TJ v Western Australia

Case [2015] FCA 818

FEDERAL COURT OF AUSTRALIA

TJ (on behalf of the Yindjibarndi People) v State of Western Australia

[2015] FCA 818

Citation: TJ (on behalf of the Yindjibarndi People) v State of Western Australia [2015] FCA 818
Parties: TJ (ON BEHALF OF THE YINDJIBARNDI PEOPLE) AND OTHERS (AS PER THE SCHEDULE) v STATE OF WESTERN AUSTRALIA AND OTHERS (AS PER THE SCHEDULE)
File number: WAD 6005 of 2003
Judge: RARES J
Date of judgment: 21 July 2015
Catchwords:

NATIVE TITLE – requirements for valid notice of meeting – whether notice of meeting issued sufficient to enable persons to decide whether to attend and or vote on resolutions for authorisation – where notice of meeting capable of misleading persons in relation to business of meeting – where full text of proposed resolutions not included in notice – where sufficient explanation of purpose of meeting not provided – where notice of proposed authorisation process failed to adequately inform persons in claim group about the business to be voted on – persons entitled to vote not properly identified in notice of meeting – where approximately half of members of claim group were not sent notice of meeting

NATIVE TITLE – whether authorisation process complied with the requirements of s 251B Native Title Act 1993 (Cth) – application to replace applicant in native title claim under s 66B– whether members of claim group effectively authorised proposed replacement applicant to make application and to deal with matters arising in relation to it under ss 66B(1)(b) and 251B – consideration of purported authorisation process – whether voting process sufficient to satisfy requirements in ss 66B and 251B for authorisation where claim group effectively prevented from voting – where authorisation had appearance of rewarding persons associated with proposed replacement applicant with valuable shopping vouchers – where role played by third party in supporting and organising meeting not revealed to claim group and such information may have influenced outcome – whether Court should exercise discretion in s 66B(2) to replace current applicant

Legislation: Native Title Act 1993 (Cth)
Cases cited: Australian Electoral Commission v Johnston (2014) 251 CLR 463
Boltonon behalf of the Southern Noongar Families v State of Western Australia [2004] FCA 760
Chanter v Blackwood (1904) 1 CLR 39
Daniel v Western Australia (2002) 194 ALR 278
Moses v Western Australia (2007) 160 FCR 148
Noble v Mundraby [2005] FCAFC 212
Weribone on behalf of the Mandandanji People v State of Queensland [2013] FCA 255
Western Australia v Fazeldean (2013) 211 FCR 150
Woodward v Sarsons (1875) LR 10 CP 733
Date of hearing: 20, 21 July 2015
Place: Perth
Division: GENERAL DIVISION
Category: Catchwords
Number of paragraphs: 125
Counsel for the Applicant: Mr V Hughston SC with Ms T Jowett
Solicitor for the Applicant: Yindjibarndi Aboriginal Corporation
Counsel for the Proposed Replacement Applicant: Mr K Pettit SC
Solicitor for the Proposed Replacement Applicant: Integra Legal
Counsel for the First Respondent: Mr M Pudovskis
Solicitor for the First Respondent: State Solicitors’ Office
Counsel for Hancock Respondents: Mr…

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AGLC
TJ v Western Australia [2015] FCA 818
Case
[2015] FCA 818
Decision Date

CaseChat Overview and Summary

The matter before the Court involved a dispute between two groups of claimants in a native title claim over land in north-west Western Australia. The current applicant sought to determine whether the Adams applicant, who claimed to have been authorised by the Yindjibarndi #1 native title claim group to replace the current applicant, had validly authorised such a replacement. The legal issues before the Court were whether the procedure used by the Adams applicant to organise the voting complied with the requirements of the Native Title Act 1993, whether the notice of meeting issued by the Adams applicant was sufficient, and whether the Court should exercise its discretion to replace the current applicant. The Court found that the procedure used by the Adams applicant did not comply with the requirements of the Act, as the notice and resolutions did not identify the persons who comprised the Yindjibarndi #1 native title claim group, and about 450 known members of the 870-member claim group were not sent a copy of the notice. The Court also found that the notice of meeting was insufficient as it did not enable persons to decide whether to attend and vote on the resolutions. The Court held that the Adams applicant had not established that the Court should exercise its discretion to replace the current applicant. The interlocutory application filed on 3 July 2015 was dismissed.

Orders

Orders of the court

1. The interlocutory application filed on 3 July 2015 be dismissed.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

The final hearing of the claim to that determination has been fixed for an 8 day hearing on country in north-west Western Australia, commencing on 7 September 2015, with further hearings to be held at later dates to deal with anthropological expert evidence and final submissions.Background The Adams applicant relied on what it contended was its authorisation by a secret ballot on 23 June 2015 to replace the current applicant. That secret ballot also authorised and directed it, in resolution 5, to “consent to a determination of native title like the Ngarluma Yindjibarndi determination (WCD 2005/001)”, being a reference to the determination made by the Full Court in Moses v Western Australia (2007) 160 FCR 148. That determination, made after a contested trial and appeal, recognised that a differently constituted, but related, claim group of Yindjibarndi people had only non-exclusive native title rights and interests in neighbouring land and waters to those in issue in these proceedings. I will explain those matters in more detail shortly. Both the State and FMG have pleaded contentions in these proceedings that they accept that the Yindjibarndi people have non-exclusive native title rights and interests over the claimed area. The State, FMG and other respondents do not consent to the final relief sought by the current applicant for a determination that includes recognition of significant exclusive native title rights and interests. If the Adams applicant followed the direction in resolution 5, it would consent to a determination that, in substance, reflected the pleaded position of the State and FMG and so would have similar characteristics to that in Moses 160 FCR 148. Thus, the consequence of the secret ballot resolutions, if valid, will be to make the September 2015 and subsequent hearings otiose. It follows that it is necessary for me urgently to decide the issue of whether the Adams applicant is entitled to an order under s 66B(2) so that all of the persons affected can have some certainty as to their positions, including whether the September 2015 hearing will proceed. Because of the speed with which the interlocutory application has been conducted, the Adams applicant and the current applicant led affidavit and supplementary oral evidence, and cross-examined a number of the witnesses. One member of the Adams applicant, Ms Diana Smith, did not file an affidavit in relation to this interlocutory application, but there is no suggestion that she is unwilling or unable to act as a member of the Adams applicant if it replaces the current applicant. She apparently has had a health matter that has prevented her from making such an affidavit, but it is not necessary to consider this issue further for present purposes.The issues The central issues that need to be resolved are:(1)did the procedure that the Adams applicant used to organise the voting that occurred on 23 June 2015 amount to a process that complied with the requirements of s 251B of the Act (the process issue)?(2)was the notice of meeting issued by the Adams applicant sufficient, and did it enable persons to whom it was addressed to judge for themselves whether to attend and or vote for or against any proposed resolution, or whether to leave the matter to be determined by the majority who would attend and vote on it (the notice issue)?(3)has the Adams applicant established that the Court should exercise its discretion to make an order under s 66B(2) of the Act, that it replace the current applicant (the discretion issue)?The statutory context

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

The newsletter repeated on its first page the summary of the resolutions in the notice, but the voting instruction sheets actually set out the full text of the proposed resolutions for the first time. Relevantly, the full text of resolutions 1, 2, 3, 4 and 5 is as follows:1. How decisions about the resolutions are to be madeI agree and adopt a decision making process for making decisions about these resolutions, which is that Yindjibarndi People who are eligible to vote on each resolution can mark on a ballot paper whether they vote ‘yes’ or ‘no’ to each resolution. Voting will be open between 10.00am and 3.00pm on 23 June 2015 in Roebourne, Carnarvon and Perth. Each resolution will be passed if a simple majority of the votes cast in relation to the resolution vote ‘yes’.2.Replacing the Yindjibarndi#1 claim applicantIn accordance with section 66B of the Native Title Act 1993 (Cth):(a)the current applicant [TJ-name withheld for cultural reasons], Stanley Warrie, Joyce Hubert, Pansy Sambo, Jean Norman, Esther Pat, Judith Coppin and Maisie Injie (current applicant) is no longer authorised by the Yindjibarndi # 1 (WAD 6005/03) claim group to make the application and to deal with matters arising in relation to it; and(b)Ken Sandy, Rodney Adams, Francis Phillips, Allery Sandy, Diana Smith, Sylvia Allen and Maudie Jerrold (replacement applicant) are authorised by the Yindjibarndi # 1 (WAD 6005/03) claim group to make the application and to deal with matters arising in relation to it.3. Applicants remain authorised if one or more unable to continueIn the event that a member of the replacement applicant passes away or is unable or unwilling to remain a member of the applicant or in the event that any member of the replacement applicant is no longer authorised to make the Yindjibarndi#1 application and to deal with matters in relation to it, the remaining members of the replacement applicant remain authorised to make the Yindjibarndi#1 (WAD 6005/03) application and to deal with matters in relation to it.4. Revoking previous conditionsThe conditions to which the authorisation of the current applicant (on 24 March 2012) was subject, including the appointment of Yindjibarndi Aboriginal Corporation RNTC as the agent of the applicants, do not apply to the replacement applicant.5. 66B order and consent determination of Yindjibarndi#1 claimThe replacement applicant is authorised and directed by the Yindjbarndi#1 native title claim group to:(a)apply to the Federal Court under section 66B of the Native Title Act 1993 (Cth) to replace the current applicant as soon as practicable; and (b)consent to a determination of native title like the Ngarluma Yindjibarndi determination (WCD2005/001), but with such modifications as are necessary because of the different tenure history and ‘other interests’ in the Yindjibarndi#1 claim area and such other minor modifications as the replacement applicant considers appropriate. Notably, resolution 2(a) did not include the last four names of the members of the current applicant, whom I identified at [1] above.

Ratio Decidendi

Legal Principle Established

I agree with what French J said in Daniel v Western Australia (2002) 194 ALR 278 at 283 [11], namely:It is of central importance to the conduct of native title determination applications and the exercise of the rights that flow from their registration, that those who purport to bring such applications and to exercise such rights on behalf of a group of asserted native title holders have the authority of that group to do so. (emphasis added)Consideration – (1) the process issue There were two substantive flaws in the process that the Adams applicant used to seek authorisation to be the replacement applicant under s 66B(1) (apart from the deficiencies in the notice that I will deal with below in considering the notice issue) namely:·the notice and the resolutions did not identify with any precision the persons who were comprised in the expression “Yindjibarndi #1 native title claim group”;·about 450 known members, of the 870 member claim group were not sent a copy of the notice. In Bolton [2004] FCA 760 at [45]-[46], French J considered whether a replacement applicant had been duly authorised. There, a number of native title claim groups had been defined by reference to apical ancestors, biological descendants of those persons and persons adopted by them. However, advertisements and notices of meetings had not referred to the relevant native title claim groups except by use of the generic titles of the applications in question. His Honour concluded that, unlike in this case, it was not possible to determine whether the persons who participated in the meetings were members of the relevant claim group. But, critically, French J also said that because of the process used, it was not possible to determine whether those participants “were in any sense representative of the various components of the claim group concerned”. French J held that, accordingly, the s 66B application had a fatal deficiency because:The evidence is insufficient to demonstrate that there has been notification to members of the native title claim group as defined or that those who attended belonged to it. A fortiori, there is no evidence that the meetings were, in any sense, fairly representative of the native title claim groups concerned. (emphasis added) I am of opinion that the notice and advertisements failed properly to identify the persons to whom they were addressed. First, the description in the notice “Yindjibarndi#1 native title claim group members” did not convey any criterion by which a person could identify whether he or she was a member of that group and, in particular, whether he or she was a descendant of any of the 31 apical ancestors by which the claim group was identified. And, that description was indiscriminately jumbled together in the notice with another imprecise description, “Yindjibarndi determined native title holders”. The notice sought to convene a process that would apply to two differently constituted native title claim groups, for each of which there were different issues. The Adams applicant intended that resolutions 2, 3, 4, 5 and 6 would concern only “Yindjibarndi #1 native title claim group” members, whom it asserted were the claim group in these proceedings, whereas resolutions 7 and 8 concerned only the claim group of particular Yindjibarndi people whose lands and waters were the subject of the determination in Moses 160 FCR 148. There appeared to have been a considerable, but not complete, overlap of the members in both claim groups, but they were distinguished, at least, because the descendants of an apical ancestor called Todd, who may have been included in the description “Yindjibarndi determined native title holders”, were excluded from the claim group defined by descent from any of 31 named apical ancestors in this proceeding.