FEDERAL COURT OF AUSTRALIA

McGlade v South West Aboriginal Land & Sea Aboriginal Corporation (No 2) [2019] FCAFC 238

ORDERS

THE COURT ORDERS THAT:

1.    The applications be dismissed.

2.    The applicants pay the costs of the respondents, to be assessed if not agreed.

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

ORDERS

THE COURT ORDERS THAT:

1.    The applications be dismissed.

2.    The applicants pay the costs of the respondents, to be assessed if not agreed.

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

REASONS FOR JUDGMENT

Table of Contents

THE COURT:

THE PROCEEDING

1    The applicants seek judicial review of six decisions of the Registrar to 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). The Mackay applicants adopt the same arguments as those advanced in support of the McGlade application, but raise a further independent ground which also falls for consideration.

2    The challenge to the Registrar’s decisions concerns her registration of six ILUAs on the Register of Indigenous Land Use Agreements under s 199A of the Native Title Act 1993 (Cth) (the NTA).

3    The six ILUAs pertain to a large area in the South West of Western Australia (the Settlement Area). The Settlement Area has been the subject of numerous native title determination applications or claims by the Noongar people. Some date back to the 1990s. None of them, however, has led to a successful determination that the Noongar people hold native title rights and interests over any part of the Settlement Area. The ILUAs, taken as a totality would implement an agreement between the State of Western Australia and representatives of the Noongar people that would have the effect of settling all native title claims of those people.

4    The ILUAs were intended to give effect to a final settlement of native title claims that had been negotiated by the first respondent, the South West Aboriginal Land & Sea Council Aboriginal Corporation (SWALSC), and the State over several years (the Settlement). SWALSC’s involvement in these negotiations accorded with instructions given to it by representatives of family groups represented in registered Noongar claims, as well as input obtained from other Noongar people, including through dozens of community meetings.

5    Under the Settlement, the State would provide a package of benefits (with an estimated value of $1.3 billion) in return for the Noongar people surrendering all native title rights and interests in relation to the land and waters in the Settlement Area, consenting to determinations that native title does not exist and validating potentially invalid acts that have been carried out by the State in the Settlement Area. The ILUAs purport to deal with a final settlement of the native title claims in respect of an area of over 200,000 square kilometres.

6    The Noongar people are indigenous Australians who claim native title rights in respect of land and waters in the South West of Western Australia, from Geraldton on the west coast to Esperance on the south coast. There are between 30,000 and 40,000 Noongars in Western Australia. Most of them live in Perth.

7    Part of the Noongar history concerning the NTA proceedings includes Bennell v Western Australia (2006) 153 FCR 120 where Wilcox J recognised (at [841]-[848]) the right of the Noongar people to occupy, use and enjoy lands and waters in the Perth metropolitan area, subject to the principle of extinguishment. That decision, finding the existence of native title rights, was reversed on appeal in Bodney v Bennell (2008) 167 FCR 84. Since that time, the State and other parties have engaged in negotiations resulting in the six ILUAs.

8    The six registered ILUAs the subject of these judicial review proceedings are:

(a)    the Wagyl Kaip and Southern Noongar Indigenous Land Use Agreement, WI2017/014 (the Wagyl Kaip & Southern Noongar ILUA);

(b)    the Ballardong People Indigenous Land Use Agreement, WI2017/012 (the Ballardong People ILUA);

(c)    the South West Boojarah #2 Indigenous Land Use Agreement, WI2017/013 (the South West Boojarah #2 ILUA);

(d)    the Whadjuk People Indigenous Land Use Agreement, WI2017/015 (the Whadjuk ILUA);

(e)    the Gnaala Karla Booja Indigenous Land Use Agreement, WI2015/005 (the Gnaala Karla Booja ILUA); and

(f)    the Yued Indigenous Land Use Agreement, WI2015/0019 (the Yued ILUA).

9    It is the authorisation process mandated by the NTA for the registration of ILUAs which is the focus of attention in these challenges. Between January and March 2015, there were six meetings conducted. Persons identified as holding native title in respect of the area covered by each ILUA were invited to the meetings, as well as persons who claimed they were entitled to hold native title in respect of those areas. A central feature of the meetings was that they were held “on country”, being locations within the Settlement Area for each of the proposed ILUAs. Thus:

(a)    the meeting to authorise the Gnaala Karla Booja ILUA took place on 31 January 2015 in Bunbury (approximately 173 km from Perth);

(b)    the meeting to authorise the South West Boojarah #2 ILUA took place on 14 February 2015 in Busselton (approximately 195 km from Perth);

(c)    the meeting to authorise the Wagyl Kaip & Southern Noongar ILUA took place on 21 February 2015 in Katanning (approximately 250 km from Perth);

(d)    the meeting to authorise the Yued ILUA took place on 7 March 2015 at Gingin (approximately 68 km from Perth);

(e)    the meeting to authorise the Ballardong People ILUA took place on 14 March 2015 at Northam (approximately 83 km from Perth); and

(f)    the meeting to authorise the Whadjuk People ILUA took place on 28 March 2015 in Cannington in Perth.

10    The McGlade applicants contend that the Registrar erred in finding that the authorisation conditions for registration were satisfied. In particular, they submit that the Registrar could not have found, as she did, that all the people identified as holding native title rights in respect of the Settlement Area had authorised the making of each ILUA.

11    In the challenges brought by the Mackay applicants, it is contended that the subject of each of the ILUAs was native title held by all Noongar people. However, it is contended that the notices inviting attendees to each authorisation meeting did not invite all Noongar people who held that native title to the meetings to consider the six ILUAs. Rather, it is said that those invitations were limited to descendants of particular Noongar people. This point was raised with the Registrar, but the Registrar, it is contended, failed to consider the point and reached a conclusion on the basis that a subgroup of the common law native title holders could authorise each ILUA. The Mackay applicants argue that this is an error of law.

12    A direction was given under s 20(1A) of the Federal Court of Australia Act 1976 (Cth) for the judicial review applications to be heard and determined by a Full Court.

JUDICIAL REVIEW CHALLENGE

13    The two tranches of applications are judicial review proceedings based on specific grounds of asserted legal error. It is important to emphasise that these proceedings are not at large or in the nature of a de novo appeal. Nor do the proceedings engage questions of merit either as to the terms and content of the ILUAs or as to the reasons why the ILUAs are opposed (other than the specifically asserted legal errors).

14    But, as will be seen, the Registrar was required to form a view as to the reasonableness of certain actions. Within that limited context, the factual conclusions that were to be reached by the Registrar in arriving at that view are relevant to the legal errors asserted on this application. Quite appropriately, the applicants have not raised in these proceedings all the complaints pressed on the Registrar but have confined the arguments to specific matters said to give rise to the asserted legal errors. It is not necessary, therefore, to review the entire catalogue of concerns ventilated before the Registrar.

15    The challenges raised by both sets of applicants are made pursuant to the Administrative Decisions (Judicial Review) Act 1977 (Cth) (the ADJR Act). Section 5 of the ADJR Act sets out those grounds upon which judicial review of administrative decisions, such as the determination of the Registrar, may be advanced. Section 5 relevantly provides:

5    Applications for review of decisions

(1)    A person who is aggrieved by a decision to which this Act applies that is made after the commencement of this Act may apply to the Federal Court or the Federal Circuit Court for an order of review in respect of the decision on any one or more of the following grounds:

…

(e)    that the making of the decision was an improper exercise of the power conferred by the enactment in pursuance of which it was purported to be made;

(f)    that the decision involved an error of law, whether or not the error appears on the record of the decision;

…

(h)    that there was no evidence or other material to justify the making of the decision;

(j)    that the decision was otherwise contrary to law.

(2)    The reference in paragraph (1)(e) to an improper exercise of a power shall be construed as including a reference to:

(a)    taking an irrelevant consideration into account in the exercise of a power;

(b)    failing to take a relevant consideration into account in the exercise of a power;

…

(Emphasis added.)

ILUA LEGISLATION AND CASE LAW

16    The provisions addressing the making and registration of ILUAs are in Div 3 of Pt 2 of the NTA. This Division relates to the future use of land and water the subject of a native title claim. The provisions were added by the Native Title Amendment Act 1998 (Cth).

17    ILUAs may come in many formats and may pertain to a wide range of matters, including matters of far less significance than the ILUAs under consideration in this dispute. Before an ILUA is binding it must be registered and before it is registered the native title holders, generally through their representatives, must agree to the future use of land and waters the subject of native title.

18    Section 24AA(3) of the NTA concerns the validity of future acts contemplated in ILUAs. It provides:

24AA    Overview

…

Validity under indigenous land use agreements

(3)    A future act will be valid if the parties to certain agreements (called [ILUAs] … – see Subdivisions B, C and D) consent to it being done and, at the time it is done, details of the agreement are on the Register of Indigenous Land Use Agreements. An indigenous land use agreement, details of which are on the Register, may also validate a future act (other than an intermediate period act) that has already been invalidly done.

(Emphasis added.)

19    There are three categories of ILUAs as dealt with in subdiv B, C and D of Div 3: body corporate agreements; area agreements; and alternative procedure agreements. Each type of ILUA is subject to different requirements as to the persons who must be parties to the agreement, its content and the procedures involved in the making and registration of the ILUA.

20    This dispute concerns “area agreements”, which are addressed in subdiv C. They are a common type of ILUA and are used where there is no registered native title body corporation in relation to the whole of the area the subject of the agreement, for example, where there has not been a final native title determination in relation to that area: see s 24CC of the NTA.

21    Significantly, for the purpose of these applications, area agreements may extinguish native title rights: s 24CB(e) of the NTA. An area agreement will not take statutory effect until it is registered by virtue of ss 24EA-24EBA of the NTA.

22    Section 251A in Div 4 of Pt 15 of the NTA provides for the authorisation of an ILUA by persons who hold native title in relation to the area the subject of the ILUA.

23    In summary, s 251A contemplates that persons holding native title in the area covered by an ILUA may authorise the making of the ILUA in one of two ways. If there is a traditional decision-making process which “must be complied with in relation to authorising things of that kind”, the authorisation is to be given or not given in accordance with that process. Where there is no such process, the making of the ILUA is to be authorised in accordance with a decision-making process “agreed to and adopted by” the persons who hold or may hold the common or group rights comprising the native title. This section is discussed in greater detail below, but it is relevant to note that it is the latter process which is the focus in these reasons.

24    In the present circumstances, SWALSC, as the representative body, has certified in the case of each of the six ILUAs that it is of the opinion that all reasonable efforts were made to ensure that all persons who hold or may hold native title in relation to land or waters in the area covered by the ILUA have been identified and, secondly, that all the persons so identified have authorised the making of the ILUA. This certification procedure is provided for by s 203BE of the NTA which is, relevantly, in these terms:

203BE    Certification functions

General

(1)    The certification functions of a representative body are:

(a)    to certify, in writing, applications for determinations of native title relating to areas of land or waters wholly or partly within the area for which the body is the representative body; and

(b)    to certify, in writing, applications for registration of indigenous land use agreements relating to areas of land or waters wholly or partly within the area for which the body is the representative body.

Certification of applications for determinations of native title

(2)    A representative body must not certify under paragraph (1)(a) an application for a determination of native title unless it is of the opinion that:

(a)    all the persons in the native title claim group have authorised the applicant to make the application and to deal with matters arising in relation to it; and

(b)    all reasonable efforts have been made to ensure that the application describes or otherwise identifies all the other persons in the native title claim group.

Note:    Section 251B deals with authority to make the application.

…

Statement to be included in certifications of applications for determinations of native title

(4)    A certification of an application for a determination of native title by a representative body must:

(a)    include a statement to the effect that the representative body is of the opinion that the requirements of paragraphs (2)(a) and (b) have been met; and

(b)    briefly set out the body’s reasons for being of that opinion; and

(c)    where applicable, briefly set out what the representative body has done to meet the requirements of subsection (3).

Certification of applications for registration of indigenous land use agreements

(5)    A representative body must not certify under paragraph (1)(b) an application for registration of an indigenous land use agreement unless 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 or waters in the area covered by the agreement have been identified; and

(b)    all the persons so identified have authorised the making of the agreement.

Note:    Section 251A deals with authority to make the agreement.

Statement to be included in certifications of applications for registration of indigenous land use agreements

(6)    A certification of an application for registration of an indigenous land use agreement by a representative body must:

(a)    include a statement to the effect that the representative body is of the opinion that the requirements of paragraphs (5)(a) and (b) have been met; and

(b)    briefly set out the body’s reasons for being of that opinion.

25    An application for registration of an area agreement is dealt with by s 24CG of the NTA, which is these terms:

24CG    Application for registration of area agreements

Application

(1)    Any party to the agreement may, if all of the other parties agree, apply in writing to the Registrar for the agreement to be registered on the Register of Indigenous Land Use Agreements.

Things accompanying application

(2)    The application must be accompanied by a copy of the agreement and any other prescribed documents or information.

Certificate or statement to accompany application in certain cases

(3)    Also, the application must either:

(a)    have been certified by all representative Aboriginal/Torres Strait Islander bodies for the area in performing their functions under paragraph 203BE(1)(b) in relation to the area; or

(b)    include a statement to the effect that the following requirements have been met:

(i)    all reasonable efforts have been made (including by consulting all representative Aboriginal/Torres Strait Islander bodies for the area) to ensure that all persons who hold or may hold native title in relation to land or waters in the area covered by the agreement have been identified;

(ii)    all of the persons so identified have authorised the making of the agreement;

Note:    The word authorise is defined in subsection 251A(1).

together with a further statement briefly setting out the grounds on which the Registrar should be satisfied that the requirements are met.

…

26    As will be seen from s 24CG(3)(a), in circumstances where a representative body has given the certificate under s 203BE(5), an application for registration must include the certification or a statement that the requirements under s 203BE(5)(a) and s 203BE(5)(b) of the NTA have been met.

27    There are then procedural requirements for the Registrar to give notice to various persons under s 24CH of the NTA. Section 24CI of the NTA then provides for objections to registrations to be made by persons who claim to hold native title. Objection on the ground that the requirements of s 203BE(5)(a) and s 203BE(5)(b) were not satisfied in relation to the certification is expressly contemplated. Section 24CI(1) is in these terms:

24CI    Objections against registration

Making objections

(1)    If the application was certified by representative Aboriginal/Torres Strait Islander bodies for the area (see paragraph 24CG(3)(a)), any person claiming to hold native title in relation to any of the land or waters in the area covered by the agreement may object, in writing to the Registrar, against registration of the agreement on the ground that the requirements of paragraphs 203BE(5)(a) and (b) were not satisfied in relation to the certification.

…

(Emphasis added.)

28    The Registrar is required by s 24CJ of the NTA to decide whether or not to register the ILUAs at the end of the notice period. Section 24CK imposes a requirement on the Registrar in the following terms:

24CK    Registration of area agreements certified by representative bodies

Registration only if conditions satisfied

(1)    If the application for registration of the agreement was certified by representative Aboriginal/Torres Strait Islander bodies for the area (see paragraph 24CG(3)(a)) and the conditions in this section are satisfied, the Registrar must register the agreement. If the conditions are not satisfied, the Registrar must not register the agreement.

First condition

(2)    The first condition is that:

(a)    no objection under section 24CI against registration of the agreement was made within the notice period; or

(b)    one or more objections under section 24CI against registration of the agreement were made within the notice period, but they have all been withdrawn; or

(c)    one or more objections under section 24CI against registration of the agreement were made within the notice period, all of them have not been withdrawn, but none of the persons making them has satisfied the Registrar that the requirements of paragraphs 203BE(5)(a) and (b) were not satisfied in relation to the certification of the application by any of the representative Aboriginal/Torres Strait Islander bodies concerned.

Second condition

(3)    The second condition is that if, when the Registrar proposes to register the agreement, there is a registered native title body corporate in relation to any land or waters in the area covered by the agreement, that body corporate is a party to the agreement.

Matters to be taken into account

(4)    In deciding whether he or she is satisfied as mentioned in paragraph (2)(c), the Registrar must take into account any information given to the Registrar in relation to the matter by:

(a)    the persons making the objections mentioned in that paragraph; and

(b)    the representative Aboriginal/Torres Strait Islander bodies that certified the application;

and may, but need not, take into account any other matter or thing.

(Emphasis added.)

29    There are two key definitional provisions which stand in juxtaposition to each other in a way which illustrates the legislative intention concerning authorisation of the making of ILUAs. The first of those provisions is s 251A, the terms of which will be examined closely in due course. The second is s 251B, which deals with authorisation for the purposes of making a native title determination application, rather than for the making of an ILUA. Those sections provide:

251A    Authorising the making of indigenous land use agreements

(1)    For the purposes of this Act, persons holding native title in relation to land or waters in the area covered by an indigenous land use agreement authorise the making of the agreement if:

(a)    where there is a process of decision-making that, under the traditional laws and customs of the persons who hold or may hold the common or group rights comprising the native title, must be complied with in relation to authorising things of that kind—the persons authorise the making of the agreement in accordance with that process; or

(b)    where there is no such process—the persons authorise the making of the agreement in accordance with a process of decision-making agreed to and adopted, by the persons who hold or may hold the common or group rights comprising the native title, in relation to authorising the making of the agreement or of things of that kind.

(2)    Without limiting subsection (1), when authorising the making of the agreement, a native title claim group may do either or both of the following:

(a)    nominate one or more of the persons who comprise the registered native title claimant for the group to be a party or parties to the agreement;

(b)    specify a process for determining which of the persons who comprise the registered native title claimant for the group is to be a party, or are to be parties, to the agreement.

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:

(a)    where there is a process of decision-making that, under the traditional laws and customs of the persons in the native title claim group or compensation claim group, must be complied with in relation to authorising things of that kind—the persons in the native title claim group or compensation claim group authorise the person or persons to make the application and to deal with the matters in accordance with that process; or

(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.

30    It is common ground that the onus of demonstrating that the requirements of s 203BE(5) of the NTA were not satisfied lies with those who make the objection: Bright v Northern Land Council [2018] FCA 752 per White J (at [49]).

31    The statute requires (in relation to this onus) a demonstration that s 203BE(5)(a) and s 203BE(5)(b) of the NTA have not been satisfied, rather than an absence of certification or an absence of opinion justifying the certification as referred to in subs (5). The parties have correctly approached these proceedings as though it is the matters within s 203BE(5)(a) and s 203BE(5)(b) which are and were in contest before the Registrar.

32    The Mackay applicants argue that the Registrar erred in being satisfied that the ILUAs were authorised within the meaning of s 251A(1)(b) of the NTA.

33    In Fesl v Delegate of Native Title Registrar (2008) 173 FCR 150, Logan J had occasion to consider the effect of the word “all” in s 24CG(3)(b)(ii) of the NTA and observed (at [26]) that in relation to authorisation of an area agreement, the word “all” does not, when read together with s 251A and in the context of the NTA as whole, mean that a single dissentient or non-participant will invariably have an ability to veto the authorisation of an ILUA.

34    His Honour considered (at [71]) that the following principles applied in relation to s 251B and mutatis mutandis to s 251A of the NTA:

…

(a)    the effect of the s 251B is to give the word “all” in, materially, the table which appears below s 61(1) a more limited meaning than it might otherwise have;

(b)    in those cases where there is no relevant traditional decision-making process, s 251B does not mandate any one particular decision-making process, only that it be one that is agreed to and adopted by the persons in the native title claim group or compensation group;

(c)    “agreed to and adopted by” imports the giving to all of those whose whereabouts are known and have capacity to authorise a reasonable opportunity to participate in the adoption of a particular process and the making of decisions pursuant to that process;

(d)    unanimous decision-making is not mandated;

(e)    agreement to a particular process may be proved by the conduct of the parties even in the absence of proof of a formal agreement.

35    His Honour continued (at [72]):

Section 251A plays an identical role in relation to native title group “authorisation” decisions as referred to in s 24CG(3)(b)(ii) to that which s 251B plays in relation to native title claim group “authorisation” decisions under s 61 of the [NTA]. The language employed in s 251A compared to that in s 251B is very similar and each gives content to the word “authorise” in a provision in which the word “all” appears in relation to the making of “authorisation” decisions. The analogy of application between the two sections is indeed a close one. In my opinion therefore, each of the propositions which I have distilled from cases concerning s 251B has like application, mutatis mutandis, to the meaning and effect of s 251A and in relation to the impact of that section on “authorisation” for the purposes of s 24CG(3)(b)(ii) of the [NTA]. In turn that means that the Delegate was entitled to conclude that the “second condition” for which s 24CL of the [NTA] provides was satisfied.

36    The cases concerning authorisation within the meaning of s 251B(b) (for the purposes of an application to replace an applicant under s 66B of the NTA) have reiterated the principles that s 251B(b) does not require that “all” of the members of the relevant claim group be involved in making the decision. The key question will be whether a reasonable opportunity to participate in the decision-making process has been afforded by the notice for a relevant meeting. The usual question is whether the notice was sufficiently clear to enable persons to whom it has been addressed to judge for themselves whether or not to attend a meeting and to vote for or against a proposal: see, for example, Lawson on behalf of the ‘Pooncarie’ Barkandji (Paakantyi) People v Minister for Land and Water Conservation for the State of New South Wales [2002] FCA 1517 per Stone J (at [25] and [27]-[28]); Dingaal Tribe v State of Queensland and Ors [2003] FCA 999 per Cooper J (at [8] and [32]); Coyne v State of Western Australia [2009] FCA 533 per Siopis J (at [27]-[51] and the cases therein cited); Weribone on behalf of the Mandandanji People v State of Queensland [2013] FCA 255 per Rares J (at [40]); and TJ v Western Australia (2015) 242 FCR 283 per Rares J (at [91]).

THE GROUNDS OF REVIEW

McGlade grounds

37    The grounds advanced for the McGlade applicants are in these terms:

Misinformation provided to native title holders

1.    In deciding that the first condition in s 24CK(2)(c) of the NTA was satisfied, the Registrar failed to take into account as a relevant consideration the uncontradicted material that:

(a)    the persons holding native title in relation to the land covered by the ILUA had wrongly been advised by the Third Respondent (SWALSC) that the only process by which the ILUA could be authorised within the meaning of s 251A of the NTA is by those voting in person at a meeting “on country”[.]

2.    On the basis of the uncontradicted material, the Registrar erred in law in finding that the first condition in s 24CK(2)(c) was satisfied.

Incarcerated native title holders denied opportunity to participate

3.    The Registrar erred in law in finding that the first condition in s 24CK(2)(c) was satisfied, in circumstances where:

(a)    as SWALSC well knew, a significant number of native title holders were unable to attend the authorisation meeting as they were incarcerated;

(b)    those persons were not given an opportunity to participate in the authorisation process.

Native title holders not afforded reasonable opportunity to participate

4.    The Registrar erred in law in finding that the first condition in s 24CK(2)(c) was satisfied in circumstances where most native title holders were not afforded a reasonable opportunity to participate in the authorisation process.

Particulars

There are at least 15,000 adult Noongar persons.

No provision was made for casting a vote otherwise than in person at the authorisation meeting.

Most Noongar people resided in Perth. The authorisation meeting was held at a distance of approximately 250 kilometres from Perth.

Mackay grounds

38    The grounds advanced for the Mackay applicants are as follows:

1.    The [Registrar] erred in law in concluding that all persons who hold or may hold native title in relation to the land and waters in the areas covered by the WI2015/005 Gnaala Karla Booja ILUA, WI2015/009 Yued ILUA, WI2017/012 Ballardong People ILUA, WI2017/013 South West Boojarah #2 ILUA, WI2017/014 Wagyl Kaip & Southern Noongar ILUA and WI2017/015 Whadjuk People ILUA authorised each ILUA.

PARTICULARS

(a)    The [Registrar] proceeded on the erroneous basis that all persons who hold or may hold native title in relation to the land and waters in respect of each of the ILUAS were properly identified by [SWALSC] as the members of one or more of the groups of Registered Claimants or Other Claimants identified by the SWALSC for each of the ILUA areas; and

(b)    Further, the [Registrar] misdirected herself by proceeding to limit those she assessed to be all the persons who hold or may hold native title in relation to the land and waters in respect of each of the ILUAs by reference only to whether they were descended from apical ancestor lists set out in the Notices of Authorisation meetings for each of the Agreement Areas prepared by the SWALSC; and

(c)    The Registrar, if she had properly directed herself, would have proceeded on the basis that there is a single communal native title held by a single Noongar native title community and that all members of the single Noongar native title community ought to have been invited to each meeting convened to authorise each of the ILUAs for each of the Agreement Areas within the area of the Single Noongar Claim area in order to conclude that all persons who hold or may hold native title in relation to the land and waters in the areas covered by each of the ILUAs authorised or had an opportunity to authorise entry into each ILUA.

39    Each of the applicants seeks orders setting aside the Registrar’s decisions and costs.

THE REGISTRAR’S DECISIONS

40    As might be expected, there is much common content in each of the Registrar’s decisions. That common content is not repeated in these reasons. The challenges raised can be addressed by reference to the decisions directly affecting the two lead applicants.

The Wagyl Kaip & Southern Noongar ILUA decision (the McGlade decision)

41    In the Wagyl Kaip & Southern Noongar ILUA decision, which is mirrored by the other five ILUA decisions (save for some voting and other details), the Registrar noted that the ILUA was one of six agreements that had been negotiated by SWALSC and the “Noongar Negotiation Team” on behalf of the Noongar people of the South West and the State to implement the proposed South West Settlement. She noted that the objective of the South West Settlement was to resolve all native title determination applications brought by the Noongar people across the South West region of Western Australia and referred to the meeting which had been held in respect of the ILUAs (referred to at [8]). The Registrar outlined the chronology, including the litigation in McGlade v Native Title Registrar (2017) 251 FCR 172 (McGlade (FCAFC)) and the ruling in that case that the Registrar did not have jurisdiction to register four of the agreements as not all parties comprising the registered native title claimants had signed them. Reference was made to the amending legislation, which responded to that deficiency.

42    The Registrar then proceeded to detail the information which had been considered pursuant to s 24CK(4) of the NTA, noting that she was required to examine any information given by the objectors and the representative body that certified the application and that she may, but need not, take into account any other matter or thing. She said that the material she had taken into account was:

•    the information contained in the application for registration, agreement and accompanying documents;

•    the geospatial assessment and overlap analysis (geospatial assessment) dated 29 August 2017;

•    the geospatial end of notification overlap analysis dated 12 January 2018;

•    the material provided to the Registrar during the process of procedural fairness; and

•    the results of [her] own searches using the NNTT’s mapping database.

43    The Registrar then turned to examine the legislation and the relevant case law, noting in relation to s 24CK of the NTA that if the conditions of s 24CK(2) and s 24CK(3) are satisfied, she must register the ILUA, and if they are not satisfied, she must not register the ILUA.

44    Addressing the first condition for registration, the Registrar set out s 24CK(2) and s 24CI(1) of the NTA and proceeded to examine the objections having regard to the requirements of those provisions and concluding (at [53]) that each objection was validly made (as distinct from being correct).

45    The Registrar set out her understanding of the nature of the task involved in relation to s 24CK(2)(c) of the NTA, noting the requirements of s 203BE(5).

46    The Registrar followed the decision of White J in Bright to the effect that s 24CK(2)(c) of the NTA required objectors to discharge an onus to satisfy the Registrar that the requirements of s 203BE(5)(a) and s 203BE(5)(b) were not satisfied. In examining the certificate containing the required statement of opinion by SWALSC, the Registrar noted that the certificate also provided details of that opinion, including the following:

3.1    The efforts that have been made to ensure that all people who hold or may hold native title in relation to land or waters in the Agreement Area have been identified have included the following:

(a)    As part of the South West Native Title Settlement negotiations, during 2012 SWALSC and the State requested the National Native Title Tribunal (NNTT) to provide formal Notice of the Wagyl Kaip and the Southern Noongar registered native title claims inviting any Noongar person who could trace descent from one or more of the named apical ancestors listed in the Notice or who considered there were additional apical ancestors who were relevant to the claims to contact the NNTT by 20 April 2012, the date set out in the Notice to receive or request further information about the claims. Subject to NNTT processes new information that may lead to identification of new apical ancestors was provided to SWALSC for further research purposes.

Throughout and during the South West Native Title Settlement negotiation phase, at the request of SWALSC and the State the NNTT conducted extensive historical and current geospatial data searches providing data analysis information of registered and unregistered claims in the South West, including for the Wagyl Kaip and Southern Noongar registered native title claim areas.

From the commencement of and during the South West Native Title Settlement negotiation phase SWALSC provided information to Noongar people about the South West Native Title Settlement negotiations process and intention to carry out negotiations for the proposed Agreement and for Noongar people to contact SWALSC to assist SWALSC to identify those people who hold or may hold native title in the Agreement area.

These efforts confirmed that the members of the native title claim groups for the following native title determination applications - to the extent that they asserted such native title rights and interests - were people who hold or may hold native title in relation to land or waters in the Agreement Area:

(i)    WAD6286/1998 (Alan Bolton & Ors - v- the State of Western Australia & Ors (Wagyl Kaip)) (Wagyl Kaip Claim);

(ii)    WAD6134/1998 (Dallas Coyne & Ors and State of Western Australia & Ors (Southern Noongar) (Southern Noongar Claim);

(iii)    WAD33/2007 (Gerald Williams & Ors and State of Western Australia (Wagyl Kaip - Dillon Bay People) (Wagyl Kaip - Dillon Bay People Claim); and

(iv)    WAD6006/2003 (Anthony Bennell & Ors v State of Western Australia (Single Noongar Claim (Area 1)) (Single Noongar Claim).

(b)    In addition to the above efforts, SWALSC has commissioned - and has relied on the findings of - an extensive research program to identify those people who hold or may hold native title in relation to land or waters in the Agreement Area. This program included:

(i)    the ethno-historical, anthropological and genealogical research undertaken to support the lodgement (and litigation) of the Wagyl Kaip Claim and the Southern Noongar Claim; and

(ii)    the fieldwork and further research that contributed to the production of the Anthropologist’s Report produced in connection with the lodgement (and litigation) of the Single Noongar Claim.

(c)    Since the commencement of the South West Settlement negotiations, SWALSC’s research section has engaged in a specific connection research process as agreed with the State in the Heads of Agreement dated 2009. This connection research process involved “Agreed Facts” sample genealogies reviewed with the State Solicitor’s Office (SSO) and the production of Apical Ancestor Reports for the purposes of the negotiations and identification of the Native Title Agreement Groups.

(d)    During the Settlement ILUA negotiation period, SWALSC’s research section has focused on this connection research process, which required reading and analysing all available sources of information relevant to the area of the relevant Settlement ILUA (in this case, the Agreement Area) in an effort to determine the identity of:

(i)    the Aboriginal people who (prior to European settlement of the South West in 1829):

A.    by the traditional laws they acknowledged and the traditional customs they observed, had a connection to the Agreement Area; and

B.    held rights and interests in relation to the land or waters in the Agreement Area that were possessed under such traditional laws and traditional customs,

(together, WK & SN Apical Ancestors); and

(ii)    the descendants of these WK & SN Apical Ancestors (WK & SN Area Descendants).

(e)    Numerous types of sources were consulted during this process, including (but not limited to) early 20th century ethnographic materials and genealogies (such as those of Daisy Bates and Norman Tindale), the diaries of early colonists and explorers, Native Welfare Department files sourced from the Department of Aboriginal Affairs and donated by SWALSC clients, Western Australian Birth, Death and Marriage Records, Mission records, published materials and oral histories of SWALSC clients. SWALSC Anthropologists have a high degree of familiarity with the source materials relevant to the regions of the South West (and the area of the Noongar Claims) to which they have been assigned.

(f)    In consulting these materials, SWALSC Anthropologists applied a historiographical methodology, weighing the value of materials based on the context in which they were produced and interrogating potential underlying biases and inaccuracies in the materials. The same rigour was caused and applied to materials whatever their provenance. The research process described above often resulted in the identification of new and/or challenging information - often involving the identification of new WK & SN Apical Area Ancestors and WK & SN Area Descendants, which was then communicated to the applicant on the Wagyl Kaip and the Southern Noongar Claims (WK & SN Applicant) through the Wagyl Kaip Claim and the Southern Noongar Claim Working Parties. Where the Anthropologist reached a high degree of certainty about a research conclusion and communicated this to the WK & SN Applicant, this resulted in the recognition of new WK & SN Apical Area Ancestors in addition to those described in the native title claim group description for the Wagyl Claim (as it was described in the Federal Court Form 1 that commenced that claim). The group of WK & SN Apical Area Ancestors and WK & SN Area Descendants identified by this extensive and rigorous process of research came to be known (and is described in the Agreement) as the Native Title Agreement Group (NTAG) for the Agreement Area.

(g)    Throughout 2013 and the first half of 2014, SWALSC’s Anthropologists focussed on consolidating the research materials to produce a finalised NTAG description for the Agreement Area that was provided to the SSO. Internal reports were produced addressing each WK & SN Apical Area Ancestor, establishing their connection to the Agreement Area. An accompanying genogram showing the Noongar family groups (i.e. WK & SN Apical Area Descendants) who were descended from each WK & SN Area Ancestor were also produced. Where the SSO was unable to identify any WK & SN Apical Area Ancestors based on their materials, extracts of these reports were provided.

(h)    On 3 September and 17 September 2014, SWALSC held two “Agreement Information Meetings” for the WK & SN Applicant. These meetings included a presentation of the information underpinning the identification of the WK & SN Area Ancestors and the Agreement Area NTAG, a display of the genograms and information about the proposed process to seek the authorisation of the making of the Agreement in accordance with the requirements of the [NTA].

(i)    The NTAG description for the Agreement Area, which defines those who hold or may hold native title in relation to land or waters in the Agreement Area, is regarded by the SWALSC Research Section as being as inclusive and accurate as possible.

3.2    It is SWALSC’s opinion, the above efforts represent all reasonable efforts that could, and should, have been made to ensure that all people who hold or may hold native title in relation to land or waters in the Agreement Area were identified.

47    The Registrar then recorded the assertions of the objectors, noting that many of the objections were either identical or contained similar material and, therefore, were made on similar grounds. The Registrar noted that there was an objection that the research process was deficient, a ground not pursued in the present application. The Registrar also noted the ground which is pursued by the Mackay applicants, namely that SWALSC should have invited to the authorisation meeting, and sought authorisation, from all members of the Noongar community. This was described as the Miller objection, being lodged by Mr Kevin Miller. The Registrar then set out the response to the objections given in 2018 by SWALSC and the Native Title Agreement Group (NTAG), who were described as the group of Wagyl Kaip & Southern Noongar Apical Area Ancestors and Wagyl Kaip & Southern Noongar area descendants identified by the extensive research by SWALSC’s anthropologists. The Registrar noted (at [65]-[74]):

[65]    In the 2018 Response, SWALSC and NTAG make the following assertions and comments in response to the Williams objection:

•    SWALSC has not failed to satisfy the requirements of s 203BE(5)(a) by including in the NTAG individuals with historical associations to the agreement area. The NTAG differs significantly from the native title claim groups described in the Wagyl Kaip and Southern Noongar claims because of the detailed and expansive research programme undertaken by SWALSC following execution of the Heads of Agreement. This research resulted in identifying more ancestors who had a connection to the agreement area, tracing ancestry of some ancestors back to or at least closer to sovereignty, and showing some ancestors on the Form 1 not having a connection to the agreement area. The objectors do not define what is meant by ‘historical associations’, but if the intent is that some ancestors are not traditional owners but only came to live in the area due to historical factors such as migration and deportation, the assertion is denied. SWALSC made extensive efforts to ensure that all people who hold or may hold native title in relation to the land or waters in the agreement areas as detailed in SWALSC and NTAG’s 2016 Response. Since the lodgement of the Wagyl Kaip and Southern Noongar claims, extensive anthropological research has been conducted to identify all persons who hold or may hold native title in relation to land and waters within the agreement area. It is submitted that this process, which included the commissioning of an expert anthropological report by Dr Kingsley Palmer that was filed in Court in support of the Single Noongar claim, intensified following execution of the Heads of Agreement with the ‘Agreed Facts’ process and involved SWALSC anthropologists undertaking research to establish genealogical connection of claim group members to the apical ancestors in the agreement area. The sample genealogies were scrutinised by the State’s researchers who provided further information from the State government databases, and after further discussion, negotiation and scrutiny, resulted in final versions agreed upon by SWALSC and State researchers. The Apical Ancestor reports, produced pursuant to the Heads of Agreement, incorporated the findings from the Agreed Facts process and sought to describe the ancestors who, in the authors’ opinion, possessed rights and interests in relation to land and waters within the agreement area at sovereignty on 18 June 1829. The objective of the research programme was to identify those ancestors who were traditional owners of land and waters within the agreement area at sovereignty or settlement by Europeans. It is therefore submitted that the research programme did not result in the inclusion of individuals only with historical association.

•    The objectors further assert that the agreement allows for certain classes of people to be incorporated into the NTAG in the future. Traditional Noongar law and custom stipulates that rights to Noongar country can be gained both by lineage (or in some cases marriage, adoption or other links) and by knowledge. SWALSC’s research programme is ongoing and SWALSC remains open to the prospects of supplementing the NTAG where warranted by further information and on the basis that the existing members of the NTAG agree. Nevertheless, it is submitted that the assertions by the objectors are not relevant to the task here.

•    The assertion that SWALSC undertook its research programme and developed its amended NTAG ancestor list without consulting the Noongar community is denied. The 2016 Response details the efforts taken by SWALSC to consult with the community including the role of the Working Party in appointing the negotiation team that represented the Noongar people in the Settlement negotiations, the Working Party and applicant meetings held to consider the progress of the negotiations, the extensive community information programme undertaken by SWALSC from 2013 at which apical ancestor updates were given, and updated description of the claim groups published on SWALSC’s website from October 2014. The objectors were also either a Director of SWALSC, member of the Noongar Negotiation Team, appointed to the Working Party as family representatives or a member of the applicant for the Wagyl Kaip claim who also executed the agreement in this capacity, indicating that they were privy to information about the Settlement. The objectors should have raised these matters in the community information sessions and the authorisation meeting to persuade others to vote against the authorisation of the agreement, but did not and instead were ‘championing’ the agreement.

[66]    As indicated above, SWALSC and NTAG also rely on their 2016 Response which provides information in relation to the efforts taken to meet the requirements of s 203BE(5)(a), which are outlined in my reasons below.

[67]    SWALSC and NTAG submit that efforts parties to a proposed ILUA can take to identify, and invite to participate in negotiations, persons who hold or may hold native title in relation to the proposed ILUA area include:

•    contacting the NNTT for assistance with searches;

•    publicly advertising the intention to commence negotiations in a variety of media as well as sending personal notice to known claim groups in the proposed area;

•    inviting people who hold or may hold native title to attend information sessions and consultations about the proposed ILUA; and

•    making other reasonable inquiries that can include the commissioning of anthropological research.

[68]    It is submitted that the inquiries made for the Settlement ILUAs ‘were either the same as, or certainly were supported and strengthened by, those made by SWALSC in the exercise of its statutory NTRB functions, including those under ss.203BB(1)(a) and 203BJ(b) of the’ Act, which are summarised at [3.1] in the certification. It appears from the certification that the efforts made were both expansive and inclusive, and incorporated:

•    ‘extensive public notification and other efforts to advertise the proposed ILUA processes to as broad a pool of prospective native title holders as possible, with a view to inviting all who might consider themselves to be “Other Claimants” to contact SWALSC with any information they had (including as to their apical ancestors) connecting them to the proposed Agreement Areas’;

•    requesting NNTT assistance with geospatial data searches and other research into historical and current claims, both registered and unregistered, across the Settlement Area; and

•    a comprehensive, wide-ranging and detailed program of anthropological, ethno-historical and genealogical research to identify the people who hold or may hold native title in relation to the whole of the Settlement Area.

[69]    SWALSC and NTAG contend that the research program has:

•    supplemented understanding of the claim groups for each Noongar claim;

•    enabled development of a set of agreed facts for the registered Noongar claims and the Single Noongar claims;

•    resulted in greater knowledge of those who hold or may hold native title in the area for each of these Noongar claims; and

•    resulted in a reformed set of ancestor lists for all Noongar claims in question.

[70]    SWALSC and NTAG say that between March and June 2012, the NNTT provided assistance and advertised the apical ancestor lists for the registered Noongar Claims nationally, in an effort to identify those people who may not currently be included in the membership of the applicable native title claim group. The NNTT received a total of 401 inquiries, with eight providing additional information on ancestors not listed. Of these, three had already been identified by SWALSC researchers for inclusion, two more needed to be added and, of the remaining three, there was either insufficient evidence to include them as an apical ancestor, and/or their descendants were already included through other apical ancestors.

[71]    SWALSC and NTAG submit that specific connection research, undertaken in accordance with a process agreed with the State following the execution of the Heads of Agreement in late 2009, required reading and analysing all available sources of information relevant to each agreement area in an effort to determine the identity of:

•    the Aboriginal people who (before 1829) by the traditional laws they acknowledged and the traditional customs they observed, had a connection to each Agreement Area, and held rights and interests in relation to the land or waters in each Agreement Area that were possessed under such traditional laws and traditional customs; and

•    the descendants of these ancestors.

[72]    The certification provides details of the extent of this anthropological research program as well as the rigour with which it was conducted, resulting in the anthropologist reaching a high degree of certainty as to the identity of apical ancestors not currently listed on the application filed in respect of each Noongar claim, and the descendants of these ancestors. This finding was then communicated to the applicant on the relevant Noongar Claim.

[73]    SWALSC and NTAG say that the groups of ancestors and descendants identified by this research are the NTAGs for the agreement areas, and that the description of the NTAG for each agreement area represents ‘the most anthropologically accurate formulation currently achievable of the people who hold or may hold native title rights and interests in relation to each Agreement Area’.

[74]    It is contended that ‘SWALSC’s expansive and inclusive approach to identification meant that, whether or not they were also members of the NTAG, people were identified as people who hold or may hold native title in each Agreement Area if they were members of … registered and unregistered Noongar Claims that overlapped with the Agreement Area’. SWALSC and NTAG further submit that ‘by any measure and notwithstanding Objections made (without giving particulars) to the effect that SWALSC had made insufficient and misconceived efforts to satisfy the Identification Requirement, the efforts made to identify the people who hold or may hold native title in each Agreement Area must be regarded as having been reasonable’.

(Citations omitted.)

48    Some of the objectors asserted that the research efforts were flawed and they strongly contended that the outcome and process undertaken by SWALSC did not identify the “right people for country” and SWALSC had only showed traditional owners contempt and deceit throughout the process.

49    The Registrar commenced her consideration of the two s 203BE(5) requirements by noting that there is no definition in the NTA of what constitutes “all reasonable efforts” in the context of s 203BE(5)(a). She noted the responsibility of the representative body to not certify an application for registration of an ILUA unless it is of the opinion that “all reasonable efforts have been made to ensure that all persons who hold or may hold native title in relation to land or waters in the area covered by an agreement have been identified”. The Registrar was of the view that “all reasonable efforts” should take into account the particular facts and circumstances. It was a question of fact, as noted by White J in Bright, to be determined by the particular circumstances of the given case.

50    White J’s discussion of the expression in Bright (at [131]-[133]) was then cited, which included the following observations:

    Section 203BE(5) “does not oblige the representative body itself to make the requisite reasonable efforts” (at [131]).

    It can form an opinion required for its certification on the basis of efforts made by others (at [131]).

    Section 203BE(5) does not contain any temporal specification with respect to the required efforts (at [132]).

    Section 203BE(5) of the NTA did not require that all persons who hold or may hold native title in the area in question have been identified, but only that the representative body be of the opinion that all reasonable efforts had been made to ensure that they had been identified (at [132]).

51    The meaning of the expression “persons who hold or may hold native title” in light of explanation of Reeves J in QGC Pty Ltd v Bygrave (No 3) (2011) 199 FCR 94, and his Honour’s observation for the need for an expansive and inclusive approach, was noted by the Registrar. She understood that she was not required to consider whether all potential native title holders had been identified or whether she agreed with the views formed by the representative body about “all persons who hold or may hold native title” in relation to the land and waters covered by the agreement area. Rather, it was whether the material showed that the representative body’s views were shaped as a consequence of reasonable efforts (at [81]). To satisfy her that all reasonable efforts had not been made would require the objectors to show that SWALSC’s efforts to ensure all persons who hold or may hold native title in the area had been identified were wanting such that the efforts and subsequent views could not be said to be reasonably based (at [81]).

52    The Registrar did not consider her task was to speculate about the correctness or otherwise of the anthropological research results, but noted (at [84]) that the material to which she referred demonstrated that SWALSC had manifestly investigated the persons who hold or may hold native title in the areas through extensive research. She concluded the objectors had not satisfied her that the requirements of s 203BE(5)(a) of the NTA were not satisfied.

53    Importantly to these applications and in relation to the second requirement, namely, authorisation under s 203BE(5)(b) of the NTA, the Registrar noted (at [95]) that in addition to the information referred to above, the certificate by SWALSC included the following information:

Notice of Authorisation Meeting – Proposed Agreement

4.4    In order to give all of the people identified as people who hold or may hold native title in relation to land or waters in the Agreement Area a reasonable opportunity to make an informed decision about whether to attend the Agreement Authorisation Meeting and to participate in the authorisation processes for the Agreement, it was necessary to advertise and broadcast the intention to hold the Agreement Authorisation Meeting to as many of such people as was practicable.

4.5    To this end, SWALSC caused a Formal Notice of the Agreement Authorisation Meeting to be prepared - for wide distribution in a broad range of newspapers, including in several newspapers of State-wide and regional circulation and in a national newspaper catering mainly or exclusively for the interests of Aboriginal peoples or Torres Strait Islanders. This Formal Notice provided comprehensive details and information about the location, date, time, logistics and purpose of the Agreement Authorisation Meeting. The Formal Notice also gave a comprehensive description of those people (as to whom, see paragraph 4.1 above) who, to that point, had been identified as people who hold or may hold native title in relation to land or waters in the Agreement Area. These people were collectively referred to in the Formal Notice as the “Identified Native Title Group”. It also invited anyone else who considered that they held native title to the area to contact SWALSC.

4.6    SWALSC caused a full page advertisement of the Formal Notice to be placed in:

(a)    the Koori Mail on Wednesday, 14 January 2015 and Wednesday, 28 January 2015;

(b)    the Weekend West (West Australian) on Saturday, 24 January 2015; and

(c)    the Albany Advertiser on Thursday, 5 February 2015 and the Great Southern Herald on Thursday , 5 February 2015.

4.7    The Formal Notice for the Agreement Authorisation Meeting was supported by a General Reminder Notice, which SWALSC caused to be placed in:

(a)    the Weekend West (West Australian) on Saturday, 14 February 2015;

(b)    the Great Southern Herald on Thursday, 19 February 2015; and

(c)    the Albany Advertiser on Thursday, 19 February 2015.

4.8    The Formal Notice and General Reminder Notice were supported by a General Notice that was very widely distributed in State-wide, regional and Aboriginal special interest newspapers. The General Notice, which was in the form of a Schedule of the Authorisation Meetings for all of the Settlement ILUAs, included the details for the Agreement Authorisation Meeting. SWALSC caused advertisements of the General Notices to be placed and to appear in:

(a)    the Koori Mail on Wednesday, 17 December 2014 and Wednesday, 14 January 2015;

(b)    the Weekend West (West Australian) on Saturday, 13 December 2014;

(c)    the Countryman on Thursday, 8 January 2015;

(d)    various metropolitan community newspapers from 6 to 9 January 2015;

(e)    the Great Southern Herald, Narrogin Observer and Manjimup-Bridgetown Times on Wednesday, 7 January 2015;

(f)    the South Western Times, Central Midlands & Coastal Advocate on 15 January 2015 and Albany Advertiser on Thursday, 8 January 2015;

(g)    the Busselton-Dunsborough Times on Friday, 9 January 2015;

(h)    the York & Districts Community Matters on Friday, 9 January 2015; and

(i)    the Harvey-Waroona Reporter on Tuesday, 13 January 2015.

4.9    This extensive advertising of both the Formal Notice and General Notice advertisements were supported by a program of information about the Authorisation Meetings for all of the Settlement ILUAs to further ensure that the Identified Native Title Group had the opportunity to become aware both of the Agreement Authorisation Meeting and of the Authorisation Meetings for all of the other Settlement ILUAs. The program of information was caused to be implemented by SWALSC to maximize coverage using varied media and forms of communication, including the SWALSC website, social media, mail out of letters (using a database of known addresses) to SWALSC Members, an Authorisation Meeting pre-registration program and a telephone contact program. This program was supported by an extensive Noongar community “face to face” information meeting program prior to and leading up to the Authorisation Meeting.

4.10    In this regard, SWALSC caused:

(a)    a schedule of details of the six Settlement ILUA Authorisation Meetings, including the Agreement Authorisation Meeting, to be posted to the SWALSC website from 12 November 2014 and to be given out at Community Information Meetings;

(b)    a mail out on 18 August 2014 of an information package on the South West Settlement (using a database of known addresses) to SWALSC Members. This information package included copies of the “Summary Guide to the Settlement Documents” and the “Quick Guide to the Settlement”, copies of both which were also posted to the SWALSC website, as well as of the General Notice and Schedule of all six Authorisation Meetings. Importantly, this information included details both of the Agreement Authorisation Meeting and of the Authorisation Meeting pre-registration program;

(c)    the implementation and promotion of an Authorisation Meeting pre-registration program from August 2014, giving an early opportunity for Noongar people to identify eligibility to attend the Agreement Authorisation Meeting. Promotion of the program was carried out through General Notices, social media posts, mail out to SWALSC Members and by “face-to-face” consultation at Family and Community meetings;

(d)    the undertaking of a telephone contact program, which commenced on 4 December 2014, to provide details of the Agreement Authorisation Meeting, including of the Identified Native Title Group for the Agreement. Members of the Identified Native Title Group were given the opportunity to pre-register up until 6 February 2015, as provided in the Formal Notice;

(e)    radio announcements providing details of all of the Settlement ILUAs and associated Authorisation Meetings to be made on Noongar Radio and Koori Radio between 6 January 2015 and 29 January 2015;

(f)    meetings of the South West Claims Working Party and Named Applicants Meetings to be convened in accordance with its functions under the [NTA] and consistently with meetings convened since the commencement of those claims - in particular between 2010-2014, providing extensive updates on the South West Settlement process including details about the Agreement Authorisation Meeting process (and Authorisation Meeting details); and

(g)    a meeting of all of the South West Claims Named Applicants (including the WK & SN Applicant) to be called and convened on Wednesday, 17 December 2014. The meeting provided information on the proposed Settlement ILUAs (including the proposed Agreement), the role of the Applicant for each Noongar Claim and details of the proposed Authorisation Meetings (including the Agreement Authorisation Meeting to be held on Saturday 21 February 2015).

Authorisation Meeting - Proposed Agreement

4.11    SWALSC has undertaken and commissioned substantial preparation, planning and legal services to meet the requirements under s.251A of the [NTA] with respect to the proposed Authorisation of the making of the Agreement. This preparation included the establishment of an Authorisation Plan and Authorisation Meeting procedures.

4.12    The people present at the Authorisation Meeting for the proposed Agreement were verified for eligibility to participate in the authorisation process as members of the Identified Native Title Group by applying the relevant procedure (as described below) to enable their entry to, and participation in, the Agreement Authorisation Meeting.

4.13    SWALSC arranged for the Agreement Authorisation Meeting to be facilitated by a person independent of SWALSC. In addition, independent Legal Counsel (a QC) attended the Agreement Authorisation Meeting to provide independent legal counsel and advice. Finally, an independent person acted as Returning Officer to officiate the decision-making process of the Agreement Authorisation Meeting.

4.14    During the Agreement Authorisation Meeting, the independent Facilitator convened an information session, to provide an opportunity for the meeting attendees to be given information about the South West Settlement and the proposed Agreement, and a question-and-answer session, to provide an opportunity for people to participate in discussions in an open forum. Discussions were facilitated to ensure that as many participants had an opportunity to speak, express their views and ask questions on the South West Settlement process generally, and the proposed Agreement in particular.

4.15    Also during the Agreement Authorisation Meeting, meeting attendees had the opportunity to seek independent legal advice. It was observed that a number of people approached the independent Legal Counsel to seek his advice, both formally and informally.

4.16    The members of the Identified Native Title Group present at the Agreement Authorisation Meeting engaged in a full discussion on the requirements for the adoption of a decision-making process for the proposed authorisation of the Agreement - be that a mandatory traditional process under section 251A(a) of the [NTA] or an agreed and adopted process under section 251A(b). As well as the detailed discussion, meeting attendees had the benefit of an address by the independent Legal Counsel in relation to the relevant requirements. It was acknowledged that the members of the Identified Native Title Group in attendance at the Authorisation Meeting:

(a)    had been identified as people who hold or may hold native title in relation to land or waters in the Agreement Area; and

(b)    included people who hold or may hold the common or group rights comprising such native title.

4.17    Following the discussion and address mentioned in paragraph 4.16 above, proposed Authorisation Resolution 1 was read out to the Authorisation Meeting (a copy of the final Authorisation Resolutions is attached at Annexure A to this document). A majority of the members of the Identified Native Title Group present at the Agreement Authorisation Meeting subsequently voted by a show of hands to pass Resolution 1.

4.18    By passing Resolution 1 in its entirety, the members of the Identified Native Title Group present at the Agreement Authorisation Meeting:

(a)    confirmed that the Agreement Authorisation Meeting was a proper meeting of the Identified Native Title Group, of which they were satisfied that adequate notice was given;

(b)    confirmed that there was no particular process of decision-making that, under the traditional laws and customs of the people who hold or may hold the common or group rights comprising the native title in relation to the Agreement Area, must be complied with in relation to authorising such things of the making of the proposed Agreement;

(c)    in the absence of any such process, agreed and adopted (in relation to making a decision about authorising such things as the making of the proposed Agreement) a decision-making process constituted by majority decision by secret ballot of all of the meeting attendees; and

(d)    agreed and acknowledged that:

(i)    a decision made in accordance with this agreed and adopted decision-making process will be taken to be a decision of all of the people who hold or may hold native title in relation to land or waters in the Agreement Area; and

(ii)    no person will have a right to challenge or veto a decision made in accordance with that process.

4.19    A full discussion was then held on the main resolution, Resolution 2, in its entirety.

4.20    Following the discussion mentioned in paragraph 4.19 above, Resolution 2 was read out to the Agreement Authorisation Meeting - again, in its entirety.

4.21    Resolution 2 was moved, seconded and passed by an overwhelming majority by secret ballot by the attendees at the Agreement Authorisation Meeting. In accordance with the process of decision-making agreed and adopted by the passing of Resolution 1, the effect of this majority decision to pass Resolution 2 is that all of the people who hold or may hold native title in relation to land or waters in the Agreement Area must be taken to have (among other things):

(a)    authorised the making of the Agreement;

(b)    authorised and directed the people comprising the applicant on each of the native title determination applications mentioned in paragraph 3.1(a) above, as well as any other members of the Agreement Area NTAG who wish to do so, to sign the Agreement as Representative Parties for all of the people who hold or may hold native title in relation to land or waters in the Agreement Area;

(c)    agreed to, and promised to support, the State making an application to have the Agreement registered on the Register of Indigenous Land Use Agreements; and

(d)    acknowledged and confirmed their understanding that such registration of the Agreement is intended ultimately to result in:

(i)    the surrender to the State of all native title rights and interests that might exist in relation to land or waters in the Agreement Area; and

(ii)    the applicant for each of the native title determination applications mentioned in paragraph 3.1(a) above seeking the making by the Federal Court of one or more determinations that native title does not exist in relation to the area within the external boundaries of each such application.

4.22    Following the Agreement Authorisation Meeting, SWALSC caused letters to be sent to each member of the WK & SN Applicant providing details regarding the execution of the Agreement. A majority of the people comprising the WK & SN Applicant have signed the Agreement, with the last of such people executing the Agreement on 2 April 2015.

4.23    SWALSC has also caused letters to be sent to the members of the applicant for the Single Noongar Claim inviting those of them who wished to be named as Representative Parties to sign the Agreement.

…

(Emphasis added.)

54    The Registrar then sets out the resolutions, Resolution 1 and Resolution 2, referred to above. Resolution 1 (also referred to as the First Resolution) provided the decision-making process for the authorisation of the ILUA (on the basis that there was no applicable traditional decision-making process). Resolution 2 (also referred to as the Second Resolution) provided for the authorisation of the ILUA in accordance with that process. It is to be noted that what is recorded in 4.21 above in respect of the manner in which Resolution 2 was passed varied from meeting to meeting as to whether done by secret ballot count or show of hands and as to the extent of the majority.

55    The Registrar then recorded the assertions of the objectors, noting:

[96]    I understand the objectors also assert that not all persons identified as holding or who may hold native title in the area covered by the agreement authorised the making of the agreement. In particular, the objectors assert that a reasonable opportunity was not provided to participate in the adoption of a particular process, making decisions pursuant to that process and/or the conduct at the meeting and that the specific process of authorisation of the agreement was flawed. As indicated earlier in my reasons, many of the objections were either identical or contained similar material and therefore were made on similar grounds. Rather than restating each ground, I provide the following summary of each. In particular:

•    The meeting attendees were misinformed about the requirements of the authorisation meeting resulting in the adoption of an incorrect decision-making process instead of one that allowed vote by post or proxy, that denied many native title holders the ability to participate in the authorisation process.

•    There was no attempt to distinguish who was entitled to participate in either of the two-step decision-making process required by s 251A, namely a decision to determine the authorisation process and a decision about whether the agreement should be authorised, and in fact the same individuals were permitted to vote on each issue.

•    Not all the persons who hold or may hold native title in the agreement area were given an opportunity to attend or participate, such as due to being incarcerated in prison, distance of the authorisation meeting, travel arrangements or failure to accommodate voting by proxy or postal vote, resulting in insufficient attendance.

•    No alternative and impartial view was provided apart from those in support of the agreement.

•    Intimidation and/or inappropriate/biased behaviour by SWALSC staff, security, police and/or other groups, such as in relation to voting in favour of the agreement.

•    The voting process was unclear.

•    A traditional decision-making process that decisions are to be made by elders, was required to be followed but was not and/or comments about the decision-making process were ignored.

•    A predetermined secret ballot/voting process was imposed or based on the minority.

•    A reasonable opportunity to be heard at the meeting was not provided, such as the microphone being turned down for some attendees and comments were ignored.

(Citations omitted.)

56    The Registrar recorded (at [97]) the response from SWALSC and NTAG in their 2018 response as follows:

•    Responding to the Miller objections, it is asserted that:

-    The objector says that many of the people who have authorised the making of the agreement are the wrong people to speak for country. It is noted that SWALSC took extensive steps, as described in the 2016 Response, to ensure that all the persons who hold or may hold native title in relation to the agreement area were identified, including undertaking a rigorous research programme which was scrutinised and informed by, and agreed with the State.

-    The objector was not excluded as he was a registered attendee at the authorisation meetings for the Wagyl Kaip and Southern Noongar ILUA and Whadjuk ILUA. The objector also attended the South West Boojarah #2 ILUA authorisation meeting where he spoke briefly against the Settlement and then chose to leave.

-    Although there exists a single Noongar society in the Settlement Area at sovereignty, this does not mean that all descendants of that society hold or may hold native title in relation to the whole of the Settlement Area. This is the reason for the various separate registered claims underlying the Settlement Area and the split of the Settlement Area into six separate regions with six related ILUAs to implement the Settlement.

-    Section 251A does not require every member of an authorising group to authorise an agreement. ‘Where authorisation meetings are adequately publicised, and every reasonable opportunity is provided to encourage attendance, the law does not permit members of (or even the bulk of) an Authorising Group to delegitimise an authorisation process by “sitting it out”‘, and if the ‘bulk of the Noongar community really were opposed to the Settlement, they would have attended the meetings and voted to defeat the relevant resolutions’.

-    In relation to the assertions that there was intimidation, inadequate notification, unclear voting process, unclear right for prisoners to vote, inadequate transportation, improper financial inducements to secure a positive outcome, and overbearing security leading to attendees being turned away, the details in the 2016 Response are relied upon.

•    In relation to the [McGlade] submissions made on behalf of several objectors, it is submitted:

-    The [McGlade] submissions admit that there may be no traditional process of decision-making in relation to the authorisation of these kinds of agreements.

-    The authorities do not require a large number of native title holders to be involved in authorisation, or the separate involvement of common or group rights holders and individual rights holders.

-    Arguments that SWALSC misled the attendees to agree and adopt a process are denied, as, among other things, those present had an opportunity with the presence of an independent facilitator and independent legal counsel to vote again either or both the decision-making process for the authorisation of the agreement, and the authorisation of the agreement according to that decision-making process. There is extensive precedent for Noongar native title business to be conducted on country.

-    Section 203BE(5) does not require common or group rights holders and individual rights holders to be separately identified.

-    SWALSC used extensive efforts to ensure that all registered claimants and other claimants were identified and that this did not result in individuals not being identified as members of the identified native title groups because they were serving terms of imprisonment. The very broad and detailed notification exercise undertaken for the meeting ensured the details of the meetings would have come to the attention of incarcerated members, and SWALSC nevertheless convened information sessions within penal facilities with known Noongar populations. In accordance with judicial authority, it can be taken that authorisation was undertaken by sufficiently representative sections of the authorising group, and the absence of any member for whatever reason could not prevent the business of the meeting to be decided by those who did attend the meeting in a way that would bind the authorising group as a whole.

-    Sections 203BE(5) and 251A do not require separate decision-making process and authorisation meetings. A majority of the attendees agreed to and adopted a decision-making process that did not require the convening of a separate authorisation meeting or voting to be by proxy or post.

-    The Settlement was not presented as a ‘done deal’ at the authorisation meeting. At each meeting, the alternate view to the Settlement deal was also provided, which was reverting to native title litigation.

-    The significance of wristbands was explained to attendees and the voting procedures adopted were rigorously applied and all results verified by the independent returning officer.

-    SWALSC provided bus transportation to offset any transport difficulties and provided reasonable opportunities for accommodation.

-    The Settlement was not presented as non-negotiable and information provided about the Settlement did not only focus on the positive elements without explaining the consequences. The Summary Guide, the legal advice which was available on SWALSC’s website, the extensive community consultation and the independent legal counsel available at the meeting provided information about what was being exchanged for the package of benefits from the State including the surrender of native title.

(Citations omitted.)

57    The Registrar noted that SWALSC and NTAG had asserted that all of the people identified and invited to attend each authorisation meeting were registered claimants or other claimants with a sufficiently “credible claim” to be appropriately regarded as being common or group rights holders. She continued (at [99]):

… Therefore the persons who hold or may hold native title in relation to the agreement area were the Wagyl Kaip and the Southern Noongar registered claimants, and the other claimants being the NTAG, Single Noongar claim groups and the Wagyl Kaip – Dillon Bay People claim group. SWALSC and NTAG submit that the other claimants should be regarded as being common or group right holders because:

•    the members of the NTAGs are the descendants of the apical ancestors whom the latest research has connected to the relevant agreement area with more certainty than had been possible given the state of anthropological knowledge when many of the registered Noongar Claims were filed;

•    the [unregistered claim WAD24/2011] claim has been adjudged by the Registrar to have satisfied all of the merit-based elements of the registration test and therefore the members of the claim group were identified for each of the four agreement areas overlapped by the claim;

•    the Single Noongar Claims could not be registered but the Single Noongar Claim 1 was the subject of the positive determination (at first instance) in Bennell; and

•    membership of the claim groups for WAD33/2007 Wagyl Kaip - Dillon Bay People claim is coextensive with that for the (registered) Southern Noongar Claim.

58    SWALSC submitted that it would not have been justified in excluding any members of the registered claimants or other claimants from attending the authorisation meeting and participating in the process through adopting a decision-making process on the basis they were not common or group rights holders. Further, notwithstanding the extensive advertising, inquires, consultations and research programs carried out to satisfy the identification requirement, SWALSC could not identify any purely individual native title holders who, by definition, could not be regarded as the holders of common or group rights.

59    The Registrar then recorded the following matters concerning the decision-making process (at [101]-[104]):

[101]    SWALSC and NTAG refer to cases such as Daniel v State of Western Australia (2002) 194 ALR 278, Moran [1999] FCA 1637, and Lawson on behalf of the ‘Pooncarie’ Barkandji (Paakantyi) People v Minister for Land and Water Conservation for the State of New South Wales [2002] FCA 1517 (Lawson), which discuss ‘the difficulty inherent in any attempt to demonstrate the existence of a traditional decision-making process’ that has survived through the ages; is known to the claim group; was applicable to decisions in the nature of (relevantly) authorising claims or compensation claims; and was mandatory for the claim group to follow.

[102]    SWALSC and NTAG refer to Anderson v Western Australia (2003) 134 FCR 1 and Anderson v State of Western Australia [2007] FCA 1733 (Anderson 2) where the Court decided that there was never any traditional process by which the Ballardong People would make decisions as a whole with regard to speaking for country, and the claim group does not have a traditional process of decision-making in relation to making a claim and dealing with matters arising from it. The court also stated that ‘native title litigation is not exactly a traditional activity’. In Coyne v State of Western Australia [2009] FCA 533 (Coyne), the Court observed that the Wagyl Kaip claim group never had a traditional process by which the whole group would get together and make decisions about speaking for the country.

[103]    SWALSC and NTAG assert that it has been normal practice at authorisation meetings convened by Noongar people to agree to and adopt a decision-making process constituted by a majority vote on a show of hands or by secret ballot. It was contended that similar difficulties as were encountered in all of the above cases would arise in relation to any attempt to demonstrate, with respect to the agreement area, the existence of a traditional decision-making process that must be used in relation to authorising things like the making of ILUAs that would bind all people who hold or may hold native title in the agreement area, particularly where the ILUA provided for such things as the proposed Surrender, Determinations and Retrospective Validations (and the provision of the Settlement Package in exchange).

[104]    SWALSC and NTAG say that it was not clearly demonstrated at the meeting and then accepted by the attendees generally that there existed a decision-making process applicable to the authorisation of the agreement that was traditional and mandatory, and none of the objectors establish the existence of such a process.

(Citations omitted.)

60    The Registrar recorded what had taken place at each meeting in the context of considering whether there was a mandatory traditional decision-making process and resolving how to proceed. The Registrar recorded SWALSC’s and NTAG’s submissions in relation to the conduct of the meetings and notification of the meetings, saying (at [107]-[109]):

[107]    SWALSC and NTAG say that the steps taken both at and in advance of the meeting that establish the authorisation requirement was satisfied are:

•    Referring to Articles 10 and 19 of the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), it is asserted that SWALSC took steps to ensure that Noongar people were in a position to make informed decisions by the time the authorisation meetings were held and to provide their free, prior and informed consent should they wish to do so. In relation to the obligation for free, prior informed consent, SWALSC interpreted this obligation as meaning that Noongar people as a whole should understand the contents of the Settlement ILUAs, the effects that registration of the Settlement ILUAs would have, the likelihood of success of alternative options such as litigated native title outcomes and the results (for example, the entitlement to compensation) that are available through this alternative option. In addition to the processes contained in the Act that allows for the fulfilment of free, prior and informed consent, SWALSC also sought to ensure that, in its execution of the statutory processes, it did all it could to ensure that any consent given by Noongar people to the Settlement was given freely, in advance, from a position of knowledge and with the benefit of independent legal advice. It is contended that in Weribone on behalf of the Mandandanji People v State of Queensland [2013] FCA 255 (Weribone), Rares J found that a notice must be such that it fully informs the persons entitled to attend the meeting so that they can make an informed decision whether or not to be present, and therefore found the concept of ‘giving every reasonable opportunity’ and establishing ‘informed consent’ point to the importance of details in the meeting notice. It is submitted that SWALSC issued extensive and detailed notification in advance of the authorisation meeting and also sought to ensure that Noongar people would be fully informed prior to the meeting by implementing a multifaceted communication strategy that included:

-    making the Settlement ILUA documents available for Noongar people to view on the State and SWALSC’s websites on or about 30 October 2014;

-    publishing simplified explanations of the contents of the ILUA;

-    disseminating information in relation to the Settlement through a wide range of media and other platforms, including continually reviewing and improving the readability and legibility of documents on the basis of feedback received;

-    conducting community meetings to discuss the proposed Settlement and the decision-making process; and

-    obtaining and distributing Senior Counsel’s independent legal advice on the merits of the Settlement.

•    Prior to the authorisation meeting, SWALSC also held a formal “Agreement Information Meeting” based around publishing the apical ancestor sets, which generated significant community interest and enabled SWALSC to test the logistics associated with the meeting venue and provide each NTAG with a final opportunity to become informed about the content of each Settlement ILUA, as well as the process of the authorisation meeting itself.

Notification

[108]    SWALSC and NTAG assert that in settling the content of its notification exercise, SWALSC had regard to the principles established in Anderson 2, in which French J had based his conclusion that a sufficiently representative sample of the claim group had participated in the authorisation process on the fact that there had been wide-ranging notification, both targeted and general, of both the proposed meeting and of what it was being asked to decide.

[109]    SWALSC and NTAG assert that, consistently with this authority, SWALSC determined to formally advertise notice of the Settlement ILUA authorisation meetings nationally as well as in newspapers of State-wide and regional circulation; and engage in an extensive general notification process in addition to the formal notification process. In order to provide such opportunity, and ensure the Noongar people would have an opportunity to give their informed consent, SWALSC sought to ensure notification of the meetings were widely published in reasonable time prior to the meeting. Details of the notification exercise are contained in the certification. The Formal Notice for each authorisation meeting was carefully crafted to ensure that it satisfied all of the guidance discernible from the decided cases in relation to the requirements for a valid meeting notice, including:

(a)    gave background information in relation to the Settlement;

(b)    explained that it was proposed to implement the Settlement by the registration of six ILUAs, each relating to a defined part of the Settlement Area, and identified (by reference to a map and written description) which area was the subject of the particular notice;

(c)    stated that the parties to each Settlement ILUA would be the State, SWALSC and certain named individuals as representative parties for all of the people who hold or may hold native title in relation to land or waters in the Agreement Area;

(d)    summarised the efforts that had been made to identify all of the people who hold or may hold native title in relation to land or waters in the Agreement Area;

(e)    described the people who, as a result of those efforts, had in fact been identified as people who hold or may hold native title in relation to land or waters in the Agreement Area. In each case, the people identified (described as the “Identified Native Title Group”) comprised:

(i)    the members of the NTCG for each Claim - whether registered or unregistered - overlapping any part of the Agreement Area, identified in the same way as they are described in their Claim; and

(ii)    the members of the NTAG for each Agreement Area, described as being the descendants of named Agreement Area Apical Ancestors, adoptees (and their descendants) of any named Agreement Area Apical Ancestors or of their descendants and people recognised by the NTAG members as having rights in the Agreement Area through possessing substantial knowledge of Noongar laws and customs in relation to the Agreement Area;

(f)    noted that authorisation of the making of the proposed Settlement ILUA was to be sought in accordance with the NTA, gave details of the date, venue and time of the meeting to be convened for that purpose (which was to be a “one-day” meeting only) and invited all members of the Identified Native Title Group to attend the authorisation meeting;

(g)    described the purpose of the meeting, in bold font, as being to give all members of the Identified Native Title Group a reasonable opportunity to participate in all processes directed at the making of a decision whether or not to authorise the Settlement ILUA;

(h)    explained that authorisation and registration of the Settlement ILUA would result in the Surrender, Retrospective Validations and Determinations, summarised the Settlement Package and further explained that the Determinations would result in the finalisation of all of the overlapping Claims (and any outstanding compensation applications) on the basis that, as a result of the Surrender, native title does not exist in relation to the whole of the Agreement Area;

(i)    people who considered they were members of the Identified Native Title Group were encouraged to contact SWALSC using contact details given in the notice to pre-register their attendance;

(j)    noted that more fulsome details about the proposed Settlement ILUA and the benefits package could be accessed on the SWALSC website (www.noongar.org.au);

(k)    noted that free bus travel to and from meetings would be provided to those who required it and called SWALSC to reserve a seat, and that refreshments and lunch would be provided at the meeting, but confirmed that no accommodation, mileage or travel allowance would be provided; and

(l)    contained advice - labelled “important” in capital letter and bold font - that those who asserted native title rights and interests in the Agreement Area but were not members of the Identified Native Title Group should contact SWALSC as soon as possible.

(Citations omitted.)

61    The Registrar recorded the submission that the level of detail included in the notices advertising the Settlement ILUAs and the early, frequent and wide-ranging nature of the notification involved, were well adapted to ensure all members of the identified native title group and any other person who holds or may hold native title in the agreement area were given every reasonable opportunity to participate in the relevant decision-making processes. She also recorded that, although 10% of the adult Noongar population voted, this represented “a healthy enough segment of the Noongar population to give reliable indication by the mood of the Noongar people towards the Settlement”. She noted the evidence given in Coyne by a SWALSC senior cultural advisor that “generally Noongar people do not take an active interest in native title until they are in their 30s or 40s”, which would affect the attendance and voting numbers, but equally SWALSC and NTAG had referred to the comparatively low number of objectors compared to the total number of attendees at the meeting, being less than 2%.

62    The Registrar recorded the assertions of SWALSC and NTAG in relation to the extensive consultation process (at [111]-[119]) and in particular noted the assertions that from about September 2013, SWALSC’s Regional Development Unit (RDU) had the task of circulating sufficient information to the Noongar community to provide a proper understanding of the Settlement terms, including the impacts the Settlement would have on Noongar native title rights and interests and Noongar Claims and the opportunities the Settlement would present to Noongar people. SWALSC considered this to be vital to ensuring that Noongar people would be able to gain the fullest knowledge they could prior to making their decisions as to whether or not to authorise the agreement. SWALSC submitted to the Registrar that the ultimate goal of the communications strategy was to “inform, educate, and celebrate the journey towards the negotiated settlement of the Noongar Claims and to ensure that free, prior and informed consent was achieved”.

63    The Registrar noted the following information was provided in relation to the communication strategy:

10.5    The objectives of the communications strategy included:

(a)    educating and informing target audiences about the Settlement offer and the long-term benefits that could arise;

(b)    delivering clear, consistent messages through a range of communication tools to enable Noongar people to make an informed vote; and

(c)    educating the Noongar community about the authorisation process.

10.6    These “target audiences” comprised:

(a)    members of the Noongar community, including Elders and Seniors, community leaders, men, women and youth;

(b)    Noongar business leaders, SWALSC Board members and Aboriginal corporations;

(c)    the public sector, including public servants, educators, local government and regional community groups;

(d)    outspoken opponents of the Settlement; and

(e)    media, including the West Australian, Indigenous newspapers, regional newspapers, Noongar Radio and online outlets such as the SWALSC facebook page and website.

10.7    In an effort to achieve the objectives of its communications strategy, the RDU sought to address during consultations such issues as:

(a)    the lack of knowledge and understanding within the Noongar community of native title, the NTA and the length of time it had taken to arrive at agreement-in-principle on the terms of the Settlement;

(b)    some apathy towards the Settlement among some members of the Noongar community and a level of cynicism towards any negotiations with government; and

(c)    the actions of certain vocal opponents to the Settlement[.]

10.8    The strategies adopted by the RDU to guide its communications plan included:

(a)    engagement through open, accountable communications that present all the facts to resolve any questions/arguments. Information-sharing techniques used included emails, newsletters, press releases, web pages, radio announcements, social media, face-to-face dialogue and community parks and hall meetings;

(b)    championing the merits of the Settlement proposal in the sense of the delivery of long-term benefits and outcomes - but also candidly discussing the availability and reality of the alternative options of reverting to litigation with a view to obtaining either consent or contested determinations in relation to the Noongar Claims; and

(c)    using values-based story-telling techniques with strong visual components to connect people and promote Noongar culture.

10.9    To disseminate maximum information in the lead-up to the authorisation meetings, the RDU conducted or facilitated:

(a)    face-to-face meetings;

(b)    community (roadshow) meetings, publicised using metro, suburban and regional newspaper advertising, Noongar Radio announcements, Facebook, email list and web-based promotion; and

(c)    target group, Aboriginal organisations and family meetings, to convey information about the Settlement and authorisation process to individuals or groups who carry significant status and influence.

64    The Registrar observed (at [112]-[116]) that SWALSC and NTAG said that:

(1)    PowerPoint presentations, where appropriate, or otherwise hard copy presentations were used for consistency in the structure and content of presentations. Facebook was used as a key tool to disseminate information and obtain feedback given its high and inter-generational usage in the Noongar Community, including inviting people to call and hold family meetings to allow SWALSC the opportunity to provide families with the latest information about the proposed settlement and authorisation process.

(2)    The RDU also hosted a series of family-friendly day events, which were broadly advertised in a range of media, for the community in each region to enable members of the community to be updated on the Settlement and the authorisation process while their children were entertained with organised activities. Each of these events involved informal discussions with SWALSC staff providing information about the negotiations and the audience being encouraged to speak with staff and provided with reading material to take home and share to enable them to participate and make informed decisions about whether or not to authorise the Settlement ILUAs.

(3)    Key and known Noongar organisations, corporations and businesses were targeted to attend luncheons with the Chief Executive Officer (CEO) of SWALSC, which involved an informal presentation followed by discussion, to gain an understanding of what the Settlement would mean for them and their organisation, corporation or business. Reading materials were also distributed.

(4)    During the outbound telephone contact program commencing on 4 December 2014, 149 calls were made in relation to the authorisation meeting to inform those eligible people about the meeting, bus arrangements if required and to provide further information about the Settlement.

(5)    The Agreement Information Meeting was of particular significance to the consultation process where there was provision of information and discussion about the Agreement and the apical ancestor lists for the Agreement Area, and SWALSC was able to perform a final run-through of the authorisation process and test the logistics associated with each meeting venue.

65    Further the Registrar considered SWALSC and NTAG’s assertions (at [17]) regarding their attempts to disseminate information to incarcerated Noongar people. As part of its free, prior and informed consent strategy, SWALSC sought to convene information sessions with penal facilities within known Noongar populations to enable those Noongar people serving sentences of imprisonment a reasonable opportunity to participate in the decision-making process and SWALSC staff visited various facilities on 15 August 2013, 27 August 2013, and 5 March 2014. Noongar prisoners could also listen to the Noongar Radio announcements which were arranged to disseminate maximum information in the lead-up to the authorisation meetings. The efforts by SWALSC to inform the community were sufficient to apprise Noongar prisoners and their families of the meetings and to provide them with the opportunity to discuss their views on the settlement and make arrangements for eligible family members to attend the meetings and participate.

66    The Registrar noted (at [118]) that in relation to postal and proxy voting, SWALSC and NTAG asserted:

(a)    such processes were not required nor workable in the context of statutory ILUA authorisation processes. In this regard, SWALSC formed the opinion based on case law that under the NTA, the Noongar people would be required to attend the meeting and make a decision in relation to the making of the agreement;

(b)    that SWALSC considered postal voting not to be acceptable as people absent from the meeting would not be able to participate in a key element of the authorisation process, being the process of discussing and making a decision about the applicable decision-making process;

(c)    that there would have been a risk of multiple postal voting. Those who attended the authorisation meeting also did not agree to and adopt a decision-making process that allowed for postal voting; and

(d)    similarly, “the suggestion that the attendee should also be allowed, by proxy, to exercise the voting rights of Noongar people who were unable to attend would again become unworkable” as, for example, there would be no practical and secure way to check the eligibility of the absent people.

67    The Registrar noted (at [119]) that SWALSC and NTAG explained that between the time the agreement-in-principle was reached on the terms of the agreement in September 2014 and February 2015, SWALSC convened at least 34 community and family meetings across the Settlement area. In addition, SWALSC has convened 16 family meetings at the request of various families, between May and August 2014.

68    In particular and relevantly to the matters currently being advanced by the applicants, the Registrar examined the objectors’ assertions of the difficulty of accessing the meeting venues, recording these matters (at [120]). It was noted that SWALSC and NTAG said, in response to the objectors’ assertions of the difficulty of accessing the venue of the authorisation meeting, that Rares J found in Weribone that objections based on the location of a meeting would be an insufficient basis on which to invalidate a meeting that had otherwise been validly constituted. SWALSC contended it would be reasonable to hold each authorisation meeting “on country”, in the claim area to which the agreement applies, on the basis that all the registered claims, the venues for the Settlement ILUA implementation matters such as land estate management, heritage matters, joint management and community development, and the offices of the proposed regional corporations relate to, or are located in, areas or places outside Perth.

69    The Registrar further recorded (at [120]) that SWALSC and NTAG argued in respect of the “on country” authorisation meetings that:

(a)    this is consistent with practice, which is driven by Noongar community sentiment, to hold s 251B authorisation meetings for Noongar claims on country, and working party meetings on a rotating basis in Perth and in the region; and

(b)    SWALSC offered reasonable transport services to enable people to travel to and from the meetings, as it had in past authorisation meetings, including bus transportation, but the two buses provided were not filled to capacity. SWALSC also ensured that, while meetings were held on country, they were held where there were reasonable opportunities for accommodation and early notification of the authorisation meetings so as to ensure that Noongar people would have adequate time to organise making a trip to other areas of the South West for the purpose of attending (and participating in) the authorisation meetings.

70    The Registrar also dealt with questions of fairness in the meeting processes, the safety and security management measures at the meetings and the nature of the meetings convened. As to the latter, she noted the submission that it would be sufficient to satisfy the requirements of the NTA to hold one meeting when considering the duration of the meetings would allow adequate time for both aspects under the NTA for authorisation to be discussed and resolved and that this accorded with substantial precedent for one day meetings, rather than longer or multiple meetings.

71    The Registrar noted that the pre-registration and registration process was designed to ensure that the meeting was attended by identified actual or potential native title holders so as to avoid the matters referred to by French J (as the Chief Justice then was) in Bolton on behalf of the Southern Noongar Families v State of Western Australia [2004] FCA 760. In this regard, the test for eligibility to attend was descent from the list of apical ancestors that were notified, adoption by an eligible family, or being recognised by other Noongar people as belonging to the relevant NTAG through possessing substantial knowledge of Noongar laws and customs in relation to the relevant area.

72    Additionally, it was noted that SWALSC distinguished between those attendees at each meeting who were members of one or more overlapping claim groups and the applicable NTAG, only one or more overlapping claim groups, or only the applicable NTAG by issuing differently coloured wristbands to assist in identifying the different groups and tracking their voting patterns. The wristbands were as follows:

    Silver wristbands were given to NTAG (including relevant Single Noongar Claim group) and Wagyl Kaip and Southern Noongar claim groups.

    Orange to NTAG only (including relevant Single Noongar Claim group).

    Teal to NTAG only (including relevant Single Noongar Claim group) and Southern Noongar claim group only (not Wagyl Kaip claim group).

73    The details of the steps taken on entry to the venue and the distribution of wristbands amongst the various voting groups were then set out. In the case of the Wagyl Kaip there were four people denied entry on the basis that they were assessed as not being members of the claim groups or members of the Single Noongar Claim who could establish a connection to the agreement area.

74    The Registrar discussed the agenda, the information and the decision-making process concerning the First Resolution. This included discussion as to whether there was a mandatory traditional process and, if not, what process should be adopted. The Registrar recorded the information which had been conveyed by SWALSC and the NTAG in relation to this topic in a manner which clearly suggested that she accepted the correctness of the information provided. The Registrar approached the discussion of the Second Resolution in similar manner in relation to the authorisation of the ILUA. The First Resolution provided the decision-making process for the authorisation of the ILUA (on the basis that there was no applicable traditional decision-making process). The Second Resolution provided for the authorisation of the ILUA in accordance with that process. There is certainly no suggestion in the Registrar’s reasons that she did not accept any aspect of this account from SWALSC concerning what transpired at the meeting.

75    The Registrar then turned to examine a number of objections which have not been pursued in these applications, which were raised in respect of the requirements of s 203BE(5)(b) of the NTA, before shifting her focus to s 251A dealing with the authority to make ILUAs. She noted the following concerning the question of a traditional decision-making process (at [154]-[157]):

[154]    I also understand some of the objectors say the process that was agreed and adopted was predetermined and/or no alternate decision-making process was offered, such as proxy or postal voting.

[155]    In my view, the information before me indicates that the persons who were present at the meeting were given an opportunity to make comment, and although it is viewed that these comments were disregarded or ignored, the majority of those present resolved that there was not a traditional decision-making process that was required to be followed and therefore they agreed to and adopted a decision-making process of majority vote by secret ballot.

[156]    In relation to the assertion that members of another claim group were permitted to have their own separate authorisation meeting but other groups were not, I understand that this was a decision that was not made by SWALSC or the persons attending the authorisation meeting but by that group and the persons who attended and participated in the authorisation meeting convened by SWALSC did not agree to or adopt a process that permitted different groups to have their own decision-making process.

[157]    In light of the above, I consider there does not exist a traditional decision-making process which should have been followed in authorising the making of the agreement and therefore an agreed to and adopted process was instead utilised.

76    The Registrar set out the observations of Reeves J in Kemppi v Adani Mining Pty Ltd (No 4) (2018) 360 ALR 697 and Logan J in Fesl concerning authorisations. She considered it appropriate that she have regard to the principles distilled from those cases, as well as Lawson per Stone J and Dingaal per Cooper J concerning s 251B of the NTA in light of Logan J’s observations in Fesl as to the “analogy of application” between s 251A and s 251B of the NTA. The Registrar extracted (at [165]) the observation of Cooper J in Dingaal who referred to absences from the meetings, saying (at [37]):

… I am satisfied on the balance of probabilities that the extent and nature of the notice of meeting, the agenda and the explanatory memoranda, were such that all members of the claim group had notice of the meeting and notice that it was the business of the meeting to consider resolutions which were intended to affect and bind them as members of the claim group. I am satisfied that those who did not attend, for whatever reason, knew and accepted that the question of the authority and replacement of … the current applicants in respect of the native title claim, would be decided by those attending the meeting in a way which would bind the claim group as a whole, and accepted that process.

77    Submissions as to a lack of an opportunity to participate, inadequate prior notice of the meeting and predetermination of the process or inadequate explanation about the process were set out. The Registrar noted (at [171]) that some of the objectors also appeared to assert that a reasonable opportunity was not given as inadequate prior notice or information about the meeting/agreement was given, and, therefore, there was no free, prior and informed consent to the decisions made. Additionally, it was contended by the objectors that not all the persons who hold or may hold native title in the agreement area were given an opportunity to attend due to incarceration, hospitalisation, the costs of travelling, transport, distance of the meeting, failure to use the Australian Electoral Commission (the AEC) or accommodate proxy or postal voting or otherwise general exclusion. It was asserted that some people who attended were not persons who hold or may hold native title. Some of the objectors said the process adopted for decision making was pre-determined or not sufficiently explained. In addition, a reasonable opportunity was not given to be heard at the meeting with some attendees being ignored and no alternate or impartial view apart from supporting the agreement was provided.

78    However, importantly, the Registrar expressed her view to the contrary. The material before the Registrar indicated that SWALSC implemented a multifaceted communication strategy involving making Settlement ILUA documents available on websites from October 2014, publishing simplified explanations of the contents of the agreement, disseminating information through a wide range of media and other platforms while continually reviewing and improving readability of documents, conducting community meetings to discuss the proposed Settlement and the decision-making process, and obtaining and distributing independent legal advice received about the merits of the Settlement. In addition, prior to the meeting, SWALSC held a formal Agreement Information Meeting based around publishing the apical ancestor sets which generated community interest and allowed SWALSC to test the meeting venue and provide information about the agreement and the process of the authorisation meeting (at [172]). The Registrar placed weight on the effort undertaken by SWALSC:

    SWALSC had formally advertised the notice of the ILUA nationally and in newspapers with State-wide and regional circulation, ensuring that the meeting was published widely in reasonable time prior to the meeting and the notice contained sufficient details of the business to be conducted at the meeting. The Registrar also had regard to the extensive consultation that was undertaken with the Noongar community by SWALSC’s RDU to provide sufficient information and understanding about the Settlement terms, including the impact on native title rights and interests and the opportunities the Settlement presented to Noongar people, such as by holding a series of family-friendly day events. Facebook was also used as a key tool to distribute information (at [173]).

    Key and known Noongar organisations, corporations and businesses were targeted to attend luncheons with the CEO of SWALSC to provide information about the Settlement. An outbound telephone contact program was also undertaken to inform eligible people about the meeting, bus arrangements and provide further information about the Settlement (at [174]).

    SWALSC convened information sessions with penal facilities with known Noongar populations to enable those Noongar people in prison a reasonable opportunity to participate in the decision-making process, and said that efforts by SWALSC to inform the community were sufficient to apprise Noongar prisoners and their families of the meetings and have an opportunity to discuss their views on the settlement and make arrangements for eligible family members to attend the meetings and participate (at [175]).

79    The material before the Registrar indicated that SWALSC considered the options of proxy and postal voting and sought the assistance of the AEC, but made assessments that these options were not feasible for various reasons.

80    The Registrar noted the objectors’ claims that informing Noongar people in imprisonment of the meeting did not allow them the opportunity to attend and participate in the process, however, the information before her indicated that SWALSC did take this into consideration and provided an opportunity to participate through other means. The Registrar analogised, like Cooper J found in Dingaal, those who were present at the meeting were apprised of the position of those Noongar persons in imprisonment and still decided to continue with the meeting and make decisions in relation to the resolutions.

81    The information provided to the Registrar indicated to her that notification of the meeting was wide and gave a reasonable opportunity to participate in the processes at the meeting. Some of the objectors said they were not given an opportunity to participate in their own authorisation process. However, the Registrar reasoned (at [178]) that if this was the reason they did not attend the meeting, then this suggested they chose not to attend whereas others from their group did take this opportunity and decided to participate, including adoption of the established decision-making process.

82    The Registrar concluded on this point (at [179]), that in light of this information and all the material before her, the objectors had not satisfied her that a reasonable opportunity was not afforded “to participate in the adoption of a particular process and the making of decisions pursuant to that process” (see Fesl (at [71])). Consequently, it was her view, that there was an agreed and adopted process of decision-making. She also noted that the objectors said that SWALSC had not provided sufficient evidence in relation to some of its submissions. However, as mentioned, s 24CK(2)(c) required the objectors to discharge the onus. The Registrar reasoned (at [180]):

The [NTA] does not impose any obligation on a representative body to adduce evidence supporting the accuracy of its certification under s 24CG(3)(a), even when an objection under s 24CI to registration of an ILUA has been lodged.

(Citing Bright (at [62])).

Accordingly, she did not consider that SWALSC was required to provide evidence or address specific matters, if that was the objectors’ intention, for her consideration of s 203BE(5)(b). In any event, she did not consider that failure of SWALSC to provide evidence in relation to any of its assertions suggested that the making of the ILUA was not authorised in accordance with an agreed to and adopted process.

83    After discussing O’Loughlin J’s decision in Ward v Northern Territory [2002] FCA 171 in relation to the actual conduct of the meeting and the specific processes of authorisation of the agreement, the Registrar observed the following (at [184]-[190]):

[184]    The notices of the authorisation meeting reveal the date, time, place and purpose of the authorisation meeting and I understand that the meeting was convened by SWALSC as the representative body for the area covered by the agreement. Members who were identified as people who hold or may hold native title in relation to the land or waters of the agreement area (Identified Native Title Group), were the native title claim groups for the Wagyl Kaip, Southern Noongar, Wagyl Kaip – Dillon Nay People, and Single Noongar claims and the additional people identified through the extensive research by SWALSC’s research section as members of the NTAG being the Wagyl Kaip and Southern Noongar apical ancestors and the descendants of those ancestors. Those members were invited and notified of the authorisation meeting through public advertisement of the formal notice, a general reminder notice and a general notice in a broad range of State-wide, regional and Aboriginal or Torres Strait Islander special interest newspapers, SWALSC’s program of information using SWALSC’s website, social media, an information package mailed to each member listed on SWALSC’s database, an authorisation meeting pre-registration program, telephone contract program, radio announcements, meetings of the South West Claims Working Party and Named Applicants, and a meeting of all the South West Claims Named Applicants. I am of the view that the members of the claim group were given a reasonable opportunity to attend.

[185]    The meeting was attended by [express number of] members of the identified NTAG and a comprehensive registration process was undertaken to ensure that those attending were entitled to participate. In my view, the conduct of the meeting was such that those present resolved to use the agreed and adopted decision-making process, and it is indicative that the actual process was participative and inclusive, allowing those present an opportunity to participate. For instance, the persons who were present were given information about the agreement including from an independent legal counsel, able to consider the proposed resolutions, discuss or ask questions about the proposed resolutions, and vote by a show of hands or secret ballot prior to the passing of the resolutions. I also consider that a majority of the members of the Identified Native Title Group voted in support of the resolutions.

[186]    Some of the objectors say that a reasonable opportunity was not given to be heard at the meeting with some attendees being ignored, and no alternate or impartial view apart from supporting the agreement was provided. The material indicates that views were heard and responded to by SWALSC, the independent facilitator, and the independent legal counsel, and those present at the meeting decided to proceed with the meeting and vote in favour of the agreement.

[187]    The objectors also contend that their legal counsel, facilitator, minute taker and returning officer were not independent. The material provided by SWALSC and NTAG details the responsibilities of each of these persons and SWALSC formed the opinion that each had undertaken his or her duties appropriately. I do not consider my task here is to speculate that having different people conducting these tasks at each meeting would result in fairer outcomes.

[188]    There are also contentions that no alternate view or option was provided apart from in favour of the agreement. The material before me indicates that the independent legal counsel provided his views about the other option to settlement, namely having a litigated outcome. There also appears to be further assertions by objectors about their right to have their claim resolved by the Court. However, my task is not to draw conclusions in this respect, but I note that despite this, those who attended were informed of the option of a litigated outcome through the Court system and decided to authorise the making of the agreement.

[189]    I note that s 251A does not require ‘proof of a system of decision-making beyond proof of the process used to arrive at the particular decision in question’, rather the agreement may ‘be proved by the conduct of the parties’ [Noble v Mundraby, Murgha, Harris and Garling [2005] FCAFC 212 at [18] cited in Fesl at [70]].

[190]    On the basis of the information provided, I am satisfied that all the persons identified had authorised the making of the agreement. The objectors have therefore not satisfied me that the requirements of paragraph 203BE(5)(b) were not satisfied in relation to the certification of the application for registration.

84    The first condition of s 24CK was met according to the Registrar. The Registrar also concluded that the second condition was satisfied. It does not arise on these applications and it is unnecessary to set out the Registrar’s reasons on this point.

The Gnaala Karla Booja ILUA decision (the Mackay decision)

85    The Mackay decision is similar to the McGlade decision, except that the Miller objections (set out above) were not raised with the Registrar in respect of the Yued ILUA, the Gnaala Karla Booja ILUA or the Ballardong ILUA.

SOME FURTHER FACTS

86    The evidence before the Court in support of the McGlade applications was contained and annexed to an extensive affidavit sworn by Mr Morgan, solicitor for the McGlade applicants. That evidence was partly summarised by the Registrar. Of particular relevance before the Registrar and before this Court is the evidence as to the manner in which notice was given about the meetings and the attendance (or non-attendance) at the meetings. This evidence was principally in the form of witness statements of attendees at the on country meetings.

87    For only one of the ILUAs (the Gnaala Karla Booja ILUA), the process agreed and adopted was by majority vote evidenced by a show of hands. The process agreed and adopted in respect of the other five ILUAs was by majority vote by a secret ballot. The evidence records that some of the results were close. For example, the resolution to authorise the Wagyl Kaip & Southern Noongar ILUA was passed by 207 “yes” votes against 200 “no” votes. Evidence was given by Ms Naomi Gail Smith to the Registrar that attendees at the meeting thought that the “no” vote would carry the majority. When the vote tally was announced, and only after a recount with a majority “yes” vote, she gave evidence as having been “quite shocked” at the result.

88    In addition to wishing to raise aspects about the process of voting, the applicants also (and perhaps more importantly) take issue with the process of notification.

89    It will be recalled that the notice procedure started in 2014. The last meeting was conducted in late March 2015. The State applied on 29 June 2015 to the Registrar to register each ILUA on the Register.

90    On 16 December 2015, the applicants and others objected to the registration of each ILUA. The objections raised were, relevantly for present purposes, that:

(a)    the requirements of s 203BE(5)(a) and s 203BE(5)(b) were not met; and

(b)    the decision-making process adopted to authorise each ILUA did not comply with s 251A.

91    The objections were also supported by ten witness statements, relied upon by the applicants before the Registrar. It is appropriate to refer to eight of these witness statements which were placed before the Court, though it must be emphasised that although the evidence in these statements was before the Registrar, the Registrar was not bound to give that untested evidence particular weight or any weight if she was of the view that the content was not reliable or not as reliable as the information received from SWALSC. The weight to be given to such statements, absent some element of irrationality or unreasonableness (which is not claimed), was a matter entirely for the Registrar. As will be seen, there is significant hearsay, summary, opinion and submission content in these statements. The first witness statement is given more detailed summary below. Those witness statements which follow it were of a similar nature.

Ms Averil Williams

92    Ms Averil Williams in her statement said that she belonged to the Wagyl Kaip & Southern Noongar people, but was eligible to vote in other regions of the South West. However, because those regions were not her country, she did not have a right to speak in relation to them. She described information sessions conducted by SWALSC in 2013, her expectations in relation to those meetings and then a meeting “on or about 28 January 2015 in Cannington”. (The Cannington meeting was in fact on 28 March 2015.) She said she is unsure who initiated the meeting, although she recalls Ms Margaret Culbong chairing it. Ms Williams had asked for Mr Glenn Culbong and Mr Glen Kelly to come and speak. About a week before the meeting, she became aware of the “850 page Settlement ILUA”. At the meeting she says Mr Kelly stated:

In agreeing to the Deal the Noongar people agree not to hold the current nor future governments to account for acts and injustices of the past, which includes no compensation will be sought.

93    Ms Williams raised concerns and questioned Mr Kelly about this, mentioning the stolen generation that her parent and siblings were of the stolen generation and commenting about atrocities that occurred within the South West. She said there was no real discussion as to the details of the settlement proposal or an offer to provide any further independent advice about it.

94    Ms Williams also attended the Bunbury meeting with her first cousin, Ms Lynnette Kelly, who was hard of hearing. Ms Williams attended to assist her cousin. They arrived at approximately 8.30 am and they were told that voting registrations would happen only from 8.30 am to 10.30 am. Any person who was not present and registered would not have a vote. She went to register and was given a pink wristband. She said the staff did not explain to her the significance of the various coloured wristbands. They went into the meeting. Mr Les Wallam and an elder woman, who spoke in Noongar, did a welcome to country. Mr Kelly introduced people, made various formal statements, gave an acknowledgment of people and to country and asked everyone to respect the views of the others. Mr Kelly introduced a facilitator, Mr Graham Castledine, explaining his role. He also explained an independent lawyer was present to answer questions. He asked that only one person speak at a time.

95    Later, the independent lawyer began speaking about the NTA and spoke about the complexity of native title, and ILUAs generally, the process of voting and various entitlements. He said there was very little prospects to the native title because it had most likely been extinguished. This would mean that if a settlement proposal did not go ahead, the Gnaala Karla Booja people would have to come back to court which would be a long and slow process. She said the Noongar people deserved better than this and that the Act of Parliament was a significant event in establishing the new Noongar nation Australia wide. He said that the deal was best for the Noongar people. The independent lawyer did not consult with Ms Williams or anyone she knew. Ms Williams thought that he appeared to have just read the document without consulting the Noongar community generally.

96    She said that about this time, Mr Joseph Northover, an applicant, asked for the meeting to proceed straight to the voting. The request was refused. Someone attempted to intimidate him into remaining silent by rolling up papers and slapping it repeatedly into his hand.

97    Throughout the course of the discussion, she said it was clear that SWALSC were “favouring” people who were expressing positive views on the settlement proposal. She said that during the lunch break, she and Ms Grace Kelly approached the independent lawyer and introduced themselves, saying that the summary document did not fairly capture what was in the settlement proposal and asking how someone could make a decision based on such selective information. Her question was not answered.

98    Ms Williams said that after lunch Mr Kelly raised the process of how voting would be conducted at the meeting, asking whether there was a traditional way of voting on the settlement proposal. He did not elaborate on that or allow a discussion on what traditional decision-making involved in this context. He went onto say that as there had not been a traditional decision-making process for this kind of decision, the Settlement ILUA would be decided by a vote by a secret ballot or a show of hands. She said that the meeting generally, and the voting process, was not conducted in accordance with traditional Noongar ways under which the men and women elders of the families in the Gnaala Karla Booja area would have made the decision. Mr Kelly said that for authorisation meetings people had to be physically present and registered in order to be counted. The independent lawyer did not assist. There was a vote to determine which process of voting would be adopted, a show of hands or a secret ballot. Ultimately, a show of hands was adopted.

99    She states people “were confused as to the voting process”. Similarly, for the “yes” or “no” vote for the agreement, she said only a few people put their hands up. Some hands were only half way raised so as to avoid identification.

100    She said that attendees were addressed at the meeting “in quite an intimidating manner” to the effect that they would receive nothing unless they supported the agreement. She said the projector screen showing the various resolutions was so blurry people could not read it. They were asked to vote “yes” first, followed by the “no” vote. She explained that the votes were counted. She saw the staff members counting according to whatever colour wristband people were wearing. The staff member nearest to her was counting all the yellow votes and then entering numbers into a box on a piece of paper. The final result announced at the meeting was 176 “yes” to 173 “no”, with two abstentions. After the meeting, she said to the chairperson she did not agree with the “deal” as SWALSC had failed to include her father’s family.

101    Ms Williams also attended the Busselton meeting, arriving just after the commencement. There were persons standing outside the meeting who informed her they were not allowed to enter the meeting so they were about to leave. She went inside and put her name down for registration. She said the research manager at SWALSC approached her and told her words to the effect that as she was not part of the claim group, she could not participate in the meeting. Ms Williams explained she was there to assist someone who was hard of hearing. A purple wristband was placed on her wrist. She was then told by the principal legal officer that she could not go into the meeting because the traditional owners had passed a motion not to allow others from outside the claim group to attend the meeting.

102    There were significantly fewer people attending than at Bunbury. There were discussions about distribution of funds which would be received by the Settlement and the process of voting. The official result on a secret ballot was 102 in favour, 54 against and one abstention.

103    Ms Williams also attended the Katanning meeting where she was given a grey wristband. She was told by a SWALSC staff member that it symbolised her connections to the Wagyl Kaip & Southern Noongar.

104    The conduct of this meeting was substantially the same as that of the Bunbury and Busselton meetings. By secret ballot, the vote count was 207 for “yes” and 200 for “no”.

105    Ms Williams’ statement concludes with the remark that she did not believe that the authorisation meetings convened by SWALSC were truly representative of an informed consent of the Noongar community. In addition to the concerns expressed about the conduct at the specific meetings she attended, Ms Williams also expressed concerns that:

(a)    the general Noongar community had not been properly consulted on the settlement proposal;

(b)    the actual documents making up the settlement proposal were only made available from 1 November 2014;

(c)    the majority of people attending the authorisation meeting had not had an adequate opportunity to read the settlement proposal and seek the relevant advice as to its meaning;

(d)    people had not had the opportunity to have the legalities explained to them; and

(e)    those incarcerated were not provided with a means to vote.

Mr Carl Winmar

106    Mr Carl Winmar also belongs to the Wagyl Kaip & Southern Noongar people. His family are from Katanning. In his witness statement he said he was entitled to vote at Bunbury (South West Boojarah), Katanning (Southern Noongar) and Northam (Ballardong) meetings. He attended the meeting at Bunbury and voted “no”. He thought everyone should have the right to vote because the “land is everyone’s land, not just 5 percent of people”.

107    At the time he voted in Bunbury he was on bail and waiting to be sentenced. He was sentenced in February 2015 and went to Acacia Prison remand, then Casuarina Prison, a maximum security prison, and then Albany Regional Prison. He was incarcerated at the time of the Katanning and Northam meetings. He wanted to vote, but was not able to. He said there were “lots of Noongar people in prison” who were not allowed to vote. He said people in prison “didn’t know anything about the deal or the voting process”. His evidence was:

I think for sure than many of the Noongars in prison would have wanted to vote. They would have voted if they had the chance. I think most of them would have noted no. They all care about our land. You can’t put a money figure on the land. The land is everything.

Mr Fabian Yarran

108    Mr Fabian Yarran belongs to the Ballardong people. He said he was also eligible to vote in other regions of Noongar country. He had voted in five regions and could have voted in Yued country as well. He voted at the Ballardong people authorisation meeting on 14 March 2015 in Northam. He worked for the Noongar Land Council and Wardong Aboriginal Corporation as a Future Act Officer, support worker and director.

109    He attended three community meetings at Wilson, Langford and Rivervale conducted by SWALSC to educate and inform Noongars about what was happening with the native title process and to update them on it. He said at all meetings the elders were confused about the settlement proposal and what their options were. His evidence was:

… If the Noongar don’t vote for the deal, there would be nothing for us and had to agree with the deal. SWALSC never said we had options or different on deal or better negotiation on the deal. It was said all nor nothing approach, which I thought it was bad option.

110    He described what occurred at the meetings in a similar way to Ms Williams. However, he also suggested that there was a traditional way of decision-making through the elders’ council, made up of men and women, to make the decision and that this had been done for thousands of years. He said the meeting and voting process should have been conducted in the traditional Noongar way. It was not.

111    There was a vote to see which voting process to use: a show of hands or secret ballot. A show of hands was the successful voting process. The vote was conducted three times due to the confusion as to the process. Too few people put up their hands.

112    In addition to the evidence he gave about the conduct of specific meetings, Mr Yarran’s witness statement also recorded his general observations on the process. He thought the process was rushed due to little or no consultation being carried out by SWALSC or its working parties so as to inform the Ballardong people as to the “pros” and “cons” of the proposed ILUAs. He thought the ILUA was almost incomprehensible even with the assistance of counsel.

113    There were Ballardong people who could not travel. One hundred kilometres was a journey for those who were not well and/or were hospitalised. He said he raised this issue both prior to and at each of the authorisation meetings, except for Yued which he did not attend. His witness statement records that, at each of these meetings, he asked the following series of questions, usually to Mr Kelly:

Why could the meeting not be held in Perth as many of the sick and elderly are there and cannot travel? The usual response was that this is not provided for by the [NTA].

What about the meeting not accommodate [sic] the people by way of a proxy vote? The usual response again was that this is not provided for by the [NTA].

114    Mr Yarran also noted in his witness statement that another group of people who could not travel to Northam for the meeting were Ballardong people who were incarcerated at the time, nor could Noongar people who lived interstate or overseas. Though it was not suggested that he raised these concerns with SWALSC at any time, including at the meetings.

115    He also said there was intimidation from SWALSC’s staff at the meetings.

Ms Joanne Mary Hayward

116    Ms Joanne Mary Hayward signed a witness statement indicating she had apical ancestor connections to the Wagyl Kaip claim group. She spoke of attendance at the meetings and the votes there cast. Her concerns were:

(a)    a lack of transparency by SWALSC in failing to provide an objective explanation of documents;

(b)    throughout the settlement negotiations, SWALSC staff provided information in a piecemeal manner and only information which it regarded as positive. The Noongar people did not receive both the positive and negative information regarding the deal;

(c)    the information sessions and the documentation provided by SWALSC had “gone over peoples’ heads”. The impression of the general Noongar population was that the “deal is done” and it would be pushed through regardless; and

(d)    the voting process and conduct of the authorisation meetings was aggressive and not inclusive. SWALSC staff appeared biased and attempted to intimidate anyone perceived to hold a contrary viewpoint.

117    She said the Noongar people were confused about the criteria for participating in the authorisation meetings: “The impression of the general Noongar population was that they had to be SWALSC members to vote at the meetings”.

118    She expressed further concerns that a significant number of elders and other people were unable to attend the authorisation meetings because of lack of finances, transport, ill health or imprisonment.

119    She said that she only came across the 850 page Settlement ILUA in early December 2014. The document was complex and she said the summary released by SWALSC did not explain it adequately. For example, it did not set out any alternative proposals or provide and details of the housing provided or which parcels of land would be returned. She said it appeared to be “glossed” as it concentrated almost exclusively on the positive side of the settlement proposal.

120    Ms Hayward described her attendance at the various meetings in similar terms to the previous witnesses. In relation to the Cannington meeting on 28 March 2018, she attended with her sister and was given a royal blue wristband. However, there was an initial issue about her entitlement to vote.

121    She thought it was unfair to ask people to attend the respective authorisation meetings in person. She noted that the elderly and prisoners who could not attend. She also noted that people who were interstate could not attend.

Ms Lynette Winmar

122    Ms Lynnette Winmar, by her witness statement, explained she was in prison at the time of the meetings in Bunbury, Wagyl Kaip and Ballardong at which she was entitled to vote. She was in Bandyup Women’s Prison on remand for 16 months during which time the meetings were held. She was never convicted of any offence. She said she did not have any notice of the meeting or the vote and “no one in prison knows anything about it”.

123    She said she would have wanted to vote. She believed everyone should be given a chance to vote as:

[T]he deal was going to affect everyone’s life and its going to affect everyone in the future. What about our kids and grandkids? What will they have?

The land means more than anything. You can’t put into words or a dollar amount on what the land means to me.

124    Ms Winmar thought that if women in prison knew about it, they would have wanted to vote “no”. Similarly, her grandmother in a nursing home, who was of sound mind, had not been informed about it.

Mr Mervyn James Eades

125    Mr Mervyn James Eades is a member of the Ballardong, Wagyl Kaip and Gnaala Karla Booja claim groups. He confirmed in his statement that he attended the on country meetings at Northam, Bunbury, Busselton and Katanning.

126    He states to running a business creating employment opportunities for aboriginal people transitioning from the prison system, including through the provision of education, training and employment opportunities. His had come across many people in the Noongar community through his business who were not aware of the Settlement ILUAs or of the authorisation meetings.

127    Mr Eades was concerned about the lack of information being provided to the Noongar community and the lack of understanding of the contents of the 850 page Settlement ILUA. In his discussions with family members, elders and other “grass roots” community members, he felt people were not fully informed, other than to know there was a “land deal for the 6 regions and that 6 structures will be created”. He said that some people thought that they would be personally given money. He did not think the Noongar people could make an informed decision without a better understanding of the content of the ILUA.

128    He thought that most of the people attending the meetings were educated and/or had inside information of the settlement process. He produced a copy of a petition of people who he said opposed the ILUAs. His evidence about the meetings was consistent with that of the previous witnesses.

129    He also produced statistical data showing adult prisoners in custody and with particular reference to the indigenous incarceration rates. He said “I know that the Superintendent of Acacia and Casuarina gaols were willing for there to be a polling station at gaol, but SWALSC declined to do so”. He also said that to his knowledge no attempt was made by SWALSC to inform prisoners about the proposed ILUAs and settlement negotiations.

130    He annexed to his witness statement an article from a publication known as The Stringer with a heading “Vote on Noongar Native Title deal must be all Noongars & in accordance with lore”. The author of the article said that SWALSC had said on occasions that they were bound by the legislation in that the vote had to take place on country and the only votes allowed were by those physically present – proxy votes would not be permitted. Noongars would have to return to country, many from Perth, to be eligible on the day to vote. It also contained a view that the voting should be by postal ballot.

Ms Mingli Wanjurri McGlade

131    Ms McGlade, by her statement, confirmed that she had instructed her lawyers to commence proceedings seeking a writ of prohibition. She is a registered native title claimant in respect of the native title claim WAD6286/1998, referred to as the Wagyl Kaip claim. She attended the Wagyl Kaip & Southern Noongar authorisation meeting in Katanning and voted “no” to authorising the ILUA. Ms McGlade stated she had never agreed to be a party to it. She said that on a date she could not recall, a male person who said he was a lawyer called her on the phone and asked if he could come to her house so she could sign the ILUA. She declined and warned him not to come onto her property.

Ms Naomi Gail Smith

132    Ms Smith’s witness statement provides details of her qualifications, including her more than 28 years’ experience working in government and corporate industries. She has apical ancestor connections to the Wagyl Kaip claim group.

133    By her statement she confirmed she attended a Gnaala Karla Booja authorisation meeting at Bunbury, the South West Boojarah meeting at Busselton, the Wagyl Kaip meeting at Katanning and the Whadjuk authorisation meeting at Cannington in Perth. In general terms in relation to the meeting and authorisation process, she repeated the complaints expressed above by other persons about lack of transparency, piecemeal information and intimidation. She had not had an opportunity to understand the full document and spoke of pressure to vote “yes” at the meetings. She spoke of hostility towards Noongars who did not support the deal. She raised concerns about people who would not be able to attend the meetings on country. She considered the meetings were conducted in a manner which was “inherently unfair” given the requirements to attend in person.

SWALSC

134    The evidence and submissions of SWALSC are largely reflected in the summary of the Registrar’s decisions set out above.

THE MCGLADE GROUNDS – CONSIDERATION

The “first” ground (grounds 1 and 2)

135    Grounds 1 and 2 have been argued jointly by the parties. The substance of grounds 1 and 2 is that SWALSC misled native title holders about the nature of the authorisation process they were able to adopt, such that there was no authorisation of each ILUA within the meaning of s 251A of the NTA. More specifically, it is argued that the material before the Registrar established that SWALSC informed native title holders that the NTA required that each step of the authorisation process must take place at a meeting on country and that any votes must be cast in person.

136    In order to advance this ground, the applicants relied upon the article in The Stringer newspaper referred to above and the evidence from Ms Williams to the effect that Mr Kelly explained that “for authorisation meetings, people had to be physically present and registered in order to be counted”. Mr Yarran’s witness statement is also relied upon as well as his query as to why the meetings could not be held in Perth. His evidence was that on each occasion he was informed by Mr Kelly that the NTA did not permit that to occur.

137    The applicants had contended in their submissions to the Registrar that SWALSC did not deny that its representatives made these statements to native title holders. It also relied on a SWALSC submission that:

10.25    In planning for the authorisation meetings, SWALSC formed the opinion based on principles derived from the decided cases that satisfying the Authorisation Requirements under the NTA would require Noongar people to attend meetings to give (or withhold) their consent to the making of the Settlement ILUAs. SWALSC considered that postal voting, for example, was not an acceptable method as people who are absent from the meeting would not be able to participate in a key element of the statutory ILUA authorisation process, being the process related to the discussion around, and adoption of, a mandatory traditional, or otherwise agreed and adopted to, decision-making process. Purely voting on whether to authorise from afar does not meet the statutory definition of “authorise”.

…

10.27    Suggestions that proxy voting should have been allowed are similarly misconceived. The law requires attendance and voting at authorisation meetings to be limited to eligible attendees. …

138    The applicants suggest that at some stage SWALSC took the opposite view in their submissions to the Registrar saying that an exception to the “requirement for on country meetings” might have been appropriate “if the attendees at any of the meetings had decided to agree to and adopt a decision-making process that allowed for postal voting”.

139    The applicants contend that these statements were incorrect. They rely on the two-step process for authorising an ILUA under s 251A of the NTA:

(1)    If there is no traditional decision-making process, the native title holders must “agree to and adopt” a process of decision-making to authorise the making of the ILUA.

(2)    The making of the ILUA is to be authorised by the native title holders in accordance with that process.

However, the applicants emphasise that nothing in s 251A, or any other provisions of the NTA, requires an authorisation to take place by meeting of native title holders held on country. Nor is there anything in s 251A or elsewhere that could prevent native title holders from adopting some other authorisation process such as a postal vote.

140    The information was false or misleading, the applicants say, with the consequence that the authorisation process was tainted. They argue that at each step the native title holders must be provided with all information that might affect their decision. In addition, they must not be misled about any matter which may affect their decision. Whenever there is the absence of important information, or where native title holders have been misled about the relevant subject matter, their decision “is voided”. That is, there is no decision (or no authorisation under s 251A of the NTA) at all.

141    The applicants point to a comparison with appropriate communications to shareholders in relation to a meeting of shareholders in a corporation and rely on ENT Pty Ltd v Sunraysia Television Ltd (2007) 61 ACSR 626 (at [18]-[20]). Particularly, the applicants rely on Austin J’s observation (at [20]):

The question is not whether the explanatory documents provided to the shareholders could have been drafted differently, but what effect the documents will have on “the ordinary shareholder who scans or reads the document quickly, not as a lawyer, but as an ordinary man or woman in commerce or as an ordinary investor” ... If a deficiency is identified, the court considers whether there is any reasonable ground for supposing that the deficiency would cause shareholders to vote, or abstain from voting, under a serious misapprehension of the position …

(Emphasis added, citations omitted.)

142    The applicants complain that the Registrar failed to have any regard to the undisputed fact that the native title holders were misled about the process they were able to adopt. Once that is recognised, the applicants submit it necessarily follows that the statutory process miscarried with the consequence that there could have been no authorisation of any ILUA within the meaning of s 251A of the NTA.

143    Importantly, the applicants say, the ILUAs were in some cases only approved by a small margin. Against that background, the applicants point to the following facts before the Registrar:

    There are between 20,000 to 40,000 people in Western Australia with Noongar ancestry, approximately half of whom are adults.

    80% of the Noongar population live in Perth;

    The distance from Perth for each on country meeting ranged between 83 and 250 kilometres.

    SWALSC estimated that approximately 10% of the adult Noongar population participated in the authorisation process. To reach that figure it aggregated attendees at every meeting. This is a misleading approach. Many Noongar people attended at more than one meeting. SWALSC’s estimates involves double, triple or even greater over-counting.

    Mr Pell, a Noongar elder, said that most Noongar would not travel to country and that a ballot would be “an opportunity for a truer indication of what Noongars want”.

    Many people expressed concern that the elderly, disabled or ill could not travel to country.

    Many Noongar are in prison at any one time. The precise number is not known but estimates before the Registrar ranged between 550 and 2,300.

    Many people (including elders, academics and rights activists) advocated for a postal vote because of the difficulties with certain Noongar people travelling on country.

    Mr Mervyn Eades, who runs an organisation assisting aboriginal people transitioning out of the prison system, said: “I know the Superintendent of Acacia and Casuarina gaols were willing for there to be a polling station at gaol, but SWALSC declined to do so”.

144    Finally, the applicants argue that, on this material, if the native title holders had not been misled, the Registrar was required to find that:

(a)    it was possible, if not likely, that the group would have adopted a different authorisation process that enabled more people to vote; and

(b)    it was possible that the ILUAs would not have been authorised.

145    This ground, with great respect, is misconceived. It is cast expressly as a failure to take into account a relevant consideration. While it is true that s 5(2)(b) of the ADJR Act, as set out above, provides that an improper exercise of power shall be construed as including a reference to failing to take a relevant consideration into account in the exercise of a power, what is “a relevant consideration” is not at large.

146    In Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24, Mason J (as the Chief Justice then was) summarised the applicable principles as follows:

(1)    The ground of failure to take into account a relevant consideration can only be made out if decision-makers fail to take into account a consideration which they were bound to take into account in making their decision (at 39 and the authorities therein cited).

(2)    The factors which a decision-maker is bound to consider in making the decision are to be determined by construction of the statute conferring the discretion. When the factors which the decision-maker is bound to consider are not expressly stated, they must be determined by implication from the subject matter, scope and purpose of the statute (at 39-40).

(3)    Not every consideration which a decision-maker is bound to take into account but does not will justify the court setting aside the impugned decision and ordering that the discretion be re exercised according to law. A factor may be so insignificant that the failure to take it into account could not have materially affected the decision (at 40).

(4)    The limited role of a court reviewing the exercise of the administrative discretion must constantly be borne in mind. It is not the function of the court to substitute its own decision for that of the decision-maker by exercising the discretion which the legislature has vested in the decision-maker (at 40).

(5)    In the absence of any statutory indication of the weight to be given to various considerations, it is generally for the decision-maker and not the court to determine the appropriate weight to be given to the matters which are required to be taken into account in exercising the statutory power (at 41).

147    Not only has Peko-Wallsend been widely followed, it was expressly applied in relation to authorisations under the NTA by White J in Bright (at [126]).

148    Only where a decision-maker is bound to consider a particular consideration does the issue arise. At that point, the question is also whether the decision-maker “really”, “genuinely”, “properly”, and “effectively” took a matter into account: Deloitte Touche Tohmatsu v Australian Securities Commission (1996) 136 ALR 453 per Lindgren J (at 468).

149    The applicants carry the burden of demonstrating that the Registrar failed to take into account a mandatory relevant consideration. That question is a question of fact. It requires this Court to undertake a close analysis of a Registrar’s reasons without the benefit of other evidence. However, there may be other documents apart from the written reasons casting light on whether or not a particular mandatory matter was taken into account: see, for example, Malek Fahd Islamic School Limited v Minister for Education and Training (No 2) [2017] FCA 1377 per Griffiths J (at [40]-[50])

150    The first ground advanced by the applicants is founded on an incorrect premise, namely, that the alleged fact that the native title holders were misled was a matter which the Registrar was required to, but did not take into account and that the Registrar was therefore bound to find that the requirement in s 203BE(5)(b) of the NTA was not satisfied in that there was no valid authorisation of each ILUA within the meaning of s 251A of the NTA.

151    That is not, however, a fact which the Registrar was required to take into account. As White J similarly noted in Bright (at [128]) on their face, s 24CK(2)(c) and s 203BE(5) of the NTA require that the Registrar consider:

(a)    the efforts made to ensure that all persons who hold or may hold native title were identified;

(b)    whether those efforts constituted “all reasonable efforts” for that purpose; and

(c)    whether the person so identified had authorised the ILUA.

152    In reaching a conclusion as to whether she was not satisfied that the requirements of s 203BE(5)(a) and s 203BE(5)(b) were met, the Registrar was also required to take into account any information given to her by both the objectors and SWALSC as the representative body. The Registrar was also permitted, but not obliged to take into account any other matter or thing: s 24CK(4) of the NTA.

153    The Registrar was not, however, required to take into account as a mandatory relevant consideration (either express or implied), the factual assertion the applicants advance to the effect that the native title holders were misled as to the requirements of the NTA in relation to the authorisation process.

154    The Registrar was required and in fact did take into account the information provided to her by both the applicants and SWALSC in relation to the allegedly misleading representation that the NTA required that “each step of the authorisation process must take place at a meeting on country and that any votes must be cast in person” as the applicants characterised.

155    The process undertaken by the Registrar in her decision was:

(a)    to describe the information contained in SWALSC’s certificate produced pursuant to s 203BE(1)(b) of the NTA;

(b)    to summarise the assertions of the objectors;

(c)    to summarise SWALSC and the NTAG’s response to the objections;

(d)    to summarise the objectors’ response to SWALSC’s and the relevant NTAG’s submissions; and

(e)    to consider whether the requirements of s 203BE(5)(b) of the NTA were satisfied.

156    Various documents which evidence the submissions of the objectors, of SWALSC and of the NTAG were referred to in the Registrar’s decision often by, at least, a footnote.

157    There is no doubt that the Registrar took into account the information, including submissions provided to her by all parties. What were clearly not mandatory considerations for the Registrar were the documents and assertions on which the applicants rely. Specifically, for good reason:

(a)    The Stringer article, which was before the Registrar, but in relation only to the decisions regarding the Wagyl Kaip & Southern Noongar ILUA, the Ballardong People ILUA and the Gnaala Karla Booja ILUA (being the three registration applications to which Mr Mervyn James Eades objected); and

(b)    the statement of Ms Williams, which was not before the Registrar in relation to all applications but only in relation to the registration application concerning the Wagyl Kaip & Southern Noongar ILUA, being the application to which Ms Williams objected.

158    The weight, if any, to be given to both of these pieces of information was entirely a matter for the Registrar.

159    The Registrar made clear that she had taken into account the information and material before her in making her decision. She set out extracts of much of the information, including submissions. There can be no doubt that the Registrar understood the nature of the applicants’ complaints about alleged misrepresentation by SWALSC and took into account the relevant information in relation to that issue that had been provided to her. She considered whether the making of the ILUA was authorised for the purpose of determining whether the first condition of s 24CK (by reference to s 203BE(5)(b) of the NTA) was met, ultimately concluding that it was met, notwithstanding the information advanced by the applicants in relation to allegedly materially misleading conduct. This was a conclusion reached after having regard to the applicants’ submissions, which were apparently not accepted.

160    The Registrar was not obliged to find that statements, such as those in The Stringer, were in fact made by SWALSC and that they materially misled native title holders and affected the authorisation process. As noted by the Registrar that information was disputed by SWALSC, who also provided the Registrar with information about the manner in which it prepared for and organised the meetings and the manner in which the meetings were conducted. That included information in the form of the SWALSC submission that:

There was every opportunity at [the authorisation] meetings, with that opportunity being ensured by the presence of the [independent legal counsel] and [an independent facilitator] at each meeting for the members of the authorisation groups to vote against either or both:

(a)    decision-making process for the authorisation of the ILUA; and

(b)    the authorisation of the ILUA according to that decision-making process.

161    It was open to the Registrar to conclude that SWALSC believed that the appropriate way to achieve the objectives under the NTA in relation to the identified requirements (a) and (b) above for the purposes of a valid authorisation under s 251A was for people to meet in person and on country within the relevant claim areas so as to engage in discussion about such matters as they chose in relation to those two fundamental decisions. A postal vote, for example, would have been very difficult. SWALSC would have faced the difficult decision of deciding upon the decision-making process, how many options would need to be listed as to a possible traditional decision-making process.

162    It is clear that the Registrar accepted the contention that persons at the authorisation meeting could ask questions of the independent facilitator and the independent legal counsel, including about the decision-making process. She was not satisfied that the requirements of s 203BE(5) of the NTA had not been met.

163    That is sufficient to dispose of the first two grounds, but it may also be said that when the material on which the applicants rely is examined, the difficulty of the argument is only further emphasised. The Stringer article appeared on 6 March 2014, approximately 12 months before the dates of the authorisation meetings for the six ILUAs. There is no evidence that SWALSC made the statements which appear in The Stringer article. How the content of that article could mislead any native title holder is unclear.

164    Further, a proper examination of the statement of Ms Williams reveals that it is, with respect, of a very general nature. Additionally, the statement purports to depose to the statements made by Mr Kelly, the CEO of SWALSC, at the Bunbury meeting, but the context of the alleged statements, and therefore their meaning, is quite uncertain. Ms Williams relevantly recounts that after lunch Mr Kelly raised the process of how voting would be conducted at the meeting and asked whether there was a traditional way of voting on the settlement proposal. Ms Williams states that he did not elaborate on that or allow a discussion on what traditional decision-making involved in this context, but went on to say that, as there had not been a traditional decision-making process for this kind of decision, the meeting would have to decide the vote by way of secret ballot. After stating that the meeting generally and the voting process was not conducted in accordance with traditional Noongar ways, Ms Williams then states:

[Mr Kelly] then said that the voting process would be by “show of hands” or secret ballot. Prior to the start of the meeting, Dot Henry had asked [Mr Kelly] “whether the people who could not attend had the right to vote?” [Mr Kelly] said that “SWALSC had spoken with the [AEC] but they would not have anything to do with the meeting because it involved an ILUA”. He said that “for authorisation meetings, people had to be physically present and registered in order to be counted”.

(Emphasis added.)

165    It is certainly not clear from that statement whether Ms Williams actually either heard Ms Dot Henry ask that question or receive the answer or how she otherwise came by that information. There is no indication as to whether that information was given to all native title holders or just to Ms Dot Henry. The content of Ms Williams’ evidence is sufficiently vague and uncertain compared with other material upon which the Registrar may have relied that it was open to her not to be persuaded by it.

166    There are other difficulties. For example, Ms Williams deposed that “the meeting generally and the voting process was not conducted in accordance with traditional Noongar ways”. In contrast and fundamentally, it was the majority view of the Noongar people who attended and voted on that very topic, that there was no such mandatory process. The views expressed by Ms Williams are at odds with the recorded account.

167    There are similar difficulties with the information provided in Mr Yarran’s witness statement. He deposed that there was a traditional decision-making process involving an elders council, while at the same time urging a proxy or postal vote system for all Noongar people. Clearly, those two processes are inconsistent and, in any event (again), the majority of people considered there was no traditional decision-making process.

168    The native title holders could have decided to adopt a proxy voting or a postal voting system. This would not have been the preference of SWALSC for reasons it explained, but the expression of that view is inconsistent with the complaint that SWALSC asserted that there was an absolute requirement imposed under the NTA for voting to be conducted on country in person.

169    SWALSC denied misleading the native title holders, as the Registrar recorded. It is inaccurate to describe the applicants’ assertion as being an undisputed fact.

170    Although the applicants rely upon an analogy of the obligation of directors to make full and fair disclosure to shareholders, this analogy is not without difficulty. The NTA prescribes a standard of making “all reasonable efforts to ensure all person who hold or may hold native title” have been identified: s 203BE(5)(a) of the NTA. What will satisfy “all reasonable efforts” will vary with the facts and circumstances. For example, in some instances all who “may” hold native title may be far more readily ascertained than in others. The analogy fails to recognise fundamental differences between the obligations of directors to shareholders and the obligations of representative bodies, such as SWALSC, to those who hold or may hold native title. Directors’ duties are based on the existence of a fiduciary duty. The obligations of representative bodies arise from the terms of the NTA and not by virtue of analogies with company law procedures and requirements. Importantly, the legislature has cast the terms of the NTA specifically in a way to cater for the particular circumstances in which a representative body may find themselves. Native title holders may, for example, all resolve that there is a traditional decision-making process. If they do so, they are to proceed in voting in accordance with that process. The process may be entirely different from a process adopted by company directors in shareholders’ meetings.

171    For all those reasons, grounds 1 and 2 must be rejected.