Abbott Trustee Services Pty Ltd as trustee for the Kariyarra People's Trust v Attorney General of Western Australia - [2017] WASC 117

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: ABBOTT TRUSTEE SERVICES PTY LTD AS TRUSTEE FOR THE KARIYARRA PEOPLE'S TRUST -v- ATTORNEY GENERAL OF WESTERN AUSTRALIA [2017] WASC 117

CORAM: KENNETH MARTIN J

HEARD: 31 JANUARY 2017

DELIVERED : 28 APRIL 2017

FILE NO/S: CIV 2867 of 2015

BETWEEN: ABBOTT TRUSTEE SERVICES PTY LTD AS TRUSTEE FOR THE KARIYARRA PEOPLE'S TRUST
Plaintiff
AND
ATTORNEY GENERAL OF WESTERN AUSTRALIA
First Defendant
EUGENIA SMITH
MARY ATTWOOD
GEORGE DANN
SHIRLEY LOCKYER
PATRICIA MASON
ROBERT DANN
Second Defendants

Catchwords:

Charitable trusts - Directions by trustee - Identification of beneficiaries - Protocol proposed - Judicial advice - Opposition of second defendants - Advice issued

Legislation:

Charitable Trusts Act 1962 (WA)
Native Title Act 1993 (Cth)
Trustees Act 1962 (WA)

Result:

Advice given

Category: B

Representation:

Counsel:

Plaintiff:     Mr M N Solomon SC, Mr S C Wong & Ms J Kenny
First Defendant              :     Ms C Taggart
Second Defendants        :     Mr A P Rumsley

Solicitors:

Plaintiff:     JDK Legal
First Defendant              :     State Solicitor for Western Australia
Second Defendants        :     Alan Rumsley

Case(s) referred to in judgment(s):

Australian Executor Trustees Ltd v Attorney General (WA) [2015] WASC 439
Macedonian Orthodox Community Church St Petka Inc v His Eminence Petar The Diocesan Bishop of The Macedonian Orthodox Diocese of Australia and New Zealand [2008] HCA 42; (2008) 237 CLR 66
Roberts v State of Western Australia [2010] FCA 1483
TR (Deceased) on behalf of the Kariyarra People v State of Western Australia [2014] FCA 734
TR (Deceased) on behalf of the Kariyarra-Pipingarra People v State of Western Australia [2016] FCA 1158
Wood (as Co‑Executor and Trustee of the Will of the Deceased) v Wood [No 4] [2014] WASC 393
KENNETH MARTIN J:

Introduction

These proceedings are brought pursuant to s 92 of the Trustees Act 1962 (WA), or alternatively, s 21(1)(d) of the Charitable Trusts Act 1962 (WA), by the plaintiff (the Trustee), who is the trustee of a charitable trust created by deed in 2001 (the Trust Deed) and known as the Kariyarra People's Trust (the Trust). The basis of the application seeks the assistance of the court by way of directions to the Trustee concerning a proposed protocol which it has prepared in order to implement its task as Trustee by identifying some further 'Beneficiaries' who would then be eligible to receive payments from the Trust's funds.
The Trustee's originating summons founding this action has been the subject of some changes over time. The first of these was minor - to correct the name of the first defendant to the Attorney General of Western Australia under a minute of proposed amended originating summons filed 4 December 2015. Next, at the commencement of the hearing on 31 January 2017, senior counsel for the Trustee handed up a further minute of proposed amendments to the originating summons seeking to address further issues, including by amendments:
(a)to provide for the Trustee to return to the court, if necessary, in due course to seek further directions, depending upon the developments or outcomes of the native title claim proceedings currently pending before the Federal Court of Australia (which holds exclusive jurisdiction in respect of native title claims brought under the Native Title Act 1993 (Cth)); and
(b)to augment or to modify some of the terms in the proposed protocol which was originally put before the court as an attachment to the originating summons when it was filed on 20 November 2015.
The amendments to the originating summons as proposed by the Trustee under its minute were essentially uncontroversial. Therefore, there will be leave for those amendments to be made.
The Trustee's application was effectively argued on 31 January 2017 upon the basis of the amended originating summons with the now modified attached protocol.
During the course of the hearing across 31 January 2017 there emerged some further, but essentially uncontroversial, adjustments to the proposed draft protocol's terms which were all accepted by senior counsel for the Trustee (essentially as my suggestions) and also adopted. Consequently, and for convenience, I will now append as Annexure A to these reasons the terms of the Trustee's proposed protocol, as it evolved and crystallised at the end of arguments on 31 January 2017. Nevertheless, the advice sought from the court in such terms remains opposed by the second defendants, as I will explain in due course.

Relief sought on this application

Under the terms of the amended originating summons, taking into account all of the amendments I allowed by leave at the hearing on 31 January 2017, the Trustee seeks the following relief from the court:
… the application of Abbott Trustee Services Pty Ltd (the Trustee) in its capacity as Trustee of the Kariyarra People's Trust (the Trust) … for directions pursuant to s 21 of the Charitable Trusts Act 1962 (WA) and s 92 of the Trustees Act 1962 (WA) that:
1.Pending the final determination of native title application filed in the Federal Court of Australia WAD 6169/1998 by TR (dec'd) on behalf of the Kariyarra People it shall be lawful for the Trustee and the Trustee is justified in identifying the Beneficiaries and making payments under the Trust in accordance with the protocol attached hereto entitled 'The Kariyarra People's Trust Protocol'.
2.The Trustee may pay the costs of this application from the Trust funds.
3.There be liberty to apply following a final determination of the separate question referred to in the orders of his Honour Justice North dated 15 December 2016 in Federal Court WAD 232 of 2009.
4.Such further orders or directions as this honourable court sees fit.
By way of further explanation in relation to the relief now sought under par 3 above, which was inserted under the amendments moved at the hearing, North ACJ's (as he then was) orders in the Federal Court of 15 December 2016 are expressed as being made in the matter WAD 232/2009. But par 1 of those orders inclusively defines the 'Kariyarra Claim Area' as 'means the land and waters within the external boundary of WAD 6169 of 1998, WAD 232 of 2009 and WAD 47 of 2014, as depicted on the map annexed to these orders'. That is the link back to par 1 of the originating summons which refers to WAD 6169/1998.
Mr Rumsley's (defence counsel) second affidavit, sworn 20 January 2017 on behalf of the second defendants, conveniently appends North ACJ's orders of 15 December 2016. The annexure contains a map of the Kariyarra claim area (page 10 of the affidavit). It shows delineated by blue lines the three areas that essentially make up the Kariyarra claim area in the native title claim proceedings currently pending before the Federal Court.
The larger of the three areas making up the Kariyarra People's claim is WAD 6169/1998, with smaller areas to the east of that area delineated as, effectively, the overlapping native title claims WAD 232/2009, being the Kariyarra-Pipingarra's claim, and WAD 47/2014, described as the Kariyarra‑Abydos' claim.

Overview

By way of a general overview about the proposed protocol, it may be observed at this early stage that its terms essentially attempt to reflect an identification and distribution process found within the terms of the Trust Deed. That is particularly so in relation to cl 6 and cl 9 of the Trust Deed, which sets out the powers of Trustees and the role of persons known as 'Advisory Trustees' in these trust arrangements.
Advisory Trustees under the Trust Deed are persons with whom the Trustee is required to consult, or has a discretion to consult, in relation to certain matters relating to the administration of the Trust.
There were variations made to some terms of the original Trust Deed, first by a variation implemented under an instrument of 18 December 2008 then, second, by another variation of 11 August 2014.
It may also be said, still by way of introductory overview, that the directions currently sought by the Trustee, by reference to the court approving the proposed draft protocol now advocated, have been framed with a view of assisting the Trustee's work in reference to its consultation and liaison with the Advisory Trustees.
The Trustee contends that these reforms to current arrangements are necessary pragmatic measures in circumstances where the Advisory Trustees' requested responses to the Trustee have at times been not forthcoming, timely, or have not occurred at all.
A lack of timely responsiveness to the Trustee from the Advisory Trustees has therefore stimulated and underlies the present application for directions and advice from the court seeking, in effect, approval for the Trustee and protection for it in acting in accord with the proposed protocol in the future. That is all in circumstances where I accept that the Trustee is very likely to be theoretically empowered by the terms of the Trust Deed to act unilaterally in accord with the protocol. But instead of acting unilaterally, the Trustee has taken the precaution of approaching the court as a matter of prudence. It does so, in effect, to give widespread notice of what it proposes to persons possibly affected and, additionally, to protect itself from any subsequent breach of trust suggestions from some quarters that it has not acted properly by way of a faithful implementation of its fiduciary obligations as Trustee, in full accord with the terms of the varied Trust Deed.

Principles

I should also observe, as is required and appropriate in an application dealing with a charitable trust, that the Attorney General of Western Australia was made a party to the proceedings as first defendant.
At the hearing the Attorney General, through counsel, indicated support for the protocol directions now sought by the Trustee, in reference to the terms of the draft protocol as it now stands for assessment. That support is significant but, of course, is not a determinative consideration for the court, which must render its own independent assessment of the issues upon the materials before it.
The principles applicable upon an application for directions such as this were not controversial between the participant parties. I recently reviewed the judicial advice authorities regarding the trust obligations applicable to the administration of a deceased estate in Wood (as Co‑Executor and Trustee of the Will of the Deceased) v Wood [No 4] [2014] WASC 393, in relation to s 92 and s 95 of the Trustees Act.
It is not suggested that any different or distinct considerations of principle are raised in the present context to the principles applicable to a charitable trust where judicial advice and directions are sought pursuant to s 21(1)(d) of the Charitable Trusts Act. As to the principles generally, I refer to the observations in Wood at [102] and [103] concerning the summary, non‑adversarial nature of a judicial advice proceeding, particularly in reference to principles established in the leading High Court authority, Macedonian Orthodox Community Church St Petka Inc v His Eminence Petar The Diocesan Bishop of The Macedonian Orthodox Diocese of Australia and New Zealand [2008] HCA 42; (2008) 237 CLR 66 - that decision, of course, arising in a New South Wales charitable trust legislative context.
More recently, the Chief Justice of the Supreme Court of Western Australia discussed these applicable principles in the context of a charitable trust where judicial advice by way of directions is sought pursuant to s 92 of the Trustees Act: see Australian Executor Trustees Ltd v Attorney General (WA) [2015] WASC 439. I refer to, but do not repeat, Martin CJ's observations concerning the legal principles as found under [28] - [34] of those reasons.
As mentioned, I did not detect that any underlying principles applicable to a judicial advice application were controversial to this application, or that the jurisdiction of this court to issue such discretionary directions as are now sought was at all problematic. As I also indicated, the Attorney General of Western Australia supported the Trustee's present application.
The second defendants, however, strongly oppose the appropriateness of or the need for directions concerning the proposed draft protocol by way of judicial advice which are sought by the Trustee. To that end, two tranches of written submissions were received before the hearing on the second defendants' behalf (of 12 September and 30 September 2016 respectively).
The six named second defendants in the present application before me are participants in the Federal Court native title claim proceedings WAD 6169/1998, in respect of which North J is the currently assigned docket judge. During the course of arguments I was referred to a number of interlocutory decisions by North J in that native title claim action: see generally Roberts v State of Western Australia [2010] FCA 1483 (delivered 9 December 2010); TR (Deceased) on behalf of the Kariyarra People v State of Western Australia [2014] FCA 734 (delivered 9 July 2014); and TR (Deceased) on behalf of the Kariyarra-Pipingarra People v State of Western Australia [2016] FCA 1158 (delivered 23 September 2016). As said, the Federal Court of Australia exercises an exclusive jurisdiction over those native title proceedings advanced under the Native Title Act. The events in these federal proceedings are before me only to the extent that they may bear collaterally upon the considerations pertinent to the advice sought in the present application as regards a charitable trust governed by the laws of this state.

The second defendants' opposition

By what is an over-simplification of the second defendants' position, the essential thrust of their present opposing stance, as conveyed in this court through the defence counsel's written and verbal submissions, is based on the assumed premise that the six second defendants all consider themselves to be Kariyarra People as a matter of fact.
From that starting platform, they say next that they are opposed to any other native title claimants advancing a native title claim as Kariyarra People ‑ as proceedings in the Federal Court were originally advanced (initially by a specific identification of 78 named persons as the native title claimants when that action WAD 6169/1998 was commenced under a Form 1 document). But the second defendants further oppose a participation of some or all of a freshly described 2014 native title claim group - as identified under [58(a)] and [58(b)] of North J's reasons in [2014] FCA 734.
In that decision North J granted leave to amend the native title claim group so that it might be re‑described, now by reference to a claim by described descendants of at least one of 11 identified apical ancestors and the further criteria under [58(b)] of his Honour's reasons - being the self‑recognition by such descendant Aboriginal persons in reference to 'rights and interests in the area covered by the application under Kariyarra traditional law and customs'.
Some basis for the second defendants' expressed opposition may also be detected in par 10 of Mr Rumsley's written submissions for the second defendants of 30 September 2016. They say:
The proposed directions are based on an identification [of Kariyarra People] which expressly includes people who are not Kariyarra and has since the claim group in the Federal Court was amended by orders of 9 July 2014
(ie, referring to North J's decision in [2014] FCA 734, to which I have referred).
The opposing submissions then contended (par 9 of the written submissions) that the critical issue is that the proposed protocol 'does not provide a basis to avoid' a consequence that payments from the Trust to Aboriginal people who are not true Kariyarra People (as the second defendants would accept them to be) is conduct in breach of trust.
The second defendants' opposition contention as regards the effects of the protocol needs to be assessed by reference to the terms of the Trust Deed establishing a charitable discretionary trust as varied - then measured against the terms of the now proposed protocol advocated by the Trustee.
The expressed concerns of the second defendants are the essential underlying controversy arising upon this application - with that opposing issue occupying the majority of arguments across all of 31 January 2017.
But I did not, in particular, detect any specific criticisms from the second defendants directed towards any individual proposed paragraphs of the draft protocol. Rather, the real basis of the expressed opposition looked to be in the nature of a broader philosophical objection. That was identified by reference to a basal concern over non-Kariyarra People essentially receiving any funds from the Trust, particularly where the overall native title application commenced as WAD 6169/1998 was still pending (in 2017) and North J had recently made orders effectively setting down for hearing as a final determination in September 2017, a separate question in WAD 6169/1988 (and in the two other related native title actions, WAD 232/2012 and WAD 47/2014):
Who are the persons (if anyone) holding the communal rights comprising the native title claimed by the applicants in the Kariyarra claim area?
Effectively then, as a matter of discretion where this court may, but is not obliged to, provide judicial advice when requested, the second defendants, through counsel, submitted that the present protocol approval linked directions are not appropriate from a timing perspective, given the pending determination of the separate question in the Federal Court in September 2017. Further, the second defendants submit that as monetary distributions are currently being made from this Trust to some identified Kariyarra People, there is no real imperative or urgency in expanding the base of potential beneficiaries under the effects of the protocol in the present application. This application by the Trustee might therefore be stood over either until a final resolution of the separate question in the Federal Court or, indeed, until final determination of the entire native title claim in WAD 6169/1998 by the Federal Court.
The organisation of these reasons will proceed upon the basis that I will next identify the evidentiary materials relied upon by the parties in this application. I will then render some observations concerning the content and interpretation of some pivotal clauses in the Trust Deed which established the Trust. Finally, I will render my determinations concerning the merits of the present application for judicial advice - which is opposed only by the second defendants.

Materials relied upon in this application

The evidence adduced upon this application can be conveniently collected and recorded in the tabular format below.

Party

Case Name

Trustee

•         Affidavit of Anthony Lawrence McDowell sworn on 10 November 2015;

•         Affidavit of Philip Michael Drayson sworn on 20 November 2015; and

•         Further affidavit of Philip Michael Drayson sworn on 24 May 2016 vol 1 and 2.

There were in addition three more affidavits that disposed to service issues only:

•         Affidavit of Gilda Tulali Manucay sworn on 27 January 2016;

•         Affidavit of Philip Michael Drayson sworn on 29 January 2016; and

•         Affidavit of Philip Michael Drayson sworn on 2 February 2016.

First Defendant

No affidavits filed

Second Defendant

•         Affidavit of Alan Philip Rumsley sworn on 4 May 2016; and

•         Affidavit of Alan Philip Rumsley sworn on 20 January 2017.

There were also the following written submissions filed and exchanged between the parties for the hearing:
(a)the plaintiff's outline of submission and list of authorities dated 20 June 2016;
(b)the first defendant's outline of submissions and list of authorities dated 19 September 2016;
(c)the second defendants' outline of submissions opposing the application for orders under s 21 of the Charitable Trusts Act 1962 and s 92 of the Trustees Act 1962 dated 12 September 2016; and
(d)the second defendants' outline of submissions in response to submissions of the first defendant dated 30 September 2016.

The terms of the Trust Deed establishing the Trust

The original deed can be found as annexure PMD1 to Philip Michael Drayson's affidavit in support of the originating summons filed on 20 November 2015. As I indicated, the Trust was varied under the two deeds of variation, which are found as annexures PMD4 and PMD5 respectively to that affidavit.
Also found appended to Mr Drayson's affidavit is a document referred to as the Kariyarra People's Trust Advisory Committee Policies and Procedures, as annexure PMD6, found at pages 55 to 82 of the affidavit. I make mention of that document as it is identified under par 15 of the draft protocol, by way of the amendments that emerged during the course of arguments across 31 January 2017.
I can now turn to the terms of the Trust Deed as amended under the two deeds of variation. Of particular significance are recitals (a) and (b) and the definitions found under the operative provisions of the Trust Deed at cl 1.1, particularly as to the terms 'Advisory Trustees', 'beneficiaries', 'Initial Advisory Trustees', 'Kariyarra People', 'native title claim group' and 'objects' (which is defined as 'the objects of the Trust referred to in cl 4.1'). I will shortly set out those terms from the Trust Deed below.
Also of importance are cl 6.1 and aspects of cl 6.2 describing the specific powers of the Trustees. Clause 6.2(ii) is important (although there are 14 subclauses to that clause, it is only necessary to set out cl 6.2(ii)). Clause 6.3 is also important.
Clause 9 as regards the Advisory Trustees is important. This clause has been varied over time. With the variations effected to it (which are not in issue) I will set out the current consolidated cl 9 as it subsists, subsequent to variations.
The terms of cl 6 and cl 9 in aggregate are especially important since, in large part, the drafting of the protocol by the Trustee may be seen to have been framed by reference to the consultation processes and procedures applicable to the Advisory Trustees, as they are set down by cl 9. The proposed draft protocol may be seen to be framed around and build upon the Trust Deed's procedures concerning the interactions with the Advisory Trustees.
Commencing with the Trust Deed's recitals, recitals (a) and (b) say:
(a)There is recognition throughout Australia that persons of Aboriginal descent as a class of people are severely disadvantaged and impoverished and in need of assistance.
(b)The Settlor wishes on the terms of this Deed to establish a perpetual charitable trust to be called the Kariyarra People's Trust ('the Trust') to assist the Beneficiaries who are persons of Aboriginal descent.
Advancing to operative provisions, cl 1 of the Trust Deed deals with definitions and interpretation. By cl 1.1 it is provided:
In this deed unless the context otherwise requires:
Advisory Trustees means the Kariyarra People who are from time to time acting as advisory trustees pursuant to this Deed.
Beneficiary has the meaning given to it in clause 3.1.
Initial Advisory Trustees means those people appointed under this deed to be Advisory Trustees until the first general meeting held pursuant to clause 9.7.
Kariyarra People means Persons of Aboriginal descent who are accepted by that group as being Kariyarra people and includes, but is not necessarily limited to:
(a)the members of the Native Title Claim Group for native title determination application WG 6169/98; or
(b)in the event of a determination of native title the members of the Prescribed Body Corporate established to hold native title.
Native Title Claim Group has the same meaning as under the Native Title Act 1993 (Cth).
Objects means the objects of the trust referred to in clause 4.1.
…
Trust means the trust established under this Deed.
Following after those definitions, the next relevant clause from the trust deed that I will refer to is cl 3. Presenting under the heading 'Beneficiaries', it says:
3.1The Beneficiaries
The Beneficiaries of the Trust are the Kariyarra People.
3.2No Beneficiary shall have any vested interest
(a)This is a discretionary trust.
(b)No individual Beneficiary of group of Beneficiaries will have any vested interest in, or entitlement to, any of the Trust Fund.
3.3Trustees not to benefit.
Subject to clauses 5.8 and 10.6, no part of the Trust Fund shall be held or applied for the personal benefit of the Trustees.
Clause 4 then says (relevantly):
Objects of Trust
4.1Objects
(a)The Trustees are to hold the Trust Fund in perpetuity and shall pay or apply the capital and income (subject to this Deed and to the advice of the Advisory Trustees) amongst the Beneficiaries for the relief of poverty, the relief of the needs of the aged, the relief of sickness or distress, the advancement of education and religion and for other purposes beneficial to the community.
(b)Without limiting the generality of the foregoing, the Trustees may pay and apply the capital and income of the Trust Fund for:
(i)improving the social position, economic position, self esteem, self reliance and independence of the Beneficiaries;
(ii)providing assistance to individuals from the Beneficiaries to undertake training or other further education, or personal advancement programs;
…
I refer to cl 6, under its heading 'Powers of Trustees'. Clause 6 reads in part:
6.1General power
Subject to this Deed, for the purpose of giving effect to their powers and functions under this Deed, the Trustees shall have all the rights and liberties as would be available to the Trustees if the Trustees were carrying out such functions and powers on their behalf.
6.2Specific powers
Subject to this Deed, without limiting the powers of the Trustees under clause 6.1, the Trustees shall have the following powers:
…
(ii)to distribute its funds according to the Trust or to retain and invest any such funds in accordance with this Trust and any agreement between the Trustees and any other person;
…
6.3Powers conferred by law
The powers conferred on the Trustees under this Deed are in addition to powers otherwise conferred by law.
6.4Determination of questions
(a)The Trustees shall be solely entitled to determine all questions and matters of doubt which may arise in the course of the management, administration, and realisation of the Trust, but may take the advice of the Advisory Trustees into account in such determinations.
(b)The determination of the Trustees shall be final and binding on the Beneficiaries.
Lastly, I will set out the current consolidated terms of cl 9 as amended. Clause 9, appearing under the heading 'Advisory Trustees', now reads:
9.1Appointment of Advisory Trustees
Subject to the Deed, Advisory Trustees shall be appointed to advise the Trustees in accordance with this Deed.
9.2Initial Advisory Trustees
(a)The initial Advisory Trustees shall be:
Donny Wilson
[Redacted] (deceased)
Irene Roberts
Anna Snowball
Elsie Williams
Gordon Pontroy
Diana Robinson
Archie Captain
Hazel Jane Alec
Raelene Ann Gordon
Kerry John Robinson
Ronald Flatfoot
Alfred John Barker
Peter Stevens
Karen Jacob
Margaret Stewart
Teddy Roberts
Paul Junior Gordon
Cyril Gordon
(b)The Initial Advisory Trustees shall act as Advisory Trustees until such time as they retire, or are replaced as Advisory Trustees in accordance with this Deed.
9.3Trustees shall consult Advisory Trustees on Certain Matters
(a)Subject to clause 9.11, the Trustees shall notify and consult with the Advisory Trustees about:
(i)the distribution of the Trust Fund in accordance with clause 10.5;
(ii)the investment of the Trust Fund in accordance with clause 10.4;
(iii)any variation to this Deed in accordance with clause 13.1;
(iv)termination of this Deed in accordance with clauses 14.2; and
(v)the matters referred to in clauses 5.3 and 5.4.
(b)Notification and consultation with the Advisory Trustees under clause 9.3(a), shall be undertaken, unless otherwise agreed, at regular meetings convened for this purpose. Arrangements for these meetings shall be as agreed between the Trustees and the Advisory Trustees.
(c)Following notification under clause 9.3(a) the Advisory Trustees may, within 90 days, provide advice to the Trustees in accordance with clause 9.3(d). Subject to clause 9.3(e), the Trustees shall act in accordance with this advice, unless to do so would be a breach of this Deed, or common law, or statutory law.
(d)The Trustees shall not act on the advice of the Advisory Trustees unless such advice is in writing and signed by a number of Advisory Trustees greater than or equal to 70% of the total number of Advisory Trustees in place from time to time.
(e)Where the Trustees do not receive advice in accordance with clause 9.3(c) and 9.3(d), the Trustees may, at their discretion and subject to this Deed, act on those matters referred to in clause 9.3(a) without further reference to the Advisory Trustees.
9.4Trustees May consult Advisory Trustees on Certain Matters
(a)Subject to clause 9.13 the Trustees may notify and consult with the Advisory Trustees about:
(i)Trust Expenditure; or
(ii)any other trust Activity not referred to in clause 9.3(a).
(b)The Trustees are not bound to act on the advice of the Advisory Trustees about the matters referred to in clause 9.4(a).
9.5Advisory Trustees may be a Beneficiary
Any or all of the Advisory Trustees may also be a Beneficiary.
9.6Number of Advisory Trustees
The number of Advisory Trustees shall not exceed twenty.
9.7Removal of Advisory Trustee member
Where an Advisory Trustee member:
(a)does not attend three Advisory Trustee meetings in a row and does not nominate a proxy or provide an apology prior to the meeting; or
(b)refuses to act therein; or
(c)is unfit to act therein; or
(d)is incapable of acting therein;
then the remaining Advisory Trustee members shall by a vote of 6 or more terminate that person as a member of the Advisory [T]rustee and notify that Advisory Trustee member and their immediate family of that member’s termination.
9.8Replacement of Advisory Trustee member
If a member of the Advisory Trustee:
(a)is terminated as an Advisory Trustee member as outlined in sub-clause 9.7 then the immediate family of that Advisory Committee member who has been terminated may nominate a replacement member and if the person nominated accepts the nomination then that person shall be a member of the Advisory Trustee.
(b)dies then the immediate family of that Advisory Trustee member may nominate a replacement member and if the person nominated accepts the nomination then that person shall be a member of the Advisory Trustee.
9.9Resignation of Advisory Trustee member
An Advisory Trustee member may resign in writing at any time and may fill his or her position by nominating a person to take his or her place as an Advisory Trustee and if the person nominated accepts the position then that person shall be a member of the Advisory Trustee.
9.10Term of Advisory Trustees
The Advisory Trustees shall act in their positions as Advisory Trustees until they are removed pursuant to clause 9.7 or 9.9 of the Trust Deed.
9.11Reasonable Expenses of Advisory Trustees
The Advisory Trustees shall be entitled, and are hereby authorised, to receive out of the Trust Fund their reasonable out of pocket expenses for all acts done and time expended on all Trust Activities.
9.12Advisory Trustees Relationship with Beneficiaries
In providing advice to the Trustees under clause 9.3(c) and 9.4 and where:
(a)An Advisory Trustee is also a Beneficiary; or
(b)A Beneficiary is related to otherwise associated with an Advisory Trustee;
That Beneficiary may still receive benefit from the application of the Trust Fund, provided that his or her eligibility is determined only on merit and in accordance with the Objects of this Deed.
9.13Advisory Trustees may cease to operate when a Corporate Trustee Appointed
(a)Where a Corporate Trustee is appointed under clause 5.6, the Advisory Trustees may, by unanimous resolution of all Advisory [T]rustees, resolve that the functions of the Advisory Trustees under this Deed shall cease.
(b)The Advisory Trustees shall notify the Trustees of any resolution made in accordance with clause 9.13(a) and on such notification all persons who are Advisory Trustees shall be deemed to have retired and the functions of the Advisory Trustees under this deed shall cease.
9.14Advisory Trustee to appoint Signatories
The Advisory Trustees may from time to time and by unanimous decision, nominate four of the Advisory Trustees as Signatories and notify the Trustees in writing of the names of those Signatories. These nominated Signatories shall replace all previous Signatories nominated or appointed in accordance with this Deed.
With the benefit of seeing these terms of the Trust Deed, particularly the consolidated cl 9, I can turn to deal with the implications of that content.

Observations on the term 'Kariyarra People' as defined in the Trust Deed

I need to address the significance of the Trust Deed's definition of 'Kariyarra People'. I render the following observations:
(a)The introductory lines of the definition of 'Kariyarra People' refer to 'that group'. It is somewhat unclear as to the 'group' actually referred to. On its face, this looks to be something of a self‑fulfilling definition if it is meant to apply in circumstances where there is uncertainty as to who might or might not be a person within the definition. Be that as it may, it is apparent that the persons falling within the definition of the term 'Kariyarra People' in the Trust Deed must be broader than the following two subclasses of persons that are said to fall under subclause (a) or subclause (b) in that definition. That conclusion follows as a necessary consequence of the clause's terminology 'includes, but is not necessarily limited to' as regards those two subclasses mentioned.
(b)The two subclauses in this inclusive definition ((a) and (b)) are, objectively assessed, plainly mere subsets of a greater body of persons who are within the far broader group definition of the Kariyarra People ‑ notwithstanding any difficulties arising out of the terminology 'that group' used in the chapeau to these provisions.
(c)Subclause (a) and subclause (b) in the definition of 'Kariyarra People' in the Trust Deed were routinely referred to by counsel during verbal submissions as 'safe harbour' provisions in the definition. That is understandable terminology in the circumstances. In other words, the Trust Deed is drawn in such fashion that these provisions assist in the identification of particular members - who are thereby ascertained to be Kariyarra People via subclause (a) or subclause (b) of the definition - for the purpose of meeting this threshold of the Trust Deed.
(d)An identification of the persons referred to under subclause (a) of the definition of 'Kariyarra People' is assisted by the specific and further ensuing definition in the Trust Deed to the defined term 'native title claim group'. As seen, that term is explicitly given the meaning from the Native Title Act. Section 253 of that Act explicitly delineates a 'native title claim group' as meaning:
(a)in relation to a claim in an application for a determination of native title made to the Federal Court - the native title claim group mentioned in relation to the application in the table in subsection 61(1). (my emphasis)
I was referred during the course of arguments to the provisions of a table that is found under s 61(1) of the Native Title Act. The s 61(1) table identifies the application by reference to the application mentioned in s 13(1) of that Act - for a determination of native title in relation to an area for which there is no approved determination of native title.
(e)In the end, the short point to be made is that the terms of the safe harbour definition of 'Kariyarra People' under subclause (a) are not ambiguous or unclear. Via subclause (a) one inclusive subclass referred to has been explicitly 'tied' by the text of the Trust Deed to the members of the native title claim 'group', with that 'group' being explicitly defined by incorporating the meaning from the Native Title Act.
The explicitness of that definition of 'native title claim group' in the Trust Deed must necessarily embrace the persons who are members of the native title claim group in the Federal Court application WAD 6169/1998 from time to time.
(f)To the extent that the Native Title Act allows a native title claim group to alter over time, in accord with the regime of that Act, that outcome is one of the features of the incorporation of 'native title claim group' as it is defined under the Act into the definition of Kariyarra People in the Trust Deed.
(g)A recurring theme underlying the core submission of the second defendants is that the reasons and orders of North J consequent to his 2014 decision ([2014] FCA 734) essentially altered the fundamental character of that native title claim group in a way that has expanded the dimensions of that claim group to potentially embrace persons as claimants who are not truly Kariyarra People. Of course, the delineation of the native title claim group in those Federal Court proceedings is a matter exclusively for the Federal Court.
(h)But I am not sure that I would accept the breadth of the second defendants' criticism as a fair reading of North J's reasons in that 2014 decision. My reading of those reasons is that the amendments to the description of the native title claim group, as allowed by his Honour under the 2014 decision, were directed at being more potentially inclusive towards some Kariyarra family groups. Such family groups at that point in 2014 were not falling within the previous description of the native title claim group - which as originally framed had been designated only by reference to the 78 named individuals. In other words, my overall impression is that the amendments, as allowed by North J in 2014, to the description of the native title claim group were not directed at altering the character of the native title claim group to extend the description beyond true Kariyarra People as the second defendants submit. Rather, it looks to me that the purpose behind amending the description was only to allow the criteria describing the Kariyarra native title claim group to operate with more fairness and effectiveness than it had to that point.
(i)Even if I were to accept the core submission of the second defendants to the effect that the 2014 amendment to the native title claim group in WAD 6169/1998 did extend the range of the native title claimants beyond Kariyarra People then, nevertheless, that would not matter in this application. The reason is that the Trust Deed's expressly chosen definition of 'Kariyarra People' under the safe harbour subclause (a) is drawn unambiguously by reference to it incorporating the definition of 'native title claim group' from the Native Title Act. It is not suggested that the 2014 description of native title claim group that was allowed by reference to the descendants of apical ancestors under [58] of North J's reasons was or is outside the parameters of what is allowed as a description under the Native Title Act.
(j)To be more explicit, the Kariyarra People as beneficiaries of this Trust Deed under cl 3.1 are ascertained by reference to the definition of 'Kariyarra People' under cl 1.1. That definition of 'beneficiary' is met by the members of the native title claim group in application WAD 6169/1998 - as that native title claim group manifests from time to time in those Federal Court proceedings. That is, on my assessment, an unavoidable consequence of using the definition of 'native title claim group' taken from the Native Title Act, and incorporated explicitly by the definition provisions in cl 1.1 of the Trust Deed.
(k)The terminology used as regards both safe harbour subclause (a) and subclause (b) definition for the 'Kariyarra People' must be remembered. If a final determination of native title on this claim ever happens to be made that meets the safe harbour subclause (b) definition, such a final determination would then, for the purposes of ascertaining members, overtake at that time the mere interim work of the safe harbour member identification performed under subclause (a). That would follow from the very nature of the final determination of native title itself.
(l)That temporal observation by way of construction of what are the two clearly interrelated safe harbour provisions in the Kariyarra People definition and their intended limited time spans of operation (objectively assessed) bears on the opposing submissions of the second defendants here. The repercussion is against their contention that, in effect, further trust distributions may or should safely be put on hold, pending more final native title determinations being reached in the Federal Court, under processes presently pending under the native title claim in WAD 6169/1998.
The answer to that submission, however, is that the draftsperson of this Trust Deed (objectively assessed) very deliberately has turned his or her mind towards an event of earlier distributions from the Trust being made - prior to any final determination of native title by the Federal Court. That interim position was catered for under the safe harbour subclause (a) definition of 'Kariyarra People', in relation to the native title claim group members prior to any final determination - being a subsequent scenario addressed by subclause (b) when those events came to pass, if they do.
(m)Therefore, as an overall matter of philosophy and principle, the objectively assessed operation of the Trust Deed clearly does contemplate distributions to persons meeting the interim definition of 'Kariyarra People' via subclause (a). That is so even if, in due course, there is an ultimate determination of native title which, for example, did not include all such subclause (a) persons as the ultimate native title holders. That result is simply a consequence of the way in which the Trust Deed was drafted.

The terms of the draft protocol as prepared by the Trustee

I repeat my earlier remarks that the terms of the proposed protocol as it now stands (appended to these reasons as Annexure A) in many places is seen to be drawn in broad conformity to the Trust Deed's consultation processes and procedures, in reference to the Trustee's methodology in identifying persons as discretionary beneficiaries in need from time to time.
I would render that observation in the context of a suggestion in the second defendants' submissions, effectively indicating their strong dissatisfaction with the composition of the cohort of persons who are presently the Advisory Trustees. Notwithstanding that irrelevant discord, the real point is that the phenomenon of a group of Advisory Trustees made up from selected persons chosen to be representative of Kariyarra People, is an existing and demonstrable phenomenon of the Trust Deed's structure as it was established and subsequently varied under the two deeds of variation.
During the course of counsel's submissions, the second defendants appeared to submit that the deeds of variation had changed the original concept of Advisory Trustees from a group of persons who would be elected annually, to what is now the standing body of 20 or so persons. However, the second defendants' grievance about the Advisory Trustees does not materially bear upon the present application. Here, in effect, the Trustee is only seeking to circumvent logistical problems that have arisen regarding obtaining timely responses or, indeed, any response from the Advisory Trustees concerning applications to the Trustee for assistance by a receipt of trust funds from persons - who do arguably meet the apical ancestor descendant description for the amended native title claim group under North J's 2014 reasons and orders.
In other words, the present application, as I assess it, seeks to circumvent or to relieve against day-to-day communication and responsiveness problems currently encountered by the Trustee in undertaking consultation processes with the, at times, unresponsive group of Advisory Trustees. Therefore, if anything, the proposed draft protocol seeks to assist the Trustee in making timely and properly consultative decisions about the allocation of trust funds to persons in need - who arguably meet the safe harbour subclause (a) definition of 'Kariyarra People'. That is in circumstances where the Trustee has attempted to implement a consultation process under the Trust Deed, which has at times proven to be deficient. Therefore, the second defendants' concerns about the Advisory Trustees structure under the Trust Deed or its constituent membership are essentially not to the point on this application.
It is also apparent, I would accept, as noted in Mr Drayson's affidavit of 30 January 2017, that there are claimant persons arguably meeting the definition of 'Kariyarra People' under subclause (a) who are in urgent need of relief and assistance from trust funds, if they can be legitimately accessed at this time.

Conclusion

In all the circumstances, it seems to me that the opposition stance of the second defendants properly understood does not bear upon the merits or demerits of the present application by the Trustee seeking judicial advice.
Rather, the concerns of the second defendants, as expressed, look to me to be more deep seated - and generated by reference to the Federal Court native title proceedings - proceedings which I repeat are within the exclusive jurisdiction of the Federal Court and not this court.
This court is only concerned with the Trust and the judicial advice which is now sought from the court - towards evaluating the terms of the proposed protocol, which is supported by the Attorney General of Western Australia.
My end assessment is that the terms of the protocol as attached to Annexure A to these reasons are in broad conformity with the terms of the Trust Deed. The proposed utilisation of that protocol by the Trustee is appropriate. I would advise accordingly.
I should note that during the course of the hearing a person who had been in attendance all day as an observer at the back of the courtroom raised his hand at the conclusion of arguments and obviously sought to be heard. That person was identified as Mr Vincent Albert Lockyer. Bearing in mind the non‑adversarial character of these proceedings, I allowed Mr Lockyer to come forward and to be heard on the point that he wished to raise. I note that the court file does contain an affidavit that Mr Lockyer, acting in person, appears to have filed on 5 January 2016. However, that affidavit was not read as a component of these proceedings by any participant party. Nevertheless, I thought it appropriate to briefly hear from Mr Lockyer on the day.
Mr Lockyer sought to raise some concerns pertinent to himself, by reference to s 17, s 22 and s 36 of the Criminal Code (WA). However, with respect to Mr Lockyer, those provisions do not bear upon present issues or upon the directions which are sought by the Trustee by reference to the terms of the proposed protocol.
Accordingly, directions should now be issued in accord with the terms of the Trustee's originating summons as amended at the hearing under my leave. The Trustee should have a reasonable period of 21 days to draft and to circulate for comments the terms of an order implementing these reasons.

ANNEXURE A
The Kariyarra People's Trust Protocol
1.The Trustee may determine whether a person who seeks to be entitled to receive benefits from the Trust (Applicant) is a Kariyarra person for the purposes of the Trust by the process outlined below.
2.An Applicant shall complete an application form to the Trustee in the form required by the Trustee. The application form shall require an Applicant to provide a statutory declaration setting out:
(a)How the Applicant is descendant from one of the eleven apical ancestors set out in Schedule A to the Further Amended Form 1 to the application for determination of native title in the Federal Court of Australia WAD6169/1998; and
(b)The basis upon which the Applicant recognizes himself or herself as having rights and interest in the area covered by the application under Kariyarra traditional law and custom; or
(c)Any other basis upon which the Applicant claims to be a Kariyarra person.

(the eligibility criteria).
3.The Trustee shall consider the Applicant’s application form and the Trustee shall form its view on whether the Applicant satisfies the eligibility criteria or not on the basis of the information contained in the application form and any other credible information the trustee may have or obtain.
4.If the Trustee is satisfied that the Applicant does not meet the eligibility criteria, the Trustee shall be entitled to refuse to accept the Applicant as a Beneficiary under the Trust and shall not consider the Applicant for the payment of any benefits under the Trust.
5.If the Trustee is satisfied that the Applicant meets the eligibility criteria, the Trustee shall so advise the Advisory Trustees in writing and shall advise the Advisory Trustees that the Trustee intends to confirm approval of the Applicant as a Kariyarra person for the purposes of the Trust at the next meeting of the Advisory Trustees following the notice.
6.At the next meeting of the Advisory Trustees following the notice referred to in paragraph 5 above, the Trustee shall seek the approval of the Advisory Trustees of the Applicant as a Kariyarra person for the purposes of the Trust.
7.If the Advisory Trustees at that meeting approve the Applicant as a Kariyarra person for the purposes of the Trust, then the Trustee shall regard that person as a Beneficiary under the Trust.
8.If the Advisory Trustees at that meeting fails to approve the Applicant as a Kariyarra person for the purposes of the Trust, then the Trustee may at its discretion, either:
(a)If it is persuaded by information provided by the Advisory Trustees that the Applicant does not meet the eligibility criteria, refuse to accept the Applicant as a Beneficiary under the Trust; or
(b)If it is not persuaded by information provided by the Advisory Trustees, request the Advisory Trustees to provide advice to the Trustee of their view in writing within 90 days of the notice referred to in paragraph 5 above signed by at least 70% of the total number of Advisory Trustees in place from time to time.

9.If the Trustee does not receive advice in writing as referred to in paragraph 8(b), the Trustee shall be entitled to regard the Applicant as a Beneficiary under the Trust.
10.If the Trustee considers that it cannot reach a concluded view as to whether the Applicant meets the eligibility criteria, the Trustee shall so advise the Advisory Trustees in writing and shall advise the Advisory Trustees that the Trustee intends to seek the advice of the Advisory Trustees in relation to the Applicant’s status as a Kariyarra person at the next meeting of the Advisory Trustees following the notice.
11.At the next meeting of the Advisory Trustees following the notice referred to in paragraph 10 above, the Trustee shall seek such advice from the Advisory Trustees as the Trustee considers necessary in relation to the Applicant’s status as a Kariyarra person.
12.If arising from the meeting referred to at paragraph 10 above, the Trustee does not receive advice from the Advisory Trustees so as to permit the Trustee to form a concluded view as to whether the Applicant meets the eligibility criteria, then:
(a)The Trustee shall be entitled to form its own view on the basis of information available to it, or obtained by it, as to whether the Applicant is a Kariyarra person for the purposes of the Trust;
(b)If the Trustee remains unsatisfied as to whether the Applicant is a Kariyarra person for the purposes of the Trust, the Trustee shall be entitled to decline to consider the Applicant for the payment of any benefits under the Trust.

13.In all instances, and subject to the processes set out above, and pending the ultimate determination of the application in WAD 6169/1998, the Trustee shall be permitted to regard an Applicant as a Beneficiary if the Applicant claims to be a Kariyarra person by reason of being a descendant of any one of the apical ancestors named in the Schedule A referred to in paragraph 2(a) above and says or explains how that link is established and further, that the Applicant recognizes himself or herself as having rights and interest in the area covered by the application under Kariyarra traditional law and custom referred to in paragraph 2(b) above.
14.In respect of any application, the Trustee may in its discretion, but shall not be obliged to, obtain expert anthropological or other professional advice at the expense of the Trust.
15.The Trustee may make a payment for the benefit of a Beneficiary without further reference to the Advisory Trustees if such payment comes within the terms of a written policy for the payment of benefits approved by Trustee and by the Advisory Trustees which is Annexure PMD6 to the affidavit of Philip Michael Drayson sworn on 20 November 2015 as that document, dated 19 November 2015, is amended from time to time and is verified by being signed by a director of the Trustee.
16.For the avoidance of doubt, the Trustee reserves the right to apply to Court with respect to any issues arising from the implementation and operation of this Protocol.

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: ABBOTT TRUSTEE SERVICES PTY LTD AS TRUSTEE FOR THE KARIYARRA PEOPLE'S TRUST -v- ATTORNEY GENERAL OF WESTERN AUSTRALIA [2017] WASC 117 (S)

CORAM: KENNETH MARTIN J

HEARD: ON THE PAPERS

DELIVERED : 24 JULY 2017