M.B. (Deceased) v State of Western Australia

[2010] FCA 1110

FEDERAL COURT OF AUSTRALIA

M.B. (Deceased) v State of Western Australia [2010] FCA 1110

Citation:		M.B. (Deceased) v State of Western Australia [2010] FCA 1110
Parties:		M.B. (DECEASED) AND OTHERS v STATE OF WESTERN AUSTRALIA AND OTHERS
File number:		WAD 6192 of 1998
Judge:		SIOPIS J
Date of judgment:		25 June 2010
Legislation:		Native Title Act 1993 (Cth) ss 66B(1), 251B
Cases cited:		Anderson v Western Australia [2007] FCA 1733
Date of hearing:	25 June 2010
Place:	Perth
Division:	GENERAL DIVISION
Category:	No Catchwords
Number of paragraphs:	12
Counsel for the Applicants on the motion:	Mr SC Blackshield and Ms M Aranda
Solicitor for the Applicants on the motion:	Ms Maryse Aranda, Principal Legal Officer of South West Aboriginal Land & Sea Council
Counsel for the State of Western Australia:	Ms S Begg
Solicitor for the State of Western Australia:	State Solicitor’s Office
Counsel for the Commonwealth of Australia:	Mr A Gerrard
Solicitor for the Commonwealth of Australia:	Australian Government Solicitor

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION	WAD 6192 of 1998

BETWEEN:	M.B. (DECEASED) AND OTHERS Applicant
AND:	STATE OF WESTERN AUSTRALIA AND OTHERS Respondent

JUDGE:	SIOPIS J
DATE OF ORDER:	25 JUNE 2010
WHERE MADE:	PERTH

THE COURT ORDERS THAT:

1.Malcolm Ryder, Vera Warrell, Charlie Shaw, Dennis Jetta and May Maguire jointly replace the current applicant.

2.The applicant as re-constituted by Order 1 above has liberty to file an amended application in the form of annexure “B” to the affidavit of Simon Charles Blackshield affirmed 21 June 2010.

3.Annexure “B” to the affidavit of Simon Charles Blackshield affirmed 21 June 2010 stands as the amended application.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using Federal Law Search on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION	WAD 6192 of 1998

BETWEEN:	M.B. (DECEASED) AND OTHERS Applicant
AND:	STATE OF WESTERN AUSTRALIA AND OTHERS Respondent

JUDGE:	SIOPIS J
DATE:	25 JUNE 2010
PLACE:	PERTH

REASONS FOR JUDGMENT

1. This is an application under s 66B(1) of the Native Title Act 1993 (Cth) (the Act), which seeks orders replacing the current applicant of a native title determination application on behalf of the Yued People, with an applicant jointly comprised of the following persons:

   Mr Malcolm Ryder,
   Ms Vera Warrell,
   Mr Charlie Shaw,
   Mr Dennis Jetta, and
   Ms May Maguire.

2. The application is made by a notice of motion dated 5 May 2010 and I will refer to these persons as the applicant movers.  Of the applicant movers, only Mr Ryder is one of the persons who jointly comprise the current applicant.

3. At a meeting of the Yued People claim group held in Gingin on 22 November 2008, a resolution was passed authorising the replacement of the current applicant with an applicant jointly comprised of the applicant movers and Mr Joe Narrier.  The resolution was relevantly in the following terms:

   1.Subject to our previous resolution regarding the amendment of the Yued native title application, the current applicant is no longer authorised, and instead Vera Warrell, Mal Ryder, Charlie Shaw, May Maguire, Joe Narrier and Dennis Jetta, or such of them who remain willing and able to act in respect of the application in the future, are authorised to make, and to deal with matters arising in relation to, the application, in accordance with the conditions of our authorisation.

   2.…

   3.For the avoidance of any doubt, it is the decision of this meeting that on each occasion where one or more of the individuals referred to in this resolution cease to be willing and able to act in respect of the application, the remaining one or more persons are collectively authorised to make the application and to deal with matters arising in relation to it, without the need for any further decision by the members of the Yued native title claim group.

4. The applicant movers relied on the affidavits of Ms Annie Moloney-Muir affirmed on 7 August 2009 and Mr Simon Blackshield affirmed on 5 August 2009, which deposed in some considerable detail to the process which was undertaken by the South West Aboriginal Land & Sea Council (SWALSC) in order to ensure that the authorisation meeting could properly be classified as a sufficiently representative meeting of the native title claim group.

5. The evidence referred to an extensive database maintained by SWALSC which records the genealogical details of as many Noongar People as SWALSC is able to track.  SWALSC used that database to notify those persons who could potentially belong to the Yued People native title claim group of the meeting.  Further, notices advertising the meeting were placed in newspapers circulating in the area, as well as in The West Australian newspaper.  The database was also used to verify the ancestry of those persons who attended the meeting.

6. I am satisfied that, on that evidence, the authorisation meeting was sufficiently representative of the native title claim group to be competent to make decisions on behalf of the claim group for the purposes of s 251B of the Act. (See, Anderson v Western Australia [2007] FCA 1733 at [36].)

7. I also received evidence from Mr Charlie Shaw, who is one of the applicant movers, as to whether there is a traditional decision-making process within the Yued People. I am satisfied on his evidence that there is no such process for the purposes of s 251B of the Act.

8. Mr Blackshield deposed to the decision-making process adopted at the authorisation meeting in the following terms:

   [T]hose present at the meeting agreed on the following process for authorising a new “applicant”:

   (a)Nominations of proposed applicants were received from the floor;

   (b)A secret ballot was conducted whereby each participant could cast a vote for one of the nominated persons; and

   (c)A motion was put to the floor for the six persons who had received the highest number of votes to be “the applicant”, this motion being voted on by a show of hands.

9. The resolution passed at the meeting contained a provision to the effect that the replacement applicant would comprise the named persons, “or such of them who remain willing and able, to act in respect of the application in the future”.  It also made it clear “for the avoidance of any doubt” that if one or more of the named persons ceased to be willing and able to act in respect of the application, the other named persons or person would remain authorised to act as the applicant in respect of the application.

10. I mention this because, since the passing of the authorisation resolution at the meeting on 22 November 2008, one of the persons jointly authorised to act as the replacement applicant, Mr Narrier, has written to SWALSC saying that he is no longer willing to act as one of the persons comprising the applicant.  This letter is annexed to the affidavit of Mr Blackshield affirmed on 21 June 2010.  Accordingly, he is not among the applicant movers.

11. There was also an earlier suggestion that Mr Ryder may not have been willing to continue to act as a person comprising the current applicant, but he has now indicated that he is willing to continue to act as a person jointly comprising the replacement applicant.

12. Accordingly, I will make order 1 in the minute of orders.  There is no opposition in relation to order 2, and so I will make that order as well.  I will also make an order in terms of order 3 of the minute.

I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Siopis.

Associate:
Dated:        14 October 2010