Ngalpil v State of Western Australia [2003] FCA 1098

FEDERAL COURT OF AUSTRALIA

Ngalpil v State of Western Australia [2003] FCA 1098

NATIVE TITLE – determination of native title – prescribed body corporate – whether requirements of Native Title (Prescribed Bodies Corporate) Regulations 1999 satisfied – whether prescribed body corporate duly nominated – whether prescribed body corporate had given its written consent to nomination. Native Title Act 1993 (Cth) Native Title (Prescribed Bodies Corporate) Regulations 1999 PALMER GORDON NGALPIL & ORS v STATE OF WESTERN AUSTRALIA & ORS WAG 160 OF 1997 CARR J 9 OCTOBER 2003 PERTH

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY WAG160 OF 1997

BETWEEN: PALMER GORDON NGALPIL & ORS

APPLICANTS

AND: STATE OF WESTERN AUSTRALIA & ORS

RESPONDENT

JUDGE: CARR J

DATE OF ORDER: 9 OCTOBER 2003

WHERE MADE: PERTH

THE COURT ORDERS THAT: 1. Pursuant to ss 55 and 56 of the Native Title Act 1993 (Cth) the Court determines that Tjurabalan Native Title Land Aboriginal Corporation is to hold the rights and interests from time to time comprising the native title the subject of the Determination made on 20 August 2001 in trust for the common law holders identified in that Determination. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY WAG160 OF 1997

BETWEEN: PALMER GORDON NGALPIL & ORS

APPLICANTS

AND: STATE OF WESTERN AUSTRALIA & ORS

RESPONDENT

JUDGE: CARR J

DATE: 9 OCTOBER 2003

PLACE: PERTH

REASONS FOR JUDGMENT ON NOMINATION OF PRESCRIBED BODY CORPORATE 1 On 20 August 2001 I made, by consent, a determination of native title in this matter. 2 With a view to complying with the requirements of s 56 of the Native Title Act 1993 (Cth) ("the Act") I also made the following orders: '9. A representative of the common law holders of the native title rights and interests is requested to indicate within three months of the date these orders are made whether they intend to have the native title held in trust and if so by whom. That representative is invited to do so by: (a) nominating in writing to the Federal Court a prescribed body corporate to be trustee of the native title; and (b) including with the nomination the written consent of the body corporate. 10. If a prescribed body corporate is nominated in accordance with Order 9, it will hold the native title rights and interests, referred to in Order 1, from time to time comprising the native title in trust for the common law holders of the native title rights and interests. 11. If a prescribed body corporate is not nominated in accordance with Order 9, the native title rights and interests, referred to in Order 1, from time to time comprising the native title will be held by the Tjurabalan People (as defined in this determination) in respect of the Determination Area as the common law holders of the native title rights and interests. 12. If a prescribed body corporate is not nominated in accordance with Order 9 and native title is therefore held by the Tjurabalan People in accordance with Order 11, then the matter is to be relisted by the Registrar in order that the Court can consider the making of orders in accordance with section 57(2) of the Native Title Act.' 3 On 30 November 2001, by a further consent order, the time for compliance with paragraph 9 above was extended until 20 February 2002 "… to allow the incorporation of a proposed prescribed body corporate to be finalised." 4 On 28 February 2002 another consent order was made extending that time for a further 4 months until 12 June 2002 "… to allow the inaugural meeting of the Tjurabalan Native Title Land Aboriginal Corporation to take place and at that meeting to seek the Corporation's formal consent to its nomination to the Federal Court as the prescribed body corporate to hold the native title of the Tjurabalan community of native title holders". 5 On 12 June 2002 a solicitor employed by the Kimberley Land Council (acting for the applicants) filed a document headed "Nomination of the Tjurabalan Native Title Land Aboriginal Corporation as the Prescribed Body Corporate". 6 That document identified its author as being the solicitor having the carriage of legal matters on behalf of the applicants, made reference to s 56(2)(a) of the Act and also some of the orders referred to above. The remaining two paragraphs of that document were in the following terms: '4. The Tjurabalan Native Title Land Aboriginal Corporation was incorporated on 7 January 2002. A copy of the Certificate of Incorporation is provided at Attachment A and a copy of the Approved Rules are provided at Attachment B. As set out in Article 6(b) of the Rules, one of the objects of the corporation is to be a prescribed body corporate for the purpose of a native title determination. The inaugural general meeting was held at Sturt Creek, near the Bililuna Community, on 9-10 May 2002 and Office Bearers elected in accordance with Articles 9 (sic) of the Rules of the Corporation. 5. On 10 June 2002, the Chairperson David Skeahan wrote to me nominating the Tjurabalan Native Title Land Aboriginal Corporation as the prescribed body corporate to be trustee of the Tjurabalan native title. The letter is provided at Attachment C.' 7 Attachment A to that document was a photocopy of a certificate issued by the Acting Registrar of Aboriginal Corporations to the effect that Tjurabalan Native Title Land Aboriginal Corporation had been incorporated under the Aboriginal Councils and Associations Act 1976 (Cth) on 7 January 2002. 8 Attachment B was a photocopy of a document headed "The Objects and Rules of the Tjurabalan Native Title Land Aboriginal Corporation" indicating that the rules had been approved by a Registrar (presumably, and I so infer, under the Aboriginal Councils and Associations Act) on 7 January 2002. 9 Attachment C to the abovementioned document was a photocopy of a letter on the letterhead of Tjurabalan Native Title Land Aboriginal Corporation from a Mr David Skeahan, described below his signature, as Chairperson. That letter referred to certain formal matters relating to approval under the Aboriginal Councils and Associations Act of the Tjurabalan Native Title Land Aboriginal Corporation, and to certain of its rules. The letter concluded as follows: 'In accordance with sub-paragraph 56(2)a(ii) Native Title Act, as elected Chairperson of the Tjurabalan Native Title Land Aboriginal Corporation, I nominate that Corporation as the prescribed body corporate to be trustee of the Tjurabalan native title.' 10 On 27 June 2002, at my request, a Deputy District Registrar of this Court wrote to the applicant's solicitor seeking confirmation of: · the basis upon which Mr Skeahan purported to make the nomination referred to above; and · the date by which evidence of the written consent of the prescribed body corporate to be the trustee of the Tjurabalan native title would be furnished to the Court. 11 I was concerned to ascertain whether the facts upon which orders 9 and 10 above would operate had in fact happened. 12 As I then saw the matter, it seemed to me that there were three questions. The first was whether a representative of the common law holders had made the nomination in writing. The nomination appeared to be contained in the last paragraph of Attachment C which I have set out above. It appeared from Attachment C that Mr Skeahan was the Chairperson of the Tjurabalan Native Title Land Aboriginal Corporation. It seemed to me that he might well also be a representative of the common law holders of the native title rights and interests, but that was not certain. 13 The second question was whether the Tjurabalan Native Title Land Aboriginal Corporation ("the Corporation") was a "prescribed body corporate". Section 59 of the Act provides that regulations may prescribe the kinds of bodies corporate that "may be determined" under ss 56 or 57 of the Act. The relevant regulations are the Native Title (Prescribed Bodies Corporate) Regulations 1999 ("the PBC Regulations"). I return below to this question. 14 The third question was whether the Corporation had given its written consent to be the trustee of the native title rights and interests. On one view, the nomination of the Corporation by its Chairperson might be taken to be such consent. But I thought that it was important to clarify the position. The assumption by a trustee of the duties of that office in relation to any property is normally not something that should be left to implication. 15 Various documents have since been filed by the applicant's solicitor. They include her affidavit dated 23 October 2002, a further document signed by her and dated 8 May 2003 setting out (but not deposing to) various factual matters and annexing an affidavit from Ms Julie Margaret Melbourne a solicitor also employed by the Kimberley Land Council. Attached, in turn, to Ms Melbourne's affidavit were two letters (each dated May 2003) on the letterhead of the Corporation and signed by Mr Skeahan. 16 I now turn to the three questions.