FEDERAL COURT OF AUSTRALIA

Britten v State of Western Australia [2001] FCA 1256

NATIVE TITLE – application for determination – procedure – two applications with respect to overlapping areas of land – second application also overlapped with a third application and did not identify or describe clearly the alleged native title holders – impossibility of consolidation of the two proceedings or joinder of all alleged native title holders in second proceeding as parties to first – whether ascertainment of the identity of alleged native title holders in second application a question for an expert – whether appropriate to appoint anthropologist as court expert to inquire and report on that question – form of order

EVIDENCE – expert – court-appointed expert – anthropologist – ascertainment of identity of alleged native title holders referred to in application – proposed joinder of alleged native title holders as parties to native title application in respect of overlapping area of land

Native Title Act 1993 (Cth) ss 61, 67, 68

Federal Court Rules 1979 (Cth) O 6 r 8(1), O 34 r 2, O 36 r 5

JACK BRITTEN & ORS v STATE OF WESTERN AUSTRALIA & ORS

WAG 6007 of 1998

TANBA BANKS v STATE OF WESTERN AUSTRALIA & ORS

WAG 6199 of 1998

GRAY J

5 SEPTEMBER 2001

MELBOURNE

THE COURT ORDERS THAT:

1.         Dr Fiona Powell, an expert anthropologist, be appointed as Court expert to inquire
            into and report upon the question of the identification, name or description of the
            persons claimed by Tanba Banks to be the holders of native title with respect to the
            land to which the application relates.

2.         If any such persons are claimed by Tanba Banks to be the holders of native title with
            respect to land which is not also part of the land the subject of the application in
            matter number WAG 6007 of 1998, Dr Powell is to report who those persons are.

3.         Dr Powell make such inquiry by seeking to interview Tanba Banks and such other
            persons as Dr Powell may see fit to interview.

4.         Dr Powell report to the Court on or before Friday, 9 November 2001.

5.         The report be distributed to the parties in this matter or their representatives, and
to the parties in matter WAG 6007 of 1998 or their representatives, on or before Friday, 16 November 2001.

6.         Without further order of the Court, the report not be used for any purpose other than
            to consider the joinder of the persons named or described in it, or some of them, as
            applicants in matter WAG 6007 of 1998.

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

REASONS FOR JUDGMENT

1                     The Court has before it two applications for determination of native title, made pursuant to s 61 of the Native Title Act 1993 (Cth) (“the Act”).  The first of the two applications to be filed is number WAG 6007 of 1998.  There are five named applicants: Jack Britten, Shirley Drill, Phyllis Gallagher, Bernard Stretch and Hector Chunda, who claim to be authorised by a group described in the amended application to make the application.  The land the subject of this application is located in the north of Western Australia, to the west of the Ord River.  The application has been designated by the applicants as the Purnululu native title application.  The description of the group of people who claim native title with respect to the subject land contains an express exclusion of a woman named Tanba Banks. 

2                     The second of the two applications is number WAG 6199 of 1998.  The sole applicant named in that application is Tanba Banks.  The subject land overlaps to a significant degree the land the subject of the Purnululu application but is not wholly coincident with it.  It is convenient to call this application the Jiddngarri native title application.  The Jiddngarri application is said to be made on behalf of the “Banks and related families”.  The application suggests that the native title claimed has been inherited from the father, grandfather and grandmother of Tanba Banks.  These descriptions make it difficult, if not impossible, to identify the persons who are claimed to be the native title holders of the land the subject of the Jiddngarri application.

3                     In these reasons for judgment, I refer to the area of land in respect of which the two applications overlap as “the overlapping area”.

4                     Section 67 of the Act requires that, if two or more proceedings before the Court relate to native title determination applications that cover (in whole or in part) the same area, the Court must make orders to ensure that, to the extent that the applications cover the same area, they are dealt with in the same proceeding.  The order of the Court may provide that different parts of the area covered by an application are to be dealt with in separate proceedings.  Section 68 of the Act provides that, if a determination of native title is made in relation to a particular area, the Court must not conduct any proceeding relating to an application for another determination of native title or make any other determination of native title in relation to that area or to an area wholly within that area, except for an application to revoke or vary the first determination or a review or appeal of the first determination.  These provisions make it necessary that the Court deal with the overlapping area in a single proceeding.

5                     Because the areas of land the subject of the two applications do not coincide entirely, and because the area of land the subject of the Jiddngarri application overlaps with the area claimed in yet another application for determination of native title, it is not possible simply to consolidate the two proceedings.  The appropriate course then appears to be to deal with one of the applications.  In this respect, it is preferable to deal with the Purnululu application, because it came to the Court before the Jiddngarri application and because it involves an area of land that does not appear to overlap with the area the subject of any application for determination other than the Jiddngarri application.  It would be appropriate, therefore, to join as parties to the Purnululu application all persons who are parties to the Jiddngarri application but are not yet parties to the Purnululu application.  This would accord with O 6 r 8(1) of the Federal Court Rules, which provides:

“Where a person who is not a party:

(a)       ought to have been joined as a party; or

(b)       is a person whose joinder as a party is necessary to ensure that all
            matters in dispute in the proceeding may be effectually and completely
            determined and adjudicated upon,

the Court, on application by him or by any party or of its own motion, may order that he be added as a party and make orders for the further conduct of the proceeding.”

6                     It would be possible to join Tanba Banks as a party to the Purnululu application and to proceed with that.  The possibility exists, however, that there are persons whom Tanba Banks alleges to be native title holders in respect of the overlapping area, whose identity is not presently known, and who are not already parties to the Purnululu application.  If the identity of any such person can be ascertained, that person could also be joined as a party to the Purnululu application.

7                     It appears to be undesirable simply to order that Tanba Banks provide a list of the names of the persons whom she claims hold native title to the overlapping area.  The Jiddngarri application appears to have been drawn without the assistance of a lawyer.  Tanba Banks has signed it by means of a cross, which suggests that she does not read or write.  She is presently not represented by a lawyer, so far as the Court record shows.

8                     Order 34 r 2 of the Federal Court Rules provides:

“(1)     Where a question for an expert witness arises in any proceedings the
            Court may, at any stage of the proceedings, on its own motion or on
            application by a party or the Registrar:

            (a)        appoint an expert as court expert to inquire into and report
                        upon the question;

            …

(2)       In sub-rule (1), expert, in relation to any question, means a person
who has such knowledge or experience of, or in connection with, that
question, or questions of the character of that question, that his
opinion on that question would be admissible in evidence.”

9                     From an examination of the Court files in the two applications, I formed the view that the ascertainment of the identity of the persons claimed by Tanba Banks to be the native title holders of the overlapping area might be a question for an expert witness.  A suitably qualified anthropologist, with experience of field work and research among Aboriginal people in the North of Australia, could interview Tanba Banks, using methods of inquiry appropriate to the circumstances, in an endeavour to ascertain the identity of the native title holders put forward by her.  If necessary, the anthropologist might interview other persons, following such leads as may arise from the initial inquiries, with a view to ascertaining the identity of the persons who are, or might be, said to be the native title holders referred to in the Jiddngarri application.

10                  Having formed this view, I requested a deputy district registrar in the Western Australia District Registry of the Court to advise the parties in both the Purnululu application and the Jiddngarri application of orders that I thought might be appropriate.  As a result, a letter was sent to those parties on 2 April 2001 in the following terms:

“These two matters have now been allocated to Justice Gray’s docket.

On 2 February 2001 the applicants in matter WG 6007 of 1998 (“Purnululu”) filed with the Court a notice of motion, seeking to strike out the application in matter WG 6199 of 1998 (“Jiddngarri”). His Honour has now reviewed the material in relation to these two claims and has requested I write to you in relation to the future conduct of these matters.

The two applications relate to overlapping areas of land, raising issues as to the application of sections 67 and 68 of the Native Title Act 1993.  For this reason, it might have been considered convenient to consolidate the two proceedings.  It appears, however, that the area covered by Jiddngarri also overlaps to some extent with the area covered by another application for determination under the Act.  Consolidation of the two proceedings in Justice Gray’s docket would therefore raise similar problems with respect to the third proceeding.

His Honour notes that on 19 July 2000 the applicants in Purnululu forwarded to the Court proposed consent orders.  These included an order that, pursuant to section 67 of the Act,the claimant group in Jiddngarri be joined as second applicants to the Purnululu application.  The difficulty about making such an order is that the identity of the persons said to be the native title holders in Jiddngarri is not presently known.  The application is made by Tanba Banks.  It is said to be made on behalf of the “Banks and related families”.  The application also suggests that the native title has been inherited from the father, grandfather and grandmother of Tanba Banks.  An order joining people as parties without naming, or at least describing, them might give rise to the possibility that there will be people who claim to hold native title rights and interests in an area with which the Court is to deal in Purnululu, who are not before the Court.  At the very least, that would be an undesirable way to proceed.

Whilst it is clear that Tanba Banks has had some assistance in the preparation of her application, she is apparently not represented by any legal adviser or other person in relation to the Jiddngarri application.  She has signed documents by affixing her mark.  There is obvious difficulty in ordering her to name, or otherwise describe, all of the native title holders on whose behalf she has instituted the proceeding.  Justice Gray is therefore of the view that a question for an expert witness has arisen in Jiddngarri as to the name or description of the persons claimed to be native title holders of the land to which the application relates.

His Honour proposes, of the Court’s own motion, in the Jiddngarri matter to make the following order:

Dr Deborah Bird Rose, an expert anthropologist, be appointed as court expert to inquire into and report upon the question of the identification, name or description, of the persons claimed by Tanba Banks to be the holders of native title with respect to the land to which the application relates.

            Dr Rose make such inquiry by seeking to interview Tanba Banks and such other persons as Dr Rose may see fit to interview.

Dr Rose report to the Court on or before Friday 15 June 2001.

            The report be distributed to the parties in matter WG 6199 or their representatives, and to the parties in matter WG 6007 or their representatives, on or before Friday 22 June 2001.

            Without further order of the Court, the report not be used for any
purpose other than to consider the joinder of the persons named or described in it as applicants in matter WG 6007.

If any party in either proceeding wishes to make submissions about this proposed order, Justice Gray has directed that they be made in writing to Deputy District Registrar Scotty Hammond on or before Friday 20 April 2001.  After that date, his Honour will consider whether to proceed to make the proposed order, or some other similar order, or to make no order at all.

If such an order is made, and the expert is successful in ascertaining the identity of the native title holders in respect of whom the application in Jiddngarri has been made, consideration can then be given to the question of joining those persons as parties to the application in Purnululu.”

11                  In response to this letter, submissions were received from Mrs Bonnie Edwards on behalf of the Mindi Mindi Aboriginal Corporation, the Kimberley Land Council on behalf of the applicants in the Purnululu application and the Crown Solicitor’s Office on behalf of the State of Western Australia.  A letter was also received from Blake Dawson Waldron, who act for Telstra Corporation Limited in both the Purnululu application and the Jiddngarri application, stating that they did not wish to make any submissions in relation to the proposed orders.

12                  The applicants in the Purnululu application agreed that the identity of the claimed native title holders in the Jiddngarri application is not presently known.  They also agreed that it would not be possible to join the applicants in the Jiddngarri application, as presently described, as applicants in the Purnululu matter, or to consolidate the two proceedings.  They agreed that there would be merit in the appointment of a Court expert to ensure that all persons who claim to hold native title rights and interests in the Purnululu claim area are before the Court and that therefore a question for an expert witness arises in the proceedings.  In two respects, they suggested alterations to the proposed orders.  First, they suggested that the inquiry of the expert be limited to ascertaining those who claim native title rights and interests in respect of the overlapping area, instead of the whole of the area of land the subject of the Jiddngarri application.  They pointed out that the persons who assert that they hold native title in respect of the overlapping area may not be the same as those who assert that they are native title holders in the whole of the area the subject of the Jiddngarri application.  Second, the submission on behalf of the applicants in the Purnululu application noted that the anthropologist proposed, Dr Deborah Bird Rose, had previously worked in the area with members of the group asserted to be the native title holders by the applicants in the Purnululu application.  It appears that she has undertaken field work in relation to ethnobotany in the region.  The applicants in the Purnululu application wish to reserve the right to call her to give evidence at the trial.  They therefore requested that the Court appoint another expert.

13                  Mrs Edwards also objected to Dr Deborah Bird Rose being the Court-appointed expert.  The objection was on the basis that Dr Rose had done work for the Kimberley Land Council.  Mrs Edwards said that she had spoken to Tanba Banks, who was not prepared to give any information to Dr Rose.  Mrs Edwards expressed a wish of Tanba Banks and herself to be involved in the selection of an expert to carry out the Court’s proposals.

14                  The State of Western Australia accepted that, for the limited purpose of consideration of the joinder of members of the group on behalf of whom Tanba Banks has brought the Jiddngarri application, it may be of assistance for the Court to engage an anthropologist to consider the issue of the composition of that group.  It disagreed with the submission of the applicants in the Purnululu application that the inquiry should be confined to those who are claimed to be native title holders in respect of the overlapping area of land.  The State of Western Australia sought to ascertain the identity of all those who are claimed to hold native title in respect of the area of land the subject of the Jiddngarri application.  The submission pointed out that the Jiddngarri application is not framed so as to differentiate between those who have native title rights and interests in the overlapping area and those who have such rights and interests only in respect of the remainder of the subject land.  It must therefore be assumed that those who are claimed to be native title holders in the Jiddngarri application are claimed to be native title holders with respect to the whole of the land the subject of that application.  It would also be a more efficient use of resources to determine who are claimed to be the native title holders for the entirety of the subject land of the Jiddngarri application.  The State of Western Australia therefore supported the making of the orders proposed.

15                  After considering these submissions, I am satisfied that the ascertainment of the identity of those claimed to have native title rights and interests in the Jiddngarri application is a question for an expert witness within the meaning of O 34 r 2(1).  I am satisfied that orders along the lines of those proposed should be made.  Two issues appear to arise as to the precise content of those orders.

16                  The first issue is whether the question posed for the expert should be confined to the overlapping area or should extend to the whole of the land the subject of the Jiddngarri application.  In my view, there is merit in both the submissions on behalf of the applicants in the Purnululu application and the State of Western Australia.  It is desirable to have separate identification of those who are claimed to be native title holders in respect of the overlapping area from those (if any) who are claimed to hold native title rights and interests in respect of the remainder of the land the subject of the Jiddngarri application.  At the same time, there is merit in the view that the resources being used to make the inquiries might usefully be used to ascertain whether there are additional persons who are claimed to hold native title rights and interests in the Jiddngarri application but not in respect of the overlapping area. 

17                  The other issue concerns the identity of the expert.  If there is a real possibility that any party may wish to call the proposed expert as a witness in support of that party’s case at the trial, it would be wrong for the Court to deprive that party of the opportunity of doing so.  It is important when the Court engages an expert that the expert should be perceived by all parties to be completely independent of all parties.  The fact that there is a possibility that Dr Rose might be called to give evidence on the basis of her earlier work is sufficient to disqualify her from being the Court expert.  In saying this, I do not wish to be taken to have suggested that Dr Rose has behaved in any way improperly in allowing her name to be put forward.  As I understand it, she was unaware of any proposal by any party to call her to give evidence.  Nor am I to be taken as accepting that there is any cause for the view expressed by Mrs Edwards that Dr Rose is lacking in neutrality because she has previously done work for the Kimberley Land Council, or any justification for the stated refusal of Tanba Banks to give any information to Dr Rose.  I am motivated to choose an expert other than Dr Rose only because of the need for perceived neutrality on behalf of a court-appointed expert.

18                  Because of the objections to the identity of the particular expert, a deputy district registrar in the Western Australia District Registry of the Court sent a further letter to the parties in the Purnululu application and the Jiddngarri, dated 27 July 2001.  This letter was in a form similar to the earlier letter, with necessary changes to dates because of the passage of time.  In the proposed orders, the name of Dr Fiona Powell was substituted as the proposed expert.  Again, the letter invited submissions by 13 August 2001.  No further submission was received.

19                  For the foregoing reasons, orders should be made along the lines of those proposed, with modifications to take account of the change of identity of the proposed expert, the need to differentiate between those who are claimed to be native title holders in respect of the overlapping area and those (if any) who are claimed to be native title holders only in respect of other areas of the land the subject of the Jiddngarri application, and the time which has elapsed before the making of the orders.

20                  The orders are to be made in the Jiddngarri application in the following terms:

1.         Dr Fiona Powell, an expert anthropologist, be appointed as Court expert to inquire
            into and report upon the question of the identification, name or description of the
            persons claimed by Tanba Banks to be the holders of native title with respect to the
            land to which the application relates.

2.         If any such persons are claimed by Tanba Banks to be the holders of native title with
            respect to land which is not also part of the land the subject of the application in
            matter number WAG 6007 of 1998, Dr Powell is to report who those persons are.

3.         Dr Powell make such inquiry by seeking to interview Tanba Banks and such other
            persons as Dr Powell may see fit to interview.

4.         Dr Powell report to the Court on or before Friday, 9 November 2001.

5.         The report be distributed to the parties in this matter or their representatives, and
to the parties in matter WAG 6007 of 1998 or their representatives, on or before Friday, 16 November 2001.

6.         Without further order of the Court, the report not be used for any purpose other than
            to consider the joinder of the persons named or described in it, or some of them, as
            applicants in matter WAG 6007 of 1998.

21                  Pursuant to O 36 r 5 of the Federal Court Rules, I direct that the registrar draw and settle the order and enter it.

22                  It should be clear to all parties that the purpose of the order is merely the ascertainment of the identity of the persons concerned.  I do not intend that it should be any part of Dr Powell’s function to express a view as to the merits of the claim that any person holds native title rights and interests with respect to any land.

Associate:

Dated:              5 September 2001

WAG 6007 of 1998