Clarrie Smith v State of Western Australia [2000] FCA 1249 | Case summary

Clarrie Smith v State of Western Australia [2000] FCA 1249 | Case summary | Zoe

Other interests in the determination area are of the following kind: (a) an Indigenous Land Use Agreement entered into by or on behalf of the Nharnuwangga Wajarri and Ngarlawangga People of the one part and the State of Western Australia of the other part relating to the determination area and dated [date] (b) pastoral access agreements entered into by or on behalf of the Nharnuwangga Wajarri and Ngarlawangga People of the first part and the State of Western Australia of the second part and certain pastoral lessees of the third part in each case relating to access to certain pastoral leases situated within or partly within the determination area (c) Interests of persons in whom Crown reserves are vested under the Land Act 1898 (WA) or Land Act 1933 (WA) or under a lease of the reserve. (d) the interests of the National Parks and Nature Conservation Authority under the Conservation and Land Management Act 1984 (WA) in Reserve no. 35104, being land vested in the Authority. (e) Interests of persons entitled to use reserves according to a purpose for which Crown land is reserved, or under a lease made for the purpose of the reserve. (f) Interests of lessees under: (i) Leases granted under the Land Act 1933 (WA); (ii) Leases granted under the Mining Act 1978 (WA); (iii) Leases granted under the Aboriginal Affairs Planning Authority Act 1972 (Cth). (g) Interests of licensees under: (i) Licences issued under the Land Act 1933 (WA); (ii) Licences issued under the Mining Act 1978 (WA); (iii) Licences issued under the Wildlife Conservation Act 1950 (WA); (iv) Licences issued under the Rights in Water and Irrigation Act 1914 (WA); (v) Licences issued under the Transport Co‑ordination Act 1966 (WA); (vi) Licences issued under the Petroleum Pipelines Act 1969 (WA) (h) Interests of holders of permits issued under:the Land Act 1933 (WA); (i) Interests of holders of tenements under the Mining Act 1904 (WA). (j) Interests of holders of tenements under the Petroleum Act 1936 (WA) and the Petroleum Act 1967 (WA). (k) Interests of holders of rights or licences under the Goldfields Gas Pipeline Agreement Act 1994 (WA) (l) Other interests obtained by reason of provisions of legislation of the State, Territory or Commonwealth. (m) Other interests held by members of the public arising under the common law. (n) The interests of Telstra Corporation Limited with respect to telecommunications facilities installed within the determination area which were created pursuant to the Post and Telegraph Act 1901 (Cth), the Telecommunications Act 1975 (Cth), the Australian Telecommunications Corporation Act 1989 (Cth), the Telecommunications Act 1991 (Cth) and the Telecommunication Act 1997 (Cth). THE COURT FURTHER ORDERS THAT: By consent: 3. Each party will pay its own costs of the proceedings. 4. Paragraphs 1, 2 and 3 of this order will not come into operation and effect unless and until: (a) the indigenous land use agreement (Attachment A) is registered by the Native Title Registrar as an indigenous land use agreement under section 24CG(1) of the Native Title Act 1993 (Cth); and (b) registration is effected within a period of twelve months from the date of this order. 5. There be general liberty to apply.

Overview of the settlement 4 The settlement involves the parties to it asking the Court to make an agreed determination of native title in respect of an amended application. The determination which the Court is asked to make will not take effect immediately. The determination will be contingent upon the completion of certain formal steps which the parties have agreed to take as part of an overall settlement involving future issues of land management and land use. Counsel for each of the parties have now given undertakings to the Court on behalf of their respective clients, to the effect that their client will take the steps necessary on its part, to implement the agreed settlement. Those steps will involve the execution of an agreed form of pastoral access protocol and the execution and registration of an Indigenous Land Use Agreement pursuant to s 24CG(1) of the Act. Minute of Proposed Orders 5 The undertakings of counsel and the orders which the Court is asked to make, have been included in a Minute of Proposed Orders. Attached to these are agreed forms of an Indigenous Land Use Agreement (Attachment A), a Proposed Determination of Native Title (Attachment B), agreed forms of Pastoral Access Protocols (Attachments C1 through to C19) and a minute of the Proposed Amended Application for Determination of Native Title (Attachment D). 6 Under the terms of the Minute of the Proposed Order, in Order 1, the applicants would be granted leave to amend their application. The amendment will reduce the overall size of the claim area by excluding from the claim area, in respect of which the determination is sought, a number of peripheral pastoral leasehold properties. The amended application would also limit the native title rights and interests claimed to a number of defined and certain rights and interests. 7 The native title rights and interests in respect of which a determination is sought in the amended application and which are reflected in the determination which the Court will be asked to make, can be shortly described as follows: (a) the right as against other Aboriginal groups or individuals 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 to camp on the land in order to exercise their rights as set out in (b) above, and to visit and to care for places which are of cultural or spiritual importance. 8 Under the settlement, the native title rights and interests as set out above, are non-exclusive and must yield to the rights of those who hold existing interests in the land, including the rights of miners and pastoralists under their existing leasehold interests. The parties agree, in the second schedule to the Minute of Proposed Determination of Native Title, that native title has been extinguished in those parts of the claim area where valid interests have been created in the past. Those are interests as to which either the provisions of the Act or recent decisions by the Courts, state that native title has been extinguished. Delay in implementation 9 The Court is asked to make a determination that native title rights and interests as described in the amended application exist throughout the amended claim area, subject to the effect of any earlier extinguishing events. A general form of order appears sufficient: Western Australia v Ward (2000) 170 ALR 159 (the Miriuwung and Gajerrong case) at [667] and see para 4(1)(a) of the Court's "Draft Second Schedule" to the order as to extinguishment in The State of Western Australia v Ward [2000] FCA 611. The Court's determination of native title would be expressed not to come into effect until: (a) the applicants have procured the incorporation of a body corporate to be nominated as the prescribed body corporate to hold the native title in trust as contemplated by s 56 of the Act; (b) the prescribed body corporate referred to in (a) above and the pastoral lessees of the State have each executed the agreed forms of Pastoral Access Protocols; and (c) the applicants and the State have executed an Indigenous Land Use Agreement and that agreement has been registered in accordance with s 24CG(1) of the Act. 10 Undertakings to the Court have been conveyed by counsel for each of the parties to the settlement, which will secure the performance of their respective client's obligations in respect of the incorporation of the prescribed body corporate to hold the native title and in respect of the execution of the pastoral access protocols and the Indigenous Land Use Agreement. Pastoral Access Protocols 11 There are agreed forms of protocols. These provide for defined and certain access rights to all of the pastoral leasehold properties within the claim area. This is irrespective of whether native title has been extinguished in whole or in part on a particular property by earlier events, including the enclosure by fencing or other improvement of the pastoral land. 12 Separate agreements regulating the way in which the native title holders will exercise their rights of access to the twenty pastoral leasehold properties (there are nineteen leaseholders) within the determination area, have been negotiated with each of the pastoralists involved and with the pastoralists' representative body. Indigenous Land Use Agreement 13 The Indigenous Land Use Agreement which is to be executed by the State and by the applicants is principally directed towards providing a framework under which future mining activities can proceed, but in a way which will recognise and protect significant Aboriginal sites. In particular, the Indigenous Land Use Agreement provides that the native title holders will forego their right to negotiate, under the Act in respect of the grant of future mining tenements. However, they will replace that right with agreed rights of consultation and compensation under a State-based regime, once a proposed mining venture reaches the stage of productive mining. Aboriginal sites will be protected under an agreed form of Heritage Agreement between the miner and the native title holders. Background 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. Settlement achieved 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: · the first consent determination of native title in Western Australia; · the first consent determination arising out of a native title claim where the hearing has commenced in this Court; and · a consent determination of native title in respect of a larger land area then has previously been achieved. 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). Conclusions 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: · subject to protection of aboriginal heritage in relation to sites of spiritual and cultural significance, present economic activities and future economic development will be able to proceed on a sure footing; · the long battle of Mr Clarrie Smith and the other applicants, for recognition of their native title will be concluded on terms that are satisfactory to them; · the native title declared will be on a non-exclusive basis; · the principal rules have been worked out as to practical interaction between the native title holders and those such as the pastoralists who have other rights to be on and to use the land. It is an important consideration in my mind, that it would probably not be possible for this Court to settle such a working out of on-the-ground practicalities without the agreement of the parties; · if new active mining is undertaken, compensation will be payable to the claimant group. 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. Those responsible 31 I wish to express the Court's congratulations and I am sure, those of the Australian community as a whole, to those who made this settlement possible. It is an important settlement. Its provisions are public (and they will be on the Court's Internet site). Those provisions will stand as a resource for the many people who will have difficult decisions to make about questions of native title. No two native title cases are identical, but the innovative ideas embodied in this settlement may well provide some assistance to the parties in other cases. 32 This settlement is therefore of importance to: · aboriginal claimants and their representative bodies, the land councils, whose task is to try to facilitate the orderly, authentic and effective presentation of native title claims; · hundreds of individual farmers and graziers and their industry leadership bodies; · all State and Territory governments and parliamentarians; and · the Federal government and Federal parliamentarians. 33 The settlement in this case shows what mature and resolute people, acting in good faith to reconcile difficult, indeed, potentially inflammatory issues, can do. It shows the positive contribution that honourable lawyers can make. The Court faces an enormous workload in determining native title cases and it is greatly assisted when parties can resolve their differences even after a matter has been partly heard. In this case, it would not have been possible to resolve the case, I believe, without the matter having been partly heard. The resources of the Court are necessarily limited and there are inescapable constraints upon the types of procedures associated with Court hearings. These factors have the consequence that, unless there are a great many more settlements in native title cases, there will be delays in resolving them of a degree which will be generally unacceptable. 34 Such is the importance of this settlement that I wish to record specifically those who appear to me principally to deserve credit for it. 35 Among the claimants, I have already mentioned Mr Clarrie Smith, Mrs Linda Riley and Mrs Gladys Leake and her late husband. Representatives of the younger generation, such as, Mr Stan Hill, Mr Albert Smith and Ms Marjorie Kerkhoff have also played their part. But tribute must be paid in particular, to Clarrie Smith who impressed everybody concerned with the case with his honesty, charity, dignity and strength. 36 The claimants' principal legal advisers deserve special mention for their integrity, imaginativeness and expertise. Their counsel were Mr Philip Vincent and Ms Anne Sheehan and their solicitor was Mr Alex Shaw of the Aboriginal Legal Service. I should also mention the sadly now disbanded Land and Heritage Unit of the Aboriginal Legal Service of Western Australia (Inc.). That Unit's contribution to the logistics of proceedings, including the production of excellent maps and the movement and coordination of considerable numbers of people on difficult country, was of a high order. It is, if I may say so, a great pity that the corporate memory and expertise of such a body may have been lost. 37 Next I should speak of the individual pastoralists and the leadership of the Pastoralists and Graziers Association of WA Inc. It would, in the nature of things, be astonishing if, amongst such an independent-minded group, the settlement had proceeded without some internal opposition and even some associated heat. Those who carried the day in their councils have shown an ability to build for the future. I must also speak highly of the pastoralists' legal advisers, their counsel Mr Grant Donaldson and their principal solicitor Mr Eric Fethers. I have little doubt that their firmness on behalf of their clients, their tact and their common sense approach, all of which qualities I witnessed, have been important in bringing about results for which it seems likely that their client's children will thank them. 38 The other major party is, of course, the Western Australian State Government. State governments are necessarily obliged to subject claims for native title over lands and waters owned and occupied by the State and State agencies, to scrutiny just as careful as the community would expect in relation to claims by non-Aborigines to significant rights over such land. The State is faced with a good many such claims. A deal of proper caution is to be expected. I must say that I saw no evidence of anything other than proper caution on behalf of the State. Further, one not infrequently encounters a reluctance, both by the departmental and ministerial wings of governments, to alter decisions once reached. In this case, however, the settlement shows a welcome degree of openness to change and a constructive attitude for the future on the part of those who made the decisions on behalf of the State in this case. This response by the State Government would not have been possible without positive and intelligent advice tendered by the Government's counsel, Mr Vance Hughston and his instructing solicitor Mr Trevor Creewel. Experience would suggest to me that Mr Creewel must also have shown great skill in explaining the proposal that led to the settlement. 39 I should add too that the minor participating parties, the mining interests and Telstra, and those advising them have also played a proper and constructive role. Disposition 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 and I further make orders in accordance with the Minute of Agreed Proposed Determination of Native Title, also dated 29 August 2000. I certify that the preceding forty-one (41) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Madgwick.

RECITALs 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.

DEFINITIONS AND INTERPRETATION

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: the singular number includes the plural; the plural number includes the singular; 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.

entry AND OBJECTION 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: q. 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); r. the approximate number of vehicles involved; s. in general terms the places on the Pastoral Lease proposed to be visited; t. the approximate length of stay on the Pastoral Lease; u. if camping is proposed, the approximate camping location/s; v. 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.

THINGS NOT TO BE DONE ON THE pastoral leASE 13. The NWN People agree that (without the prior approval of the Pastoral Lessee) when on the Pastoral Lease they will: w. not interfere with station facilities including vehicles, fences, watering points and other pastoral improvements; x. keep any dog or other animal brought with them strictly within the control of the relevant NWN People at all times; y. not interfere with stock; z. not light fires except for the purpose of cooking or providing heat or light; aa. 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); bb. not camp or stay within 3 kilometres of the homestead on the Pastoral Lease; cc. only call at the homestead between 7am and 5pm unless in the case of emergency; dd. 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; ee. not leave any litter or rubbish on the Pastoral Lease; ff. leave gates as they are found, that is open if they are found open and closed if they are found closed; gg. not use high calibre or high power firearms on the Pastoral Lease; hh. 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; ii. 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; jj. not erect any dwellings or other permanent structures on the Pastoral Lease; kk. 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.

INSURANCE AND LIABILITY issues 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: ss. names the Pastoral Lessee, the Body Corporate and the NWN People as insured persons; tt. 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; uu. 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: vv. names the Body Corporate and the NWN People as insured persons; ww. 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.

DISPUTE RESOLUTION 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: kkk. the proceedings will be conducted generally in accordance with the provisions of the Commercial Arbitration Act 1985; lll. a party may be represented by a legal practitioner; mmm. costs will be borne by the parties as decided by the arbitrator. ASSIGNMENT AND ENCUMBRANCES 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: (b) any transfer or sublease of the relevant pastoral lease which has been approved by the Minister for Lands; or (c) 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. MEMORIAL ON THE CERTIFICATE OF CROWN LAND TITLE 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. INDEMNITY 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.

Clarrie Smith v State of Western Australia

At a glance

Court

Decision date

Before

Source

Judgment (76 paragraphs)

Parties

Legislation Cited (24)

Cases Cited (3)

Cited By (29)