FEDERAL COURT OF AUSTRALIA
KK (deceased) v State of Western Australia [2013] FCA 1234
Citation: KK (deceased) v State of Western Australia [2013] FCA 1234 Parties: KK (DECEASED) & ORS v STATE OF WESTERN AUSTRALIA & ORS
ALEXANDER DIA & ORS v STATE OF WESTERN AUSTRALIA & ORS
File numbers: WAD 68 of 2010; WAD 250 of 2012 Judge: BARKER J Date of judgment: 13 November 2013 Catchwords: NATIVE TITLE – applications for leave to discontinue proceedings – named applicant in one proceeding and member of claim group in other opposes applications – relevance of opposition – whether applicant has authority to make applications Legislation: Native Title Act 1993 (Cth) s 61, s 61(1), s 62A, s 66B, s 66B(1)(a)(iii), s 66B(1)(a)(iv), s 66B(1)(b), s 66B(2), s 84D, s 84D(1), s 84D(1)(b), s 84D(3)(b), s 251B
Federal Court Rules 2011 (Cth) R 9.08, R 26.12, R 26.12(2)(c), R 26.12(4)
Cases cited: Anderson v Queensland [2011] FCA 1158; (2011) 197 FCR 404
Ankamuthi People v Queensland [2002] FCA 897; (2002) 121 FCR 68
Butchulla People v Queensland [2006] FCA 1063; (2006) 154 FCR 233
Close v Queensland [2010] FCA 828; (2010) 190 FCR 182
Daniel v State of Western Australia [2002] FCA 1147; (2002) 194 ALR 278
Far West Coast Native Title Claim v South Australia (No 2) [2012] FCA 733; (2012) 204 FCR 542
Fesl v State of Queensland [2005] FCA 120
Lennon v State of South Australia [2010] FCA 743
Levinge v Queensland [2012] FCA 1321; (2012) 208 FCR 98
McKenzie v State of Western Australia [2013] FCA 1058
Que Noy v Northern Territory of Australia [2007] FCA 188
Roe v Kimberley Land Council Aboriginal Corporation [2010] FCA 809
Tigan v Western Australia [2010] FCA 993; (2010) 188 FCR 533Date of hearing: 11 November 2013 Place: Perth Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 105 Counsel for the Applicant: Mr J Doherty Solicitor for the Applicant: Kimberley Land Council Counsel for Mr G Francis: Mr Francis appeared in person Counsel for the State of Western Australia: Ms C Taggart Solicitor for the State of Western Australia: State Solicitor's Office Counsel for the Commonwealth: Mr A Gerrard Solicitor for the Commonwealth: Australian Government Solicitor
IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION
WAD 68 of 2010
BETWEEN: KK (DECEASED) & ORS
Applicant
AND: STATE OF WESTERN AUSTRALIA & ORS
Respondents
JUDGE:
BARKER J
DATE OF ORDER:
13 NOVEMBER 2013
WHERE MADE:
PERTH
THE COURT ORDERS THAT:
1.The applicants be granted leave to discontinue the proceeding.
2.There be no order as to costs.
Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION
WAD 250 of 2012
BETWEEN: ALEXANDER DIA & ORS
ApplicantAND: STATE OF WESTERN AUSTRALIA & ORS
Respondents
JUDGE:
BARKER J
DATE OF ORDER:
13 NOVEMBER 2013
WHERE MADE:
PERTH
THE COURT ORDERS THAT:
1.The applicants…
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- KK v Western Australia [2013] FCA 1234
- Case
- [2013] FCA 1234
- Decision Date
CaseChat Overview and Summary
The case of KK v Western Australia involves the applicants seeking to discontinue their Native Title claims, specifically the Nyul Nyul and Nyul Nyul #2 claims, under the Native Title Act 1993. The primary legal issue revolves around the validity and relevance of the opposition by Gregory Francis, who is also one of the named applicants, to the grant of leave to discontinue the claims. The case was heard in the Federal Court of Australia, where Justice Bromberg had to determine whether the decision-making process followed at the meeting held on 30 October 2013 was legitimate and whether Mr Francis's opposition could be considered relevant to the grant of leave.
The court examined the affidavit of Dante Mavec, a lawyer employed by the Kimberley Land Council Aboriginal Corporation, who provided evidence regarding the meeting and its proceedings. The court found that the meeting was properly convened and that a representative group of the wider claim group was achieved. The decision-making process adopted at the meeting was accepted as valid, as it had been used in earlier meetings and was supported by all ten families, including the Leo Francis family to which Mr Francis belongs. The court also noted that Mr Francis participated in the decision-making process at the meeting.
In relation to Mr Francis's opposition, the court found that his opposition was not relevant to the grant of leave, as the decision to discontinue the claims had been made by the Nyul Nyul people in accordance with their traditional decision-making process. The court held that Mr Francis's opposition was not valid, as it did not align with the decision of the majority of the claim group members.
The final outcome of the case was that the court granted leave to discontinue the Nyul Nyul and Nyul Nyul #2 claims, as the decision to do so was made in accordance with the proper decision-making process and was supported by the majority of the claim group members. Mr Francis's opposition was deemed irrelevant to the grant of leave, and his challenge to the decision was dismissed. The court's decision was based on the acceptance of the validity of the decision-making process followed at the meeting and the finding that Mr Francis's opposition did not align with the decision of the majority of the claim group members.
The court examined the affidavit of Dante Mavec, a lawyer employed by the Kimberley Land Council Aboriginal Corporation, who provided evidence regarding the meeting and its proceedings. The court found that the meeting was properly convened and that a representative group of the wider claim group was achieved. The decision-making process adopted at the meeting was accepted as valid, as it had been used in earlier meetings and was supported by all ten families, including the Leo Francis family to which Mr Francis belongs. The court also noted that Mr Francis participated in the decision-making process at the meeting.
In relation to Mr Francis's opposition, the court found that his opposition was not relevant to the grant of leave, as the decision to discontinue the claims had been made by the Nyul Nyul people in accordance with their traditional decision-making process. The court held that Mr Francis's opposition was not valid, as it did not align with the decision of the majority of the claim group members.
The final outcome of the case was that the court granted leave to discontinue the Nyul Nyul and Nyul Nyul #2 claims, as the decision to do so was made in accordance with the proper decision-making process and was supported by the majority of the claim group members. Mr Francis's opposition was deemed irrelevant to the grant of leave, and his challenge to the decision was dismissed. The court's decision was based on the acceptance of the validity of the decision-making process followed at the meeting and the finding that Mr Francis's opposition did not align with the decision of the majority of the claim group members.
Orders
Orders of the court
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Background
Background to the litigation
The issues raised on each application concern the relevance of the opposition of Gregory Francis to the grant of leave, particularly in relation to the Nyul Nyul #2 claim where Mr Francis is also one of the named applicants.BACKGROUND The applicant in relation to each interlocutory application relies on the affidavit evidence of Mr Dante Mavec, a lawyer and legal officer employed by the Kimberley Land Council Aboriginal Corporation (KLC) who has the day to day carriage of each of the Nyul Nyul claims under the supervision of the KLC’s principal legal officer, Ms Jacki Cole. Mr Mavec’s affidavits were filed respectively in each proceeding on 5 November 2013. I generally accept their content. On 30 October 2013, members of each of the Nyul Nyul and Nyul Nyul #2 claim groups (the same group of people in each case) met in Broome for the principal purpose of enabling the members of the claim groups to consider whether to discontinue the claims. The meeting was organised by the KLC. Prior to the 30 October 2013 meeting, meetings of the descendants of particular Nyul Nyul apical ancestors, constituting 10 families in all, were conducted on various dates in October 2013. I am satisfied from the detailed material contained in Mr Mavec’s affidavit that the 30 October 2013 meeting was properly convened and ensured that a properly representative group of the wider claim group in respect of each of the claims was achieved. On 30 October 2013, 74 members of the claim groups attended the meeting. The first substantive matter addressed at the meeting was the decision‑making process to be followed at the meeting. The following resolution was passed:The meeting confirms that it adopts the following decision-making process in relation to both the Nyul Nyul and Nyul Nyul #2 claims:•A matter for decision will be expressed in a written resolution.•A matter for decision will be discussed first by the family with the responsibility for the area affected.•Each family will have one vote, according to the following Nyul Nyul ancestors: Patrick Mouda, Narcis and brothers, Ringarr, Tjanganbor, Felix, Abraham, Victor, Leo Francis, Kandi, Alice Wright. The resolution was passed unanimously by the Nyul Nyul people present at the meeting. It is pertinent here to note that Mr Francis and other descendants of the Leo Francis family participated in the passing of this resolution. I accept that the process of decision‑making then adopted is one that has been used by the Nyul Nyul people at earlier meetings of the claim groups in 2011 and 2012. I also accept that at those earlier meetings some decisions were not supported by all 10 families concerned but that some were supported by nine families, with the remaining family either opposed or not present at the meeting, but nonetheless the decisions were regarded by the claim group as a whole as duly passed. I further accept that on these earlier occasions the Leo Francis family participated in the decision‑making. Following the resolution concerning the appropriate decision‑making process for the meeting on 30 October 2013, the following resolution was put for decision, following a presentation made by Mr Mavec which included reference to legal advice:The Nyul Nyul and Nyul Nyul #2 claim groups instruct the Nyul Nyul and Nyul Nyul #2 applicants respectively, and the KLC on their behalf, to:•Seek leave from the Court to discontinue the Nyul Nyul and Nyul Nyul #2 claims, if the Bindunbur (Area C) claim is authorised; and•Discontinue the Nyul Nyul and Nyul Nyul #2 claims, if the Bindunbur (Area C) claim is ready to be filed in registrable form before l4 November 2013, or the future act matter relating to Petroleum Exploration Permit STP-EPA-0092 has been resolved.
Evidence
Evidence Before The Court
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Decision
Reasons for decision
The minutes record, following an extensive discussion about the decision‑making process that would be followed at the meeting, the following resolution was passed:Decision Making•A matter for decision will be discussed first by the family with the responsibility for the area affected.•A matter for decision will be expressed in a written resolution.•The nominated and recognised representatives from each of the family groups will vote on the resolution.•If the representative/s is not going to be present at the meeting they must send a proxy•If an absent family group has not sent a proxy the vote at the meeting will be binding The family groups were asked to each make one nomination for a member of the Nyul Nyul #2 applicant as well as nominations to a “decision group” who were intended to be consulted where a full claim group meeting was not possible. Eight families made those nominations and the remaining two deferred the decision until the next day. On the second day, the following resolution was put:ResolutionThe Nyul Nyul 2 claim group agree to the filing of a Native Title claim over the area surrounding the existing Nyul Nyul claim WAD 68 defined by the purple line on the map provided in the notice of the meeting. That resolution found favour with nine families, with only one (the Tjanganbor family) against. The resolution was declared passed. A further resolution was then put and passed unanimously concerning the named applicants, who were stated to include Mr Francis. The terms of the resolution, however, should be noted:ResolutionThe Nyul Nyul Native Title claim group confirms the people listed are authorised to be the applicant on the Nyul Nyul 2 claim and subject to further resolution of the claim group are authorised to do all things necessary and incidental to the making of the application subject to the board and restrictions.(Emphasis added.) Mr Mavec deposes to the understanding all relevant persons had of the expression “subject to the board and restrictions” and states that from his review of the KLC file it is clear that the “board” is a reference to the whiteboard, copies of which appear in the extracts of the minutes, showing family groups, proposed applicants and voting, and “restrictions” is a reference to matters contained in a Powerpoint presentation which was displayed during the meeting. He observes that the slides of the Powerpoint record a number of resolutions in relation to the filing of the Nyul Nyul #2 claim and the authorisation of the applicant for that claim, which are produced. The KLC legal officer then present at that meeting asked whether everyone agreed “to pass the restrictions as resolution?”. This was recorded in the minutes. The KLC officer concerned noted that all family groups have “authorised us to put in the application and you have authorised the applicants”. As a result of that resolution, Mr Francis, along with the other nine named applicants, affirmed an affidavit stating the Nyul Nyul #2 applicant was authorised to bring the claim through the decision‑making process followed at the meeting.
Ratio Decidendi
Legal Principle Established
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