Taylor v Yamatji Marlpa Barna Baba Maaja Aboriginal Corporation

[2004] FCA 1010

FEDERAL COURT OF AUSTRALIA

Taylor v Yamatji Marlpa Barna Baba Maaja Aboriginal Corporation [2004] FCA 1010

NATIVE TITLE – application for interlocutory relief – whether serious question to be tried – obligations of representative body under ss 203BC and 203BI of the Native Title Act 1993 (Cth)

Native Title Act 1993 (Cth) ss 61B, 203BC, 203BI, 224, 253

JOHNSON TAYLOR & ORS v YAMATJI MARLPA BARNA BABA MAAJA ABORIGINAL CORPORATION
W267 OF 2004

LEE J
26 NOVEMBER 2004
PERTH

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	W267 OF 2004

BETWEEN:

JOHNSON TAYLOR
FIRST APPLICANT

JOE TAYLOR
SECOND APPLICANT

EDWARD MCPHEE
THIRD APPLICANT

AND:

YAMATJI MARLPA BARNA BABA MAAJA ABORIGINAL CORPORATION
RESPONDENT

JUDGE:

LEE J

DATE OF ORDER:

26 NOVEMBER 2004

WHERE MADE:

PERTH

THE COURT ORDERS THAT:

1.The application be amended by amending the name of the respondent to Yamatji Marlpa Barna Baba Maaja Aboriginal Corporation.

2.The time for service of the applicants’ notice of motion filed 26 November 2004 be abridged.

3.Service of the motion be effected by service on the Perth office of the respondent.

4.The respondent by its officers, employees or agents be restrained from providing representation or any other assistance to the Njamal native title claim group by the convening of a meeting of the group for the purpose of execution and/or implementation of any proposed agreement between Consolidated Minerals Limited (ACN 000 727 926) and the group, and be restrained from continuing to represent the group by advising the group that it may hold such meeting to propose, consider and pass resolutions for execution and/or implementation of any proposed agreement between Consolidated Minerals Limited (ACN 000 727 926) and the group conformably with the traditional laws and customs of the group.

5.The respondent is to notify the Njamal native title claim group of the above order.

6.The respondent has liberty to apply on short notice to remove the restraint.

7.        The costs of the motion be reserved.

Note:   Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	W267 OF 2004

BETWEEN:

JOHNSON TAYLOR
FIRST APPLICANT

JOE TAYLOR
SECOND APPLICANT

EDWARD MCPHEE
THIRD APPLICANT

AND:

YAMATJI MARLPA BARNA BABA MAAJA ABORIGINAL CORPORATION
RESPONDENT

JUDGE:	LEE J
DATE:	26 NOVEMBER 2004
PLACE:	PERTH

REASONS FOR JUDGMENT

LEE J:

1. This is a motion for an interlocutory injunction brought on an urgent basis and heard on the day the motion was filed, 26 November 2004.

2. The relevant facts may be stated in short form as follows.

3. The applicants are members of the Njamal native title claim group (“the claim group”) described in an application (“the native title claim”) made under s 61 of the Native Title Act 1993 (Cth) (“the Act”) on behalf of the claim group for a determination of native title in relation to an area of land (“the claim area”) in the Pilbara region of Western Australia.

4. The first and third applicants are two of the persons authorised by the claim group (“registered native title claimants”) to make the native title claim on behalf of the claim group as required by s 61 of the Act.

5. Part of the claim area includes a mine (“the Woodie Woodie mine”) where ore is extracted for the production of manganese.  The applicants claim a superior right under the traditional laws acknowledged and the traditional customs observed by the claim group to “speak for” that part of the claim area on which the Woodie Woodie mine is situated. 

6. The respondent is a representative body under s 253 of the Act and provides legal representation for the claim group in the native title claim.

7. In about 1999 the respondent was instructed by the claim group to assist it in the conduct of negotiations with the operator of the Woodie Woodie mine, Consolidated Minerals Ltd (“CML”), about the future operation of the mine-site.  The matters negotiated included the right of CML to continue mining at the Woodie Woodie mine; the grant of future mining leases to CML; undertakings by the claim group not to object to the grant to CML of future exploration and prospecting tenements; the conduct as soon as reasonably possible of heritage surveys in and about the mining area; and the provision of compensation to the claim group for the effect of mining on native title rights and interests.

8. On 15 June 2004, at a community meeting of the claim group, it was agreed that the respondent “liaise” with CML to prepare an agreement for execution by the registered native title claimants recording the outcome of the negotiations with CML.  The first applicant was present at that meeting.  It does not appear that the second applicant or third applicant attended the meeting. 

9. Another community meeting of the claim group has been arranged by the respondent to be held on 30 November 2004 at which it is anticipated that the claim group will consider the agreement prepared after the community meeting held on 15 June 2004 and will direct the registered native title claimants to sign the agreement. 

10. In affidavits filed in support of the motion, the applicants deposed that under the traditional laws and customs of the claim group the applicants have the right to control the use of the area on which the Woodie Woodie mine is situated.  That is to say, the applicants assert that the traditional laws acknowledged and the traditional customs observed by the claim group provide that the applicants are the members of the claim group who have the sole right to “speak for” the use of that part of the claim area that includes the Woodie Woodie mine. 

11. The applicants contend that the respondent has not advised the claim group that the consent of the applicants to enter into an agreement with CML must be obtained in accordance with the decision-making process that applies in respect of that area under the traditional laws and customs of the claim group, and, therefore, has failed to carry out its “facilitation and assistance functions” under s 203BC(1) of the Act by permitting the claim group to use a decision-making process with respect to the proposed agreement with CML that is not consistent with that provided by the traditional laws and customs of the claim group.

12. Pending determination of the substantive application brought by the applicants for judicial review of the decision of the respondent that it is satisfied that the consent of the applicants to the respondent so acting, has been given as required by s 203BC(2) of the Act, the applicants seek, inter alia, an interlocutory injunction restraining the respondent from representing or providing assistance to the claim group by advising the claim group that a meeting of the claim group may direct the registered native title claimants to execute the proposed agreement with CML. 

13. Section 203B of the Act states that the respondent as a representative body has, inter alia, the following functions: – the “facilitation and assistance functions referred to in s 203BB”; and the “internal review functions referred to in s 203BI.”

14. The relevant sections of the Act in that regard read as follows:

    ‘S.203BB(1):  The facilitation and assistance functions of a representative body are:

    (a)to research and prepare native title applications, and to facilitate research into, preparation of and making of native title applications; and

    (b)to assist registered native title bodies corporate, native title holders and persons who may hold native title (including by representing them or facilitating their representation) in consultations, mediations, negotiations and proceedings relating to the following:

    (i)     native title applications;

    (ii)     future acts;

    (iii)    indigenous land use agreements or other agreements in relation to native title;

    (iv)    rights of access conferred under this Act or otherwise;

    (v)     any other matters relating to native title or to the operation of this Act.

    ...

    (2)A representative body must not perform its facilitation and assistance functions in relation to a particular matter unless it is requested to do so.

    ...

    (3)A representative body can only perform its facilitation and assistance functions in relation to a matter that relates to land or waters:

    (a)that are wholly within the area for which the body is the representative body; or

    (b)that are partly within that area.

    If paragraph (b) applies, the body must not perform the functions for the part of the land or waters that is outside that area except in accordance with section 203BD. 

    ...

    (4)If: 

    (a)a registered native title body corporate or a person who holds or may hold native title requests that a representative body represent the body or the person (the new body or person) in relation to a particular matter that relates to particular land or waters; and

    (b)the representative body is already representing another body or person (the original body or person) in relation to one or more other matters that relate wholly or partly to that land or those waters;

    the representative body must not represent the new body or person unless the representative has obtained consent, from the original body or person, for the representative body also to represent the new body or person to the extent that the other matters relate to the land or waters. 

    ...

    (5)Subsection (4) does not prevent a representative body from facilitating the representation of a body or person, in relation to a particular matter, by entering into an arrangement with another person under which the other person represents the body or person in relation to that matter.

    ...

    (6)In this section and section 203BC:

    matter means a native title application, or a consultation, mediation, negotiation or proceeding of a kind referred to in paragraph (1)(b).

    S.203BC (1)In performing its facilitation and assistance functions in relation to any matter, a representative body must: 

    (a)consult with, and have regard to the interests of, any registered native title bodies corporate, native title holders or persons who may hold native title who are affected by the matter; and

    (b)if the matter involves the representative body representing such bodies corporate, native title holders or persons-be satisfied they understand and consent to any general course of action that the representative body takes on their behalf in relation to the matter.

    (2)   For the purpose of paragraph 1(b), a native title holder or a person who may hold native title is taken to have consented to action if:

    (a)where there is a process of decision-making that, under the traditional laws and customs of the group to which he or she belongs, must be complied with in relation to giving consent of that kind-the consent was given in accordance with that process; or

    (b)where there is no such process of decision-making-the consent was given in accordance with a process of decision-making agreed to and adopted by the members of the group to which he or she belongs in relation to giving the consent or giving consent of that kind.

    (3)   In performing its facilitation and assistance function in relation to an application under section 61 in relation to land or waters wholly or partly within the area for which the body is the representative body, the representative body must:

    (a)act in a way that promotes an orderly, efficient and cost-effective process for making such applications; and

    (b)if the land or waters covered by the application are wholly or partly covered by one or more applications (including proposed applications) of which the representative body is aware–make all reasonable efforts to minimise the number of applications covering the land or waters.

    ...

    S.203BI:The internal review functions of a representative body are:

    (a)to provide a process for registered native title bodies corporate, native title holders and persons who may hold native title to seek review by the representative body of its decisions and actions, made or taken in the performance of its functions or the exercise of its powers, that affect them; and

    (b)to publicise that process appropriately.’

15. Section 224 of the Act defines a “native title holder” as follows:

    ‘The expression native title holder, in relation to native title, means:

    (a)if a prescribed body corporate is registered on the National Native Title Register as holding the native title rights and interests on trust-the prescribed body corporate; or

    (b)in any other case-the person or persons who hold the native title.’

16. On the material presented to the Court I am satisfied that there is a serious issue to be tried that the respondent has failed to carry out the “facilitation and assistance functions” required of it by the Act. The material presented by the applicants presents an arguable case that the respondent has failed to consult with, and has not given regard to the interests of, persons who may hold native title who are affected by the matter on which the respondent has provided assistance to the claim group by representing them in negotiations in respect of the proposed agreement with the CML and that it has failed to properly advise the claim group that if it proceeded to enter into an agreement with CML with respect to the Woodie Woodie mine area without obtaining the consent of the applicants as members of the claim group authorised by the traditional laws and customs of the claim group to “speak for” that area.

17. I am also satisfied that it is seriously arguable that the respondent has failed to carry out the “internal review functions” imposed on the respondent by ss 203B(1)(f), 203BI of the Act.

18. The material before the court shows that requests by the applicants that the respondent commence an internal review of the decision to advise and represent the claim group in the foregoing manner has not been acted upon and no internal review process has been commenced in response to those requests.  The material suggests that the respondent may not have in place, nor have publicised, an appropriate process that enables the applicants as persons who may hold native title to seek review by the respondent of its decisions or actions made or taken in performance of functions that affect the applicants.

19. As to the balance of convenience, I am satisfied on the material presented to date that a potential result of the conduct of the meeting and of the recommendations to be put to the meeting on the advice of the respondent will be an irreversible circumstance under the Act for which the applicants could not obtain redress if they succeeded in their substantive application.

20. For those reasons I will restrain the respondent from providing representation or assistance to the claim group by convening the proposed meeting of the claim group on 30 November 2004 and by advising the claim group that it may hold such a meeting and engage in a decision-making process at that meeting in a manner that may not be in conformity with the traditional laws and customs of the claim group.  There will be liberty to the respondent to apply at short notice to remove the foregoing restraint and costs will be reserved.

I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lee.

Associate:

Dated:   26 May 2005

Counsel for the Applicant:	P A Scheiner
Solicitor for the Applicant:	Christensen Vaughan
Counsel for the Respondent:	Z Davison
Solicitor for the Respondent:	David Ritter
Date of Hearing:	26 November 2004
Date of Judgment:	26 November 2004