Case: DPP v Webb [2000] NSWSC 859
Outcome: cited
decision to institute a proceeding to seek and obtain a compensation determination in relation to those matters identified particularly at Schedules E, I and J of the application, under the provisions of the Act, and the analysis in that proceeding of the amount of compensation by reference to just terms or the similar compensable interest test in respect of acts said to have either extinguished or significantly impaired or otherwise affected the native title rights and interests of the Dingaal People as determined by the Court on 8 December 1997, is a decision "regarding" native title. The scope of an application under s 50(2) can be seen in the criteria to be applied under s 51(1) for determining compensation. Section 51(1) provides that subject to subsection (3) the entitlement to compensation under Division 2, 2A, 2B, 3 or 4 is an entitlement on just terms to compensate the native title holders for any loss, diminution, impairment or other effect of the act on their native title rights and interests . A decision to commence a proceeding for compensation and engage, on behalf of the native title holders, an analytical process which seeks to identify any loss, diminution, impairment or other effect of an act on their native title rights and interests is necessarily a decision regarding native title for the purposes of Rule 9(1). The use of the word "regarding" in the context of the Rules and the functions to be performed by Walmbaar is necessarily a word of wide application. It is intended to have a wide application, in its context ( DPP v Webb [2000] NSWSC 859 at [17] to[29] per O'Keefe J). There is no sound basis for importing the definition of "native title decision" in Regulation 8(1) of the NT (PB) Regulations into the construction of the Rules of Walmbaar either directly or analogically. The scope and operation of Regulation 8(1) is discussed shortly. Accordingly, the decision to institute a compensation application ought to have been made in accordance with the decision-making requirements of Rule 9 of Walmbaar's Rules. The decision to commence proceedings was taken by the Committee of Walmbaar on 4 July 2006. There is simply no evidence of whether the common law members were given notice of the proposed decision; or of whether they expressed views about it or were engaged by the Committee in any formal or informal consultation process. The Committee members are not identified. Neither Gordon Charlie nor Ruth Schaefer filed any affidavit on the motion notwithstanding that each of them might have spoken directly to the events in issue. No minutes of the meeting are produced. Walmbaar has changed its position by, in effect, abandoning Gordon Charlie's original contention that the decision to commence the proceeding was the subject of a resolution of 75% of the common law holders obtained at a meeting on 3 July 2005. That position that was relied upon not only by Gordon Charlie in his affidavit sworn on 22 November 2006 but also by him on 11 February 2008 by reason of Mr Black's letter of that date asserting reliance on the resolution. Walmbaar contends in submissions that there are two decisions which confer authority to institute the application. The first is the resolution at the meeting on 3 July 2005 and the second is the decision of the Committee made on 4 July 2006. Walmbaar says that the only evidence concerning a vote by common law holders is the evidence of Gordon Charlie contained in his affidavit of 22 November 2006. However, the primary contentions of Walmbaar which are recited in Mr Black's letter, rather than the subject of an affidavit by Gordon Charlie as to the facts, place reliance upon the authority of the Committee and the decision it took on 4 July 2006. The Committee cannot act independently of the decision-making process contained in Rule 9. Rules 6(1) and 6(2) of Walmbaar's Rules which set out the objects taken in conjunction with Rule 12 which sets out the powers of the Committee, do not confer power upon the Committee to make decisions regarding native title without complying with Rule 9(1).