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1998] NNTTA 2 (20 February 1998)

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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” 3 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). 4 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). 5 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’)).
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