title party claim. Mrs Dimer is the sister of Clem Donaldson who is one of the Gubrun claimants but also appears to be part of claim WC97/99.

Thirdly, in many cases, the claims are hotly contested and have led to disputation and tension amongst Aboriginal people in the Goldfields. The Gubrun native title party disputes the other claims and refused to give evidence in this case for fear of providing knowledge to other claimants, which might prejudice their claim in the Federal Court. On the other hand a Report, of an Aboriginal Heritage Study prepared in June 1992 by Dr Ralph Locke, did not support a claim to large tracts of country in and around Kalgoorlie by the Gubrun Aboriginal Corporation.

Fourthly, on one view, it is not surprising that there are overlapping claims. The Wati Association Report notes that the traditional pattern of land holding and land use has been radically altered by the decimation of and disruption to Aboriginal groups in the region. It also refers to anthropological opinion which sees Aboriginal connection to country in terms of interconnecting and overlapping networks rather than the simple aggregation of discrete groupings. An Anthropological and Archaeological Survey for Aboriginal Sites prepared by Dr Barrie Machin, noted the different anthropological opinion about nominating precise tribal boundaries.

Pending a judicial determination of these issues the Tribunal is faced with a situation of considerable confusion about who (if any) of the many claimants will be able to establish

57 native title rights and interests (and if so the extent of them) in relation to the Park area. It is obvious that the resolution of who has native title in the disputed areas is going to involve a complicated factual inquiry involving not only disputes among the claimants themselves but an assessment of divergent anthropological opinions about the situation.

The question arises of whether the fact and nature of the overlapping claims is a relevant factor to have regard to in exercising the Tribunal’s discretion. In this case it is relevant to deciding whether and what type of conditions it is appropriate to impose and the issue is dealt with more specifically below.

The Government party argued that this was an appropriate case for a determination that the act may be done without the imposition of conditions. In some cases it drafted conditions in the event that the Tribunal decided that they were warranted. The native title parties proposed various conditions which are described below.

Access

The Maduwongga native title party proposed a condition that the Park include access roads through it to enable members of the public (including the native title parties) to traverse the property to obtain access to land on all sides of the Park. A condition of this kind is unnecessary. The subdivision plan makes provision for public roads including a public road that will traverse the Park from north to south. Further, the Park is not of such a size or type or in such a location to make access to areas around it difficult.

The Government party drafted a condition relating to access in the event that the Tribunal felt that some provision guaranteeing access to the native title parties was necessary. The proposed condition was that the Government party permit access by native title parties to land in the Park area which is not the subject of an interest granted by the Government party to another person, but that the Government party may limit or prohibit access to the extent necessary to enable the project to be completed and to permit the granting of interests in the land to other persons or for reasons of safety or security. This condition was based on the premise that on compulsory acquisition and the grant of freehold to LandCorp the Government party obtained full possession of the area and that even if not extinguished the

58 native title parties had no right to exercise any native title rights and interests in relation to the land.

For reasons expressed above, I do not consider the question to be as clear cut as the Government party maintains. If in fact application of the non-extinguishment principle means that native title rights may be fully exercised until such time as the Government party takes steps which are inconsistent with the existence of native title, then it is possible that there is no basis for the Government party to exclude native title parties from the land until such time as an extinguishing act occurs.

If this were the correct view of the law then no condition relating to access would be necessary unless the Government party proposed immediately to take steps to, for instance, fence the whole boundary of the Park in a way which would deny access. There is no suggestion that the Government party will do this or indeed that it will take any action to develop the site until it has a firm proposal for an industry to locate there. When it has a firm proposal it will commence works which certainly will extinguish native title in some areas and at that point the native title parties could be denied access. One option is to leave this matter to be resolved by the general law despite the considerable uncertainty in relation to it. However, I think the best interests of the parties will be served by clarifying the situation in relation to access, to minimise the potential for conflict and accordingly have adopted the Government party’s proposal as Condition 1. In practice this Condition will permit the exercise of some native title rights until the Government party develops the site and disposes of the land to third parties.

Conservation zones

The above comments on the extinguishment of native title are equally applicable to the conservation zones, except that there is a stronger possibility that native title over them will not be extinguished because there will be no grant of freehold to a third party.

Initially the Government party did not oppose a condition which required the creation of both conservation zones, the maintenance of access to them and their subsequent vesting in a body corporate nominated by the native title party following a determination of native title. Subsequently, it submitted that there was no evidence upon which to base a condition vesting the zone for the protection of natural habitat in the native title parties. I disagree. Submissions were made by the native title parties that extinguishment of native title should

59 not occur unnecessarily and that the compulsory acquisition in relation to the conservation zones should not proceed. Concern was also expressed about the natural vegetation and the effect of the Park proposal on birdlife and hunting. I accept that the Government party will create the conservation zones, but in the interest of ensuring that until a determination of native title is considered by the Court the status quo with respect to native title is maintained as far as possible, a condition requiring both zones to be created, access to them maintained and their vesting in a body corporate following any determination of native title is justified. Condition 4 achieves this purpose. Government party concerns about management of the zones in the event of their vesting in a body corporate should be able to be met by resort to existing legislation and co-operative arrangements between LandCorp and the body corporate.

Employment opportunities

The Mingarwee native title party proposed a condition dealing with employment, training and contract opportunities. It proposed that the Government party give employment and contract preference to the traditional owners or corporations or other entities in which the traditional owners have an interest during work on the Park and attempt to ensure that as many of the Aboriginal owners and corporations or other bodies in which the traditional owners and associated entities have an interest as is practicable are employed or contracted where they are capable of carrying out in a satisfactory and cost effective manner the particular work required. It then proposed more specific conditions to give effect to this policy by requiring the Government party to actively seek to engage the traditional owners for positions; ensure contractors and sub-contractors give preference to Aboriginal owners where there are job vacancies; provide a suitably qualified person to assist the traditional owners to identify areas where they might successfully seek employment or contract for the supply of goods and services; and give to the traditional owners and their associated entities 14 days notice prior to an intention to let or call tenders for a contract for the supply of goods and services. Further, the Government party was to require all contractors and sub-contractors to provide details of any employment vacancy and give 14 days prior notice to the traditional owners in respect of any employment vacancy and inform the traditional owners of the minimum qualifications, training and skills required for the position.

Reasons were to be given to the traditional owners where an employment application or contract tender made by or on behalf of the Aboriginal owners or incorporated other bodies in which the Aboriginal owners have an interest was unsuccessful.

The Tribunal does not have power to impose a condition of this kind which is not specifically related to the native title parties in these proceedings. There must also be doubt about the capacity of the Tribunal to require the Government party to give preference in employment to Aboriginal people.

LandCorp is committed as a condition of its environmental approval to encourage the development of local employment strategies through the Mungari Advisory Board. It is difficult to envisage an effective local employment strategy in the Kalgoorlie area which did not involve the Aboriginal community. Further, the Government party provided to the Tribunal a statement of its general policy on Aboriginal employment in respect of the Park as follows:

“• To the extent permitted by law, the Government party will make available employment and training opportunities for Aboriginal people with respect to identified specific works • The Government party will ensure that tenders for major works are appropriately advertised so that Aboriginal people will have an equal opportunity to tender for such works • The Government party will seek the agreement of successful tendering companies to the extent permitted by law to adopt Aboriginal employment and training opportunities during the tender works • Through an appropriate Aboriginal body corporate, disseminate information on tender opportunities to Aboriginal people.”

In the circumstances, a condition relating to employment is only legally possible and practically justified for the native title parties. Condition 2 requires the Government party to encourage the employment and training of the native title parties and no doubt in practice this can be integrated with the implementation of its general policy.

Representation on the Mungari Advisory Board

The Mingarwee native title party proposed that the Mungari Advisory Board consist of at least one dedicated position to be occupied by a representative of the native title holders, but that prior to a determination of native title, the registered native title claimants (not the native title parties) should nominate a representative.

For reasons already explained it is not possible to impose a condition on the Government party which requires it to make available a position on the Advisory Board for native title claimants. In the circumstance of this case, I do not intend to impose a condition requiring native title parties to be provided with a designated position on the Board, unless and until there is a determination of native title - see Condition 7. The native title parties are in dispute and given the large number of overlapping claims, there must be considerable uncertainty about who ultimately may be found to hold native title.

LandCorp is committed as a condition of its environmental approval to establish an advisory board to the Park which includes community representatives. The Government party provided to the Tribunal the following statement of its policy on representation on the Advisory Board:

“The Western Australian Minister for Resources Development has established the Mungari Advisory Board. Representatives have been appointed from the relevant local government authorities, industry, environmental, community and business interests, as well as from the Department of Resources Development and LandCorp. The Minister will be pleased to appoint to the Board a suitable representative of the Goldfields Aboriginal community.”

Pending a determination of native title I consider it appropriate for the Aboriginal community (including the native title parties and other registered native title claimants) to seek representation on the Advisory Board in accordance with the Government party’s stated policy.

Aboriginal heritage

Condition 6 gives effect to the Tribunal’s conclusions relating to the protection of Aboriginal sites (see above).

Naming rights

One issue raised during the negotiations which preceded the s 35 Application was whether the native title parties could be given naming rights in relation to the areas proposed to be subdivided. The negotiations at that time involved not just the Park proposal but proposals to subdivide land for residential purposes near Kalgoorlie. The Government party proposed a condition dealing with naming rights which involved the native title parties providing to it a list of proposed names for any streets, parks and public places within the Park area and the Government party using its best endeavours to obtain the consent of the Shire of Coolgardie and the Geographic Names Committee to use of the names proposed. The Government party would undertake to choose a name from the list supplied when it proposes to name a street, park or public place within the Park area. The Mingarwee native title party supported a clause dealing with naming rights generally and the Gubrun native title party in respect of the conservation zones. The Maduwongga native title party opposed it on the basis that naming rights were being talked about more with respect to proposed residential development rather than an industrial park.

I do not intend to impose a condition of this kind. It was not a major issue with the native title parties supporting it and had only been proposed by the Government party in the event that a condition of this kind was considered desirable. Again, it is a condition confined to the native title parties in these proceedings when there are numbers of other native title claimants over the Park. There is nothing to stop the native title parties or other claimants from approaching the Government party if they have a particular proposal relating to the naming of any features in the Park, but I don’t regard a formal condition of this kind as necessary or appropriate in this case.

Condition requiring the State Minister to extend the time for a claim for compensation to be made under LAPWA.

Section 36 of LAPWA provides that a claim for compensation must be made within 6 months of the compulsory acquisition of land (or native title rights and interests) but that the Minister may extend this time if satisfied that an application to extend the time is reasonable and made in good faith.

The Gubrun native title party proposed a condition that would have required the Minister to grant to a native title claimant an extension of the time to lodge a claim for compensation to a

63 date six months after the date of a final determination of who were the native title holders in respect of the Park area.

The Government party submitted that the Tribunal had no power to fetter the direction of a State Minister in this way. I accept this submission in this context although I think the power given by s 38(1)(c) does extend to the imposition of conditions which may impact on State administrative processes. For instance, in Koara the Tribunal required some of the conditions it imposed to be made conditions on the mining lease. In this case the proposed condition does not fall within the scope and purpose of the Act, nor is it incidental to it.

From a practical point of view a condition of this kind has some advantages in that it would reduce the need for unnecessary compensation applications to be made by large numbers of native title claimants when the State Courts would probably not proceed to assess compensation until native title has been determined. However, if this practical result is to be achieved it will have to be done by the native title parties (and other claimants) approaching the State Minister with its proposal.

Environmental impact

The Maduwongga native title party proposed a condition obliging any future industrial users in the Park to consult with native title claimants under the Act and native title holders to advise of potential adverse impacts on the surrounding environment and seeking proposals as to conditions which might minimise those impacts. As drafted those conditions included the native title claimants who were not native title parties and creates the same problems with respect to the Tribunal’s powers that I have referred to above.

Even if the Tribunal had power to impose a condition covering other registered native title claimants I do not regard a condition of this kind as necessary in this case. The environmental commitments imposed on LandCorp by the Minister for the Environment mean that all the proposals for development within the Park will be notified to the EPA and must comply with other environmental commitments. A condition requiring the Government party to notify the EPA and native title parties of a proposal prior to a transfer of an interest to a third party will suffice (see Condition 5).

Compensation

The Maduwongga and Mingarwee native title parties submitted that the Tribunal should make a determination that the act may be done subject to the Government party providing compensation in either a monetary or non-monetary form. The Gubrun native title party opposed such a condition. The specific request from the Maduwongga native title parties was for the transfer of freehold land in the area of what is known as the old Camel Farm which is several kilometres from the Park area on the Great Eastern Highway towards Coolgardie. Alternatively, the request was for a grant of freehold land in the Park area which could be subsequently sold to a tenant of the Park. I have decided, as a matter of law, that no power exists for the Tribunal to impose a condition relating to non-monetary compensation. Even if wrong on this point, there are insuperable practical problems with the proposal to grant freehold land at the Camel Farm site. This area is the subject of most, if not all, of the overlapping claims referred to above and a grant of freehold even to be held in trust could not be made without the Government following the right to negotiate provisions of the Act.

Apart from the question of power this is not an appropriate case in which to make a condition relating to either monetary or non-monetary compensation. The fact and number of overlapping claims is relevant. In these circumstances there is no sensible rationale for ordering that negotiated compensation be paid and held in trust only for these native title parties when there are numerous other registered native title claimants who may eventually be found to be native title holders and entitled to compensation.

This is not a situation involving a grantee party of dubious financial stability where there is concern about whether a final determination of compensation would be satisfied. The Government party will always be able to pay the compensation. There may be circumstances where requiring a Government party or an economically viable grantee party to pay negotiated compensation into trust may be justified thus enabling a native title holder immediately to access the compensation without being put to the trouble of a Compensation application. The imposition of such a condition might be justified where the native title has been determined or a claim is very clear or where the principles relating to compensation have been the subject of judicial determination. The uncertain state of the law relating to compensation for the acquisition of native title rights and interests, including the impact of the non-extinguishment principle on its assessment, support a decision not to impose a negotiated compensation condition in this case.

Native title rights and interests may not be extinguished until industries locate on the Park. In those circumstances compensation for a compulsory acquisition (which only gives the Government party a right to do further acts in relation to the land) may be minimal. The rights of the native title parties to claim compensation are not in any way affected by not imposing a condition for negotiated compensation. If the Park goes ahead an assessment can be made based on what actually happens and in the knowledge of who holds native title (if anyone).

(d) General Conclusions

The weight of the evidence points to a determination that the act may be done. The Government party has provided comprehensive evidence of the proposal to establish the Park including its potential economic benefits. The Government party considers that the public interest will be served by the Park proposal and it has the support of the local community and is not opposed by the native title parties. The evidence of native title rights or interests which exist generally and in relation to the Park area in particular is minimal. However, what native title exists will be extinguished at least in relation to the areas where industry is established. In each case the area of the native title claim vastly exceeds the area over which native title rights and interests are to be acquired. Taken overall there will be very little effect on the native title rights and interests of the native title parties by this proposal. There is no evidence of any effect on the way of life, culture and traditions of any of the native title parties except that which related to the exercise of their native title rights. The Park could have a positive effect on the economic structures of the parties and the native title parties wish to participate in any economic benefits which flow from the Park. Freedom of access will be inhibited, but there is no evidence of any rights, ceremonies or other activities of cultural significance on the land. There will be an effect on the natural environment, but the Government party recognises the potential for these adverse consequences and has imposed conditions on LandCorp to minimise them. A conservation zone to preserve natural habitat will be created. The Government party has behaved conscientiously in dealing with the possible effect of the act on sites of particular significance to the native title parties and steps have been taken to minimise the possible impact on the gnamma hole site. The Tribunal has considered the interests, proposals and wishes of the native title parties and where the evidence justifies it has imposed conditions which reduce the impact of the act on native title rights and interests, on freedom of access and on sites of particular significance. The

66 employment condition will help the native title parties to participate in any economic benefits from the establishment of the Park. The number of overlapping claims has been taken into account in the decision not to impose a condition giving the native title parties a designated position on the Mungari Advisory Board at this stage, and along with other factors has been taken into account in the decision not to impose a condition relating to negotiated compensation. The question of compensation is better left to determination once native title has been determined and the full impact of the Park proposal is known.

The purposes of the Act are appropriately served by a determination that the act may be done subject to conditions to be complied with by the parties.

4. DETERMINATION AND CONDITIONS

Determination

The determination of the Tribunal is that the act may be done subject to the following conditions (1-10) to be complied with by the Government party and the native title parties.

The act which may be done is the compulsory acquisition of the native title rights and interests under The Land Acquisition and Public Works Act 1902 (WA) in relation to the land contained in Jaurdi Location 80, Jaurdi Location 81, and Jaurdi Location 82.

For the avoidance of doubt, the act which may validly be done includes the compulsory acquisition of native title rights and interests, the grant of freehold title to LandCorp and the conferring by LandCorp of freehold or leasehold title on persons other than the Government party.

Conditions

Access

1.1 Subject to condition 1.2 below, the Government party must permit access by the native title parties to land in the Park Area which is not the subject of an interest granted by the Government party to another person.

1.2 The Government party may give a direction to the native title parties (orally or in writing) limiting or prohibiting access to land in the Park Area:

(a) to the extent necessary to enable the Project to be completed and to permit the conferral of interests in the land on persons other than the Government party; or

(b) for reasons of safety or security.

The native title parties must comply with any direction given by the Government party in accordance with this condition.

1.3 Nothing in conditions 1.1 and 1.2 above binds successors in title to the Government party to any part of the Park Area.

Employment and Training

2. In order to facilitate the participation of the native title parties in contracts awarded by the Government party in respect of the development and maintenance of the Mungari Industrial Park, the Government party must:

(a) give information and assistance to Associated Entities nominated in writing to the Government party by the native title parties, to enable the Associated Entities to identify contract opportunities in respect of the Park Area and to apply for pre- qualification to tender for contracts for major works in respect of the Park Area. The giving of information and assistance must include, if requested in writing by one or more Associated Entities, post-tender briefings to explain why a tender was unsuccessful;

(b) give to pre-qualified Associated Entities 14 days prior written notice of its intention to call tenders for major works in respect of the Park Area; and

(c) call for tenders for all major works in respect of the Park Area from its pre- qualified contractors and consultants, and must assess such tenders fairly and objectively based on compliance with tender conditions.

3. In order to facilitate the participation of the native title parties in employment and training opportunities in respect of the development and maintenance of the Mungari Industrial Park and the establishment and operation of industries within the Mungari Industrial Park:

(a) the native title parties may provide the Government party with a list of Eligible Persons seeking employment or training, such list to include the availability, qualifications, experience and contact details of each person on the list; and

(b) where the Government party is provided with a list referred to in condition 3(a) above, the Government party must ensure that a copy of the list is:

(i) included in all tender documents for major works, for the information of the tenderers; and

(ii) provided to all Purchasers.

Conservation Zones

4.1 The Government party must not grant to another person (other than a body corporate on behalf of a native title party which is determined to hold (or have held immediately prior to the compulsory acquisition of the Park Area) native title in respect of the Gnamma Hole Area and the Landscape Protection Area) any interest in the Gnamma Hole Area or the Landscape Protection Area. This condition does not prohibit the vesting of a reserve in respect of the Gnamma Hole Area or the Landscape Protection Area in any person, except by reason of the vesting of the reserve in accordance with Condition 4.3 below.

4.2 The Government party must, within 180 days of the compulsory acquisition of the Park Area, declare the Gnamma Hole Area and the Landscape Protection Area to be reserves under the Land Administration Act 1997.

4.3 If a native title party is determined to hold (or have held immediately prior to the compulsory acquisition of the Park Area) native title in respect of the Gnamma Hole Area and the Landscape Protection Area (either alone or in conjunction with other persons), then the native title party may by notice in writing to the Government party request that the Government party vest one or both of the reserves in respect of the Gnamma Hole Area and the Landscape Protection Area in a body corporate nominated by the native title party. Within 180 days of receiving such a request the Government party must vest the Gnamma Hole Area and/or the Landscape Protection Area (as the case may be) in the nominated body corporate.

4.4 The Government party must ensure that the native title parties at all times have a means of access to the Landscape Protection Area and the Gnamma Hole Area. The Government party may from time to time limit or prohibit access by the native title parties to the Landscape Protection Area and the Gnamma Hole Area in accordance with condition 1.2 above.

Environmental and social impact

5.1 The Government party must notify in writing the Environmental Protection Authority and the native title parties of any firm proposal by a Purchaser to conduct industrial activities within the Park Area.

5.2 Within 14 days after conferring an interest in land within the Park Area upon a Purchaser, the Government party must give notice in writing of that fact to the native title parties.

Aboriginal heritage

6. Within 14 days after conferring an interest in land within the Park Area upon a Purchaser, the Government party must:

(a) by notice in writing inform the Purchaser of the terms of the Aboriginal Heritage Act 1972 (WA); and

(b) provide the Purchaser with a copy of:

• the Report of an Aboriginal Site Survey, Mungari Industrial Park by Wati Yinangu Tjutundpa Mirl Mirl Association dated December 1992; and

• the Report of an Aboriginal Heritage Site Survey, Proposed Mungari Industrial Park by McDonald Hales & Associates dated May 1993; and

• the report of an Ethnographic Survey II under the Aboriginal Heritage Act, Mungari Industrial Park by Australian Interaction Consultants dated September 1997.

Advisory Board

7.1 The Mungari Advisory Board must consist of at least one dedicated position to be occupied by a representative of the native title party which is determined to be (or have been immediately prior to the compulsory acquisition of the Park Area) the native title holder in respect of the Park Area.

7.2 The native title party referred to in condition 7.1 above may nominate in writing to the Government party a representative for the purpose of condition 7.1 above.

7.3 The Government party may reject a nomination of a representative or may remove a representative appointed for the purpose of condition 7.1 above, however if it does so it must give written reasons to the native title party for the rejection or removal (as the case may be).

7.4 In the event the Government party disbands the Mungari Advisory Board and replaces it with some other body (incorporated or unincorporated) to undertake community liaison or consultation, or to give management or other advice to the Government party, in respect of the Mungari Industrial Park, then the Government party must dedicate at least one position on that body to a representative of the native title party which is determined to be (or have been immediately prior to the compulsory acquisition of the Park Area) the native title holder in respect of the Park Area, and conditions 7.2 and 7.3 will correspondingly apply in respect of that body.

Application of conditions

8.1 These conditions will cease to apply if the notice under the Land Acquisitions and Public Works Act 1902 (WA) whereby native title rights and interests in respect of the Park Area are set apart, taken or resumed is annulled.

8.2 These conditions apply only while the whole or part of the Park Area remains subject to:

(a) one or more of the native title claims; or

(b) another native title claim made by or on behalf of the native title parties (either alone or in conjunction with other persons); or

(c) an approved determination that one or more of the native title parties hold native title to the whole or part of the Park Area (either alone or in conjunction with other persons), or held native title immediately prior to the compulsory acquisition of the Park Area.

8.3 If an approved determination is made that only one of the native title parties holds native title to the whole or part of the Park Area, or held native title immediately prior to the compulsory acquisition of the Park Area, then these conditions apply only in respect of that native title party.

Notices

9.1 For the purposes of these conditions, the registered native title claimant is authorised to give or receive any notice on behalf of the native title party.

9.2 Notices or other communications under these conditions may be given by delivery, post or facsimile and each party must nominate a postal address and facsimile address for that purpose. Until a party has made such a nomination, its address for service will be taken to be the address of the party’s representative at the future act determination application proceedings.

9.3 Any party may by notice in writing change its address or facsimile numbers.

9.4 A notice is taken to be received in the case of a posted document, on the second business day after posting and in the case of a facsimile on the first business day after transmission.

Definitions

10. For the purpose of these conditions the following terms have the following meanings:

“Associated Entity” means any incorporated body or unincorporated association all the members of which are members of one or more of the native title parties, and means an individual who is a member of a native title party.

“Eligible Person” means a person who is a member of a native title party.

“Landscape Protection Area” means an area of not less than 32 hectares adjoining (to the north) the southern boundary of Jaurdi Location 80 and adjoining (to the east) the western boundary of Jaurdi Location 80.

“Gnamma Hole Area” means an area of not less than 4.5 hectares encompassing the rock formation identified in the Report on Aboriginal Heritage Site Survey, Proposed Mungari Industrial Park by McDonald Hales & Associates dated May 1993 as the “gnamma hole”, such that the boundary of the area is not less than 50 metres from the gnamma hole.

“Government party” means the State of Western Australia including all its Departments, agencies, instrumentalities, Ministers and officers, and expressly includes LandCorp.

“LandCorp” means the Western Australian Land Authority established under the Western Australian Land Authority Act 1992 (WA) or its successor.

“native title claim” means native title claim WC94/3 (Maduwongga) or native title claim WC95/27 (Gubrun) or native title claim WC96/10 (Mingarwee) lodged with the National Native Title Tribunal under the Native Title Act 1993 (Cth).

“native title holder” has the meaning given in the Native Title Act 1993 (Cth).

“native title parties” includes one or more native title party.

“native title party” means:

(1) the registered native title claimants in respect of a native title claim and all persons on whose behalf the native title claim is made; and

(2) in a case where an approved determination is made that the native title party holds (or held immediately prior to the compulsory acquisition of the Park Area) native title to the whole or part of the Park Area (either alone or in conjunction with other persons), means the native title holders.

“Purchaser” means a person upon whom the Government party confers an interest in the Park Area.

“registered native title claimant”:

(1) has the meaning given in the Native Title Act 1993 (Cth), and if there is more than one person who constitutes the registered native title claimant, means the first-named registered native title claimant; and

(2) in the event of an approved determination that the native title party holds native title to the Park Area, means the registered native title body corporate in respect of the native title claim; and

(3) in the event of a determination that the native title party held native title immediately prior to the compulsory acquisition of the Subject Area, but does not continue to hold native title because of an act done in giving effect to the purpose of the compulsory acquisition, means the person who was the registered native title claimant in accordance with (1) above.

“Park Area” means Jaurdi Location 80, Jaurdi Location 81, and Jaurdi Location 82 near Kalgoorlie in the State of Western Australia.

“Project” means the subdivision and development of the Mungari Industrial Park.

The Hon C.J. Sumner Member 20 February 1998