Robin John Yarran on behalf of Ballardong; Reg Yarran on behalf of Ballardong; Reg Hayden on behalf of Ballardong/Hamill Resources Ltd; Red Bluff Nominees Pty Ltd; AWI Administration Services Pty Ltd; Golden State... - [2003] NNTTA 99

NATIONAL NATIVE TITLE TRIBUNAL

Robin John Yarran on behalf of Ballardong; Reg Yarran on behalf of Ballardong; Reg Hayden on behalf of Ballardong/Hamill Resources Ltd; Red Bluff Nominees Pty Ltd; AWI Administration Services Pty Ltd; Golden State Resources Ltd; Graeme Francis Taylor; Image Resources NL; Quadrio Resources Pty Ltd; Vernon Wesley Strange; Sons of Gwalia Ltd; Heron Resources Ltd; Westdeen Holdings Pty Ltd; Mathew Peter Holliday; Axis Consultants Pty Ltd; David Lewis Williams; Newfield Central Pty Ltd; Mark Kent; Evanston Resources NL/Western Australia, [2003] NNTTA 99 (11 September 2003)

Application Nos: WO01/187, WO01/206, WO01/230, WO01/244, WO01/245, WO01/259, WO01/387, WO01/388, WO01/389, WO01/390, WOO1/397, WO01/398, WO01/418, WO01/419, WO01/420, WO01/421, WO01/422, WO01/567, WO01/575, WO01/596, WO03/143, WO03/144, WO03/145, WO03/148, WO03/152, WO03/153, WO03/155, WO03/156, WO03/282, WO03/289, WO03/290, WO03/291, WO03/292, WO03/293, WO03/433, WO03/434, WO03/435

IN THE MATTER of the Native Title Act 1993 (Cth)

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IN THE MATTER of an inquiry into expedited procedure objection applications

Robin John Yarran on behalf of Ballardong; Reg Yarran on behalf of Ballardong; Reg Hayden on behalf of Ballardong (WC97/56) (native title parties)

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Hamill Resources Ltd; Red Bluff Nominees Pty Ltd; AWI Administration Services Pty Ltd; Golden State Resources Ltd; Graeme Francis Taylor; Image Resources NL; Quadrio Resources Pty Ltd; Vernon Wesley Strange; Sons of Gwalia Ltd; Heron Resources Ltd; Westdeen Holdings Pty Ltd; Mathew Peter Holliday; Axis Consultants Pty Ltd; David Lewis Williams; Newfield Central Pty Ltd; Mark Kent; Evanston Resources NL (grantee parties)

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The State of Western Australia (Government party)

DECISION ON WHETHER THE TRIBUNAL HAS JURISDICTION TO CONDUCT AN INQUIRY

DECISION TO DISMISS OBJECTION APPLICATIONS

Tribunal: Hon C J Sumner, Deputy President
Place: Perth

Date: 11 September 2003

Catchwords: Native title – future act – proposed grant of exploration and prospecting licences – expedited procedure objection applications – jurisdiction – challenge to authority of objector – objections lodged by applicants within same claimant group – dismissal of objection for lack of authority – representation.

Legislation:Native Title Act 1993 (Cth), ss 3, 29, 30A(2), 30(1)(a), 31(1)(b), 32(3), 32(4), 61(1), 61(2), 62A, 66B, 75, 77, 84(5), 148(a), 150, 251B, 253

Cases: Anderson v State of Western Australia [2002] FCA 1558

Bidjara People 2 v Queensland [2003] FCA 324
Kulkalgal People v Queensland [2002] FCA 163
Mabo v Queensland No 2 (1991-1992) 175 CLR 1
Monkey Mia Dolphin Resort Pty Ltd v Western Australia (2001) 164 FLR 361
Placer (Granny Smith) Pty Ltd and Granny Smith Mines Ltd/Western Australia/ Ron Harrington-Smith & Ors on behalf of the Wongatha people, NNTT WF99/5, Hon C J Sumner, 24 February 2000
Risk v National Native Title Tribunal [2000] FCA 1589
Western Australia v Thomas (1996) 133 FLR 124
Western Australia v Ward [2000] FCA 191; 170 ALR 159

Solicitor for Reg Yarran

& Reg Hayden: Ms Wendy Treasure, South West Aboriginal Land and Sea Council

Representative of Robin Yarran: Mr Jerome Frewen

Representative of the

Grantee Party in WO01/187: Mr Nathan McMahon

Counsel for the

Government party: Mr Griff Ranson, Crown Solicitor’s Office

Representative of the

Government party: Mr Clyde Lannan, Department of Industry and Resources

REASONS FOR DECISION

Background

This preliminary inquiry relates to a number of expedited procedure objection applications purportedly lodged on behalf of the Ballardong People and which have been accepted by the Tribunal pursuant to s 77 of the Native Title Act 1993 (Cth) (‘the Act’/‘NTA’). The objections have been lodged by Robin Yarran on behalf of the Ballardong People as well as by Reg Yarran and Reg Hayden on behalf of the Ballardong People who are represented by the South West Aboriginal Land & Sea Council (‘SWALSC’). Each of these persons is what is commonly referred to as a named applicant on the Ballardong People’s Application for Determination of Native Title (WC97/56) (‘the Ballardong Claim’). For reasons which appear below a more accurate description of their status is persons who jointly comprise the applicant on the claim.
The matters are listed below together with details of the date of lodgement, end of objection notification period (‘closing date’), tenement and grantee party details.

Matters in which Robin Yarran is sole objector

Matter Number	Closing Date	Date Lodged	Grantee Party	Tenement
WO01/187	4-Aug-2001	5-Jul-2001	Hamill Resources Ltd	P77/3341 P77/3342
WO01/206	4-Aug-2001	5-Jul-2001	Red Bluff Nominees Pty Ltd	E77/1064
WO01/230	18-Aug-2001	5-Jul-2001	AWI Administration Services Pty Ltd	E77/1053 - 1056 (incl.)
WO01/244	18-Aug-2001	5-Jul-2001	Golden State Resources Ltd	E77/1038
WO01/245	18-Aug-2001	5-Jul-2001	Graeme Francis Taylor	P77/3333
WO01/259	18-Aug-2001	5-Jul-2001	Image Resources NL	E77/1059
WO01/387	13-Oct-2001	7-Sep-2001	Quadrio Resources Pty Ltd	E70/2394
WO01/388	13-Oct-2001	5-Jul-2001	Quadrio Resources Pty Ltd	E70/2395
WO01/389	13-Oct-2001	5-Jul-2001	Quadrio Resources Pty Ltd	E70/2396
WO01/390	13-Oct-2001	5-Jul-2001	Quadrio Resources Pty Ltd	E70/2397
WO01/397	27-Oct-2001	5-Jul-2001	Vernon Wesley Strange	P77/3353
WO01/398	27-Oct-2001	5-Jul-2001	Red Bluff Nominees Pty Ltd	P77/3354
WO01/418	8-Dec-2001	20-Aug-2001	Sons of Gwalia Ltd	E77/1060
WO01/419	8-Dec-2001	20-Aug-2001	Sons of Gwalia Ltd	E77/1061
WO01/420	8-Dec-2001	20-Aug-2001	Vernon Wesley Strange	P77/3326
WO01/421	8-Dec-2001	20-Aug-2001	Vernon Wesley Strange	P77/3327
WO01/422	8-Dec-2001	20-Aug-2001	Vernon Wesley Strange	P77/3324
WO01/567	19-Jan-2002	24-Sep-2001	Heron Resources Ltd	E77/975
WO01/575	19-Jan-2002	24-Sep-2001	Westdeen Holdings Pty Ltd	P70/1323
WO01/596	17-Feb-2002	6-Nov-2001	Mathew Peter Holliday	P77/3355

Matters in which SWALSC (on behalf of either Reg Hayden or Reg Yarran) and Robin Yarran have both lodged objections

Matter Number - Objection Lodged by Reg Hayden or Reg Yarran	Matter Number – Objection Lodged by Robin Yarran	Closing Date	Date Objection Lodged by Reg Hayden or Reg Yarran	Date Objection Lodged by Robin Yarran	Grantee Party	Tenement
WO03/282	WO03/144	29-May-2003	28-Mar-2003	30-Jan-2003	Image Resources NL	E77/1144
WO03/289	WO03/145	29-May-2003	28-Mar-2003	30-Jan-2003	Vernon Wesley Strange	E77/1145
WO03/290	WO03/156	12-Jun-2003	31-Mar-2003	17-Feb-2003	Axis Consultants Pty Ltd	E77/1051
WO03/291	WO03/156	12-Jun-2003	31-Mar-2003	17-Feb-2003	Axis Consultants Pty Ltd	E77/1052
WO03/292	WO03/155	12-Jun-2003	31-Mar-2003	17-Feb-2003	David Lewis Williams	E77/1045
WO03/293	WO03/148	12-Jun-2003	31-Mar-2003	17-Feb-2003	Newfield Central Pty Ltd	P77/3390
WO03/433	WO03/143	29-May-2003	29-May-2003	30-Jan-2003	Mark Kent	E77/1062
WO03/434	WO03/153	12-Jun-2003	3-Jun-2003	17-Feb-2003	Evanston Resources NL	E77/1034
WO03/435	WO03/152	12-Jun-2003	3-Jun-2003	17-Feb-2003	Heron Resources Ltd	E77/947

The State of Western Australia (‘the Government party’) has given notice under s 29 of the Act of future acts, namely the grant of prospecting and exploration licences to grantee parties as set out in the above tables. The notices included a statement that the Government party considers that the acts are acts attracting the expedited procedure.
The expedited procedure objection applications were lodged with the Tribunal on the dates set out in the above tables variously by Robin Yarran, Reg Yarran and Reg Hayden. The Ballardong Claim was registered by the Tribunal on 10 July 1997 and each of the above prospecting and exploration licences is partially or wholly covered by the claim area.
The following persons are the registered native title claimant for the Ballardong Claim:

Mr Alan Jones, Mr Alec Yarran, Mr Cedric Anderson, Mr Doug Nelson, Mr Reg Hayden, Mr Reg Yarran, Mr Rickie Nelson, Mr Robert Riley, Mr Robin Yarran, Mr Saul Yarran, Mr Tim Riley, Mr William Riley, Ms Dianne Taylor, Ms Winnie McHenry.

Procedural background

The earliest of the above objection matters lodged with the Tribunal on 5 July 2001 is WO01/187. In that matter, I issued Directions on 4 September 2001 and a preliminary conference was held on 19 September 2001. During the course of that matter, the issue of the authorisation of Robin Yarran to lodge objections on behalf of the Ballardong People was first raised before the Tribunal.
By correspondence dated 23 January 2002 from Andy Skreiner, Future Acts Team Leader of the Noongar Land Council (‘NLC’), the Tribunal was advised that the Minister of Aboriginal Affairs, the Hon Phillip Ruddock had recognised SWALSC to be the Native Title Representative Body for the South West of Western Australia under the Act (which included the area of the Ballardong Claim). The letter stated that this meant that SWALSC would take over native title responsibility from the Noongar Land Council (which had previously acted for the Ballardong claimants) effective from 1 February 2002.
A challenge to the authority of Robin Yarran to lodge objections on behalf of the Ballardong People was made by SWALSC at an adjourned listing hearing for matter WO01/187 held on 8 February 2002. At that hearing, I made directions for the Ballardong Claim group to advise whether Robin Yarran was the authorised person to represent the Ballardong Claim group in this matter and if not, on or before 22 February 2002, to provide to the Tribunal and all other parties contentions, supporting documents and affidavits to support its submission. The directions were also applied to other objections where Robin Yarran was the sole objector. Pursuant to those directions, the Tribunal received the submissions and affidavit identified below.
On 6 March 2002, Robin Yarran requested that the scheduled listing of the matter on 8 March 2002 be adjourned until after a meeting of the NLC scheduled for 9 March 2002. That hearing was adjourned to 15 March 2002, during which time the Government party also took instructions in relation to the matter.
The Tribunal received submissions from the Government party on 14 March 2002 in relation to the submissions from SWALSC to strike out the Robin Yarran objections. These submissions noted the mechanism in s 66B of the Act for the removal of a person as an applicant in circumstances where the person is no longer authorised or has exceeded his or her authority to act on behalf of the native title claim group. If this procedure is followed then the person or persons removed cease to be a native title party (ss 30A(2) and 253 NTA) and would have no standing to pursue an objection under s 32(4) of the Act. If Mr Yarran was removed as a named applicant any objection brought by him should be dismissed. The Government party further submitted that the hearing of the Robin Yarran objections should be adjourned to enable the process (foreshadowed by SWALSC) of removing Robin Yarran as an applicant from the claim to be pursued. Removal of Robin Yarran would mean that the question of whether he was authorised to bring objections on behalf of the Ballardong claimants would not need to be dealt with by the Tribunal.
At the adjourned preliminary hearing on 15 March 2002, SWALSC confirmed that it continued to challenge the authority of Robin Yarran to lodge objections. The Government party was prepared to await the outcome of any s 66B application in the Federal Court. Robin Yarran submitted that the Ballardong People were still represented by the NLC. At that hearing, I made further directions for SWALSC, Robin Yarran and the Government party to provide further contentions and documentary evidence in relation to whether Robin Yarran had the authority of the Ballardong Claim group to lodge objections on its behalf. The Tribunal also sought submissions from the grantee parties on their attitude to an adjournment of all matters pending a decision by the Federal Court on the s 66B process to remove Robin Yarran as a named applicant. Pursuant to those directions, the Tribunal received the further submissions and documents identified below.
On 15 April 2002, SWALSC filed in the Federal Court a Notice of Motion which among other things sought to remove Robin Yarran as a named applicant on the Ballardong Claim and replace him with Justin Reece John Kickett. At the adjourned preliminary conference on 12 April 2002, I adjourned the matter until 12 July 2002 pending the outcome of the s 66B application before the Federal Court. The grantee parties did not object to adjournment of the objection inquiries pending a Federal Court decision. The Notice of Motion was listed before His Honour Justice French on 15 April 2002 and 23 April 2002 and set down for hearing on 17 May 2002. The motion was further adjourned on 17 May 2002 to 9 October 2002 and orders made for provision of affidavits in preparation for a hearing and for the question of Robin Yarran’s authority to be referred to the Tribunal for mediation.
At the adjourned preliminary conference before me on 12 July 2002, the matter was further adjourned until 8 November 2002 with the consent of all parties to await the outcome of the Federal Court proceedings.
On 9 October 2002 the s 66B application came before Justice French for further directions. It was adjourned to 10 December 2002 when it was to be heard if a mediation being conducted by a Tribunal Member failed to achieve an outcome. The Tribunal preliminary conference was further adjourned with the consent of all parties to 20 December 2002.
In a judgment handed down on 13 December 2002 (Anderson v State of Western Australia [2002] FCA 1558 (13 December 2002)) Justice French dismissed the s 66B application due to insufficient evidence to support the application, particularly in relation to proof of questions of withdrawal of authorisation, excess of authority and authorisation of the ongoing applicants required in terms of s 251B of the Act. SWALSC conceded that the evidence before the Court was insufficient to justify the orders sought.
At the adjourned Tribunal preliminary conference of 20 December 2002, the SWALSC legal representative advised that a Ballardong Claim group meeting was to be held on 14 February 2003 where the group would consider who they wanted as a representative, and whether Robin Yarran was to be removed from the Ballardong Working Party. With the consent of all parties, I adjourned the matters to 28 February 2003 on the basis that one of the outcomes of the meeting would be a collective view about the status of Robin Yarran to lodge objections on behalf of the Ballardong Claim Group, and if it is decided that he is not authorised, whether SWALSC will withdraw objections that had already been lodged. Further, I proposed that the Tribunal be involved in a s 150 mediation conference to assist the parties.
At the adjourned preliminary conference on 28 February 2003 Ms Treasure, representative from SWALSC, advised that there were issues regarding whether Mr Yarran could lodge objections on behalf of the Ballardong Claim group, and whether SWALSC had authority to withdraw those objections.
On 4 March 2003 Member Bardy McFarlane was appointed as Tribunal Member to preside over a conference convened pursuant to s 150 of the Act to help resolve any matter that is relevant to the inquiry into the expedited procedure objection applications.
On 9 May 2003, a further preliminary conference was conducted. Robin Yarran’s representative did not attend the conference. With the consent of the other parties the matter was further adjourned to 23 June 2003 to monitor the progress of the s 150 mediation. At that time I indicated that if agreement was not reached by that time the matter would proceed to an inquiry.
On 18 June 2003 Member Bardy McFarlane terminated the s 150 mediation as it was apparent that the mediation process was not going to achieve resolution of the issues between the parties.
On 23 June 2003, given that agreement had not been reached during the mediation process and on the basis that SWALSC continued to challenge the authority of Robin Yarran to lodge objection applications, I made directions for the provision of further contentions and evidence on the authorisation issue. At a listing hearing on 4 August 2003, I directed that copies of minutes of Ballardong Working Party and community meetings which were relied on in support of the case against Robin Yarran’s authorisation be provided to the Tribunal and subsequently requested further information from SWALSC about those meetings. This material was made available to other participating parties and Robin Yarran. Final documents were received by 22 August 2003.

Contentions and Documents

The Tribunal has received and where relevant had regard to the following contentions and documents from the parties pursuant to the directions made on 23 June 2003 (as amended), on 4 August 2003 and requests for further information on points raised in these submissions.

Affidavit of Robin John Yarran sworn 30 June 2003 with covering letter dated 30 June 2003.
Statement of Contentions lodged by SWALSC on behalf of Reg Yarran and Reg Hayden for the Ballardong People dated 4 July 2003, together with an affidavit of Winnie May McHenry sworn 1 July 2003 and an affidavit of Reginald Yarran sworn 4 July 2003.
Government Party’s Contentions regarding Dismissal of Objections dated 28 July 2003.
Statement of Contentions and Better Particulars of Robin John Yarran dated 30 July 2003.
Points of Response to Robin Yarran’s Statement of Contentions lodged by SWALSC dated 1 August 2003.
Extracts of Ballardong Working Party and Community Meeting Minutes provided by SWALSC on 4 August 2003.
Government Party’s Further Contentions regarding Dismissal of Objections dated 7 August 2003.
Further points of response to Robin Yarran’s Statement of Contentions and a Tribunal request for clarification lodged by SWALSC dated 12 August 2003.
Two letters providing further clarification in response to Tribunal requests lodged by SWALSC dated 14 August 2003.
Letter from Peter David, Chief Executive Officer, Noongar Land Council received on 21 August 2003.

The Tribunal has also had regard to the following contentions and documents filed by the parties pursuant to the directions made by me on 8 February 2002 and 15 March 2002, namely:

Submissions filed by SWALSC dated 22 February 2002 in Support of Notice of Motion to Strike Out with attached affidavit of Lynette Pauline Lund, Native Title Manager with SWALSC sworn 22 February 2002;
Response by Robin John Yarran to submissions filed by SWALSC contained in correspondence dated 6 March 2002;
Letter from Robin John Yarran to the Tribunal dated 13 March 2002;
Government party’s Submissions regarding Motion to Strike Out dated 14 March 2002;
Affidavit of Lynette Pauline Lund sworn 21 March 2002 for Further Evidence regarding Robin Yarran Strike Out;
Submission of Peter David, Chief Executive Officer of the Noongar Land Council on behalf of the Ballardong Native Title Claimants dated 3 April 2002;
Statement of Contentions of Robin John Yarran dated 5 April 2002; and
Government party’s Further Submissions regarding Motion to Strike Out dated 11 April 2002.

The grantee parties have been kept informed of progress in this preliminary inquiry and invited to make submissions. Generally their position has been to await resolution of this preliminary issue and not to participate in the substance of it. Some have made the point (justifiably in the Tribunal’s opinion) that it is important for them to know who in the claimant group they should be dealing with so that their tenement application can be progressed either through the inquiry process or by negotiating an agreement for withdrawal of the objection. The Tribunal accepts that it is an untenable position for grantee parties to be faced with the prospect of having to negotiate separately with multiple members of a claim group about the objections.

No party has requested that there be a hearing of oral evidence including cross-examination and I have decided that I can proceed on the basis of the documentary evidence currently before the Tribunal.

Summary of contentions

The issue to be decided is whether the expedited procedure objections of Robin Yarran should be dismissed on the basis that the Tribunal is not entitled to deal with them (s 148(a) NTA). That is, whether the Tribunal has jurisdiction (or whether it is within power) to hear and determine an objection when the person making it is not authorised to do so by the claimant group even though that person is one of the named applicants.
The SWALSC contends that Robin Yarran does not simply by being one of the named applicants on the native title claim have authority to lodge objections when this is against the wishes of the other applicants.
Mr Robin Yarran says that he has been so authorised since approximately 2000 and that as an applicant and Ballardong Elder he is entitled to lodge objections and conduct negotiations about agreements for their withdrawal with the grantee parties.
The Government party generally supports the SWALSC’s contention on the question of law and says that whether Robin Yarran has or had authorisation to make objections on behalf of the Ballardong claimants is a purely factual one. It says that it cannot determine the factual issues conclusively on the basis of the contentions and evidence provided and because it is not privy to the internal procedures and structures of the Ballardong claimant group nor SWALSC. According to the Government party the Tribunal must be satisfied that objections, whether lodged by SWALSC or Robin Yarran have been authorized by the native title claim group and if they have not they should be dismissed.

Legal principles

The Tribunal has previously considered the issue before it in these proceedings in the context of whether a person or persons named as part of the applicant for a native title determination are entitled to separate representation in right to negotiate inquiries. In Placer (Granny Smith) Pty Ltd and Granny Smith Mines Ltd/Western Australia/ Ron Harrington-Smith & Ors on behalf of the Wongatha people, NNTT WF99/5, Hon C J Sumner, 24 February 2000 the Tribunal decided that a native title party is not each person named as an applicant on a native title claim. After considering relevant provisions of the Act the Tribunal concluded (at p 11):
‘that it is not open to individuals named as applicants to appear separately in an inquiry into a right to negotiate application and take a position which is contrary to that taken by other named applicants who are acting with the authority of native title claim group.
While individual applicants or members of the claim group can obtain their own legal advice in relation to matters which the group may be considering, resolution of any issues in dispute must be made by the claim group in accordance with its internal procedures. Once an issue has been resolved collectively no member of the claim group is entitled to take a contrary position in the claim application or any right to negotiate proceedings.’
Further, in the case of Monkey Mia Dolphin Resort Pty Ltd v Western Australia (2001) 164 FLR 361, the Tribunal confirmed its decision (at para 20) that:
“a ‘native title party’ is the registered native title claimants acting on behalf of the claim group collectively and not each individual registered native title claimant.”
In both these matters the issue was whether it was appropriate for the Tribunal to make a future act determination with the consent of the parties where some of the persons named as part of the applicant (and registered native title claimant) did not consent. The Tribunal found that where the Tribunal was satisfied that the claim group collectively consented to a determination in accordance with its agreed procedures, then the Tribunal could make a consent determination.
In summary the position at law is as follows.

A native title determination application may be made by a person or persons authorised by all persons in the native title claim group (s 61(1) NTA).
The person or persons so authorised are jointly the applicant (s 61(2)).
An applicant is empowered to deal with all matters arising under the Act in relation to the application (s 62A). This in the Tribunal’s opinion includes dealing with matters which arise under the right to negotiate provisions.
A native title party under the right to negotiate provisions includes a registered native title claimant or a person who becomes one within four months of the s 29 notification day (ss 29(2)(b)(i), 30(1)(a) NTA). A registered native title claimant is a person or persons whose name or names appears on the Register of Native Title claims as ‘the applicant’ (s 253). It follows that a native title party, which is one of three negotiation parties (the others being the Government and grantee parties), with standing to participate in mediations and inquiries under the right to negotiate provisions of the Act is all the persons named on the native title determination application acting jointly. It is a native title party that has standing to lodge an objection with the Tribunal (ss 32(3), 75).
The fact that native title is generally considered to be held communally Mabo v Queensland No 2 (1991-1992) 175 CLR 1 (at 109-110); Risk v National Native Title Tribunal [2000] FCA 1589 (at [30]); Western Australia v Ward [2000] FCA 191; 170 ALR 159 (at [181]) supports the position that a native title party is the person or persons who jointly comprise the applicant and registered native title claimant and not each individual person named as the applicant.

I have considered whether there is any Federal Court authority to the contrary. In Kulkalgal People v Queensland [2002] FCA 163 (23 February 2003) Drummond J found that a dissentient member of the native title claim group was not entitled to become a party to the proceedings pursuant to s 84(5) of the Act. Section 66B was the avenue which should be used by a dissatisfied member of a claim group to replace the applicant. A contrary decision was made in Bidjara People 2 v Queensland [2003] FCA 324 (7 April 2003) by Ryan J. In my view neither of these cases are of assistance in determining the issue before me, which must be resolved not only by reference to the provisions relating to the making of a native title determination but also the specific provisions in the Act governing the right to negotiate. There is no provision for persons other than the three negotiation parties to participate in right to negotiate inquiries and the definition of native title party does not contemplate dissentient members of a claimant group having standing in them.
If my interpretation of the Act is correct it also follows that the failure of a s 66B application to replace a person named as an applicant is not necessarily determinative of the issue before me. Had Robin Yarran been removed as an applicant (or more accurately removed as a person named jointly with others as the applicant) then it would have been clear that Mr Yarran does not have the authority he claims but the converse is not the case. The statutory provisions and evidentiary requirements are not the same. In this matter the Tribunal must consider whether there is sufficient evidence to support a finding that Robin Yarran is or is not authorised to bring objections on behalf of the group, not whether there is evidence to support his replacement as an applicant.
The above interpretation of who is a native title party is also consistent with the purpose of the Act which is not only to provide for the recognition and protection of native title but to provide for future dealings affecting native title to proceed (s 3 NTA). The Tribunal has said that the purpose of the right to negotiate provisions is to strike a balance between the recognition of native title rights and the interests of the broader community; that they were intended to deal with the ongoing grant of mining and petroleum titles; and that certainty for the mining industry is an important factor to be taken into account in their application subject of course to giving effect to native title rights (Western Australia v Thomas (1996) 133 FLR 124 at 149-150). The purpose of the Act and its workability would be severely compromised if each person named as part of the applicant and registered native title claimant could lodge objections and then seek to negotiate separate agreements in relation to them. The Tribunal’s approach to making consent determination in circumstances where one named registered claimant refused to sign a s 31 agreement against the wishes of other registered claimants and the native title claim group would no longer be possible.

Findings in relation to s 251B of the Act

The next issue which arises is the applicability of s 251B of the Act to the issue currently before the Tribunal. This section relevantly deals with processes for authorising of persons to make a native title determination application and to deal with matters arising in relation to it. This can either be by a decision making process in accordance with traditional laws and customs or where there is no such process by a process agreed to and adopted by the native title claim group. If the Tribunal is correct in its view that matters arising in relation to an application include right to negotiate matters then the authorisation requirements in s 251B will govern the procedures adopted by the claimant group to determine who has authority to act in relation to right to negotiate inquiries. Even if s 251B does not apply to right to negotiate matters as they do not strictly ‘relate to the native title determination application’, it is nevertheless appropriate to apply its principles. As a matter of commonsense in a situation where there are traditional laws and customs of a group governing its decision making they should be applied.
My finding in this matter is that there is insufficient evidence to suggest that traditional law and custom operates in relation to making decisions of this kind. There is an assertion by Mr Peter David, CEO of the NLC (letter to the Tribunal dated 3 April 2002) that Saul Yarran is an Elder and custodian and head of his family group who fully supports Robin Yarran as the rightful person to lodge objections on behalf of the Ballardong claimants. Robin Yarran says (Statement of Contentions – 5 April 2002) that the question of objecting to the expedited procedure was discussed at a Ballardong meeting some years ago and that in the absence of anyone else wishing to do so he volunteered to carry out this function on behalf of the group. Although no vote was taken there was no objection to him performing this function and he commenced lodging objections. Robin Yarran then asserts that this was a common method for decisions to be made ‘in the traditional way’. Group members discuss issues amongst themselves but outcomes are not always recorded. Because claim group members live apart and are often busy, claims of this kind are often left to elders who decide on such matters and then advise family members by word of mouth at social or traditional gatherings. Where there is disagreement the matter is brought back to the claimant group for further discussion. I note that Mr Yarran said that referral back to the claimant group did not occur but the evidence (see below) shows that Robin Yarran’s authority to act for the claim group and lodge objections was subsequently discussed at Ballardong Working Party meetings and claim group meetings. In his affidavit of 30 June 2003 Robin Yarran says that he represents the Yarran family as a Traditional Owner and that he rejects the proposal from SWALSC for one combined Noongar claim in the South West. He says that his individual rights as a traditional owner should be recognised by the Tribunal in these proceedings and that to do otherwise would be contrary to the Act.
This evidence falls well short of establishing that there is a traditional decision making process which authorised Robin Yarran to lodge objections either on his own behalf or that of the Ballardong Claim group generally. It amounts to little more than an assertion by him of an authority to lodge objections solely because he is a Traditional Owner and Elder of one family group which constitutes part of the Ballardong claimant group. This authority is contested by other Ballardong claimants who have set up the alternative decision making process described below. Apart from Mr Yarran’s limited assertions there is no evidence of the existence of Aboriginal traditional law and custom or the manner of its operation in making decisions on whether expedited procedure objections can be lodged on behalf of the Ballardong native title claim group.
The issue before me is to be decided by reference to whether there is an agreed and adopted decision making process of the claimant group which has authorised the lodging of objections by Reg Hayden and Reg Yarran but not by Robin Yarran.
The evidence relating to the existence of a non traditional decision making process is contained in the affidavits of Lynette Lund, Reginald Yarran and Winnie McHenry. Ms Lund (affidavit of 22 February 2002) who had acted for the Ballardong claimants for some time asserts that the Ballardong Claim is managed by the agreement of claimants by a working party (‘the Ballardong Working Party’) comprising people who are members of the claimant group and includes some named applicants and others who are not. The Working Party makes decisions on behalf of the group with the concurrence of the named applicants and the group. The evidence of Reginald Yarran and Winnie McHenry (both named applicants) which is in identical terms confirms the existence of the Ballardong Working Party which they have been members of since its commencement in May 1998. Their evidence is not entirely consistent with that of Ms Lund who says that the Ballardong Working Party comprises some named applicants and others whereas Mr Yarran and Ms McHenry assert that all named applicants (except Robin Yarran) are members of it. Despite this discrepancy I am satisfied on the basis of the sworn evidence of these persons and other evidence of its operation that a Ballardong Working Party has been established by the claimant group to manage the native title claims and any related future acts.
According to Reg Yarran and Winnie McHenry the procedure with respect to all proposed future acts is that SWALSC mails to all named applicants information about them and invites comments. Objections to the expedited procedure can only be lodged through applicants. If an applicant wants to lodge an objection, SWALSC is notified with the applicant’s written reasons and then ‘complete the necessary documents’. By this I understand that SWALSC lodge the objections on behalf of the applicant who has requested it. A list of future act applications over the Ballardong area is handed out at each Working Party meeting and can be discussed. Normally, SWALSC will bring matters to the attention of the Working Party. In future act matters other than objections the Working Party give instructions to the SWALSC in relation to them, may seek further information, ask the grantee party to make a presentation or decide about a heritage survey.
The evidence of Ms Lund is (para 14 – affidavit of 21 March 2002) is that the policies of the NLC (then exercising the functions of a Representative Body) changed in early 2001 from an emphasis on future acts to proof of native title. She says:
‘Consequently procedures were adopted by the NLC that in effect meant that not all objection to the expedited procedure applications could be lodged. That is to say that claimants may well have been able to lodge objection applications on their own behalf without assistance from the NLC, however the NLC was limited in respect of those objection applications to which it could provide representation.’
One view of this policy could be that it entitled Robin Yarran as one of the claimants to lodge objections without assistance from the NLC (or later SWALSC). The evidence of Reg Yarran and Winnie McHenry is that a named applicant can request SWALSC to lodge an objection which they will do, but there is no authority for individual named applicants to lodge objections on their own behalf without reference to SWALSC. SWALSC admits that at some point Robin Yarran did have authority to lodge objections (which would be consistent with the policy outlined by Ms Lund) but that subsequently this authority was withdrawn. They contend that the decision making procedure deposed to by Reg Yarran and Winnie McHenry is now applicable and Robin Yarran lodges objections without following it.
Further, Reg Yarran and Winnie McHenry say that the applicants on the Ballardong Claim and Working Party members have said that Robin Yarran is not authorised to speak for them on future act matters. They say this is verified from the minutes of various meetings. The minutes of meetings referred to which are relied on by SWALSC, are as follows.
Working Party Meeting – York – 17 October 2001: The minutes record that 12 members of the Working Party were present (including Robin Yarran who was shown at that time as being a member of the Working Party) along with 8 visitors (some at least of which I can infer from their names were members of the claim group) and NLC staff. The refusal of Mr Robin Yarran to sign three State Deeds (i.e. s 31(1)(b) NTA agreements signed by all three negotiation parties) was discussed. Two of the Deeds were for prospecting licences for which the Working Party had instructed that objections were not to be lodged. The issue of ‘people frustrating the business of the Working Party by refraining from signing documents’ was discussed in the absence of NLC staff and visitors. A motion was carried by majority instructing the NLC to arrange a claimants meeting to remove Robin Yarran as an applicant. The minutes record that Mr Robin Yarran and two others were not in the room for the vote.
Ballardong Community Meeting – York – 15 November 2001: This was the meeting the resolutions of which were initially relied upon by SWALSC in their s 66B application to the Federal Court to remove Robin Yarran as a named applicant. The full text of the resolutions are set out in Anderson [at 12]. Notice of the meeting was given in the ‘West Australian’ newspaper but French J [at 11] regarded it as doubtful whether the notice which appeared among classified advertisements relating to creditor meetings and the like had any real prospect of coming to the notice of those who might need to know about the meeting. I also note that the advertisement was inserted on 12 November 2001 only three days before the meeting. Obviously, as French J observed, this is an unsatisfactory way to give public notice of a meeting of this kind. Nevertheless, the meeting was attended, according to the minutes, by 22 members of the claimant group including Robin Yarran (with six apologies) and NLC staff. The first resolution was that the Ballardong Claim group should apply to the Federal Court for the replacement under s 66B of the NTA of Robin Yarran on the grounds that he was not longer authorised to make the claimant applicant and deal with matters arising in relation to it and had exceeded his authority in relation to it. This motion was carried by 15 votes to three with two abstentions. There were other consequential resolutions.
Ballardong Applicants Meeting – Northam – 12 March 2002: The minutes record that nine of the 14 named applicants (but not Robin Yarran) as well as Justin Kickett (a Working Party member) were present with one visitor (not a member of the claimant group) for part of the meeting and what were recorded as ‘NLC staff’. In some of Robin Yarran’s contentions and those made on his behalf by Peter David, there is a complaint that those persons were not there on behalf of the NLC. By this time the NLC was not exercising the functions of the Representative Body but still claimed to represent the Ballardong claimants. I do not regard this error as of any significance. The persons shown attending as NLC staff were the persons previously employed by the NLC but now employed by the newly designated Representative Body SWALSC. The minutes record that the applicants’ instruction was for SWALSC to proceed with opposition to all of the objections lodged by Robin Yarran because they do not consider him to have the right to represent the Ballardong Claim or speak for Ballardong country.

Working Party Meeting – Castle Hotel, York – 8 August 2002: The minutes record that 12 members of the Working Party (or their proxies) were present as well as SWALSC staff. There were four apologies. Robin Yarran was not present but Saul Yarran (who Robin Yarran asserts was an Elder in his family group) was present. According to the minutes the following motions were put (and I infer were passed although the minutes do not expressly say so):
‘After some discussion about representation of the Ballardong Native Title Claimants it was moved by XXXXX XXX, and seconded by XXXXX XXX “That the Ballardong native title working party instructs SWALSC to represent them in all proceedings relating to the advancement of their native title application namely:
1.     Future Act matters unless specifically instructed by the working party not to act on a specific matter;
2.     Mediation proceedings to advance native title unless specifically instructed by the working party not to act on a specific matter;
3.     Court proceedings to advance native title unless specifically instructed by the working party not to act on a specific matter.
It was also moved by XXXXX XXX, and seconded by XXXXX XXX “That neither the Noongar Land Council nor Peter David and/or Jerome Frewen represent the Ballardong native title working party in any native title related matters namely:
1.     Future Acts
2.     Mediation proceedings relating to native title; and
3.     Court proceedings relating to native title.’

There is no record of the actual votes.

Ballardong Community Meeting – Quairading – 6 May 2003: The minutes record:
‘Ms Wendy Treasure advised that the NNTT had convened a s150 conference to mediate the differences that have arisen between the Ballardong claimants and Mr Robin Yarran over the lodgement of objections by Mr Yarran.
Ms Treasure reported that Mr Yarran’s representative advised that Mr Yarran might be prepared to withdraw his objections on two grounds;
1)    That Mr Yarran and his family be recognised in any distribution policy and
2)    Mr Yarran be included in the heritage survey’s.
It was conveyed to the meeting that SWALSC’s initial response to the first point is that as Mr Yarran and his family are part of the Ballardong community he and his family already have rights to be recognized and included in any distribution policy.
Ms Treasure furthered that in relation to heritage surveys it was necessary that Mr Yarran identify the areas that he speaks for so that it can be taken back to the community for discussion.
Mr Yarran was reported as;
Ø not wanting to identify country for which he spoke and
Ø suggesting that a Heritage Advisory Committee be established which would have the role of sorting out issues relating to the Heritage Surveys.
The community discussed the proposals and advised that Ms Treasure convey to the next mediation conference the following response;
1)    that while Mr Yarran is a member of the Ballardong community they don’t support him lodging objections on their behalf without proper consultation.
2)    that Mr Yarran could be part of any regional working party that is to be established provided he was nominated by the family as a representative.’
The public notice of this meeting headed ‘A Single Noongar Claim’ placed in the ‘West Australian’, ‘Sunday Times’ and three regional newspapers advised that this meeting (and other meetings of various individual claimant groups in different locations) was for them to find out more about the next phase of the proposal for a single Noongar Claim in the south-west of Western Australia. The notice did not refer to the Robin Yarran authorisation issue. An Agenda distributed at the meeting identified ‘Why have a working party? Differences between Named applicants, Working party members, and Claimants’; and ‘Roles and responsibilities of Named applicants and Working party members’ as issues for discussion but there was no specific reference to the Robin Yarran authorisation issue. According to Ms Wendy Treasure, Legal Officer employed by SWALSC the Robin Yarran authorisation issue was relevant to these Agenda items and it was appropriate to raise it at the meeting. It was also an efficient use of limited resources rather than wait several weeks to organise another meeting.
Ms Treasure also says that the meeting was called in accordance with normal practice for calling of community meetings by SWALSC. In addition to the public advertisement, members of SWALSC, the Ballardong Working Party and named applicants received notice by mail. According to Ms Treasure Robin Yarran was not sent a notice of the meeting by mail as he is not a member of the Ballardong Working Party, nor a member of SWALSC although I note that he was a named applicant which in normal circumstances I would expect should entitle him to receive notices of meetings. Ms Treasure has provided copies of correspondence between Jerome Frewen representing Robin Yarran, the Tribunal and herself which makes it clear that at least Mr Frewen was aware that there would be discussions with the Ballardong Claim group on 6 May 2003 in an attempt to resolve issues relating to Robin Yarran’s authorisation. Ms Treasure also said that all 30 attendees at the meeting were members of the Ballardong Claim group of which two were named applicants. SWALSC declined to provide a list of attendees on the basis that the list was confidential unless release was authorised by the attendees.
Reg Hayden and Winnie McHenry also provided evidence about this community meeting which is consistent with the minutes. With respect to the question of Robin Yarran’s authorisation to lodge objections, each of their affidavits says:
‘21.The meeting agreed that Robin Yarran and his family will always be members of the Ballardong community, but that Robin was not to speak for everyone else.
22.The community discussed the proposals and advised Ms Treasure to inform the National Native Title Tribunal of the following response:
a)     while Robin Yarran is a member of the Ballardong community, we do not support him lodging objections on our behalf without proper consultation within the community;
b)     Robin Yarran can be a part of any regional working party that is to be established under the new Single Noongar Claim provided he is nominated by the family as a representative. The working party is responsible for making decisions in relation to heritage and future act matters;
c)     concern was expressed that Robin Yarran’s actions are delaying agreements being negotiated and entered into; and that
d)     although Robin Yarran is a part of the Ballardong community, the community deals with future act matters in accordance with a process agreed by the community and in accordance with traditional laws and customs. In some instances there are people older than Robin Yarran who need to be spoken to first about land.
23.I do not consider that Robin Yarran has any authority to lodge objections or enter into agreements on behalf of the Ballardong People. He has not discussed the exploration licences or the lodging of objections or the signing of agreements with the Ballardong People including me and my family.
24.The objections that Robin Yarran has lodged should be dismissed, leaving only those objections actually authorised by the Ballardong community, as represented by the Working Party, and lodged by SWALSC.’

Findings

The first issue to be considered is whether SWALSC and the lawyers employed by it have been instructed by the Ballardong Claim group in relation to their claim and matters arising from it. Robin Yarran’s evidence is that the NLC are still acting for the Ballardong People but there is little else to suggest that this is the case. The evidence establishes that prior to the designation of SWALSC as the Native Title Representative Body, the NLC lawyers acted for the Ballardong Claim group and that from 1 February 2002 SWALSC performed that role. It is apparent that not everyone within the Ballardong Claim group was happy with the designation of SWALSC as the Representative Body. Nevertheless, the evidence shows that since that time solicitors from SWALSC have attended various meetings, acted for Reg Hayden and Reg Yarran in lodging objections and filed contentions and evidence on this preliminary issue without objection from persons in the Ballardong Claim group except Robin Yarran and those associated with him. As legal practitioners these persons could not act for the claimants if they were not satisfied that they were instructed to do so. I also consider that they could not act for the Ballardong Claim group unless satisfied that their instructions were authorized by the claim group. At the meeting on 8 August 2002 the Working Party specifically confirmed these instructions which can also be inferred from the actions taken by SWALSC lawyers since it became the Representative Body.
Based on the evidence set out above, I am satisfied that Robin Yarran is not now authorised by the Ballardong Claim group to lodge objections to the expedited procedure and that any previous authorisation he had to lodge and deal with objections has been withdrawn. I am also satisfied that Reg Hayden and Reg Yarran are so authorised. There is affidavit evidence from Reg Hayden and Winnie McHenry which at least by inference supports a finding that these persons are authorized by other applicants and the claim group to lodge objections. Both of them say that they are applicants on the Ballardong claim and members of the Ballardong Working Party. As such they represent their extended family and the Ballardong People in discussions on future acts and make decisions with other Working Party members. There is nothing in the evidence of the various meetings to suggest that Reg Hayden and Reg Yarran are not authorised to lodge objections as would almost certainly be the case if the Working Party had not authorised them.
While there are some discrepancies in the evidence and I consider that it would have been preferable for SWALSC to have dealt with the issue in a more orderly fashion by convening a claim group meeting specifically to deal with it I am satisfied that the weight of the evidence overall clearly establishes that Robin Yarran does not have authority to lodge nor continue to prosecute the objections he has already lodged. There have been a series of meetings of the Working Party, of named applicants and the claim group community all of which confirm Robin Yarran’s lack of authorisation. There is also the sworn evidence of two named applicants which explicitly refutes Robin Yarran’s claimed authorisation.
Much of the other evidence provided by or on behalf of Robin Yarran is not directly relevant to the issue. There is obviously a dispute within the Ballardong Claim group over a number of matters. In particular Robin Yarran and others object to the recognition, by the Minister, of SWALSC as the Native Title Representative Body under the Act instead of the NLC and consider that the NLC still represent the Ballardong claimants in native title matters and more recently and in evidence has expressed opposition to the proposal for a single Noongar Claim. While acknowledging these differences of opinion, I do not regard them as contradicting the weight of other evidence which points to Robin Yarran’s lack of authorisation to lodge objections to the expedited procedure.
These findings mean that the objections specified in the above tables lodged by Robin Yarran should be dismissed under s 148(a) of the Act. Further, it is likely that the Tribunal will dismiss any future objections lodged by Robin Yarran, unless accompanied by satisfactory evidence that he is properly authorised by the Ballardong Claim group to make the objections.

Decision

The expedited procedure objection application Nos WO01/187, WO01/206, WO01/230, WO01/244, WO01/245, WO01/259, WO01/387, WO01/388, WO01/389, WO01/390, WOO1/397, WO01/398, WO01/418, WO01/419, WO01/420, WO01/421, WO01/422, WO01/567, WO01/575, WO01/596, WO03/143, WO03/144, WO03/145, WO03/148, WO03/152, WO03/153, WO03/155, WO03/156 are dismissed pursuant to s 148(a) of the Native Title Act

Hon C J Sumner
Deputy President

11 September 2003