SOUTH WEST SETTLEMENT NEGOTIATIONS LAND SUB BARE TRUST DEED This document has been agreed in principle on a without prejudice basis between the State, the Noongar Negotiation Team, and the South West Aboriginal Land and Sea Council. 8 October 2014
Land Sub Bare Trust Deed Land Sub Pty Ltd (ACN xxx xxx xxx) (Land Sub) AND [Professional Trustee Company] as trustee for the Noongar Boodja Trust (Principal) Jackson McDonald Lawyers 140 St Georges Terrace Perth Western Australia 6000 t: +61 8 9426 6611 f: +61 8 9481 8649 w: www.jacmac.com.au Contact: Reference: Adam Levin RJE:APL:7138467
Land Sub Bare Trust Deed Table of contents Contents Background... 1 Operative... 2 1. Definitions and Interpretation... 2 2. Declaration of Trust... 2 3. Legal and Beneficial Ownership of Asset... 3 4. Rights and Obligations of Land Sub... 3 5. Removal of Land Sub and Appointment of New Bare Trustee... 3 6. Costs and Duty... 4 7. Governing Law... 4 page i
Land Sub Bare Trust Deed Date: 20[xx] Parties Land Sub Pty Ltd Land Sub ACN [to be inserted] Registered Office: [to be inserted] AND [Professional Trustee Company] as trustee for the Noongar Boodja Trust Principal ABN [NBT s ABN to be inserted] Registered Office: [to be inserted] Background A. The State of Western Australia has entered into Indigenous Land Use Agreements (ILUAs) with the native title claimants in the South West region of Western Australia that will extinguish native title rights and interests. B. The ILUAs provide that the State will pay money and transfer interests in land and Management Orders to the Noongar Boodja Trust, which has been established to operate in perpetuity to receive, hold and apply the benefits under the ILUAs. C. The Noongar Boodja Trust is a charitable trust established solely for the provision of money, property or benefits to a closed class of beneficiaries, each being specified charities that are endorsed by the Australian Tax Office as tax exempt charities (Noongar Boodja Trust Beneficiaries). D. The Principal is the trustee of the Noongar Boodja Trust. E. The Principal has caused Land Sub to be incorporated as a wholly owned subsidiary of the Principal solely for the purpose of holding estates, rights or interests in land or Management Orders on behalf of the Principal. F. The Principal has requested Land Sub to hold the legal title to the Asset on bare trust for and on behalf of the Principal as the sole beneficiary and to do all things reasonably required by the Principal in relation to the Asset. G. The ultimate beneficiaries of the Asset are the Noongar Boodja Trust Beneficiaries. H. Land Sub has at all relevant times agreed to hold the Asset as bare trustee for the Principal on the terms set out in this Deed. I. Land Sub will not at any time hold an estate, right or interest in land or Management Order other than as bare trustee for the Principal. page 1
Bare Trust Deed Operative 1. Definitions and Interpretation 1.1 Definitions In this Deed, unless the context otherwise requires: Asset means any estate, right or interest in land or Management Order held in the name of Land Sub from time to time. Management Order means an order by which care, control and management of a reserve are placed with a management body under section 46 of the Land Administration Act 1997 (WA); Noongar Boodja Trust Deed means the Deed between [to be inserted] as Settlor and [to be inserted] as Trustee dated [to be inserted]; Noongar Boodja Trust means the Trust created by the Noongar Boodja Trust Deed; and Principal means the trustee of the Noongar Boodja Trust from time to time; 1.2 Interpretation (c) (d) (e) (f) reference to the singular number includes the plural and vice versa and the reference to one gender includes all other genders and each of them; reference to a party to this Deed includes a reference to that party s personal representatives and successors; the headings are not to be taken into account in the interpretation of this Deed; the terms of the Deed are to be construed in accordance with the laws of Western Australia; unless the contrary intention appears an expression not otherwise defined has the same meaning as in the Interpretation Act 1984; and notwithstanding that a Management Order does not create a legal interest in land in favour of the management body, it does create legally enforceable rights and obligations which are considered an Asset for the purpose of this Deed. 2. Declaration of Trust Land Sub declares that it holds the legal interest in any Assets it receives from time to time upon bare trust for the Principal. page 2
Bare Trust Deed 3. Ownership of Asset (c) Land Sub affirms and acknowledges that it at all times will hold the legal title in the Asset and that beneficial ownership of the Asset remains in the Principal in its capacity as trustee of the Noongar Boodja Trust. The earnings, profits or gains accrued or to accrue in respect of the Assets will also be held by Land Sub for the Principal upon the trusts and subject to the provisions of this Deed. Land Sub or Land Sub s successors or assigns will execute and deliver, when called upon by the Principal, a transfer of the Asset to the Principal for no consideration. 4. Rights and Obligations of Land Sub Land Sub must: (i) (ii) (iii) undertake any action in respect of the Asset as required by the Principal. accept any instruction or direction from the Principal; and not incur liability or be responsible by reason of Land Sub acting on or carrying out any instruction or direction from the Principal. (c) Land Sub is authorised to complete any purchase, sale of land agreement and registration of transfer of the Asset as instructed or directed by the Principal, in respect to the Principal s acquisition of the Asset, in the name of Land Sub and also any sale of the Asset in the name of the Land Sub. Land Sub HEREBY undertakes, whenever requested by the Principal, to: (i) (ii) transfer all income or gains, related to the Asset, to the Principal or as the Principal shall direct; and transfer the Asset to the Principal or as the Principal shall direct. 5. Removal of Land Sub and Appointment of New Bare Trustee (c) The power to remove Land Sub and appoint a new bare trustee is vested in the Principal. Upon the resignation or removal of the Land Sub, Land Sub must do all things reasonably required by the Principal to vest legal title in the Asset in the Principal or a new bare trustee as the Principal may require. If Land Sub delivers to the Principal the certificate of title or other documents of title and a form of transfer in respect of the Asset duly executed by Land Sub whereby the Asset is capable of being transferred to the Principal: (i) the obligations of Land Sub as trustee under this Deed will be discharged in full; and page 3
Bare Trust Deed (ii) the Principal must immediately upon receipt of it arrange for the transfer to be endorsed with Duty under the Duties Act 2008 and lodge the documents of title and transfer with Landgate (Titles Office), Perth. (d) Land Sub must, at the request of the Principal make available to the Principal the documents of title in relation to the Asset which may have come into the hands of Land Sub by virtue of Land Sub being registered as the legal owner of the Asset under this Deed. 6. Principal s Warranty The Principal HEREBY warrants to Land Sub that it will at all times whilst this Deed is effective take all reasonable steps to: act in strict compliance with the Noongar Boodja Trust Deed; and maintain its charitable status at law. 7. Costs and Duty The Principal indemnifies and shall continue to keep indemnified Land Sub in respect of all costs of and incidental to instructions for, drawing, engrossing and all duty payable on this Deed or any transfer of legal title to the Asset to the Principal. 8. Governing Law This Deed will be governed by the laws of Western Australia. page 4
Bare Trust Deed Executed as a deed. Executed by: Land Sub Pty Ltd (ACN to be inserted) in accordance with Section 127 of the Corporations Act 2001 Director Director/Secretary Full Name Full Name Executed by: [Professional Trustee Company] (ACN to be inserted) as trustee for the Noongar Boodja Trust in accordance with Section 127 of the Corporations Act 2001 Director Director/Secretary Full Name Full Name page 5