FEDERAL COURT OF AUSTRALIA

TJ (on behalf of the Yindjibarndi People) v State of Western Australia [2015] FCA 818

THE COURT ORDERS THAT:

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.

REASONS FOR JUDGMENT

(REVISED FROM THE TRANSCRIPT)

1    This is an interlocutory application under s 66B of the Native Title Act 1993 (Cth) by Rodney Adams, Sylvia Allen, Maudie Jerrold, Francis Phillips, Allery Sandy, Ken Sandy and Diana Smith (the Adams applicant) to replace the current applicant as the moving party in these native title proceedings. The current applicant comprises TJ, whose name has been withheld for cultural reasons, Stanley Warrie, Joyce Hubert, Pansy Sambo, Jean Norman, Esther Pat, Judith Coppin, Maisie Ingie, together with four other persons, Michael Woodley, Angus Mack, Allum Cheedy and Kevin Guiness. Those last four persons were not named in the relevant documents on which the Adams applicant relied, as will become apparent shortly. The interlocutory application was filed on 3 July 2015.

2    The current applicant is pressing for a determination of native title that it hopes will recognise, among others, an exclusive right of the Yindjibarndi people to control access to areas of their traditional land and waters that include a large iron ore mine, known as the Solomon mine, operated by Fortescue Metals Group Limited or one of more of its related companies (collectively FMG).

3    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

4    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.

5    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.

6    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.

7    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

8    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

9    Relevantly, the Act provided:

66B    Replacing the applicant

Application to replace applicant in claimant application

(1)    One or more members of the native title claim group (the claim group) in relation to a claimant application, or of the compensation claim group (also the claim group) in relation to a compensation application, may apply to the Federal Court for an order that the member, or the members jointly, replace the current applicant for the application on the grounds that:

(a)    one or more of the following applies to a person who is, either alone or jointly with one or more other persons, the current applicant:

…

(iii)    the person is no longer authorised by the claim group to make the application and to deal with matters arising in relation to it;

(iv)    the person has exceeded the authority given to him or her by the claim group to make the application and to deal with matters arising in relation to it; and

(b)    the member or members are authorised by the claim group to make the application and to deal with matters arising in relation to it.

Note:    Section 251B states what it means for a person or persons to be authorised by all the persons in the claim group to deal with matters in relation to a claimant application or a compensation application.

Court order

(2)    The Court may make the order if it is satisfied that the grounds are established.

251B    Authorising the making of applications

For the purposes of this Act, all the persons in a native title claim group or compensation claim group authorise a person or persons to make a native title determination application or a compensation application, and to deal with matters arising in relation to it, if:

…

(b)    where there is no such process – the persons in the native title claim group or compensation claim group authorise the other person or persons to make the application and to deal with the matters in accordance with a process of decision-making agreed to and adopted, by the persons in the native title claim group or compensation claim group, in relation to authorising the making of the application and dealing with the matters, or in relation to doing things of that kind. (emphasis added)

The events leading to the issue of the notice

10    Documents produced by FMG revealed that it had orchestrated the convening of the meeting and the voting procedure to a considerable degree. FMG had produced documents pursuant to notices to produce issued by the current applicant, after I ruled that FMG had to answer them. The notices sought documents relating to dealings between FMG and Wirlu-Murra Yindjibarndi Aboriginal Corporation, (WMYAC) and its related companies, being organisations associated with the Adams applicant, and any of their directors, officers, employees, or contractors in relation to the meeting and or the voting on 23 June 2015. At least four of the members of the Adams applicant were directors of WMYAC, namely its chairperson, Ken Sandy, as well as Mrs Allery Sandy, Ms Aileen Sandy and Ms Maudie Jerrold.

11    By no later than 4 May 2015, Tom Weaver, FMG’s government and CSR manager, had instructed Ms Shani Wood, a director of swevents, to seek quotations for audio and visual equipment and personnel. Ms Wood sought a quotation from Brightside Live, a provider of such equipment for what she called “another Fortescue meeting – Tuesday 16 June from 1000 hours to 1600 hours in Roebourne” in relation to “Windjibarndi” [sic]. After this, Ms Wood and Mr Weaver exchanged many emails planning and arranging the logistics for the proposed meeting. She sent him quotations that she received from various suppliers.

12    Yet, according to Ken Sandy, a member of the Adams applicant, on about 14 May 2015, the members of the Adams applicant met, and agreed:

(a)    to call a meeting and ask the Yindjibarndi # 1 claim group to vote on resolutions to make us the applicant for the Yindjibarndi # 1 claim in place of the current applicant;

(b)    on the wording of a notice for the meeting;

(c)    that Davina Boyd, a community development worker in Roebourne, should organise for that notice to be distributed and for the meeting to be held;

(d)    that voting should be by secret ballot run by an independent organisation; and

(e)     that voting places should be in Roebourne, Carnarvon and Perth.

(emphasis added)

13    None of the other members of the Adams applicant described in his or her affidavit any meeting at which terms of the notice came to be formulated, nor did they give any oral evidence about it. None of the Adams applicant is a lawyer.

14    Mr Sandy said that a number of Yindjibarndi people lived outside of Roebourne in Carnarvon and Perth, as appears to be common ground, and that others lived in Port Hedland, which is about two hours’ drive from Roebourne.

15    Mr Sandy annexed to his affidavit a copy of the notice of meeting, which read as follows:

YINDJIBARNDI MEETING

NOTICE OF YINDJIBARNDI NATIVE TITLE

AUTHORISATION MEETING

Yindjibarndi determined native title holders and Yindjibarndi#1 native title claim group members are invited to attend a meeting and to vote by secret ballot on the resolutions outlined below.

DATE OF MEETING AND VOTING: Tuesday 23 June 2015.

WHERE AND WHEN IS THE MEETING: A meeting at which you can find out more about the proposed resolutions and Yindjibarndi People can speak for and against the resolutions will be held at the 50 Cent Hall in Roebourne on 23 June 2015 from 10.00am. Morning tea and lunch will be available. You can vote at the 50 Cent Hall, or at Carnarvon or Perth, as explained further below.

WHO IS CALLING THIS MEETING? The meeting is being called by Rodney Adams, Sylvia Allan, Maudie Jerrold, Francis Phillips, Allery Sandy, Ken Sandy and Diana Smith.

RESOLUTIONS: If you go to one of the three voting places (see below), you will be given a ballot paper on which you can mark ‘yes’ (you agree) or ‘no’ (you disagree) to each proposed resolution. The resolutions are, in summary:

(1)    That voting be by secret ballot, and each resolution will be passed if there are more ‘yes’ votes than ‘no’ votes.

(2)    That Rodney Adams, Sylvia Allan, Maudie Jerrold, Francis Phillips, Allery Sandy, Ken Sandy and Diana Smith (replacement applicant) are authorised to replace the current applicants for the Yindjibarndi # 1 (WAD 6005/03) claim, under section 66B of the Native Title Act 1993 (Cth).

(3)    That the remaining replacement applicants will continue to be authorised even if one or more of them is unable or unwilling to be an applicant.

(4)    That previous conditions of authorisation of the Yindjibarndi#1 applicant, including appointment of YAC as their agent, are revoked.

(5)    That the replacement applicant is authorised and directed to consent to a determination of native title like the Ngarluma Yindjibarndi determination (WCD2005/001).

(6)    That a new corporation, Yindjibarndi Native Title Aboriginal Corporation (YNTAC), should be the prescribed body corporate (PBC) for the Yindjibarndi # 1 area.

(7)    That YNTAC should replace YAC as athe agent of the Yindjibarndi People under the Yindjibarndi People and Rio Tinto Participation Agreement.

(8)    That YNTAC should replace YAC as the PBC for the Yindjibarndi Native Title Area under the Ngarluma Yindjibarndi determination (WCD2005/001).

WHO IS ELIGIBLE TO VOTE? All members of the Yindjibarndi#1 native title claim group are eligible to vote on resolutions (1)-(7) above. All Yindjibarndi native title holders under the Ngarluma Yindjibarndi determination (WCD2005/001) are eligible to vote on the resolutions (1), (7) and (8) above.

WHERE AND WHEN YOU CAN VOTE: You can vote in any one of three places:

•    Roebourne – 50 Cent Hall, corner of Sholl St and North West Coastal Highway, Roebourne.

•    Carnarvon – Carnarvon Library, Egan Street, Carnarvon.

•    Perth – ground floor, 12 St George’s Terrace, Perth (opposite Concert Hall).

Voting opens at 10.00am and closes at 3.00pm. Voting will be by secret ballot. To vote, you will need some proof of identification (eg driver’s licence, social security card etc). You may also be asked to consent to having your photo taken. You do not need to attend or stay for all of the meeting referred to above in order to vote.

FURTHER INFORMATION: No sitting fees or travel allowance will be paid by the replacement applicant. However if you need assistance with travel or require further information, including a copy of the full resolutions and the proposed YNTAC constitution, or if you are not sure whether you are entitled to vote, call 0439 240 545. (emphasis in original)

16    There was no definition in the notice or other documents of the criteria for, or definition of, the two classes of persons to whom the notice was addressed: first, “Yindjibarndi determined native title holders” and, secondly, “Yindjibarndi #1 native title claim group members”. The form 1 application filed by the current applicant contains, in attachment A, a list of 31 apical ancestors, the descendants of whom comprise the claim group.

17    In the notice, the file numbers WAD 6005/03, referred to in resolution 2, and WCD 2005/001, referred to in resolution 5, related to, respectively, these proceedings and the number allocated on the National Native Title Register maintained under ss 192 and 193 of the Native Title Act to the two non-exclusive determinations of native title originally made on 2 May 2005 by a judge of this Court, when those proceedings were called Daniel v Western Australia, in favour of the Ngarluma people, who are not involved in these proceedings, and the Yindjibarndi people, as defined in those proceedings. The 2005 determination in favour of the Yindjibarndi people was subsequently varied by the Full Court on 27 August 2007 in the appeal in Moses 160 FCR 148. The Full Court stated that the definition of the claim group in Moses 160 FCR at 235 [362] was:

‘Yindjibarndi People’ are Aboriginal persons who recognise themselves as, and are recognised by other Yindjibarndi People as, members of the Yindjibarndi language group.

18    The acronym YAC used in resolutions 4, 7 and 8 in the notice appears to be the name of the prescribed body corporate, Yindjibarndi Aboriginal Corporation, that holds the non-exclusive native title rights and interests in trust on behalf of the Yindjbarndi people, as defined in the Court’s 2005 determination and varied in 2007. YAC is connected with persons in the claim group associated with the current applicant.

The arrangements for what occurred on 23 June 2015

19    On 15 May 2015, Ms Wood emailed Mr Weaver with a list of eight questions. She sought his confirmation that buses would now not be needed for a return trip between Carnarvon and Roebourne and that there was no need to book accommodation for 55 people in Roebourne on Monday 15 June. She asked whether he wanted swevents to organise lunch and a sausage sizzle in the morning at the 50 Cent Hall in Roebourne, at which the voting and meeting referred to in the notice were to take place, and, if so, for how many people. She noted that she had already arranged three cartons of bottled water to be delivered to the hall in advance of the meeting. She asked whether T-shirts were still required and, if so, how many and about their design, what arrangements swevents needed to make for electoral matters and what swevents in Carnarvon. Mr Weaver responded later that day, giving her further instructions on some of those matters.

20    Ms Davina Boyd is a community development consultant working for WMYAC. On about 17 May 2015, Ken Sandy instructed Ms Boyd to make the necessary arrangements to circulate the notice. She located a mailing list, with about 450 names and addresses, that she had used to circulate material on behalf of WMYAC to persons for the last annual general meeting of YAC that had occurred in September 2014. Ms Boyd said that she checked the Registers of the Office of the Registrar of Indigenous Corporations for YAC and WMYAC “to check that names from both lists were included”. She then used her checked list (that in fact contained 434 names with addresses) to send copies of the notice to the persons on the list. However, 10 persons on her list were deceased, and one was under 18, so that 423 eligible persons, relevantly, were sent the notice. She said that the telephone number at the foot of the notice was that of a mobile telephone that she was carrying with her throughout the period between about 25 May and 18 June 2015.

21    On 18 May 2015, the Adams applicant met and approved an application to register Yindjibarndi Native Title Aboriginal Corporation under the Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth). That corporation is referred to in paragraphs 6, 7 and 8 of the notice.

22    Subsequently, on 21 May 2015, Mike McGreevy, FMG’s group manager – security, spoke with Dan Wright of Executive Risk Solutions Pty Ltd (ERS) about providing three security officers for what Mr Wright said, in his email response of 22 May 2015, was “your event on 23 June 2015”. Mr Wright provided a quotation of $10,780 to FMG for providing those services. FMG also appeared to have provided guidance and funds for the provision and manning of audiovisual and recording equipment at the 50 Cent Hall on 23 June 2015, at a cost of about $3,550.

23    On 25 May 2015, Mr Weaver approved a decision in an email exchange between only a number of lawyers, including Integra Legal, the lawyers acting for the Adams applicant, to engage Australian Electoral Company to conduct the voting processes proposed and provide its personnel to attend at the three venues in Roebourne, Carnarvon and Perth, at a cost of about $10,600.

24    On 26 May 2015, Mr Weaver responded to a request for instructions from Ms Wood. He told her that the date of the meeting had been changed, to 23 June 2015 between 10 am and 3 pm. Mr Weaver instructed Ms Wood that, among other matters, she had still to arrange “for the meeting” a marquee, staging and chairs, audio and a videographer, the printing of 20 large, 20 extra-large and 10 extra-extra-large white polo T-shirts “saying – “YES!” on [the] back in blue lettering” and water. He also told her that no meals were needed at that stage.

25    Ms Boyd placed advertisements of the notice in the local Roebourne newspaper, the Pilbara News, that appeared on 3 June 2015, a newspaper circulating State-wide in Western Australia but also particularly in Perth, The West Australian, that appeared on 8 June 2015 and the local newspaper in the Carnarvon area, The Northern Guardian, that appeared on 17 June 2015. There is no explanation as to why it took until 17 June 2015 for the latter advertisement to appear. She also arranged for the display of the notice in some public places around Roebourne. Ms Boyd said, as appears to be common ground, that in indigenous communities, such information is also spread by word of mouth.

26    In early June 2015, Ken Sandy had asked Mrs Karen Toby to help to prepare a list of persons who were Yindjibarndi and would be entitled to vote in an authorisation process. She worked for WYMYAC as a community liaison assistant. She is a member of both YAC and WMYAC. Mrs Toby looked through a mailing list used by WMYAC that was a compilation of membership lists for both YAC and WMYAC. She knew that some Yindjibarndi people were not members of either corporation and so used genealogies prepared by an anthropologist to add names to those on the mailing list she had. She looked for descendants of the 31 apical ancestors used to define the claim group in these proceedings and sought to exclude persons under 18. It is not clear whether the mailing list that Mrs Toby used at the start of her work was the same list as Ms Boyd’s.

27    Her work resulted in a new list that, as Mrs Toby said, had “lots more names on it than were on the original mailing list”. This new list was used by Australian Electoral Company to conduct the voting on 23 June 2015. It had 870 names on it, but there were no addresses recorded for 280 of those persons.

28    On 4 June 2015, Mr Weaver approved Ms Wood’s requests for expenditure of $2,500 to order the 50 T-shirts with “YES!” printed on the back, of about $2,200 for the staging, a marquee and audio costs, and of about $3,500 for the videography costs. Subsequently, FMG also arranged flights and paid airfares and accommodation for a number of the persons involved in the logistical support for the meeting from Australian Electoral Company and others who were involved in the arrangements for the activities at Roebourne, Perth and Carnarvon on 23 June 2015.

29    Ms Boyd said that, on a date she did not specify, Ken Sandy asked her to circulate what she called “a newsletter” and two voting instruction sheets which he gave her. One of the voting sheets had instructions to vote “Yes” for all 8 resolutions, all of which appeared in it in full, and the other with instructions to vote “Yes” for resolutions 1, 7 and 8.

30    The “newsletter” was headed in block letters “YINDJIBARNDI NATIVE TITLE AUTHORISATION MEETING AND VOTE” under which appeared “TUESDAY 23 JUNE FROM 10 AM”. Immediately under these headings a banner appeared in smaller print that stated: “Yindjibarndi people are invited to attend a meeting and secret ballot to elect an applicant group, PBC and agent that represents all Yindjibarndi people” (emphasis added). Below that, the document set out five dot points under the heading “Why is your vote important?”, the second and third of which stated:

•    We need new applicants to represent our people for the Yindjibarndi #1 claim and YAC has shown it does not deserve to play any role in this claim or as a prescribed body corporate.

•    Native Title is an important issue for us all and should be treated responsibly and with fairness.

31    The reverse page of the “newsletter” had a box at the top headed “MEETING AND VOTING DETAILS”, below which appeared the date and the heading “Where you can vote,” with details of the three locations together with the statement: “Information session: 10 am, 50 Cent Hall, Roebourne” followed by “Morning tea and lunch available”. Below the box, on the right hand side, appeared:

Information session

A non-compulsory information session meeting will be held on Tuesday 23 of June 2015 at 50 Cent Hall, Roebourne.

At the session you can find out more about the proposed resolutions and Yindjibarndi People can speak for and against the resolutions. You do not need to stay for all or any of the meeting to be able to vote.

______________________________________________________________

How can I make sure my vote is accepted?

All YAC and WMYAC members are already on the voting list.

All members of the Yindjibarndi #1 native title claim group are eligible to vote on resolutions (1) – (7) above.

All Yindjibarndi native title holders under the Ngarluma Yindjibarndi determination (WCD2005/001) are eligible to vote on the resolutions (1), (7) and (8) above.

32    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 made

I 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 applicant

In 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 continue

In 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 conditions

The 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 claim

The 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.

33    Notably, resolution 2(a) did not include the last four names of the members of the current applicant, whom I identified at [1] above.

34    The voting instruction sheets do not appear to have been in any final form, before at least late on the evening of 12 June 2015, when Ms Tavelli, of Integra Legal, sent them to Australian Electoral Company by email. Ms Boyd did not say when she did any of that work and Mr Sandy did not give evidence of giving Ms Boyd the newsletter or voting instruction sheets.

35    On 16 June 2015, Mr Weaver spoke with Ms Boyd and told her:

Lunch and morning tea are not required as there is no meeting. We will run a sausage sizzle from 1030-1330 instead. (emphasis added)

36    Mr Weaver confirmed those instructions in a subsequent email to her and gave both Ms Wood and Ms Boyd other instructions about arranging urns for tea, coffee and the like.

WMYAC arranges for $400 Woolworths vouchers

37    Mrs Allery Sandy said in her oral evidence-in-chief, and I find, that a meeting of the board of directors of WMYAC occurred about two weeks before 23 June 2015. She said that the board had been told about a week before then (i.e. in late May or early June 2015) that WMYAC had been awarded a joint venture contract involving FMG and decided that they would “celebrate” the subsequent announcement of the new joint venture by FMG, when it was made, by providing up to 300 members of WMYAC with a shopping voucher worth $400 issued by Woolworths. WMYAC had never given such vouchers out before, despite having been awarded other lucrative contracts in the past.

38    On 19 June 2015, FMG issued a media release announcing what it stated was a significant achievement for Aboriginal business development, being FMG’s “facilitation of a 50/50 joint venture agreement between Pilbara Native Title group Wirlu-murra Yindjibarndi Aboriginal Corporation … and Global Mining Services Provider Thiess Pty Limited”. The media release asserted that:

    this agreement was worth approximately $85 million over three years, and that the joint venture would undertake maintenance of non-processing infrastructure, such as camps, administration offices, water bores and dewatering infrastructure at FMG’s Solomon Mine in the Pilbara;

    the new contract built on an existing $75 million contract that WMYAC already had in place for earthworks and road maintenance for FMG, with “an Eastern Guruma owned business”.

39    On the afternoon of 19 June 2015, WMYAC placed two orders with Woolworths, each for 150 electronic shopping vouchers valued at $400, at a total cost of $120,000.

40    Mrs Sandy said that the board knew that the vouchers should not be distributed before 3.00 pm on 23 June 2015, being the time that the voting closed at Roebourne. She asserted that this was a coincidence with the holding of the meeting saying, in her oral evidence-in-chief:

Can you explain to his Honour why the Woolworths documents seem to show that nobody cashed in one of those vouchers until after 3 o’clock on 23 June? --- The reason why they weren’t cashed out is because the vouchers were still coming, and it came in on the day when the voting was happening and the office girl said “The vouchers have arrived for our members” and we said what shall we do now, because voting has started, so we said “No. Keep it at the office. Don’t bring it out here, because the voting has started.” So it wasn’t a bribery of voting. (emphasis added)

41    I do not accept that WMYAC’s decision to issue the vouchers was unconnected to the voting, or that the timing of their distribution was a coincidence. The events were connected and planned. The Adams applicant relied on affidavits affirmed by each of Emily Sandy and Dawn Sandy on 17 July 2015. They both revealed that in the days leading up to 23 June 2015 they were working together, with others connected to WMYAC, talking to people in the Roebourne community and area about the process for 23 June 2015. Those persons handed out information like the voting instruction sheets for “Yes” votes.

42    Emily Sandy said that on 22 June 2015, she and Dawn Sandy attended at the home of Cyril Munda. When they arrived there he was not home, but his brother, Phillip Munda, was there by himself. She said that she and Dawn explained to Phillip Munda “what was going on the next day”, gave him a ‘how to vote card’ and told him that they would “catch up with Cyril later”. Emily Sandy told Mr Munda that, as a Yindjibarndi person, he was entitled to vote and encouraged him to go along the next day. She told him that, in her words, “if he wanted to go past the WMYAC office sometime he could pick up a food voucher.” That account was confirmed by Dawn Sandy in her affidavit.

43    Mrs Toby telephoned her daughter, Nickayla, in the morning on 23 June 2015, and told her daughter that if she came down to the 50 Cent Hall in Roebourne and voted ‘Yes”, then she would get a $400 food voucher. Nickayla responded that she did not want to vote. Ultimately, Nickayla received a voucher later that day from her mother, although she did not vote.

44    I accept the following evidence of Ms Jerrold, one of the Adams applicant, that members of WMYAC were made aware of the connection between voting and the availability of a voucher:

And that was common knowledge, wasn’t it, amongst the Wirlu-Murra [WMYAC] members, that if they came along on the 23rd and voted, they could then go and get that $400 gift voucher? --- Yes.

Previous Yindjibarndi decision-making processes

45    Mr Michael Woodley, the chief executive officer of YAC, gave unchallenged evidence that he was a senior law man in the Birdarra Law of the Yindjibarndi community. I accept his evidence generally. Mr Woodley said, as is common ground, that there was no traditional decision-making process for dealing with, or making, an application for a determination of native title by members of the Yindjibarndi people or the two claim groups referred to in the notice. He said that in 2007 the Yindjibarndi people had asked YAC to take over the management of native title and heritage matters in Yindjibarndi country. That country includes the claim area in the current proceedings, that is an area to the south of the area the subject of the determination by the Full Court in Moses 160 FCR 148.

46    Mr Woodley said that, in the past, almost all large Yindjibarndi community meetings, such as authorisation meetings of the kind held on 24 March 2012, had been held on weekends so that people who worked could attend and discuss issues. He also said that all previous community meetings had been held in the one venue, in Roebourne. Significantly, 23 June 2015 was a Tuesday.

47    Mr Woodley said that, at community meetings, resolutions were always explained fully in simple English and in Yindjibarndi language to ensure proper understanding. That was because many Yindjibarndi members were quite old and some were unwell. Many were poorly educated in English and still used their Yindjibarndi language. He said that it was important that the elders understood what was proposed in resolutions. He explained that this was important because the younger Yindjibarndi people looked to their elders for guidance when they had to make important decisions, especially about country.

48    He said that for all previous Yindjibarndi community meetings, travel assistance had been given in the form of either reimbursement of fuel costs, for those living away from Roebourne who had a car and licence, or return bus transport from regional towns for those who did not have cars. He said that in that way, the community came together to discuss issues. That evidence was confirmed by Ms Jerrold and Mrs Allery Sandy. And they confirmed that when large Yindjibarndi community meetings had been held in the past, sitting fees and travel allowances had been paid to encourage and enable members of the community to attend the meetings.

The events of 23 June 2015

49    On 23 June 2015, Australian Electoral Company personnel set up voting stations at the advertised locations in Perth, Carnarvon and within the 50 Cent Hall at Roebourne. They used Mrs Toby’s list of 870 names to determine whether someone was eligible to vote and on which resolutions, having regard to the two differently described claim groups referred to at the top of the notice.

50    Ms Boyd said there was a large marquee with a platform, about 30 chairs, a lectern, microphone and cameras set up on western side of the 50 Cent Hall. On the door of the hall there was a large sign that read: “Yindjibarndi Voting Here”. She said that there was also a small marquee set up between the carpark and the hall at which she placed a small box. She put into the box the full text of the proposed resolutions, the “newsletter”, the voting instruction sheets, a draft determination (that is not in evidence) and a summary document (that is also not in evidence) for anyone who wanted to take a copy.

51    Ms Boyd made notes of the proceedings that occurred at the marquee at which a number people associated with the current applicant attended. Paul Aubrey was the only other person connected with those calling the meeting who was at the larger marquee. He acted as the master of ceremonies.

52    Mr Woodley said that when he arrived at the 50 Cent Hall, at about 10 am on 23 June 2015 with a number of other Yindjibarndi people, he saw a small group gathered around a little marquee that was set up, when facing the hall, at the left-hand side. He identified the group of people as members of WYMAC, including Mrs Toby. He went into the hall, thinking that the meeting was to be held there, to discuss the proposed authorisation of the Adams applicant but was told in the hall that only voting by a secret ballot was to occur there and that the “information session” was being held around the back of the hall. He described the voting arrangements in the hall as bearing the hallmarks of being professionally organised, like a Federal or State election.

53    He went outside to look for the “information session” and located another marquee at the back of the hall. He said that it was not easy to find where the “information session” was being held. He then began to ask Mr Aubrey questions. Mr Aubrey told him that the marquee had been set up to inform people about the resolutions on which community members were being asked to vote. Mr Woodley asked Mr Aubrey why a meeting was not being held in the hall. Mr Aubrey replied that it was not a meeting place and his role was only to read out the resolutions and, if anybody wanted to speak, they had to put their name on a list.

54    Mr Woodley, George Irving, the solicitor for the YAC, and Ms Tina Jowett, junior counsel acting for the current applicant in the litigation, then put their names on the list. Each of those persons spoke to an audience that, aside from Mr Aubrey, to Mr Woodley appeared to be comprised only of about 50 persons who were members of YAC and current applicant, and there were no members of WMYAC. He said he went inside the hall at about noon to cast his vote because he felt that he had no choice other than to do so.

55    Mrs Allery Sandy said, and I find, that when people attended at the 50 Cent Hall they would not have seen anyone there from FMG or known of its involvement in organising the “meeting” or voting. She said that girls who worked for WMYAC ticked off the names of its members who voted at the 50 Cent Hall and told them that they could go up to WMYAC’s office to collect a $400 voucher. I accept that evidence. She said that WMYAC had never given away such vouchers previously after it had won a significant contract. She denied that this gift was a bribe to vote “Yes”. However, she also gave this evidence:

You’re aware, aren’t you, Mrs Sandy, at other Yindjibarndi meetings in the past that people are paid a travel allowance or a sitting fee to come to the meeting; you’re aware of that, aren’t you? --- Yes. I am aware of that.

And you’re also aware that the notice in this matter, specifically said people would not receive any travel allowance or sitting fee; you’re aware of that, aren’t you? --- Because they were from Roebourne. Roebourne had his own people voting and people came from Hedland on the bus.

Yes? --- They were Yindjibarndi people.

All right. But despite what was said in that notice, those people who actually did turn up, and were in the know, they were given a food voucher for $400? --- Some did. Yes. (emphasis added)

The voting results

56    During the afternoon of 23 June 2015, Australian Electoral Company officials declared the vote at each of the venues following the conclusion of the voting processes at 3 pm. The official count of the votes at each of the three locations was (ignoring a few absentations and informal votes).

The events after the voting

57    Between 3 pm and 10 pm on 23 June 2013, 180 of the $400 vouchers were used to make transactions at Woolworths stores, as the material produced by Woolworths on subpoena showed. The issue of at least that number of vouchers, after 3 pm that day from WMYAC’s office at Roebourne, substantially corresponded to the total of 209 “Yes” votes recorded at Roebourne for resolutions 1, 7 and 8, which included the approximate 190 “Yes” votes on each of the other resolutions. A further 82 vouchers were used on 24 June and another 51 on 25 June. In total, 275 vouchers were used to make 617 transactions between 23 June and 14 July 2015. As I noted above, Mrs Allery Sandy said that the reason that no vouchers were cashed prior to 3 pm on 23 June 2015 was that they were not distributed until voting finished to avoid the appearance of “bribery of voting”.

58    Mrs Allery Sandy also said, but I am not satisfied, that she was not aware that FMG wanted the resolutions to be passed. She said that FMG’s role was just to support the Adams applicant and “to cater and help move things around; that’s all”. However, I accept that she did not know what FMG’s position was as to what native title rights and interests should be recognised in a determination of native title in the current litigation. Importantly, each of Mrs Allery Sandy, Sylvia Allen, Francis Phillips, Rodney Adams and Ms Jerrold said in her or his affidavit:

On the afternoon of 23 June 2015 I was told by Ken Sandy that all the resolutions were passed. On that basis I believe that:

(a)    the current applicant is no longer authorised by the claim group to make the Yindjibarndi # 1 native title application and to deal with matters arising in relation to it; and

(b)    I and the other members of the Proposed Replacement Applicant are authorised by the claim group to make the Yindjibarndi # 1 native title application and to deal with matters arising in relation to it.

I still want to be an applicant along with the other members of the Proposed Replacement Applicant. If I become an applicant then I will try to reach a consent determination of the Yindjibarndi # 1, in accordance with the resolutions passed by the claim group on 23 June 2015. (emphasis added)

The Adams’ applicants’ submissions

59    The State took a neutral position in the present interlocutory application but pointed out that the stance of the current applicant in the proceedings was an assertion of a claim to exclusive possession that, at the present time, was by no means certain to succeed, as must be the case, since it has not been heard.

60    The Adams applicant contended that there was no requirement in s 251B(b) of the Native Title Act that there be a meeting, that voting occur in any particular form or that any particular process be used by a native title claim group in conferring an authorisation. The Adams applicant argued that it was plain that on 23 June 2015 there was a voting process at the Roebourne, Perth and Carnarvon sites and a meeting at Roebourne which provided information, but that there was no authorisation meeting as such. They conceded that if a meeting for any authorisation were required by law, no relevant meeting had occurred because of the voting that had taken place at Perth and Carnarvon.

61    The Adams applicant argued that it was clear to anyone who read the notice that he or she did not need to attend at any meeting, could vote in a secret ballot at any time between 10 am and 3 pm on 23 June 2015 and come and go as he or she pleased. They said that the purpose of the “meeting”, or information session, was simply like that of a stump in the park in an electioneering contest where the people could attend and speak or listen if they wanted to but, whether they did so or not, did not affect the exercise of their right to vote. The Adams applicant submitted that the recipients of the notice would have understood what was to occur and that they did not need to listen to anything being said in the marquee area outside the 50 Cent Hall.

62    They argued that the proper analogy of what took place was that a person who attended at the 50 Cent Hall and voted was doing so as though participating in an election to determine their future. They said that everything had been designed for the purposes of facilitating voting and to maximise the participation of the Yindjibarndi people in the voting. They argued that it would militate against the active involvement of the widest number of members of the claim group if there were a requirement that all of the persons wishing to participate in the decision making had to turn up at one location, such as Roebourne, at a meeting. The Adams applicant said that the current applicant’s argument that holding the “meeting” or process on a Tuesday and not paying travel allowances or sitting fees would disenfranchise people who were working or could not afford to attend, would pale into insignificance if, instead, everyone in the claim group had to attend and vote at Roebourne. The Adams applicant also observed that the notice suggested that if persons felt they needed assistance with travel they could telephone the number given in the notice.

63    The Adams applicant also argued that the actual voting pattern showed that the voters understood the resolutions. They said that there was no legal requirement that persons being invited to attend authorisation “meetings” or processes of this kind under s 251B be paid or offered travel allowances or sitting fees or to hold meetings on weekends. They argued that the current applicant’s contention that the ability of claim group members to attend and vote had been affected by any of those factors or that they had affected the turnout was just a “shot in the dark”.

64    They denied that the notice was deficient, as claimed by the current applicant, just because the apical ancestors of those in the claim group were not named in it and that the description in the notice of “Yindjibarndi #1 native title claim group members” did not have any definition by which persons within that “group” could identify themselves as members of it. Rather, the Adams applicant argued, it would unnecessarily complicate the issuing of such notices if it were a requirement that all such notices identify the particular claim group by reference to apical ancestors.

65    The Adams applicant submitted that the fact that resolution 1 provided for a secret ballot process was not a ground for avoiding the outcome of the authorisation that occurred pursuant to the process agreed to in resolution 1. They said that it was clear from the notice that the majority had to agree to a secret ballot process before the other resolutions were voted on and that if resolution 1 were defeated the other resolutions proposed in the notice would not go ahead. They argued that nothing in s 251B obliged a person seeking authorisation to spell out in advance how the proposed process was to be conducted and that any person with a semblance of intelligence would understand that the subsequent resolutions would not go ahead if resolution 1 were defeated.

66    The Adams applicant also argued that the summary of resolution 1 in the notice was not deficient, even though it did not spell out the full terms of resolution 1 itself, namely, that a voter would be asked, in that resolution, to agree and adopt a decision-making process for making decisions about all the resolutions, in the particular terms proposed.

67    The Adams applicant argued that the only issue in the present proceedings concerned the three elements that had to be established for it to succeed in achieving an order under s 66B(2) that it be made the replacement applicant, namely, first, that a process had been agreed for the purposes of s 251B(b), secondly, that one criterion in s 66B(1)(a) for the current applicant to be removed or replaced had been satisfied and, thirdly, that there be a resolution for a new applicant to replace the current one.

68    They argued that it was not possible for the Court to go into the merits of other resolutions, including, for example, whether the summary of resolution 5 in the notice of meeting, or resolution 5 as it was finally expressed, was sufficient validly to authorise and direct the replacement applicant as to how these proceedings were to be conducted in the future.

69    Indeed, they went so far as to say that, contrary to the current applicant’s argument about the deficiencies in the notice’s summary of resolution 5 and resolution 5 itself, the summary and resolution 5 itself were “an example of exemplary transparency”. The Adams applicant also argued that even if the summary of resolution 5 were deficient, the balance of the notice and the voting on it were not affected by that. It argued that it was not fair to characterise the merits of resolution 5 as amounting to giving up a right to exclusive possession, but rather, it argued, the most that it would give up was a claim for exclusive possession that was to be litigated in the Court.

70    They argued that it was not relevant for the claim group to know that FMG had played a role in organising, or had paid for some of the aspects of, the logistics of the “meeting” and voting, such as security and travel for Australian Electoral Company officials, and that Integra Legal had paid the fees of the Australian Electoral Company. The Adams applicant submitted that, in any event, no adverse inferences could be drawn about those matters. They contended that there was no need to disclose those matters any more than matters such as the participation of WMYAC in supporting the “Yes” vote for the resolutions. They said there was no evidence that FMG had drafted the resolutions.

71    They argued that the notice, the identification of the claim groups in it and the summary of resolutions were sufficiently clear to the persons to whom they were addressed. They also argued that, although about 420 persons had had the notice posted to them, there were very many other ways in which the other 450 members of the claim group could have learnt of the existence of the “meeting” and voting and that no substantive disenfranchisement had occurred because of the wide advertising, posters and word of mouth that would have spread the news among the Yindjibarndi people. They argued that no one had come forward to say he or she had not received any notice of the “meeting” and that what had been done minimised the chance of a person who was not within the two Yindjibarndi claim groups named in the notice being able to vote. They argued that sufficient opportunity had been given to those eligible to vote to do so.

Consideration – principles

72    In my opinion, the Adams applicant’s arguments should be rejected.

73    A determination of native title under the Native Title Act has far reaching consequences. Its importance cannot be gainsaid. Under s 62A of the Native Title Act, the applicant has the right to conduct proceedings for a determination of native title, including contesting a claim for a determination, or entering into a consent determination, of native title. The Act sets out processes, in ss 66B and 251B, by which persons are authorised as an applicant or replacement applicant for, and to deal with matters in relation to, a native title application in the Court. These are among several important procedural requirements in the Act that must be satisfied before the Court can make a determination that recognises rights and interests of native title claim groups, governments and other persons, such as landowners, occupiers, pastoralists and miners over particular land and waters.

74    A determination of native title creates rights in rem. Where those rights and interests include recognition or complete or partial extinguishment of native title rights and interests, a determination by the Court will affect permanently, once for all, the connection of our nation’s indigenous peoples to what they have claimed to be their country.

75    In Western Australia v Fazeldean (2013) 211 FCR 150 at 156 [34]-[35] Allsop CJ, Marshall and Mansfield JJ considered the significance of making determinative orders in proceedings under the Native Title Act. Those considerations underline the principle stated by French J in Bolton on behalf of the Southern Noongar Families v State of Western Australia [2004] FCA 760 at [45]-[46], that the Court must be satisfied that authorisation processes under ss 66B(1) and 251B reflect a properly conducted and fairly representative decision-making process of the claim group.

76     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

77    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.

78    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)

79    I am of opinion that the notice and advertisements failed properly to identify the persons to whom they were addressed.

80    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”.

81    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.

82    Mr Woodley and Philip Davies, an anthropologist employed by YAC, said many of the Yindjibarndi People have relatively low levels of literacy and numeracy. They find it difficult to understand native title jargon and concepts and a number of them are itinerant, as is clear with a situation in which there were 280 members of the group for whom those calling the “meeting” of voting process did not have addresses. Many also live in poverty. Some do not speak English as well as they might speak their native Yindjibarndi language.

83    The expression “Yindjibarndi #1 native title claim group members” did not convey who were that group’s members. A reader of the notice, or an advertisement of it, would not be informed by it whether the description “Yindjibarndi #1 native title claim group members”, referred to him or her. There is no evidence that that description was universally understood, or understood at all, among the whole of the claim group as designating who its members might be. In fact, that description has the appearance of being very much like lawyers’, not indigenous persons’ language.

84    Secondly, of the 870 names on Mrs Toby’s list there were 590 names with addresses. Thus, those organising the meeting on behalf of the Adams applicant had addresses for about 170 people, who were not sent notices of the meeting in the post. That number is greater than any majority on any of the resolutions. Another 280 persons on Mrs Toby’s list of eligible voters did not have an address recorded to which any notice could have been sent. Accordingly, about 450 persons eligible to vote were not sent a notice directly, including 170 people for whom the Adams applicant actually had addresses. There was no explanation as to why the Adams applicant or WMYAC did not send those 170 eligible voters a notice to their known and recorded addresses. The 450 people who were not sent notices may or may not have seen a notice in the newspapers or posted around Roebourne, or have heard about it by word of mouth, but there was no direct evidence on that issue.

85    That is, over half of the members of the claim group did not receive a written notice. Nor was it clear that all of the 434 persons on Ms Boyd’s original mailing list were entitled to vote as members of the claim group. That is because those who are entitled to vote at YAC meetings are persons who, under rr 3.1 and 3.3 of its constitution, are at least 18 years of age and are “… a Yindjibarndi person who holds in common the body of traditional law and culture governing the determination area and who identifies as Yindjibarndi”. Those persons are not necessarily the same as the persons identified in the Form 1 application as being descendants of any one or more of the 31 apical ancestors listed there.

86    I am not satisfied that the process used by the Adams applicant to inform persons in the claim group that they were seeking authorisation to be a replacement applicant was appropriate. Here, about 450 people could only have learnt about the convening of the “meeting” and the holding of the vote if they read an advertisement or saw a notice displayed somewhere, or heard of it by word of mouth. There is no sufficient evidence that all, or any substantial number of, those persons learnt of the “meeting” and voting at all. It was essential that the notice and advertisement define the addressee by reference to the names of the 31 apical ancestors that define the present claim group.

Consideration – (2) the notice issue

87    I am also of opinion that the notice was capable of misleading those to whom it was addressed. Importantly, the full text of the resolutions, that the Adams applicant included in the voting papers on 23 June 2015, was not included in the notice. Nor did that document, or any other information in evidence that circulated among the whole native title claim group before 23 June 2015 explain, first, what was the substantive nature of the determination that the Adams applicant would be directed to consent to in proposed resolution 5, secondly, what was the difference between that determination and the relief that the current applicant was seeking, and, thirdly, any connection between the current applicant’s pursuit of a determination that sought exclusive rights and interests and why the current applicant should be replaced at this stage of the litigation.

88    The persons in the native title claim group must authorise some person or persons under s 251B to make an application and to deal with matters in accordance with the process of decision-making that is agreed to and adopted by the persons in the claim group. The authorisation for the purposes of both ss 66B(1) and 251B must authorise the person or persons to a make the application and deal with the matters arising in relation to it or in relation to doing things of that kind.

89    In Weribone on behalf of the Mandandanji People v State of Queensland [2013] FCA 255 at [36]-[41], I summarised the authorities on what was a proper notice for an authorisation meeting under s 251B of the Act, concluding at [40]-[41]:

The notice must be sufficient to enable the persons to whom it is addressed, namely members or potential members of the native title claim group, to judge for themselves whether to attend the meeting and vote for or against a proposal or whether to leave the matter to be determined by the majority who do attend and vote at the meeting. That test conforms to the substance of what the Full Court of this Court synthesised as the test for a valid notice of meeting identified in a well-known line of authority in corporations cases: Fraser v NRMA Holdings Limited (1995) 55 FCR 452 at 466B-C per Black CJ, von Doussa and Cooper JJ.

Where a current applicant, or another person, wishes a meeting of a native title claim group to consider particular business or to proceed along a particular path that that applicant or person has in mind, the proponent must give fair notice of the business to be dealt with at the meeting to all members of the claim group. The notice must be such as will fully inform the persons entitled to attend the meeting, so that they can make an informed decision whether or not to be present. (emphasis added)

90    The proper identification of the native title claim group in the notice is central to that issue. North, Weinberg and Greenwood JJ said in Noble v Mundraby [2005] FCAFC 212 at [18] that:

Section 251B does not require proof of a system of decision-making beyond proof of the process used to arrive at the particular decision in question. The section accommodates a situation where a native title claim group agrees to follow a particular procedure for a particular decision even if other procedures are normally used for other decisions. Nor does s 251B require a formal agreement to the process adopted for the making of a particular decision. Agreement within the contemplation of s 251B may be proved by the conduct of the parties.

91    Nonetheless, it is still necessary to give proper notice to all persons entitled to participate when convening such a meeting or, in this case, voting process, seeking authorisation under s 251B(b). All the members of the claim group have a reasonable opportunity to understand, on proper information, what the questions for their decision are, and to decide whether, and, if so how, to participate in any decision-making process. Any decision-making process under s 251B must proceed on the basis of proper notice and full information to all persons in the claim group, that enables them to decide whether to participate in and vote on the relevant authorisation: Bolton [2004] FCA 760 [45]-[46]; Weribone [2013] FCA 255 [39]-[41].

92    The notice was headed in bold lettering at the top it was headed “YINDJIBARNDI MEETING “and in slightly smaller, but still bold and large lettering underneath: NOTICE OF YINDJIBARNDI NATIVE TITLE AUTHORISATION MEETING.

93    As is now clear, the drafters of the notice and FMG did not intend that there would be such thing as a meeting on 23 June 2015 to authorise anything. The notice was an attempt to arrange a convocation of people to come to three voting centres to vote in a secret ballot in a process dictated by those who called the “meeting”. Instead of a meeting, all that FMG and those who arranged the “meeting” and voting intended was to offer persons who wished to take the opportunity to say something, at only Roebourne, a chance to do so without any obligation for others to meet or discuss with them the proposed or alternative courses of action open to the group to make before taking any decisions.

94    The notice may have been an attempt to convene some process for authorisation, but that is not what the notice said. The express words of resolution 1 required that the voters agree and adopt a decision-making process, for the purpose of s 251B, that could only proceed if the majority voted “Yes” to it. Only persons who attended the meeting, or who had received the mail-outs of the voting instructions earlier, were able to see that resolution 1 was an essential part of a proposed process. About 450 people, who were not on any mailing list, were not told specifically about that topic because they did not receive express, or perhaps any, notice of it.

95    All that the summary of resolution 1 in the notice did was to propose that “the voting be by secret ballot”. Ordinarily, if a proposed process for voting is rejected, a meeting can agree to adopt a different voting or decision-making procedure and proceed with the other business notified.

96    What happened here was that, under the false guise of calling an “authorisation meeting”, the Adams applicant instead sought to impose a form of voting process on the claim group without providing the group with, first, proper notice of the proposed process and, secondly, sufficient information about the business on which voting was to occur.

97    The notice was also calculated to mislead anyone reading it in relation to the business proposed in resolution 5. At best, the description of that resolution was ambiguous. It did not state with any clarity, or give any information as to, non-exclusive nature of the previous consent determination or how that was very different from the claim for exclusive possession that the current applicant was pursuing. The fact that three of the proponents who gave oral evidence had no idea of the true nature of resolution 5 speaks eloquently to how misleading the notice, and the full terms of resolution 5(b), were.

98    I reject the Adams applicant’s arguments that anyone reading the notice would understand that, like an election, people could vote at any time between 10 am and 3 pm in the three locations, anyone at Roebourne could say what they wanted, if they chose, before voting and that what was going to happen on 23 June 2015 was perfectly obvious from reading the notice.

99    The notice is well over an A4 page long. It is complex and difficult to read in English. Critically, the headings in the notice gave an entirely false impression of what the promoters of the “meeting” had in mind. As Mr Weaver said in his 16 June 2015 email to Ms Wood, “there is no meeting”. He was right. A notice calling a meeting that the issuer of the notice does not intend to hold is not a proper foundation for an authorisation process under s 251B of the Native Title Act.

100    Persons who are not used to legalese would not understand the subtlety that, although there were repeated assertions of the calling of a meeting in large type at the top of the notice, it was not calling an authorisation meeting at all. As Mr Woodley and Mr Davies said, many members of the claim group are vulnerable to misunderstanding or not understanding a document as complex and misleading as the notice.

101    Nothing demonstrated this better than the evidence of three Yindjibarndi elders who were members of the Adams applicant. Each of Mrs Allery Sandy, Ms Jerrold and Sylvia Allen explained her understanding of what she understood resolution 5, as summarised in the notice meant. Each said that she understood, in substance, that the (Full) Court had decided in the “Ngarluma Yindjibrandi determination (WCD 2005/001)” was in substance what Mrs Allery Sandy identified when she gave this evidence (T 103-104):

Would it give you the right to control who can come onto that country and what they can do on that country? --- I think so, yes.

All right. So your understanding, and the understanding of the – is that also the understanding of the other replacement applicants, as far as you know? ---Yes.

That they believe that by consenting to a determination like the Ngarluma Yindjibarndi determination, they would have the right to control who could come onto their land and what was done on their land? --- Yes. I believe they can. (emphasis added)

102    In fact, in Moses 160 FCR at 160 [37], 204 [235]-[236], 242 [387], the Full Court left largely undisturbed the trial judge’s decision that both the Ngarluma and Yindjibarndi claim groups in those proceedings held non-exclusive native title rights and interests over areas that they claimed. As each of Mrs Allery Sandy, Ms Jerrold and Ms Allen gave oral evidence, it became clear that none of them had any understanding whatsoever of the nature of the authorisation and direction that resolution 5 would have required her to carry out, and about which she affirmed in her affidavit that she would try to reach a consent determination “in accordance” with that in Moses 160 FCR 148. None of those members of the Adams applicant appreciated that the main protagonists in the current litigation, the State and FMG, would have no difficulty in reaching a consent determination like that in Moses 160 FCR 148, because those respondents have pleaded that they accept that the claim group has non-exclusive native title rights and interests in the claim area.

103    It is a matter of very serious concern that these three trusting elders were asked to affirm, in affidavits, that they would support the Court making a consent determination that would deprive the claim group, in whose interests they thought they were acting, of the critical right to control access. Each of them thought that right was very important for their people to possess. That right, namely, the right to exclusive possession, is the subject of the contest that is currently scheduled for hearing in September 2015. It would effectively cease to be a substantive issue if the Adams applicant pursued the authorisation and direction, if valid, in resolution 5 that they seek and implement a consent determination of non-exclusive native title like that in the Ngarluma Yindjibarndi determination.

104    The fact that three vulnerable promoters of the process on which the Adams applicant relied did not understand what they had been asked to support in the notice satisfies me that the notice was calculated to mislead its intended addressees, and in fact misled them.

105    Having regard to the misunderstanding of the three elders about resolution 5, I have no doubt that many of those who voted in favour of both parts of resolution 5 did not understand what they had been asked to authorise. Resolution 5(a) authorised and directed the Adams applicant to apply to the Court under s 66B to replace the current applicant and then to pursue obtaining a consent determination that, unknown to those three elders, favoured the interests of FMG and was not what they understood, or wanted, it to be.

106    For these reasons, the notice was not a valid process on which the Court could act to make an order, under s 66B(2), that the Adams applicant replace the current applicant.

Consideration – (3) the discretion issue

107    In any event, having regard to the whole of the evidence I am not prepared to exercise my discretion under s 66B(2) in favour of the Adams applicant. I am not satisfied that the Adams applicant was authorised by the process on which it relies under s 251B, but even if it were, I am not satisfied that the process and its results were in any sense fairly representative of either the claim group or its informed consent: cf Bolton [2004] FCA 760 at [45]-[46]; Daniel 194 ALR at 283 [11]; Weribone [2013] FCA 255 at [40]-[41].

108    There were deficiencies in the process and notice, that I have already identified, and other matters that suggest that the majority of the claim group may have been prevented from effectively voting or participating in the 23 June 2015 processes.

109    In Chanter v Blackwood (1904) 1 CLR 39 at 58-59 and 61, Griffith CJ, with whom Barton J agreed, held that the test at common law as to whether an election of any nature is valid was explained by Lord Coleridge CJ, giving the judgment of the Court in Woodward v Sarsons (1875) LR 10 CP 733 at 743, as follows:

As to the first point, we are of opinion that the true statement is that an election is to be declared void by the Common Law applicable to parliamentary elections, if it was so conducted that the tribunal which is asked to avoid it is satisfied, as matter of fact, either that there was no real electing at all, or that the election was not really conducted under the subsisting election laws. As to the first, the tribunal should be so satisfied, i.e., that there was no real electing by the constituency at all, if it were proved to its satisfaction that the constituency had not in fact had a fair and free opportunity of electing the candidate which the majority might prefer. This would certainly be so, if a majority of the electors were proved to have been prevented from recording their votes effectively according to their own preference, by general corruption or general intimidation, or to be prevented from voting by want of the machinery necessary for so voting, as by polling stations being demolished, or not open, or by other of the means of voting according to law not being supplied, or supplied with such errors as to render the voting by means of them void, or by fraudulent counting of votes or false declarations of numbers by a Returning Officer, or by other such acts or mishaps. And we think the same result should follow if, by reason of any such or similar mishaps, the tribunal, without being able to say that a majority had been prevented, should be satisfied that there was reasonable ground to believe that a majority of the electors may have been prevented from electing the candidate they preferred. But, if the tribunal should only be satisfied that certain of such mishaps had occurred, but should not be satisfied either that a majority had been, or that there was reasonable ground to believe that a majority might have been, prevented from electing the candidate they preferred, then we think that the existence of such mishaps would not entitled the tribunal to declare the election void by the Common Law of Parliament. (emphasis added)

110    Hayne J applied the principles in those two cases in Australian Electoral Commission v Johnston (2014) 251 CLR 463 at 491-492 [87]-[89] holding that the expression “prevented from voting” in Lord Coleridge CJ’s reasons meant that the elector was prevented from voting with effect, for example by some official error where, after casting a vote, the ballot paper was lost or misplaced.

111    Another means by which persons eligible to vote can be prevented from voting is if they are not given notice of the occasion at which they can vote, or the notice of the question(s) on which the voting is to occur is substantively deficient.

112    The determination of the Adams applicant to structure a process for voting on the resolutions probably justified the analogy adopted by its counsel, in his submissions, that this was very much like an election case, for the purposes of giving people a vote.

113    Here, I am satisfied that there is reasonable ground to believe that a majority of the claim group may have been prevented from voting with effect: Johnston 251 CLR at 491-492 [87]-[89]. That is because, first, over 170 persons, a greater number than any majority for any resolution, whose addresses the Adams applicant knew, did not receive any notice by post for reasons that were not explained. Secondly, the notice omitted a proper description of the claim group by reference to its 31 apical ancestors. Thirdly, the convenors made a conscious decision to convene the “meeting” and voting process on a working day, namely a Tuesday, for reasons that were also not explained. And despite the importance to all members of the claim group of the matters to be considered, the notice specifically stated that no payments would be made of travelling allowances or sitting fees (I do not regard that as cured by the uninformative statement in the notice that persons who needed assistance with travel or required information could telephone the number given in the notice).

114    Fourthly, in the days before 23 June 2015, the Adams applicant and WMYAC were letting their supporters know that a $400, or valuable, Woolworths shopping voucher would be given to members of WMYAC if they voted and came to WMYAC’s office after 3 pm on 23 June 2015. The decision to offer those vouchers involved an investment, of a total of $120,000. There was a close correspondence between the persons who voted Yes in Roebourne and the subsequent use of 180 vouchers on the afternoon and evening of 23 June, after the close of voting. Although some people who did not vote, or did not vote “Yes”, may have received a voucher, I am satisfied that those supporting a “Yes” vote made clear to their supporters by word of mouth that once they had voted at Roebourne they could collect a valuable voucher. That has all the appearance of rewarding members associated with those who proposed the business for voting, and excluding those who might have opposed the resolutions. The potential opponents would include those who could not attend and vote, because either they were working or there was no offer for payment of travel allowances or sitting fees, that had been regularly paid in the conduct of previous important meetings of Yindjibarndi people, including under s 251B.

115    Fifthly, the significant role that FMG played in the promotion and conduct of the meeting, and the benefit to it if resolution 5 were passed, were not revealed to persons who might be interested in voting. FMG orchestrated the convening of the meeting and the voting procedure to a considerable degree. The meeting and voting arrangements were sophisticated and organised through the active involvement of FMG.

116    Sixthly, there was no explanation as to how the notice came to be drafted in the form in which it was. Ms Jerrold said that Mr Weaver “did a bit of work” organising and sending out the notice. It is plain that members of the Adams applicant had no real role in drafting the notice. Significantly, each of the three members of the Adams applicant who gave oral evidence accepted that no one at the meeting would have been aware that FMG had played any role in the logistics or arrangement of the meeting, or in apparently supporting the pursuit of the resolutions that were proposed. The notice did not convey that, if passed, resolution 5 effectively would support the position that FMG had taken in this litigation. That resolution would put paid to the prospect of a possible determination of native title, based on evidence after a contested hearing, that recognised some exclusive native title right or rights over the land and waters in issue, that the current applicant seeks on behalf of the claim group.

117    It may have influenced the result of the voting if members of the claim group had been informed that resolution 5 effectively reflected FMG’s position of accepting that a determination of non-exclusive right and interests like that in Moses 160 FCR 148 should be made, and also that FMG was not conceding, as was its right, that a determination of exclusive possession should be make as sought by the current applicant.

Conclusion

118    The purpose of resolution 1 was to construct a particular authorisation process without any authorisation meeting that would satisfy s 251B. That was contrary to the heading of the notice itself, which said that it was a notice of an authorisation meeting. In my opinion, that was a substantive misdescription of what was intended and occurred.

119    I am of opinion that the procedure that the Adams applicant used to organise the voting that occurred on 23 June 2015 did not amount to a process that complied with the requirements of s 251B of the Act. I am not satisfied that all of the persons who were entitled to vote received proper notice of the meeting, having regard to the fact that more members of the claim group did not receive a posted physical copy of that notice than received one. The notice did not set out in terms that what was sought to be done was to establish a voting procedure instead of a meeting.

120    The notice was not sufficient to enable persons to whom it was addressed to judge for themselves whether they were included in those entitled to attend and vote, or to decide as to whether they should 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 or vote on it.

121    Moreover, I am not satisfied that the nature of the authorisation that was the subject of the resolutions was comprehensible to the persons to whom the notice was, or should have been, given. That is because resolution 5 was a critical part of the authorisation proposed to be given to the Adams applicant in dealing with matters arising in relation to this application for a determination of native title.

122    Resolution 5 was the substantive, or an essential, purpose for those calling the “meeting”. That is because, if passed, that resolution would change the direction of the litigation. It would then amount to an instruction to members of the Adams applicant to abandon the claim for exclusive possession and to consent to a determination of what FMG and the State conceded were non-exclusive native title rights and interests held by the claim group. I am satisfied that, based on the materials provided to them, recipients of the notice and persons who actually read the resolutions and voted on them would not have understood what would happen if the authorisations and directions in resolution 5(a) and (b) were given to the Adams applicant.

123    Under s 66B(1)(b) the member or members of a replacement applicant had to be authorised by the claim group to make the application “and to deal with matters arising in relation to it”. Resolution 5 was an attempt to give directions to the members of the Adams applicant as to how they should use the authority being sought to be conferred on them. The summary of resolution 5 expressed in the notice and resolution 5(b) itself did not inform the reader, sufficiently or at all, to enable him or her to decide whether to attend and or vote for or against any proposed resolution, or whether to leave the matter to be determined by those who did.

124    I am not satisfied that the voting on 23 June 2015 was effective as an expression of the informed wishes of the majority of the claim group.

125    For all these reasons, the interlocutory application under s 66B must be dismissed.

Associate:

Dated:    10 August 2015

SCHEDULE

WAD 6005 OF 2003

BETWEEN:

ALLUM CHEEDY, JUDITH COPPIN, KEVIN GUINNESS, JOYCE HUBERT, MAISIE INGIE, THOMAS JACOB, ANGUS MACK, JEAN NORMAN, ESTHER PAT, PANSY SAMBO, STANLEY WARRIE and MICHAEL WOODLEY

Applicant

AND:

STATE OF WESTERN AUSTRALIA

First Respondent

FMG PILBARA PTY LTD, FORTESCUE METALS GROUP PTY LTD, HAMMERSLEY EXPLORATION PTY LTD, ROBE RIVER MINING CO PTY LTD,

THE PILBARA INFRASTRUCTURE PTY LTD

Second Respondents

PETER GILBERT COOK, COOLAWANYA PASTORAL CO PTY LTD, GEORGINA HOPE RINEHART AND HANCOCK PROSPECTING PTY LTD, TONY RICHARD RICHARDSON

Third Respondents

PHYLLIS HARRIS (TODD), LINDSAY TODD, MARGARET TODD, YAMATJI MARLPA ABORIGINAL CORPORATION

Fourth Respondents