FEDERAL COURT OF AUSTRALIA

McGlade v South West Aboriginal Land & Sea Aboriginal Corporation [2019] FCAFC 186

ORDERS

THE COURT ORDERS THAT:

1.    As to the affidavit of Mr Glen Kelly, sworn and filed on 28 June 2019:

(a)    Part of paragraph 7 be struck out such that the paragraph be admitted as amended as follows:

7.    In addition to these Noongar Claims, which had been brought on behalf of separate and distinct native title claim groups, a commonality of traditional laws and customs that had been observed by these groups, and a common identity as Noongar People, led, in 2003, to 60 individuals (SNC Applicant), many of them applicants on other Noongar Claims, being [were] authorised to commence a Single Noongar Claim.

(b)    Part of paragraph 26(b) be struck out such that the paragraph be admitted as amended as follows:

26.    After a rigorous negotiation process, the Noongar Negotiation Team (on behalf of the Noongar People) and the State agreed in principle that the South West Settlement would include:

…

(b)    in return, the provision by the State of an extensive package of financial and in-kind benefits, the value of which has been put at approximately $1.3 billion…

(c)    Paragraph 72 be struck out.

(d)    Paragraph 74 be struck out.

(e)    Paragraph 77 be struck out.

2.    As to the affidavit of Mr Wayne Gerrard Nannup, sworn and filed on 28 June 2019:

(a)    Paragraph 8 be struck out.

(b)    Paragraph 9 be struck out.

(c)    Paragraph 10 be struck out.

(d)    Paragraph 12 be struck out.

(e)    Part of paragraph 28 be struck out such that the paragraph be admitted as amended as follows:

28.    As I noted at paragraph 14 above, I had formed the view in 2015 that the Identification Requirement and the Authorisation Requirement had been satisfied in relation to the making of the Settlement ILUAs. I continued to hold these views in 2017 (and continue to do so). Nothing had occurred between 2015 and the date of the 31 July meeting to cause me or any other SWALSC staff, or the Directors, to change our opinion that the Identification Requirement and the Authorisation Requirement had been satisfied in relation to the making of the Settlement ILUAs.

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

ORDERS

THE COURT ORDERS THAT:

3.    As to the affidavit of Mr Glen Kelly, sworn and filed on 28 June 2019:

(a)    Part of paragraph 7 be struck out such that the paragraph be admitted as amended as follows:

7.    In addition to these Noongar Claims, which had been brought on behalf of separate and distinct native title claim groups, a commonality of traditional laws and customs that had been observed by these groups, and a common identity as Noongar People, led, in 2003, to 60 individuals (SNC Applicant), many of them applicants on other Noongar Claims, being [were] authorised to commence a Single Noongar Claim.

(b)    Part of paragraph 26(b) be struck out such that the paragraph be admitted as amended as follows:

26.    After a rigorous negotiation process, the Noongar Negotiation Team (on behalf of the Noongar People) and the State agreed in principle that the South West Settlement would include:

…

(b)    in return, the provision by the State of an extensive package of financial and in-kind benefits, the value of which has been put at approximately $1.3 billion…

(c)    Paragraph 72 be struck out.

(d)    Paragraph 74 be struck out.

(e)    Paragraph 77 be struck out.

(f)    The objections to paragraphs 18, 28, 29, 79 and 80 be dismissed.

4.    As to the affidavit of Mr Wayne Gerrard Nannup, sworn and filed on 28 June 2019:

(a)    Paragraph 8 be struck out.

(b)    Paragraph 9 be struck out.

(c)    Paragraph 10 be struck out.

(d)    Paragraph 12 be struck out.

(e)    Part of paragraph 28 be struck out such that the paragraph be admitted as amended as follows:

28.    As I noted at paragraph 14 above, I had formed the view in 2015 that the Identification Requirement and the Authorisation Requirement had been satisfied in relation to the making of the Settlement ILUAs. I continued to hold these views in 2017 (and continue to do so). Nothing had occurred between 2015 and the date of the 31 July meeting to cause me or any other SWALSC staff, or the Directors, to change our opinion that the Identification Requirement and the Authorisation Requirement had been satisfied in relation to the making of the Settlement ILUAs.

(f)    The objections to paragraphs 11, 14 and 15 be dismissed.

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

REASONS FOR JUDGMENT

THE COURT:

INTRODUCTION

1    These proceedings concern ten applications for judicial review of six decisions of a Registrar of the National Native Title Tribunal (NNTT) to register six indigenous land use agreements (ILUAs). The applicants are in two groups. In the first group of applicants the application by Ms Mingli Wanjurri McGlade has been treated as the lead application (the McGlade applicants/applications). In the second group of applicants, an application by Ms Marianne Mackay has been treated as the lead application (the Mackay applicants/applications).

2    The proceedings are complex and it is presently unnecessary to go into considerable detail as to the background. It is sufficient to note the proceedings are part heard following leave having been given for the applicants to amend their grounds consequent upon delivery of the Full Court’s decision in Northern Land Council v Quall [2019] FCAFC 77. Orders have been made programming the filing of evidence and submissions regarding the Quall ground.

3    Two affidavits were filed by the South West Aboriginal Land & Sea Council Aboriginal Corporation (SWALSC) in both the McGlade applications and the Mackay applications. The first is an affidavit of Mr Glen Kelly, sworn and filed on 28 June 2019, currently Director or KPMG Indigenous Services but formerly Chief Executive Officer of SWALSC (from 2006 to 2015). The second is an affidavit of Mr Wayne Gerrard Nannup, sworn and filed on 28 June 2019, Chief Executive Officer and Company Secretary of SWALSC. Objections were made to what was deposed to in the affidavits by both the McGlade applicants and the Mackay applicants. In the interests of efficiency, the parties were advised that these objections would be determined on the papers prior to the Full Court hearing the Quall grounds.

The affidavit of Mr Kelly

4    The Mackay applicants object to the following paragraphs of Mr Kelly’s affidavit:

7.    In addition to these Noongar Claims, which had been brought on behalf of separate and distinct native title claim groups, a commonality of traditional laws and customs that had been observed by these groups, and a common identity as Noongar People, led, in 2003, to 60 individuals (SNC Applicant), many of them applicants on other Noongar Claims, being authorised to commence a Single Noongar Claim.

…

18.    Following the execution of the Heads of Agreement, the nature of the South West Settlement changed. While the South West Settlement continued to be a negotiation between the Noongar People generally and the State, the mechanism through which we were able to pursue a comprehensive agreement was by seeking a resolution of the underlying Noongar Claims. Because we were now going to be resolving the underlying Noongar Claims, a mechanism for the negotiations had to involve the claimants themselves, and the mechanism the Working Parties chose was the establishment of a Noongar Negotiation Team.

…

26.    After a rigorous negotiation process, the Noongar Negotiation Team (on behalf of the Noongar People) and the State agreed in principle that the South West Settlement would include:

(a)    on the one hand, the agreement of all Noongar People to the surrender to the State of all native title rights and interests that might exist in relation to land and waters in the Settlement Area; and

(b)    in return, the provision by the State of an extensive package of financial and in-kind benefits, the value of which has been put at approximately $1.3 billion…

…

…

28.    The decision to divide the Settlement Area in this way was made for cultural as well as practical reasons. The Working Parties and Noongar Negotiation Team agreed that this regional structure was closer to Noongar cultural boundaries and was more respectful of the internal estates that exist within Noongar culture. In my view, one of the main drawbacks of the Single Noongar Claim, and one of the main criticisms voiced by Noongar People, had been that the Claim gave equal footing to all Noongar People over all of Noongar country and did not properly respect the many different estates that exist within Noongar society and country. This division of the Settlement Area gave assurance to people that a person or family’s country could not be interfered with by someone with no connection to it. This is a very important cultural consideration that I wanted to make sure was taken into account as much as possible.

29.    This approach also meant that there would need to be separate decision making and authorisation processes in six areas, rather than one overarching Single Noongar Claim process. While this created a much larger and more formidable authorisation task, we considered that it would maximise involvement from people across Noongar country by bringing decision making and the disciplines leading up to it to each group of people.

…

72.    At a Board Meeting held on 29 April 2015, the Board Members agreed that the Identification Requirement and the Authorisation Requirement had been met in relation to the making of each of the six Settlement ILUAs, and decided that the ILUA registration applications could and should be certified. However, because I had intimate and detailed knowledge of the relevant processes undertaken, the Board resolved that I should be the one authorised to, on behalf of SWALSC, attend to the technicalities of the certification process.

…

74.    Prior to this meeting, I had formed the views that the Identification and Authorisation Requirements had been satisfied, and that it would be in order to certify the Settlement ILUA Registration Applications. I communicated these views to the Board, giving my reasons, at the 29 April 2015 meeting. Having taken on board my presentation and reasons, the Board members arrived at the same views that the Identification and Authorisation Requirements had been satisfied, and that it would be in order to certify the Settlement ILUA Registration Applications. It was after doing so that the Board charged me with the responsibility of putting everything into effect. This included:

(a)    instructing Mr Le Roux to prepare the statements and the reasons required by s 203BE(6) of the NTA in relation to each certification;

(b)    settling those reasons;

(c)    signing the statements; and

(d)    providing the statements and reasons to the State for inclusion in the applicable Settlement ILUA registration applications.

…

77.    Given this context, it was clear to me that the Board’s resolution at the 29 April 2015 meeting involved it carrying out its statutory certification function. The Board formed the requisite opinions and then made the resolution to give effect to its decision that the ILUAs should be signed (not that I should consider whether or not to sign them) and that there should be certification of the application. I note that clause 9.5 of the Settlement ILUAs (as to which, see paragraph 80 below) contained a commitment to issue a certificate and so the decision to sign the ILUAs was also a decision to certify the application. This is the context in which the terms of the resolution were approved.

…

79.    Clause 5.4(b) and (c) of each of the Settlement ILUAs contain SWALSC’s representation and warranty that it is of the opinion that:

(a)    all reasonable efforts have been made to ensure that all persons who hold or may hold native title in relation to land and waters in each Agreement Area have been identified; and

(b)    all the persons so identified have (within the meaning of s 251A of the NTA) authorised the making of the ILUA.

80.    Clause 9.5 of each of the Settlement ILUAs, which is headed “Written certification”:

(a)    details SWALSC’s agreement, having satisfied itself that the requirements of s 203BE(5) of the NTA have been met, to provide the written certification referred to in s 203BE(1)(b) of the NTA for the applicable registration application;

(b)    notes that the written certification will be in the form, or substantially in the form, set out in Schedule 5 to the ILUA; and

(c)    includes SWALSC’s further warranty that, to the best of its knowledge, it is not aware of any circumstance that would prevent it from providing written certification in accordance with clause 9.5.

5    The McGlade applicants object to para 72 and para 74 of Mr Kelly’s affidavit.

6    The Mackay applicants challenge para 7 on the ground that it is hearsay, with no basis expressed for the Mr Kelly’s claimed knowledge of what led 60 individuals to commence a Single Noongar Claim. SWALSC submits that the paragraph places events in context and deposes to fact which are not contentious, being information which is already in evidence. SWALSC points to its submissions to the Native Title Registrar to the same effect. The objection will be upheld in part on the reasons it is based, striking out “a commonality of traditional laws and customs that had been observed by these groups, and a common identity as Noongar People, led,” and the “to” prior to the reference to “60 individuals”. The word “being” will be struck out and replaced with “[were]” for grammatical sense.

7    The Mackay applicants object to the whole of para 18 on the basis that it is argumentative and conclusory in nature, not amounting to evidence of facts. SWALSC contends Mr Kelly is merely deposing to the circumstances that led to the establishment of the Noongar Negotiation Team by a person involved in the decision making. Further, it is contended that the allegedly argumentative nature of evidence is no reason for its exclusion. The objection will be disallowed. The statement is and will be treated as being no more than a reflection of Mr Kelly’s understanding of facts.

8    The objection taken by the Mackay applicants to para 26(b) is to the words “the value of which has been put at approximately $1.3 billion”. The Mackay applicants contend this is a hearsay statement, with no attribution of the source of the claimed value, against the backdrop that the individual figures stated do not total the claimed value. This objection should be allowed on the basis made, but it is noted that information to the same effect is already in evidence and the value of the package does no more than provide context to the settlement.

9    Paragraph 28 and para 29 are said to contain an intermingling of hearsay statements, some with no source identified, and the deponent’s personal views, which have no relevance. SWALSC’s response is that the paragraphs give context to settlement and explain structure of ILUAs. Both paragraphs are relied upon to show how SWALSC and its officers were intimately involved in process leading to authorisation. Personal views are contended not to be irrelevant. The objections to these paragraphs should be dismissed. The explanation is given by one of the asserted actual decision-makers. It explains his views and it is open to the parties to make submissions as to the relevance, if any, of those views.

10    The Mackay applicants object to para 72 on the basis it is hearsay evidence, without the deponent stating the basis of his information or belief. The McGlade applicants object on a similar basis. SWALSC submits para 72 is not hearsay as the deponent was present at the meeting and can indicate to what directors (whom he briefed) agreed. Mr Kelly cannot do so in such summary form. This objection will be allowed. The minutes generally speak for themselves subject to any appropriate inferences which may be drawn.

11    As to para 74, the Mackay applicants’ objection is on the same basis as 72, that it is hearsay evidence, without the deponent stating the basis of his information or belief. The McGlade applicants also object to this paragraph. The McGlade applicants’ objection is directed specifically to the third and fourth sentences commencing with “Having taken on board …”. The challenge is that Mr Kelly’s opinion regarding the matters in s 203BE does not establish that the representative body itself held those opinions. The McGlade applicants object to this evidence that is said to purport to express the views of SWALSC’s directors. SWALSC argues the statement is not hearsay as it expresses views that the deponent had formed; what he communicated to the Board; what he understood that the Board agreed; and what he then did as part of certification process. It also provides the temporal order and relationship of the steps described. This is in substance a narrative of the content of produced Board minutes. This objection will be allowed. The minutes generally speak for themselves subject to any appropriate inferences.

12    Paragraph 77 is objected to in its entirety, though on different bases. The Mackay applicants object to the first sentence on the ground that it is unqualified expert or opinion evidence. The objection to this sentence should be upheld, but on the basis that this is a question of law. The second sentence is said to be a form of hearsay evidence, without the deponent stating the basis of his information or belief. This is in substance a narrative which is the content of produced Board minutes. This objection will be allowed. The minutes generally speak for themselves subject to any appropriate inferences. The rest of para 77 is objected to on the basis that it is in the nature of a submission. This objection will be upheld for that reason.

13    Finally, in respect of para 79 and para 80, the Mackay applicants object on the basis this is in the nature of submissions. This is different from para 77 and the objection will be dismissed as these paragraphs simply set out cl 5.4 and cl 9.5 of each ILUA.

The affidavit of Mr Nannup

14    The Mackay applicants object to the following paragraphs in Mr Nannup’s affidavit:

…

8.    My understanding of Rule 11.1 and how it was implemented is that it instituted a system of governance of SWALSC, whereby:

(a)    the Board had strategic responsibility to ensure that SWALSC’s operations and functions were being carried out; and

(b)    the Chief Executive Officer was responsible for putting into effect whatever operational measures were required to implement SWALSC’s functions.

9.    This allocation of responsibility as between the Board and the Chief Executive Officer is underscored by Rule 11.2, which assigns to the Chief Executive Officer, under the direction of the Directors, authority to:

(a)    exercise the day to day operational affairs of the Corporation; and

(b)    exercise all the powers given to it under these rules in compliance with these rules and the laws of the Commonwealth and Western Australia.

10.    Also relevant to the interaction between the Board and the Chief Executive Officer in SWALSC’s functioning is Rule 11.6, which empowers the Directors - by Resolution - to delegate any of their powers to various entities and office-holders, including SWALSC employees.

11.    Rule 11.6 provides that:

(a)    the Directors may by resolution delegate any of their powers, including to an employee of SWALSC;

(b)    a delegate must exercise delegated powers in accordance with any directions of the Directors;

(c)    an exercise of a power by a delegate to be as effective as if the Directors had exercised it; and

(d)    a delegate must always exercise powers in accordance with the Rules and the CATSI Act.

12.    Rule 12.6.1 empowers the Directors, at a meeting at which a quorum is present, to exercise all the powers and discretions vested in or exercisable by the Directors under the Rules. To that end, a majority vote is required to pass a Resolution (with the chair of the meeting having a casting vote).

…

14.    As I noted at paragraphs 3 to 5 above, I closely followed developments relating to the development of the South West Settlement, the Settlement ILUAs and the related identification and authorisation processes. On the basis of the information I received throughout this period, and what I saw and participated in (as outlined earlier), I formed the opinions that all reasonable efforts had been made to ensure that all people who hold or may hold native title in relation to the Agreement Area for each Settlement ILUA had been identified (Identification Requirement), and that all persons identified had authorised the making of each Settlement ILUA (Authorisation Requirement). Held those opinions at that meeting on 29 April 2015, and I have continued to hold those opinions since then.

15.    Clause 9.5 of each of the Settlement ILUAs, which is headed “Written certification” provides that SWALSC, having satisfied itself that the requirements of s 203BE(5) of the NTA have been met, agrees to provide the written certification referred to in s 203BE(1)(b) of the NTA for each Settlement ILUA registration application.

…

28.    As I noted at paragraph 14 above, I had formed the view in 2015 that the Identification Requirement and the Authorisation Requirement had been satisfied in relation to the making of the Settlement ILUAs. I continued to hold these views in 2017 (and continue to do so). Nothing had occurred between 2015 and the date of the 31 July meeting to cause me or any other SWALSC staff, or the Directors, to change our opinion that the Identification Requirement and the Authorisation Requirement had been satisfied in relation to the making of the Settlement ILUAs.

15    The McGlade applicants object to para 28 of Mr Nannup’s affidavit.

16    The objections to para 8 and para 9 are on the bases that the deponent’s understanding of the Rule in question and of how it was implemented is not relevant. The two paragraphs appear to be bound together in that regard. Otherwise, the paragraphs are no more than submissions. These objections will be upheld. The construction and effect of SWALSC’s Rule Book (the Rules) is a matter of law and submission.

17    Paragraphs 10, 11, 12 and 15 are objected to on the same ground; that is, that the contents of these paragraphs are not evidence, but rather submissions. SWALSC’s argument is that these paragraphs are not in the nature of submissions. SWALSC refers to its Rules or clauses of the ILUAs that bear on the argument that SWALSC validly exercised the certification function. The objection in respect of para 10 and para 12 will be upheld as it is a statement of the construction or effect of Rules which is a matter of law or submission. As to paras 11 and 15, these simply perhaps unnecessarily reproduce the Rules annexed to the affidavit. Objections to these paragraphs will be dismissed.

18    The Mackay applicants submit para 14 should be struck out as it records Mr Nannup’s opinions. This objection should be dismissed on the basis for which SWALSC submits; that is, that the opinions formed by Mr Nannup are relevant to the argument that SWALSC exercised functions through its respective chief executive officers and an argument that s 203FH of the Native Title Act 1993 (Cth) (the NTA) applied.

19    Finally, objection is taken by both the McGlade applicants and the Mackay applicants to para 28. The McGlade applicants contend the words “or any other SWALSC staff, or the Directors” purports to impermissibly express the views of directors of SWALSC. The Mackay applicants object to the first two sentences of the paragraph on the basis of relevance and the third sentence on the same basis as the McGlade applicants; that is, that it is speculative in nature, purporting to express the view of SWALSC’s directors. The objection to the first two sentences will be dismissed as those are relevant to the argument that SWALSC validly exercised certification function through respective CEOs and an argument that s 203FH of NTA applied. Otherwise the objections should be upheld to the latter part of that paragraph for the reason contended by both applicants.

20    Orders reflecting these rulings will be entered accordingly.

Associate:

Dated:    25 October 2019

    SCHEDULE OF SUBSEQUENT FILES