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Court and Tribunal Decisions - Australia
Federal Court of Australia (Madgwick J)
29 August 2000
(2000) 104 FCR 494; [2000] FCA 1249
Application under Native Title Act 1993 (Cth) — innovative settlement — Court’s discretion in making an order under s 87
Three Aboriginal peoples, the Nharnuwangga, Wajarri and Ngarlawangga, brought an application under the Native Title Act 1993 (Cth) (‘the Act’) for determination of native title over an area of about 50,000 square kilometres in the Upper Murchison and Upper Gascoyne region of Western Australia. Much of this land had been alienated for pastoral, mining and public purposes.
The Court was asked to make a consent determination of native title that would not to come into force immediately, but be contingent on the parties reaching agreement on a pastoral access protocol and an Indigenous Land Use Agreement.
The pastoral access protocols defined access rights and the way they would be exercised, irrespective of whether native title had been extinguished.
The Indigenous Land Use Agreement provided a framework under which future mining activities could proceed. The native title holders would forego their right to negotiate, under the Act in respect of the grant of future mining tenements. However, they would replace that right with agreed rights of consultation and compensation under a State-based regime, once a proposed mining venture reached the stage of productive mining. Aboriginal sites would be protected under an agreed form of Heritage Agreement between the miner and the native title holders.
Counsel gave an undertaking to the Court on behalf of their clients that their respective clients would take the steps necessary to implement the agreed settlement.
1. A general form of order appears sufficient for a determination of native title rights and interests throughout the claim area, subject to the effect of any earlier extinguishing events. Western Australia v Ward [2000] FCA 191; (2000) 170 ALR 159 (the Miriuwung and Gajerrong case) at [667] followed. [9]
2. In exercising the discretion to make orders under s 87 of the Act, the Court is unconfined except in so far as the subject matter and the scope and purpose of the legislation. Oshlack v Richmond River Council (1998) 152 CLR 83 at [89] and [121] followed. [22], [23]
3. It is for the Court to determine whether it is within the Court’s power to make orders consistent with the terms of the parties’ settlement. [25]
4. Where the orders sought can reasonably be related to the evidentiary materials before the Court and the parties have had legal representation, it is not for the Court to exercise any paternalistic role as to the merits or demerits of the proposed settlement. However, it is to be borne in mind that determinations of native title have effect as against all the world, and that there can be only one native title determination in relation to any particular area of land or waters (s 68 of the Act). [26]
1. This is an application for determination of native title in relation to an area for which there is as yet, no approved determination of native title and which has been brought pursuant to s 13(1) and s 61 of the Native Title Act 1993 (Cth) (‘the Act’).
2. These cases have concerned a claim by and on behalf of the descendants of three Aboriginal groups respectively known as the Nharnuwangga, Wajarri and Ngarlawangga peoples for a determination of native title in their favour over an area of about 50,000 square kilometres of land, much of it alienated for pastoral and mining purposes. The land is in the Upper Murchison and Upper Gascoyne region of Western Australia, so named after the major local rivers, parts of the catchments of which are contained in the claim. The land is just south of the well known Pilbara region and just to the west of the Great Sandy Desert. The land has a low and highly variable rainfall and is principally used now for extensive cattle grazing.
3. The parties have arrived at a settlement, subject to the Court’s preparedness to make orders to give effect to it. The Court is informed that the settlement intends to recognise and protect both native title and non-native title rights and interests within an amended claim area and to lay down the guidelines as to how those various rights and interests will co-exist in the future. Because of the number of competing interests involved and the complexity of the issues raised, the settlement involves a number of separate but related steps. Counsel have given me a helpful outline, closely mirrored in the following.
...
14. Representatives of the claimant group, led by an indomitable man, Mr Clarrie Smith and other determined people, including Mrs Linda Riley and Mrs Gladys Leake and her late husband, some years ago walked onto and have since lived on, and established and secured legal title to land in the claim area on which there is now a community and village called Yulga Jinna.
15. The Yulga Jinna people and others who, according to what survives of traditional Aboriginal laws and practices, may speak for their communities authoritatively in respect of the land concerned, came together to present a unified claim on behalf of the Nharnuwangga, Wajarri and Ngarlawangga people over the much larger area now claimed. Evidence was heard by the Court at various places on the land concerned. There was evidence of the survival, despite the decimation of Aboriginal populations and their dispossession of their lands since the coming of white people, of a community observing so far as is possible, in modern circumstances, traditionally based laws and customs. Other evidence included rigorously criticised anthropological evidence and studies by two professional historians. The evidence also showed, again so far as is possible in modern circumstances and in the actual circumstances of the surviving members of the claimant groups, a continuing connection with the land in question. There were, however, live issues about all these matters.
16. The evidence could support a conclusion that native title was, at least over considerable areas, non-exclusive. On the material before me, the extent of extinguishment of native title by past acts was uncertain. By agreement, the parties had deferred extinguishment issues for later consideration in the case. However, they have now dealt with these issues in their settlement.
17. On the other hand, commencing before the turn of the last century, there has been significant mining activity at various points within, and increasing pastoral activity over much of the area claimed. Over the great bulk of the land there are now twenty functioning cattle stations operating under pastoral leases. In addition, the Western Australian State Government has, over many years, asserted its right to many parts of the land for roads, other infrastructure and various other public purposes. Much of the land is in the Shire of Meekatharra, the Council of which became a party to the proceedings but has taken no active part in them. The parties who have taken an active part in the proceedings have been the claimants, the State Government, the pastoralists and to a lesser extent, the mining interests and Telstra.
18. The active parties have managed to arrive at a settlement of the case. No other party has appeared to call that settlement into question. This is a considerable achievement. I have been told that if the Court gives effect to the settlement proposed, it will be:
19. The circumstances in which the settlement came about are, I think, worth recording. Initially, all parties took the view that in theory, if a settlement could be achieved, that course would be preferable to litigation. However, the claimants had a principled and understandable view that negotiations should only take place according to one framework which they proposed. The State Government, likewise, had a principled and understandable view that the negotiations should only take place in a different framework. In consequence, the parties had come to the view that the matter would need to be fought out in court.
20. After a considerable amount of evidence had been taken from Aboriginal and some pastoralist witnesses, it became apparent that there was strong personal goodwill between at least the elders of the claimant group and at least a number of the present pastoralists having long family associations with the land concerned. The Court therefore took the initiative of urging the parties to try to build on this goodwill through mediation. To their great credit and guided by their legal advisers, the parties agreed. They jointly invited the Court to ask Mr Graeme Neate, president of the National Native Title Tribunal to act as mediator. However, a breakdown of negotiations was reported to the Court. While the mediation was not immediately successful, the Court is grateful to Mr Neate for interposing this matter among his onerous commitments as the leader of that Tribunal. Subsequently, at the instigation of the Court, the parties agreed to renew negotiations among themselves without a mediator and these negotiations ultimately proved to be successful.
21. The proposed settlement is complex and comprehensive and I have spent some time summarising it. That summary is itself, technical and betokens the complex and technical nature of the documents which it summarised.
22. By empowering the Court to make orders effectuating a settlement, the legislature has committed a discretion, apparently very wide, to the Court. In exercising such a discretion, the Court must however, act judicially. In Oshlack v Richmond River Council (1998) 152 CLR 83 at 89, Gaudron and Gummow JJ said that to exercise a discretion judicially means:
... not arbitrarily, capriciously or so as to frustrate the legislative intent. However, subject to such considerations, the discretion conferred is, to adapt the words of Dixon J, unconfined except in so far as ‘the subject matter and the scope and purpose’ of the legislation may enable an appellate court to pronounce the reasons given by the primary judge to be ‘definitely extraneous to any objects the legislative could have had in view’.
In the same case, Kirby J said at 121:
The proper approach to the exercise of a statutorily discretion may be illuminated by the particular language in which it is expressed and the purpose for which it has been provided.
23. Section 87 of the Act provides:
Power of Court
(1) If, at any stage of proceedings after the end of the period specified in the notice given under section 66:(a) agreement is reached between the parties on the terms of an order of the Federal Court in relation to:
(i) the proceedings; or
(ii) a part of the proceedings; or
(iii) a matter arising out of the proceedings; and
(b) the terms of the agreement, in writing signed by or on behalf of the parties, are filed with the Court; and
(c) the Court is satisfied that an order in, or consistent with, those terms would be within the power of the Court;
the Court may, if it appears to it to be appropriate to do so, act in accordance with whichever of subsection (2) or (3) is relevant in the particular case.
Agreement as to order
(2) If the agreement is on the terms of an order of the Court in relation to the proceedings, the Court may make an order in, or consistent with, those terms without holding a hearing or, if a hearing has started, without completing the hearing.
Note: If the application involves making a determination of native title, the Court’s order would need to comply with section 94A (which deals with the requirements of native title determination orders).
24. According to the main objects of the Act as set out in s 3, the Act aims to provide for the recognition and protection of native title and to establish ways in which future dealings affecting native title may proceed and to set standards for these dealings. There is also a number of provisions in the Act, which provide for mediation and means to assist in resolving issues without the necessity for judicial determination: see s 86B, s 86F(2) and (3) and s 88(1).
25. It is for the Court to determine whether it is within the Court’s power, and if it is, whether it is appropriate, to make orders consistent with the terms of the parties’ settlement.
26. Where the orders sought can reasonably be related to the evidentiary materials before the Court and the parties have had legal representation, it is not for the Court to exercise any paternalistic role as to the merits or demerits of the proposed settlement. However, it is to be borne in mind that, although it is the parties to this case who have arrived at the agreement, determinations of native title have effect as against all the world, and that there can be only one native title determination in relation to any particular area of land or waters (s 68).
27. The settlement would appear to have the following effects, among others:
28. The settlement proposed seems to me to be justified by the evidence. I bear in mind also that I am bound by the rulings of the Full Court of this Court in, which appear not to be helpful to the applicants in relation to extinguishment issues. The parties have, however, properly had regard to what may be a degree of uncertainty about the extent to which that decision has finally resolved legal questions as to how far the grant of Western Australian pastoral leases has extinguished native title. The High Court of Australia has granted leave to appeal in relation to important aspects of that decision but the appeal has not yet been determined.
29. The terms of the settlement appear to me to be consistent with the objectives and purposes of the Act.
30. I therefore now indicate that in my view, the Court does have power to make the orders sought, that it is appropriate to do so and that I will make the orders proposed.
...
40. I will, in a moment, make the orders which I have been asked to do. However, I indicate that it is intended to hold a further sitting on the land at Yulga Jinna, early next year, to make a formal conclusory declaratory order and to mark the successful conclusion of the proceedings in a way that accords with the claimants’ traditions. A good many formal steps need to be completed by the major parties before that can be done.
41. The claim will be amended in accordance with the Minute of Proposed Amended Application, dated 29 August 2000 and which is Attachment D, to the Minute of Proposed Orders. I also make orders in accordance with the document headed, ‘Minute of Proposed Orders’ and dated 29 August 2000 and I further make orders in accordance with the Minute of Agreed Proposed Determination of Native Title, also dated 29 August 2000. l
Counsel for the Applicant:
P Vincent and A Sheehan
Solicitor for the Applicant:
Aboriginal Legal Service of Western Australia (Inc)
Counsel for the first Respondent:
V Hughsten
Solicitor for the first Respondent:
Crown Solicitors Office (WA)
Counsel for the third Respondent:
G Donaldson
Solicitor for the third Respondent:
Jackson McDonald
Counsel for the fourth Respondent:
K Martin
Solicitor for the fourth Respondent:
Mallesons Stephen Jaques
Counsel for the fifth Respondent:
D Martino
Solicitor for the fifth Respondent:
Blake Dawson Waldron
Protocol for access to
between
(‘the Pastoral Lessee’)
and
The State of Western Australia
and
Jidi Jidi Aboriginal Corporation
(‘the Body Corporate’)
on behalf of
The Nharnuwangga Wajarri and Ngarlawangga People
(‘the NWN People’)
Jackson McDonald
Barristers & Solicitors
81 St George’s Terrace
PERTH, Western Australia 6000
Tel: 9426 6611 Fax: 9321 2673
Ref: EFF:GSG:946228
This deed is made the day of 2000
BETWEEN
Jidi Jidi Aboriginal Corporation of on behalf of the NWN People (‘The Body Corporate’)
and
(‘the Pastoral Lessee’)
and
The State of Western Australia acting through the Minister for Lands, a body corporate under the Land Administration Act 1997, care of the Department of Land Administration, 1 Midland Square, Midland WA 6056.
A. The Pastoral Lessee is the lessee of the pastoral lease described in Schedule 1 to this Protocol (‘the relevant pastoral lease’). The Pastoral Lessee has the rights conferred by the relevant pastoral lease pursuant to the Land Administration Act 1997.
B. The Body Corporate holds native title on behalf of the Nharnuwangga Wajarri and Ngurlawangga People who are members from time to time of the Body Corporate pursuant to and as expressed in the Native Title Determination of the Federal Court dated (‘the Determination’). The form of the Determination is contained in Schedule 2 to this Protocol.
C. The native title rights (‘the native title rights’) expressed in the Determination in respect of the land and waters in the Determination Area where native title has not been extinguished (‘the balance of the Determination Area’) are as follows:
(a) the right as against any other Aboriginal group or individual to be acknowledged as the traditional Aboriginal owners of the land;
(b) the right to hunt, fish and gather (including to gather ochre) for the purpose of satisfying their personal, domestic or non-commercial communal needs, including observing traditional laws and customs; and
(c) the right to have access to and camp on the balance of the Determination Area in order to:
(i) exercise the rights set out in (b) above;
(ii) travel through; and
(iii) visit and care for places which are of cultural or spiritual importance.
D. Schedule 3 to this Protocol describes that part of the relevant pastoral lease to which this Protocol applies, being all that part of the relevant pastoral lease within the external boundary of the Determination Area. From now on, where this Protocol refers to ‘the Pastoral Lease’ it is a reference only to that part of the relevant pastoral lease described in Schedule 3 to this Protocol.
E. The Pastoral Lessee, the Body Corporate and the NWN People recognise and accept that this Protocol applies to the Pastoral Lease whether or not the native title rights or any native title rights have been extinguished wholly or partially over the Pastoral Lease or any area of the Pastoral Lease. In relation to areas of the Pastoral Lease where the native title rights have been extinguished, access rights equivalent to the native title rights (‘the access rights’) may be exercised in accordance with this Protocol.
F. The Pastoral Lessee, the Body Corporate and the NWN People recognise the respective rights that each party has in relation to the land the subject of the Pastoral Lease.
G. The Pastoral Lessee, the Body Corporate and the NWN People have agreed to be bound by this Protocol with a view to ongoing co-operation and good faith between the Pastoral Lessee and the NWN People.
H. This Protocol is not intended to take away from the existing social relationship between the Pastoral Lessee and members of the NWN People.
Now it is agreed as follows:
1. In this Protocol the headings to clauses are not to affect its construction and the following terms are defined:
(a) ‘claim group’ has the meaning given to that expression by the Native Title Act 1994 (Cth);
(b) ‘the Determination’ means the Native Title Determination referred to in Recital B;
(c) ‘the Determination Area’ means the land and waters to which the Determination applies;
(d) ‘the native title rights’ means the native title rights described in recital C;
(e) ‘NWN People’ means those persons on whose behalf the native title rights are held from time to time, being the adult members of the Body Corporate to be established in accordance with the Determination and their children;
(f) ‘the Pastoral Lease’ is a reference to that part of the relevant pastoral lease described in Schedule 3 to this Protocol and includes any extension or renewal of the term of the relevant pastoral lease or any right title or interest granted for pastoral purposes in replacement or substitution for the relevant pastoral lease for pastoral purposes (and for the avoidance of doubt does not include any freehold land);
(g) ‘the relevant pastoral lease’ means the pastoral lease described in Schedule 1 to this Protocol and includes any extension or renewal of the term of that pastoral lease or any right, title or interest granted for pastoral purposes in replacement or substitution for the pastoral lease for pastoral purposes (and for the avoidance of doubt does not include freehold land);
(h) A word importing:(i) the singular number includes the plural;
(ii) the plural number includes the singular;
(iii) any gender includes every other gender.
(i) A reference to a Schedule, Recital, clause or paragraph refers to a Schedule, Recital, clause or paragraph of this Protocol.
(j) A reference to an Act, law, regulation or by-law includes any amendment or re-enactment of it that is for the time being in force.
(k) A reference to the Pastoral Lessee includes a reference to the Pastoral Lessee’s personal representatives, executors, administrators, successors and permitted assigns.
(l) If two or more persons by this Protocol undertake an obligation they should be liable jointly and severally.
2. The Body Corporate warrants and represents to the Pastoral Lessee that:
(a) it has obtained all necessary authorisations, consents and approvals necessary for it to enter into this Protocol so as to bind the NWN People, including authorisation from the NWN People in the manner defined in
section 251A of the Native Title Act 1993 (Cth);
(b) this Protocol will bind all NWN People;
(c) all NWN People will comply with this Protocol; and
(d) all NWN People agree to be bound by this Protocol.
3. Subject to the terms of this Protocol the NWN People have a right to enter the Pastoral Lease for the purpose of exercising the native title rights or the access rights.
4. The right of the NWN People to enter the Pastoral Lease for the purpose of exercising the native title rights or the access rights is subject to notice being given to the Pastoral Lessee pursuant to clause 8 of this Protocol and any reasonable objection that the Pastoral Lessee may have to the intended entry to the Pastoral Lease, being dealt with as set out in clauses 9–12.
5. The Pastoral Lessee will not unreasonably object to any request by the NWN People made in accordance with this Protocol for entry to the Pastoral Lease.
6. When present on the Pastoral Lease in accordance with this Protocol, the NWN People may, subject to the terms of this Protocol and in particular clauses 13, 14 and 16, exercise the native title rights or the access rights, but will not engage in any other activities without the prior approval of the Pastoral Lessee.
7. Any member of the NWN People who intends entering the Pastoral Lease is to give not less than 72 hours notice (or other lesser period as agreed) to the Pastoral Lessee of that intention.
8. The notice is to contain the following information:
(a) the approximate number of people intending to enter the Pastoral Lease, the names of key contact people for
that group and the names and details of any licensed firearms holders who intend to hunt in accordance with clause 8(f);
(b) the approximate number of vehicles involved;
(c) in general terms the places on the Pastoral Lease proposed to be visited;
(d) the approximate length of stay on the Pastoral Lease;
(e) if camping is proposed, the approximate camping location/s;
(f) whether it is intended to hunt with low calibre, low power firearms on the Pastoral Lease.
9. If the Pastoral Lessee has any objection (‘an Objection’) to the proposed entry to the Pastoral Lease or any of the things proposed in the notice to be done on the Pastoral Lease, the Pastoral Lessee will, within not more than 72 hours of receiving the notice, notify either the Body Corporate or those NWN People seeking entry and give the reasons for the Objection.
10. If there is no Objection those NWN People seeking entry may enter the Pastoral Lease in accordance with that notice.
11. If the Pastoral Lessee has an Objection then the Pastoral Lessee and the Body Corporate or those NWN People seeking entry will in good faith discuss and seek to resolve the Objection as quickly as possible, with a view to facilitating entry to the Pastoral Lease on reasonable terms, and until such resolution the NWN People seeking entry will not enter the Pastoral Lease.
12. If the Objection is not resolved within 14 days of notification of the Objection under clause 9, then the dispute will be settled by determination by arbitration in accordance with clauses 41 and 42 of this Protocol. In any such arbitration the arbitrator will determine the dispute and seek to resolve issues of principle that may have arisen in relation to the Objection, to guide the parties for the future operation of this Protocol.
13. The NWN People agree that (without the prior approval of the Pastoral Lessee) when on the Pastoral Lease they will:
(a) not interfere with station facilities including vehicles, fences, watering points and other pastoral improvements;
(b) keep any dog or other animal brought with them strictly within the control of the relevant NWN People at all times;
(c) not interfere with stock;
(d) not light fires except for the purpose of cooking or providing heat or light;
(e) not camp within 1km of or visit other than for the purpose of obtaining water any man made watering points (including windmills, bores and dams);
(f) not camp or stay within 3 kilometres of the homestead on the Pastoral Lease;
(g) only call at the homestead between 7am and 5pm unless in the case of emergency;
(h) only use vehicles on station roads and tracks and public roads other than to access a camping location not serviced by any such road and then by the shortest agreed route from such road;
(i) not leave any litter or rubbish on the Pastoral Lease;
(j) leave gates as they are found, that is open if they are found open and closed if they are found closed;
(k) not use high calibre or high power firearms on the Pastoral Lease;
(l) not camp on or travel over those places declared by the Pastoral Lessee as an excluded area in accordance with clauses 28 and 29 of this Protocol;
(m) not enter the Pastoral Lease with people not either members of the NWN People or immediate kin relations of members of the NWN People, and not to purport to give any such people permission to enter the Pastoral Lease;
(n) not erect any dwellings or other permanent structures on the Pastoral Lease;
(o) not commercially exploit any flora or fauna on the Pastoral Lease.
14. Each of the NWN People must not while on the Pastoral Lease do or omit to do anything that would be contrary to law or might directly or indirectly cause the Pastoral Lessee to be in breach of any provision of the Pastoral Lease, the Land Administration Act 1997 or any other Law.
15. While on the Pastoral Lease the NWN People will comply with all reasonable directions of the Pastoral Lessee made for the efficient operation of the Pastoral Lease as a pastoral enterprise, including but not limited to reasonable directions about:
(a) camping;
(b) use (including closure) of station roads;
(c) the lighting and extinguishment of fires;
(d) control of any dog or other animal brought onto the Pastoral Lease;
(e) where to hunt using firearms;
(f) safety;
(g) soil or other environmental conservation (including but not limited to feral animal control).
16. If any dispute arises about any direction of the Pastoral Lessee then the Pastoral Lessee and the NWN People on the Pastoral Lease will in good faith seek to resolve the dispute as quickly as possible.
17. Until the dispute is resolved the NWN People will comply with the direction and if they wish, the dispute will later be discussed in good faith between the Pastoral Lessee and the Body Corporate with a view to resolving the dispute as quickly as possible and to facilitate all parties appreciating what is a reasonable direction made for the efficient operation of the Pastoral Lease as a pastoral enterprise.
18. If such discussions in good faith do not resolve the dispute then the dispute will be settled by determination by arbitration in accordance with clauses 41 and 42 of this Protocol. The purpose of such arbitration will be to settle the dispute and to educate all parties as to such matters and foster understanding so that disputes of this type do not recur. In any such arbitration the arbitrator will seek to resolve issues of principle that may have arisen in relation to what is a reasonable direction to guide the parties for the future operation of this Protocol.
19. Nothing in this Protocol limits the rights of the Pastoral Lessee to conduct its pastoral activities in accordance with the Pastoral Lease.
20. The Pastoral Lessee can exclude any member of the NWN People who is on the Pastoral Lease other than pursuant to this Protocol. For the avoidance of doubt, this clause will not prevent members of the NWN People from obtaining and exercising rights that are capable of being obtained pursuant to a written law by non-Aboriginal people who are not the Pastoral Lessee.
21. Subject to clause 24, the Pastoral Lessee will take out and maintain from the date of this Protocol a valid and enforceable public liability insurance policy which:
(a) names the Pastoral Lessee, the Body Corporate and the NWN People as insured persons;
(b) includes a clause which:(i) provides that the policy will have effect as if a separate policy had been issued to each of the insured persons;
(ii) enables one insured person to claim under the policy even if the party making the claim against that insured person is also insured under the policy;
(c) provides coverage for an amount of not less than $5 million for each occurrence;
22. Each insured person will provide reasonable assistance to the insurer and each other insured person (including any officer agent and/or employee of the Pastoral Lessee) in respect of any claim under the policy maintained under clause 21.
23. Upon demand, the Body Corporate will pay that part of the premium which the insurer advises would not be
payable if the Body Corporate and the NWN People were not named as insured persons on the policy maintained under clause 21.
24. Either Party may give the other Party notice that clause 21 does not apply. If clause 21 does not apply the Pastoral Lessee will maintain public liability insurance which provides coverage for an amount of not less than $5 million for each occurrence.
25. If clause 21 does not apply, the Body Corporate must take out and maintain from the date of this Protocol a valid and enforceable public liability insurance policy in respect of the acts and omissions of the NWN People on or in relation to the relevant Pastoral Lease which:
(a) names the Body Corporate and the NWN People as insured persons;
(b) provides coverage for an amount of not less than $5 million for each occurrence.
26. Each insured person will provide reasonable assistance to the insurer and each other insured person in respect of any claim under the policy maintained under clause 25.
27. Upon request by one party, the other party must provide written evidence of the currency and terms of the policy maintained under clauses 21, 24 or 25 as the case may be.
28. The Pastoral Lessee may, from time to time, by notice to the Body Corporate exclude from the operation of this Protocol areas of the Pastoral Lease which may be required to be excluded for the efficient operation of the Pastoral Lease as a pastoral enterprise.
29. A notice under clause 28 is to contain the following information:
(a) the reason for declaring the excluded area;
(b) the boundary of the excluded area;
(c) the length of time the area will be an excluded area.
30. If the Body Corporate has an objection (‘the NWN Objection’) to the exclusion of an area of the Pastoral Lease from the operation of this Protocol, then the Pastoral Lessee and the Body Corporate will in good faith discuss and seek to resolve the NWN Objection as quickly as possible and until such resolution the NWN People seeking entry will not enter the excluded area of the Pastoral Lease.
31. If the NWN Objection is not resolved within 14 days of notification of the NWN Objection, then the dispute will be settled by determination by arbitration in accordance with clauses 41 and 42 of this Protocol. In any such arbitration the arbitrator will determine the dispute and seek to resolve issues of principle that may have arisen to guide the parties for the future operation of this Protocol.
32. For the purposes of this Protocol the respective addresses, telephone and fax numbers of the parties are those set out in Schedule 4. A party may change its contact details from time to time by notice in writing.
33. Any notice, consent, approval or communication under this Protocol to be given to the Pastoral Lessee, must be given in the following modes (unless otherwise provided):
(a) by telephone (for the avoidance of doubt, the telephone call must be actually answered by an adult person);
(b) by facsimile transmission (with transmission confirmation); or
(c) by letter delivered by hand and actually received by an adult person.
34. Any notice, consent approval or communication to be given under this Protocol to the Body Corporate or to any of the NWN People, must be given in the following modes (unless otherwise provided):
(a) by telephone (for the avoidance of doubt, the telephone call must be actually answered by an adult person);
(b) by facsimile transmission (with transmission confirmation); or
(c) by letter delivered by hand and actually received by an adult person.
35. The Body Corporate and NWN People (or any of them) will not to object to:
(a) the extension or further extension of the term of the Pastoral Lease for any term (including its conversion to perpetual lease);
(b) the grant of an estate in fee simple around the Pastoral Lessee’s homestead, to an area of up to 2 square kilometres.
36. The Pastoral Lessee acknowledges the need to protect Aboriginal cultural heritage (including in particular graves of Aboriginal people) on the Pastoral Lease in accordance with Aboriginal heritage legislation and will comply with the provisions of that legislation. To assist the Pastoral Lessee in protecting Aboriginal cultural heritage the Body Corporate will inform the Pastoral Lessee of the location and dimensions of any sites or places of cultural significance to the NWN People when that information is provided to any person responsible for maintaining the register of Aboriginal sites under section 38 of the Aboriginal Heritage Act 1972 (WA).
37. The parties acknowledge that nothing in this Protocol relieves them of any obligation to comply with any relevant laws including, without limitation, laws relating to the control of firearms, noxious weeds, feral animals and fires.
38. A representative(s) of the pastoral lessees of the pastoral leases to which the Determination applies will meet with a representative(s) of the Body Corporate approximately every six months or at other times as agreed to discuss:
(a) any employment, training and contractual opportunities on the relevant Pastoral Leases that may be available to the Body Corporate and the NWN People; and
(b) the operation of this Protocol.
39. Should a dispute arise under this Protocol, the parties must try to resolve the dispute as quickly as possible in good faith.
40. If the dispute is not resolved by the parties pursuant to clause 39 the dispute will be settled by determination by arbitration.
41. Unless the parties agree on an arbitrator, any party may request the chairperson of the Western Australian Chapter of the Institute of Arbitrators Australia to nominate a single arbitrator to hear the dispute.
42. In any arbitration:
(a) the proceedings will be conducted generally in accordance with the provisions of the Commercial Arbitration Act 1985;
(b) a party may be represented by a legal practitioner;
(c) costs will be borne by the parties as decided by the arbitrator.
43. The Body Corporate and the NWN People (or any of them) must not assign any rights conferred or obligations imposed by this Protocol.
44. The Pastoral Lessee may assign all or any of its rights or obligations under this Protocol, including by means of the sublease of the Pastoral Lessee’s interests under the relevant pastoral lease, provided the assignee first executes a deed of covenant by which the assignee assumes liability for the performance of those assigned rights and obligations. To the extent that any assignee agrees to assume liability for the performance of any rights or obligations under this Protocol, the Pastoral Lessee will be released from the performance of those rights and obligations.
45. The Pastoral Lessee may transfer all or any of its interest in the relevant pastoral lease provided the transferee first executes a deed of covenant by which that transferee agrees to be bound by this Protocol. Upon transferring the entirety of its interest in the Pastoral Lease, the Pastoral Lessee will be released from all obligations imposed by this Protocol.
46. The Body Corporate and the NWN People (or any of them) will not object to:
(a) any transfer or sublease of the relevant pastoral lease which has been approved by the Minister for Lands; or
(b) the grant of any right, title or interest granted for pastoral purposes in replacement or substitution for the relevant pastoral lease.
47. The Body Corporate and the NWN People (or any of them) will not mortgage, charge or otherwise encumber the relevant pastoral lease or any rights conferred or obligations imposed by this Protocol.
48. The Pastoral Lessee, the Body Corporate and the NWN People agree to a memorial being lodged by the Minister for Lands with the Registrar of Titles under section 17(2) of the Land Administration Act 1997 on the certificate of Crown land title which corresponds with the relevant pastoral lease to inform any person who conducts a search of that Crown land title of the existence of this Protocol.
49. The Minister for Lands agrees to lodge a memorial with the Registrar of Titles under section 17(2) of the Land Administration Act 1997 on the certificate of Crown land title which corresponds with the relevant pastoral lease to inform any person who conducts a search of that Crown land title of the existence of this Protocol.
50. The Body Corporate will indemnify and keep indemnified the State of Western Australia and the Minister for Lands from and against any loss of or damage to the property of the NWN People (or any of them) or any injury to any of the NWN People whilst present on the pastoral lease.
Executed by the parties as a Deed on the date referred to above.
Signed by the said )
[Pastoral lessee] )
in the presence of: )
......................................
Witness
......................................
Name (please print)
Or
The common seal of )
[pastoral lessee] )
was hereunto affixed by )
this day of 2000 )
by authority of the Directors )
in the presence of: )
....................................................... .......................................................
Director Director/secretary
...................................................... ......................................................
Name (Please Print) Name (Please Print)
Signed for and on behalf of )
The State of Western Australia )
by Douglas James Shave MLA )
its Minister for Lands )
in the presence of: )
......................................
Witness
......................................
Name (please print)
The common seal of )
Jidi Jidi Aboriginal )
Corporation )
was hereunto affixed )
this day of 2000 )
by authority of the Directors )
in the presence of: )
....................................................... .......................................................
Committee member Committee member
...................................................... ......................................................
Name (Please Print) Name (Please Print)
The relevant pastoral lease
The relevant pastoral lease is pastoral lease numbered [insert pastoral lease number].
The form of native title determination of the federal court
Map of the relevant pastoral lease to which the protocol applies.
Contact details of the parties
The contact details of the Pastoral Lessee are as follows:
The contact details of Jidi Jidi Aboriginal Corporation are as follows:
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URL: http://www.austlii.edu.au/au/journals/AUIndigLawRpr/2001/43.html