FEDERAL COURT OF AUSTRALIA

 

Daniel v State of Western Australia [2002] FCA 1147

 

NATIVE TITLE – application to replace applicants in claimant application – whether certain applicants no longer authorised by native title claimant groups – failure to execute future act agreement with State notwithstanding resolutions of native title claim group – authorisation of proposed replacement applicants – whether decision-making process according to traditional law and custom – whether other decision-making process – discretion to replace applicant.

 

 

 

 

Native Title Act 1993 (Cth) s 61(4) s 66B s 251B s 253

Western Australia v Strickland (2000) 99 FCR 33 cited

Strickland v Native Title Registrar (1999) 168 ALR 242 cited

Moran v Minister of Land & Water  Conservation for NSW [1999] FCA 1637 discussed

Johnson, in the matter of Lawson v Lawson [2001] FCA 894 cited

Duren v Kiama Council [2001] FCA 1363 cited

Quandamooka People # 1 v State of Queensland [2002] FCA 259 cited

Ward v Northern Territory  [2002] FCA 171 cited

DAVID DANIEL AND OTHERS ON BEHALF OF THE NGARLUMA PEOPLE AND BRUCE MONADEE AND OTHERS FOR THE YINDJIBARNDI PEOPLE v THE STATE OF WESTERN AUSTRALIA AND OTHERS

WAG 6017 OF 1996 Part WAG 127 of 1997 and Part WAG 6256 of 1998

FRENCH J

13 SEPTEMBER 2002

PERTH

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	WAG 6017 OF 1996 And part of WAG 127 OF 1997 And Part of  WAG 6256 OF 1998

 

BETWEEN:	DAVID DANIEL AND OTHERS  FOR THE NGARLUMA PEOPLE AND BRUCE MONADEE AND OTHERS FOR THE YINDJIBARNDI PEOPLE First Applicants   And   VALERIE HOLBOROW (NEE COSMOS) AND OTHERS ON BEHALF OF THE YABURARA AND MARDUDHUNERA PEOPLE   Second Applicants   And   BETTY DALE AND OTHERS ON BEHALF OF THE WONG-GOO-TT-OO PEOPLE   Third Applicants
AND:	THE STATE OF WESTERN AUSTRALIA AND OTHERS RESPONDENT
JUDGE:	FRENCH J
DATE OF ORDER:	13 SEPTEMBER 2002
WHERE MADE:	PERTH

 

IN WAG 6017 OF 1996 THE COURT ORDERS THAT:

 

1.         David Daniel, Daisy Moses, Roger Barker, Jill Churnside, Trevor Solomon and Les Hicks, on behalf of the Ngarluma people, and Bruce Monadee, Woodley King, Kenny Jerrolf, Mary Walker, Bruce Woodley, Michelle Adams, Jimmy Horace, Linda Ryder and Judy Albert, on behalf of the Yindjibarndi people, (“the Replacement Applicants”) do jointly replace all the current Applicants, (the current Applicants being all the aforementioned Replacement Applicants plus James Solomon, Tim Kerr and David Walker).

 

2.         The Application be amended by the removal of the names of the following Applicants in the title to the action and Schedule R:

 

            James Solomon, Tim Kerr and David Walker.

 

3.         A copy of this order be served on the Respondents.

 

5.         Filing and service of the Amended Application be dispensed with.

 

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

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY                        WAG 6017 of 1996

                                                                                                            And part of

                                                                                                            WAG 127 of 1997

                                                                                                            And part of

                                                                                                            WAG 6256 of 1998

 

B E T W E E N:         DAVID DANIEL AND OTHERS FOR THE NGARLUMA

                                    PEOPLE AND BRUCE MONADEE AND OTHERS FOR THE

                                    YINDJIBARNDI PEOPLE

                                    First Applicants

 

                                    And

 

                                    VALERIE HOLBOROW (NEE COSMOS) AND OTHERS ON

                                    BEHALF OF THE YABURARA AND

                                    MARDUDHUNERA PEOPLE

                                    Second applicants

 

                                    And

 

                                    BETTY DALE AND OTHERS ON BEHALF OF

                                    THE WONG-GOO-TT-OO PEOPLE

                                    Third Applicants

 

AND                           THE STATE OF WESTERN AUSTRALIA AND OTHERS

                                    Respondents

 

JUDGE:                      FRENCH J

DATE OF ORDER:  13 SEPTEMBER 2002

WHERE MADE:       PERTH

 

IN WAG 127 of 1997 THE COURT ORDERS THAT:

 

1.         The amended motion be adjourned for further hearing at a date to be fixed.

2.         The future conduct of the hearing of the motion be subject to directions to be made at a directions hearing on Wednesday, 18 September 2002 at 9.30am.

3.         There be liberty to apply.

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

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	WAG 6017 OF 1996 And part of WAG 127 of 1997 And part of WAG 6256 of 1998

 

BETWEEN:	DAVID DANIEL AND OTHERS FOR THE NGARLUMA PEOPLE AND BRUCE MONADEE AND OTHERS FOR THE YINDJIBARNDI PEOPLE First Applicants   And   VALERIE HOLBOROW (NEE COSMOS) AND OTHERS ON BEHALF OF THE YABURARA AND MARDUDHUNERA PEOPLE Second Applicants   And   BETTY DALE AND OTHERS ON BEHALF OF THE WONG-GOO-TT-OO PEOPLE Third Applicants
AND:	THE STATE OF WESTERN AUSTRALIA AND OTHERS Respondents

 

JUDGE:	FRENCH J
DATE:	13 SEPTEMBER 2002
PLACE:	PERTH

REASONS FOR JUDGMENT

ON MOTIONS TO REMOVE APPLICANTS

Introduction

1                     David Daniel and a number of other persons representing the Ngarluma People and the Yindjibarndi People respectively are the applicants for a native title determination in the Pilbara region of Western Australia.  Two applications were lodged with the National Native Title Tribunal in 1994.  Following a mediation process conducted by the National Native Title Tribunal under the Native Title Act 1993 (Cth), the applications were referred to the Federal Court for hearing and determination.  They were given numbers WAG6017 and 6018 of 1996.  These were later consolidated under WAG 6017 of 1996.  For the purposes of the hearing, the consolidated Ngarluma and Yindjibarndi claim has in turn been consolidated with an overlapping portion of the application of the Yaburara and Mardudhunera People, number WAG 127 of 1997 and an overlapping portion of the application of the Wong-Goo-tt-oo People, WAG 6256 of 1998.  In these consolidated proceedings, the Ngarluma and Yindjibarndi applicants are the first applicants. 

2                     The hearing has proceeded before Nicholson J.  Evidence has been completed and the trial adjourned to a directions hearing on 2 December 2002 with the resumption of the trial planned for early  next year to hear final submissions.

3                     The State of Western Australia has for some time been seeking to acquire various pieces of land in the Pilbara region on the Burrup Peninsula, the Maitland Estate and Intercourse Island areas, Hearson Cove and Karratha for the purpose of industrial developments and residential developments in the region.  The areas to be acquired are within the land and waters covered by the three claims.  The interests to be acquired include native title rights and interests.

4                     Between 14 January 2000 and 27 March 2002, the State issued notices under s 29 and s 24MD(6A) of the Native Title Act of its intention to effect the acquisitions.  Negotiations have been ongoing between the State and the Ngarluma and Yindjibarndi peoples to enter into an agreement for the acquisition of their native title rights and interests in exchange for benefits.  There has been a large number of community meetings concerning these proposed acquisitions since December 2001. On 4 April 2002, an agreement was reached between the Ngarluma and Yindjibarndi People and Burrup Fertilisers Pty Ltd relating to the compulsory acquisition of native title on seventy two hectares of land on the Burrup Peninsula.  This is said to have been done by resolution at a community meeting.  All the registered claimants signed that agreement, known as the Burrup Fertiliser’s Agreement.  The subsequent agreement proposed between the applicants, the Premier of Western Australia and the Western Australian Land Authority for the compulsory acquisition of native title over the area described in the notices is close to finalisation.  However, one of the registered claimants, Mr David Walker, a Ngarluma man, has declined to execute it.

5                     A motion has been brought in the Ngarluma and Yindjibarndi proceedings, WAG 6017 of 1996, for orders under s 66B of the Native Title Act which would have the effect of removing Mr Walker as a registered claimant, albeit he would remain as a member of the Claim Group on whose behalf the primary application is brought.  The orders sought would also have the effect of removing three deceased persons from the application. The orders proposed seek the removal of all current applicants and their replacement with all current applicants less the three deceased persons and Mr Walker. 

6                     The stated ground for the replacement of Mr Walker is that he is no longer authorised by the claim group to make the application or to deal with matters arising in relation to it.  The motion has been brought on as a matter of urgency and was heard on 5 September as the agreement not having been signed, the State has instituted arbitral proceedings in the National Native Title Tribunal seeking orders that the proposed acquisitions can proceed unconditionally.

7                     A similar situation has arisen in respect of the Yaburara and Mardudhunera application, WAG 127 of 1997, whereby one of the registered claimants, Patricia Cooper, has declined to sign an agreement with the State in respect of its proposed acquisitions in an area covered by that application.  A motion is brought by members of the claim group for the removal of Ms Cooper.  The motions were heard on successive days, but as they arise in the consolidated proceedings and involve similar issues, it is convenient to publish one set of reasons for the orders to be made on them.

Statutory Framework

8                     The motions are brought under s 66B of the Native Title Act.  That section provides as follows:

“66B(1)  One or more members of the native title claim group (the claim group) in relation to a claimant application, or of the compensation claim group (also the claim group) in relation to a compensation application, may apply to the Federal Court for an order that the member, or the members jointly, replace the current applicant for the application on the grounds that:

            (a)        either:

                       (i)         the current applicant is no longer authorised by the claim group to make the application and to deal with  matters arising in relation to it; or

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

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

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

    (3)   If the Court makes the order, the Registrar of the Federal Court must, as soon as practicable, notify the Native Title Registrar of the name and address for service of the person who is, or persons who are, the new applicant.

    (4)   If the claim contained in the application is on the Register of Native Title Claims, the Registrar must amend the Register to reflect the order.”

9                     Relevant definitions are to be found in s 253 of the Native Title Act:

“claimant application means  native title determination application that a native title claim group has authorised to be made, and, unless the contrary intention appears, includes such an application that has been amended.”

“native title claim group means

(a)       in relation to a claim in an application for a determination of native title made to the Federal Court – the native title claim group mentioned in relation to the application in the table in subsection 61(1); or

            …”

The table in subs 61(1) of the Native Title Act provides, in relation to a native title determination application, that those persons who may make the application are:

“(1)     A person or persons authorised by all the persons (the native title claim group) who, according to their traditional laws and customs, hold the common or group rights and interests comprising the particular native title claimed, provided the person or persons are also included in the native title claim group; or …”

Section 61(4) of the Native Title Act provides:

“(4)      A native title determination application, or a compensation application, that persons in a native title claim group or a compensation claim group authorise the applicant to make must:

            (a)        name the persons; or

            (b)        otherwise describe the persons sufficiently clearly so that it can be ascertained whether any particular person is one of those persons.”

10                  The notion of “authorisation” referred to in s 61(1) and s 66 is defined in s 251B:

“251B  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.”

The Conditions for Removal under Section 66B

11                  It is of central importance to the conduct of native title determination applications and the exercise of the rights that flow from their registration, that those who purport to bring such applications and to exercise such rights on behalf of a group of asserted native title holders have the authority of that group to do so.  Prior to the 1998 amendments there was no requirement under the Native Title Act that an applicant have such authority.  The absence of that requirement led, in some cases, to conflicting and overlapping claims all carrying with them the statutory right to negotiate in respect of the grant of mineral tenements and the compulsory acquisition by Commonwealth or State Governments of native title rights and interests.  Although many aspects of the 1998 amendments were the subject of controversy in the public and parliamentary debates that preceded their enactment, the need for communal authorisation of claims was largely a matter of common ground.

12                  In Western Australia v Strickland (2000) 99 FCR 33 at 52, the Full Court approved a passage from the judgment in Strickland v Native Title Registrar (1999) 168 ALR 242 at 259-260, including the observation that:

“The authorisation requirement acknowledges the communal character of traditional law and custom which grounds native title.  It is not a condition to be met by formulaic statements in or in support of applications.”

Wilcox J in Moran v Minister of Land & Water Conservation for NSW [1999] FCA 1637 described the obtaining of proper authorisation of a claimant application as a “fundamental requirement of the Native Title Act” at [48].  His Honour said:

“It is important that those who come to the Court asserting a native title right, with all this involves in terms of effort and expense to other parties and the Court itself, should be properly authorised to make the claim.  As I have explained, this does not necessarily mean the applicant must be individually authorised by each member of the claimant group.  It will be enough that the applicant has been authorised to make the claim in accordance with a process of decision-making recognised under the traditional laws and customs of the claimant group.  In meritorious cases, that is unlikely to be an onerous requirement.  Traditional laws and customs are likely to exist in cases where the claimant group still maintains a vigorous communal life.”

13                  Section 66B recognises that a claim group which can confer authority on applicants to deal with matters arising in relation to a native title determination application, can also withdraw that authority.  Additionally, it provides a remedy where that authority is exceeded. The authority required and recognised by the Native Title Act can be conferred by “a process of decision-making that, under the traditional laws and custom of the persons in the native title claim group must be complied with in relation to authorising things of that kind”.  Absent such a process it may be conferred “in accordance with a process of decision-making agreed to and adopted by the persons in the native title claim group in relation to authorising the making of the application and dealing with matters or in relation to doing things of that kind”.

14                  The definition of “authorise” in s 251B, referred to in the preceding paragraph, does not in terms cover withdrawal of authorisation.  Nevertheless it may be accepted that it defines the decision-making processes by which authorisation may be withdrawn for the purposes of s 66B.  In Johnson, in the matter of Lawson v Lawson [2001] FCA 894, Stone J observed, with respect to s 66B, that the relevant questions of authorisation are governed by s 251B.  In so far as s 251B relies upon decision-making under traditional law and custom, it seems to allow for the recognition of a process applicable by way of analogy to decision-making relating to the institution of native title proceedings under the Act.  For that is hardly a matter likely to have been contemplated explicitly by traditional law and custom.  It may be that it is sufficient for the purposes of par (a) of s 251B to identify traditional decision-making applicable to the exercise of responsibility for, or authority over the land or waters in question.  Nevertheless it should not be surprising if there is some difficulty in applying traditional decision-making processes, albeit by closest analogy, to the conferring of the kind of authority contemplated by s 251B.

15                  The power to remove an applicant under s 66B(1) depends upon a cessation of the authority conferred upon the person to be removed or alternatively action by that person in excess of the authority conferred by the claim group.  The cessation of authority conferred upon an applicant requires decision-making on the part of the native title claimant group unless it can be said that the authority originally conferred was limited in such a way that it ceased upon the happening of some event without any separate decision being required.

16                  If the original authority conferred upon an applicant for the purpose of making and dealing with matters in relation to a native title determination is subject to the continuing supervision and direction of the native title claim group, then it may be that an applicant whose authority is so limited is not authorised to act inconsistently with a resolution or direction of the claim group.  In a case where an applicant does not comply with such a resolution or direction, it is reasonable to say that the applicant has exceeded the authority given to him or her by acting in contravention of the claim group decision.  The criterion of excess of authority as a condition of the power under s 66B may be less onerous than the criterion of cessation of authority.  It does not require a separate decision-making process in order to establish it.  It is also consistent with a beneficial construction of s 66B as a facultative provision directed to maintaining the ultimate authority of the native title claim group.

17                  Notwithstanding the beneficial character of s 66B in supporting the continuing authority of the claim group, those who bring applications under that section must satisfy the conditions which it imposes.  Those conditions can be enumerated as follows:

1.         There is a claimant application.

2.         Each applicant for an order under s 66B is a member of the native title group.

3.         The person to be replaced is no longer authorised by the claim group to make the application and to deal with matters arising in relation to it.

4.         Alternatively, the person to be replaced has exceeded the authority given to him or her by the claim group.

5.         The persons making the application under s 66B are authorised by the claim group to make the application and to deal with matters arising under it.

18                  It is not necessary, in order to prove the decision-making processes required by these conditions, to prove the making of individual decisions by all or most members of the group:

“… it would be enough if there was a decision by a representative or other collective body, that exercises authority on behalf of the group under customary law.”

Moran at [34] per Wilcox J

However, as his Honour went on to say:

“… a person who wishes to rely on a decision by a representative or other collective body needs to prove that such a body exists under customary law recognised by the members of the group, the nature and extent of the body’s authority to make decisions binding the members of the group and that the body has authorised the making of the application.”  At [34]

So in Duren v Kiama Council [2001] FCA 1363, Lindgren J described the starting point, in an application under s 66B, thus:

“… to identify the members of the native title claim group and to establish whether or not there is a process of decision-making under the traditional laws and customs of the persons in the native title claim group.” At [5]

In that case the evidence before his Honour referred to a meeting at which individuals expressed a wish and signed a document expressing the wish that Mr Duren be removed as an applicant and another be substituted.  The affidavits, however, failed to establish “… any of the formalities touching the due convening and decision-making at the meeting” at [6].  In Quandamooka People # 1 v State of Queensland [2002] FCA 259, Drummond J referred to “the importance of there being evidence identifying the nature of the decision-making processes followed by a native title group that result in one or more of their members being given authority to act in relation to the claim on behalf of the group” at [25].  It is also to be noted that even if the conditions for the exercise of the power under s 66B are satisfied there remains a discretion in the Court not to make the orders sought – Ward v Northern Territory [2002] FCA 171 at [16] per O’Loughlin J.

 

The Ngarluma-Yindjibarndi Application – WAG 6017 of 1996

19                  Schedule A of the current application form in WAG 6017 of 1996, which is Form 1 in accordance with the Native Title (Federal Court) Regulations 1998, sets out the description of the claim group.  It is in the following terms:

“The application is made on behalf of the Ngarluma and Yindjibarndi Native Title Claim Group which comprises:-

(1)       The Registered Native Title Claimants, who are named in Schedule 1;

(2)       The Ngarluma and Yindjibarndi Claim Committee, who are named in Schedule 2;

(3)       The Ngarluma and Yindjibarndi Heritage Committee, who are named in Schedule 3; and

(4)       The Families of the Registered Native Title Claimants, the Ngarluma and Yindjibarndi Claim Committee and the Ngarluma and Yindjibarndi Heritage Committee (“the Families”) who are referred to in Schedule 4.”

Notwithstanding the above, unless and until further advised in writing by the Native Title Claim Group, the Native Title Claim Group does not include the following people: 

a)         Those people included in the native title claim group of native title determination application WC96/89.

b)         Those people included in the native title claim group of native title determination application WC98/40.

c)         Those people included in the native title claim group of native title determination application WC97/39.”

Those excluded are members of the overlapping claim groups.  The registered native title claimants set out in Schedule 1 are:

“David Daniel, James Solomon, Tim Kerr, Daisy Moses, Bruce Monadee, Woodley King, Kenny Jerrold, Jill Churnside, Mary Walker, Michelle Adams, Bruce Woodley, Les Hicks, Jimmy Horace, Linda Ryder, David Walker, Roger Barker, Judy Albert, Trevor Solomon.”

20                  Schedule 2 sets out the names of the Ngarluma and Yindjibarndi Claim Committee, which comprises the following persons:

“Michelle Adams, Judy Albert, Jill Churnside, David Daniel, Tootsie Daniel, Pansy Hicks, Wendy Hubert, Kenny Jerrold, Maudie Jerrold, Jocelyn Jones, Doris Lockyer, Bruce Monadee, Josie Samson, Trevor Solomon, Dora Solomon, Alma Tumbler, Brigette Warrie.”

21                  Schedule 3 lists the Ngarluma and Yindjibarndi Heritage Committee:

“Michelle Adams, Eric Churnside, Keith Churnside, David Daniel, Kenny Jerrold, Tracey Jones, Dennis-Bungu Long, Alfie Malcolm, Bruce Monadee, Lynda Ryder (sic), Josie Samson, Trevor Solomon, David Walker, Sally Walker, Bridgette (sic) Warrie, Bruce Woodley.”

22                  Schedule 4 identifies as “the Families”:

“Those Aboriginal people who are:

(1)       The respective living parents, grandparents and other ancestors (such ancestor being defined as one from whom one’s father or mother is descended); of and

(2)       the respective living biological children, grandchildren and other biological descendants of; and 

(3)       the biological children, grandchildren and other biological descendants of the parents, grandparents and ancestors (such  ancestor being defined as one from whom one’s father or mother is descended) of:

            (a)        the Registered Native Title Claimants referred to in Schedule 1;

            (b)        the Ngarluma and Yindjibarndi Claim Committee referred to in Schedule 2; and

            (c)        the Ngarluma and Yindjibarndi Heritage Committee referred to in Schedule 3.”

There is a relevant claimant application.

The Members of the Native Title Claim Group

23                  The motion under s 66B in the Ngarluma and Yindjibarndi application is brought by:

“David Daniel, Daisy Moses, Roger Barker, Jill Churnside, Trevor Solomon, Les Hicks, Bruce Monadee, Woodley King, Kenny Jerrold, Mary Walker, Bruce Woodley, Michelle Adams, Jimmy Horace, Linda Ryder and Judy Albert.”

As appears from the terms of the application they are all, for the purposes of s 66B, members of the native title claim group as defined in s 253.

 

Want or Excess of Authority 

24                  It being established that there is a claimant application and that each of the persons moving under s 66B is a member of the native title claim group, s 66B requires it to be shown that the applicant being replaced is no longer authorised by the claim group to make the application and to deal with matters arising in relation to it, or has exceeded the authority given to him or her by the claim group.

25                  Before January 1999 there were seven applicants named in the application.  They were David Daniel, Daisy Moses, Kenny Jerrold, Woodley King, James Solomon, Bruce Monadee and Tim Kerr.  Another earlier applicant had died and was removed from the application prior to January 1999.  According to David Daniel’s affidavit of 1 August 2002, the first group of applicants was chosen by the Ngarluma Yindjibarndi People at a community meeting in 1996.  They were chosen by the community to bring the application on its behalf because they are people who have authority under the traditional law to speak for Ngarluma and Yindjibarndi country.  He said they were chosen in the traditional way by the community as a whole.   In early 1999 some additional applicants were chosen.  They were Jill Churnside, Mary Walker, Michelle Adams, Bruce Woodley, Les Hicks, Jimmy Horace, Linda Ryder, David Walker, Roger Barker, Judy Albert and Trevor Solomon.  Mr Daniel said that many of these new applicants were chosen to help some of the older people understand the processes involved in native title and to represent a range of different Ngarluma and Yindjibarndi family groups.  Their authorisation took place at a community meeting held in the bush.

26                  The applicants instructed the Pilbara Native Title Service (PNTS) to be their lawyers at a community meeting held on 19 September 2001.  David Daniel said in his affidavit that the meetings which have since been held by the PNTS are Ngarluma Yindjibarndi community meetings.  Written notices of the meetings are sent several days before they take place.  They are posted to people or hand delivered to their houses.  News of the meetings are also spread by word of mouth.  The meetings are usually held in Roebourne or Point Sampson. 

27                  The nature of the community meetings was described by Roger Barker, another applicant, in his affidavit sworn 21 August 2002.  He said there is always discussion and consultation between members of the claim group both before and during the meeting.  He said it is always a group decision.  Young people help the old people by explaining “white fella” laws to them.  This, he said, is the way of making decisions under their traditional laws and customs.  It is not just up to individual applicants to go their own way and make a separate decision.  They must do what the group decides.  Community meetings, he said, are accepted by the Ngarluma and Yindjibarndi People as the proper way to make decisions.  The claim group has always made its decisions in this way about the people it has chosen as applicants and also about major decisions on agreements concerning mining and other developments in the claim area.  He said they have done it that way ever since the claim was lodged in 1996 and they still make decisions that way today. 

28                  According to David Daniel’s affidavit, the Ngarluma and Yindjibarndi community has been having meetings since December 2001 about the State’s proposal to acquire native title interests on the Burrup Peninsula and the Maitland Estates and in Karratha.  Community meetings have been held approximately once every two weeks for that period to talk about the negotiations.  These have been very hard for the community.  They have had to make some very difficult decisions about whether to give up native title on part of their traditional country.  They talked a lot about whether they were prepared to give up that land and whether the State was offering them enough.  He said:

“We knew that the decision that we were making was not just about our lives, but about the lives of our children and their descendants.  It is a great responsibility.  After a great deal of deliberation the community resolved to enter into the agreement on 10 July 2002.”

Mr Daniel said that at two meetings on 10 July, the Ngarluma Yindjibarndi community resolved to enter into the agreement and authorised the registered applicants to enter into it on their behalf.  There were two meetings convened so that every Ngarluma and Yindjibarndi person would be able to attend a meeting, whether they worked or not.  Notices were given out in the usual way.  A total of over 100 people attended the two meetings.  This, he said, is a good attendance for a community meeting.  The resolution to enter into the agreement was unanimous and was made in accordance with their traditional laws and customs. 

29                  Mr Daniel said that every Ngarluma and Yindjibarndi registered applicant signed the agreement except for David Walker.  Mr Walker told him that he wanted to obtain separate advice about the agreement.  However, according to Mr Daniel, Mr Walker has had his own lawyers since at least 18 July 2002 when his lawyer visited Roebourne.  He will not sign the agreement or give the rest of the applicants any indication of when he will sign the agreement.  Mr Daniel said that Mr Walker has not attended any of the community meetings to negotiate the agreement or participated in any of the group decisions about whether to agree to it.  He said there were some meetings held at night so that workers like David Walker would be able to come and he still did not attend.  He did not attend either the day or the night meeting on 10 July 2002.  In his affidavit Mr Daniel foreshadowed a community meeting on 12 August in Roebourne to discuss and make a decision about whether to remove David Walker as an applicant.   

30                  Frances Flanagan, a solicitor working with the Yamatji Barna Baba Maaja Aboriginal Corporation operating as the Pilbara Native Title Service, caused a notice of the meeting to be sent to the Ngarluma and Yindjibarndi community.  It was sent to some ninety four addressees.  The text of the notice was in the following terms:

“PILBARA NATIVE TITLE SERVICE

A SERVICE DIVISION OF THE YAMATJI BARNA BABA MAAJA ABORIGINAL CORPORATION

NATIVE TITLE REPRESENTATIVE BODY

NOTICE OF NGARLUMA AND YINDJIBARNDI COMMUNITY MEETING

Time: Monday, 12 August, 6pm

Venue: PNTS Office, Roebourne

AGENDA: Removal/Replacement of Applicants.

.           At meetings on the 10 July 2002, the Ngarluma and Yindjibarndi community resolved to enter into an agreement with the State for the extinguishment of native title on the Burrup and Maitland Estates and some land in Karratha.  In return, the agreement provided for benefits to go to the Ngarluma and Yindjibarndi people and other registered claimant groups.  The benefits include money, freehold land on the Burrup, freehold blocks in Karratha, employment and training and education.

.           At those meetings, the Ngarluma and Yindjibarndi community authorised the Registered Applicants to sign the agreement on their behalf.

.           All of the Ngarluma Yindjibarndi Applicants, except Mr David Walker, have signed the Agreement.

.           The agreement cannot go ahead without Mr Walker’s signature.

.           Since 13 July 2002, the State may withdraw the agreement at any time while Mr Walker does not sign the Agreement.  If this occurs, all of the benefits to the Ngarluma Yindjibarndi people will be lost.  It is likely that the State will then be able to acquire the land without the consent of the Ngarluma Yindjibarndi people.

.           Mr Walker has obtained his own separate legal advice about the agreement.  He has had a reasonable opportunity (since 11 July 2002) to read the agreement and to have it explained to him.  He has not told anyone when he will make a decision to sign the agreement or not.  He has not explained why he will not follow the community’s resolution to sign the agreement.

.           The meeting on 12 August 2002 will be to discuss and make decisions about the removal and replacement of Mr Walker as an Applicant to the claim.

Dinner will be provided at the meeting.

TRAVEL ASSISTANCE WILL BE PAID ACCORDING TO PNTS’S USUAL POLICIES.  NO ADDITIONAL TRAVEL ALLOWANCE WILL BE PAID.  PLEASE CONTACT SANDY MEDBURY AT THE PERTH OFFICE OF THE YLSC ON 08 9225 4644 IF YOU HAVE ANY QUERIES.”

31                  The meeting was chaired by Roger Barker.  He was nominated as chairperson by the Ngarluma and Yindjibarndi Working Group and the applicants.  According to Ms Flanagan the Ngarluma and Yindjibarndi Working Group is responsible for administrative and minor decision-making about matters associated with the claim.  Mr Barker did not attend that meeting but was contacted after the meeting and undertook to be chairperson for the community meeting on the evening of 12 August.

32                  The meeting was attended by some eighty Ngarluma and Yindjibarndi people.  There were considerably more Yindjibarndi people than Ngarluma people.  A video film of the meeting was taken and exhibited to the affidavit of Ms Flanagan.  I have viewed the film.  The meeting was opened by Mr Barker and there followed a presentation by a lawyer, Mr James Fitzgerald engaged by the PNTS. 

33                  Mr Fitzgerald’s presentation and comments made during the meeting made clear that Mr Walker’s refusal to sign the agreement with the State left the State in a position where it could withdraw from the agreement and withdraw its offer of benefits associated with the proposed acquisitions.  Mr Fitzgerald conveyed the impression to the meeting that there was a significant and ongoing risk of that withdrawal which would increase with greater delay in finalising the agreement.  He also presented to the meeting as options that if Mr Walker did not sign the agreement he could resign from the applicant group or, alternatively, the meeting could resolve to have him removed.  He made it clear to the meeting that Mr Walker would nevertheless continue as a member of the claimant group.  Mr Walker, who was accompanied by a lawyer, Mr Rumsley, at the meeting also spoke.  He spoke only briefly and indicated that there were other Ngarluma people involved or affected by the proposed agreement with whom he had wanted to speak before committing to the agreement.  His lawyer also addressed the meeting.

34                  In the event, a number of resolutions, predrafted by the PNTS, were displayed using an overhead projector.  These resolutions were in the following terms:

“Resolution 1 :

The members of the Native Title claim group resolve to no longer authorise the current applicant in the Native Title Determination Application WAG 6017 of 1996, namely:

            David Daniel, (deceased person), (deceased person), Daisy Moses, Bruce Monadee, Woodley King, Kenny Jerrold, Jill Churnside, Mary Walker, Michelle Adams, Bruce Woodley, Les Hicks, Jimmy Horace, Linda Ryder, David Walker, Roger Barker, Judy Albert, Trevor Solomon.

These persons (as a group) who comprise the applicant in WAG 6017 of 1996, are no longer authorised by the Ngarluma and Yindjibarndi claim group to make the Native Title Determination Application (WAG 6017 of 1996) or to deal with matters in relation to it.

This resolution is in accordance with the decision making process previously used by the claim group in relation to dealing with matters of this kind, including the original authorisation of these applicants and the process is consistent with the traditional laws and customs of the Ngarluma Yindjibarndi people in relation to decisions of this kind.

Resolution 2:

The members of the Native Title claim group resolve to remove David Walker and the names of the deceased people from the list of persons who comprise the applicant.

Resolution 3:

The members of the Native Title claim group resolve to authorise the following persons to be the applicant in WAG 6017 of 1996:

David Daniel, Daisy Moses, Bruce Monadee, Woodley King, Kenny Jerrold, Jill Churnside, Mary Walker, Michelle Adams, Bruce Woodley, Les Hicks, Jimmy Horace, Linda Ryder, Roger Barker, Judy Albert, Trevor Solomon.

These persons have been authorised to be the applicant in WAG 6017 of 1996 in a process of decision making previously used to authorise the applicants in this matter and using a process adopted by the claim group for making decisions of this kind and in a way consistent with the traditional laws and customs of the Ngarluma Yindjibarndi people for making decisions of this kind.

Resolution 4:

The members of the Native Title Claim group resolve, approve and instruct the solicitors of the claim group to bring an application in the Federal Court to replace the current applicant with the people named in resolution 3.”

The resolutions were passed on the voices without any expressed dissent.  Mr Fitzgerald called for people to call “aye” if they supported the resolutions.  He called for them to say “nay” if they were against the resolutions.  A number of people called out “aye”.  Nobody called out “nay”. 

35                  After this vote, the Yindjibarndi people in attendance at the meeting were requested to leave and the resolutions put to the remaining Ngarluma people only.  A dinner had been provided in a building adjacent to the open area in which the meeting was conducted and the Yindjibarndi people left the immediate vicinity of the meeting to have their meal. 

36                  According to Ms Flanagan, there followed some discussion about involving Ngarluma people who resided outside Roebourne in the decision.  Those present then expressed their support for the resolutions by voting with a show of hands.  Nobody voted against the resolutions.  There was discussion both before and after the resolution of the desirability of consulting other Ngarluma people not at the meeting.  Mr David Daniel was to carry out that function.  Mr Daniel, it may be noted, was a vocal supporter of the resolutions and of the execution of the agreement.  The basis upon which the process appears to have been left at the end of the meeting, as expressed by Mr Fitzgerald to the meeting, was that if Ngarluma people not present at the meeting had a fundamental objection to the resolutions, then the matter would have to be reconsidered.  The process for this was not identified or agreed upon. 

37                  The tone and content of what was said to those present at the meeting, particularly by Mr Fitzgerald, left them in no doubt that if Mr Walker did not sign the agreement or ceased to be an applicant, the State agreement could be in jeopardy.  At one stage it was suggested to the meeting that they were “at the mercy of the State”.  There was a lot of pressure on those present to proceed urgently by way of passing the proposed resolutions.  I do not intend thereby to suggest that this was improper pressure.  The circumstances which had led to the convening of the meeting themselves gave rise to a need to deal with the matter with some expedition.  I suspect, however, that the risk that the State would renege on its agreed arrangements in the short term was somewhat overstated.

38                  In addition to the affidavits of Messrs Daniel and Barker and Ms Flanagan, there was a number of affidavits in common form sworn by the applicants moving for the removal of Mr Walker.  They said in each case that Mr Barker’s affidavit was correct.  They each said that they attended the community meeting on 10 July when the community resolved to enter into the Burrup Agreement and authorised the applicants in the native title determination application to sign the agreement on behalf of the community.  They deposed to their attendance at the meeting of 12 August 2002 and the terms of the resolutions passed at that meeting.  Each affidavit ended with the paragraph:

“I confirm that community meetings are accepted by the Ngarluma and Yindjibarndi people as the proper way to make these decisions.  We have done it this way ever since our claim was lodged back in 1996.  We still make decisions this way today.”

Affidavits in this category were sworn by Michelle Adams, Mary Walker, Bruce Monadee, Jill Churnside, Jimmy Horace, Linda Ryder, Kenny Jerrold, Les Hicks, Trevor Solomon, Daisy Moses, Judy Albert, Bruce Woodley.  I should add that not all of these affidavits are identical.  Some set out the texts of the resolutions.  In some cases the deponent was present at the meeting of 10 July when the original resolutions were passed authorising execution of the agreement.  All say they have read the affidavit of Roger Barker and say its contents are true and correct. 

39                  The conduct of community meetings in relation to the proposed compulsory acquisition is also the subject of an affidavit sworn by Alum Cheedy.  He is an Aboriginal Liaison Officer employed by the Pilbara Native Title Service.  In relation to community meetings held between December 2001 and July 2002 he has been involved with the distribution of meeting notices, transporting people to take them to meetings, attending at community meetings and recording the names of those in attendance.  He said it was his practice to distribute notices to members of the community at least three days before a scheduled meeting.  He would go to the houses of families on the Ngarluma and Yindjibarndi claim and deliver a copy of the relevant notice and inform them of the meeting.  He would see the applicants and give them notices first.  Then he would put a copy of the notice up on notice boards at various locations in the town.  He would also drop notices off to other members of the community and tell them about the meeting as he saw them.  He handed out notices to the community in this way for community meetings scheduled for 10 July and 12 August 2002.  He said that as far as he was aware, David Walker only attended one community meeting between December 2001 and July 2002.  That was on 18 April 2002.  According to Mr Cheedy he has attended many community meetings where major decisions have been made about the claim or agreements concerning mining and other developments in the claim area.  He confirmed that community meetings are accepted by the Ngarluma and Yindjibarndi as the proper way to make such decisions.  He said they have done it that way ever since their claim was lodged back in 1996 and they continue to make decisions that way today. 

40                  There was also an affidavit sworn by Michael Vere Robinson, an anthropologist who has been involved with the research in relation to the claim.  Mr Robinson is a Senior Research Fellow and Deputy Director of the Centre for Anthropological Research at the University of Western Australia.  His involvement with Ngarluma and Yindjibarndi people dates back to 1982 when he was the Registrar of Aboriginal Sites.  The WA Museum had been asked to investigate concerns of the Ngarluma and Yindjibarndi community that sites of significance to them were being desecrated by the construction of the Harding Dam.  His professional contact with them at that time was for about a year.  His involvement with them continued in 1984 when he was seconded to the Aboriginal Land Inquiry conducted by the Honourable Paul Seaman QC.  He assisted the Ngarluma and Yindjibarndi people and other Aboriginal people in the Roebourne people to collate evidence for submission to that inquiry. Since about August 1995, Mr Robinson has been working for a significant amount of time, for several years almost full time, with the Ngarluma and Yindjibarndi people in relation to their native title claim, future acts and heritage surveys.  His work has included collecting evidence for native title claims and conducting a number of heritage surveys with people in the claim area.  He wrote an anthropological report dated 13 May 1999, supervised a collection of genealogies, compiled two supplementary reports and gave evidence at the hearing of the native title determination application.  He has continued to be involved with the native title claim group since he gave his evidence and has attended meetings and advised their lawyers from time to time on anthropological matters to do with the claim.  He said he had studied and developed an anthropological understanding of the traditional laws and customs of the Ngarluma and Yindjibarndi people and has studied the works of anthropologists and writers about them. 

41                  Mr Robinson said that although the Ngarluma and Yindjibarndi people are from separate language groups or tribes, they have been closely associated with each other over a considerable period of time particularly the last fifty years when they and their forebears took up residence in and around the Roebourne area.  For the first one hundred years of non-indigenous settlement of the area most of them had been living on pastoral stations established on their traditional lands.  The two groups have become closely associated through co-residence, inter-marriage and the sharing of traditions.  That association is reflected in bringing their native title claim together.  He said in his previous work with the groups it was apparent that they saw themselves as having common social and cultural interests. 

42                  Mr Robinson said membership of the group is reckoned in terms of descent.  A person is a member of the group if he or she is descended from a Ngarluma or Yindjibarndi parent.  These people hold traditional rights over the lands regarded as Ngarluma and Yindjibarndi country.  In general terms people of Ngarluma descent hold rights in Ngarluma lands and people of Yindjibarndi descent hold rights in Yindjibarndi lands.  However the two groups often meet together to consider and make decisions about matters affecting their lands.  He knows, or has known, all the current named applicants for the claim group and confirm that they are all recognised as Ngarluma and Yindjibarndi people and are members of the claim group.  Some of the current applicants are Ngarluma people and some are Yindjibarndi people. 

43                  Importantly, Mr Robinson said that in his experience with the people from the days before the native title claim was commenced he has observed that they often make decisions through meetings of members of both groups.  These meetings were usually organised by incorporated groups in relation to matters to do with the Harding Dam, mining applications or the Roebourne area generally.  He has attended many such meetings over the years.  Since 1995 he has also attended many meetings arranged to organise the conduct of the native title claim.  They have dealt with a wide range of issues including giving instructions to the lawyers progressing the application, making decisions about and arrangements for heritage surveys and agreements about developments affecting their land.  He said these meetings are usually organised by the claimants’ lawyers and either involve small groups such as a Heritage Committee or Working Group to consider particular issues or larger claimant meetings to discuss and make decisions about wider matters affecting the claim or agreements concerning land.  He said that such meetings whether of a small group with special interests, or of a larger group representative of the claimants as a whole, are usually run according to a set agenda with motions being put and resolutions passed.

44                  Mr Robinson said that meetings about the claim are usually attended in the main by those members of the Ngarluma and Yindjibarndi who live in and around Roebourne which is located in the traditional lands of the Ngarluma people.  The majority of Ngarluma and Yindjibarndi people live in the Roebourne area.  Some meetings have from time to time been attended by people who do not live in Roebourne or within the claim area particularly if there are certain issues raised which are of interest to those people or where issues affecting the whole group are concerned.  In those circumstances, people have travelled to meetings from areas such as Port Hedland and Marble Bar or further.  Mr Robinson believes it is accepted that Roebourne is the appropriate place for meetings to be held about matters relating to the claim area and that it is appropriate for decisions to be made by people who can attend meetings in the Roebourne area.  The process of making decisions through meetings has been employed by the Ngarluma and Yindjibarndi claim group as an appropriate process for making decisions on behalf of the native title claim group. 

45                  Mr Robinson was present at the community meeting on the evening of 12 August 2002 at the PNTS office in Roebourne.  He said the meeting was attended by about one hundred men, women and children who were members of the Ngarluma and Yindjibarndi claim group.  He has seen the list of names of the attendees at the meeting.  The list accords with his recollection of the people present and he was aware that the people on the list were Ngarluma or Yindjibarndi people.  He observed that decisions were made by the Ngarluma and Yindjibarndi people at the meeting in accordance with decision-making processes which have been used by them in the past.  He also said:

“In all the time that I have been involved in the claim I can confirm that it has been felt that the decisions of meetings should bind the members of the claim group and that the applicants in the native title claim are expected to act in accordance with the wishes of the group as decided at those meetings.  Although traditional culture recognises and places value on individual autonomy, there is no traditional law and custom which allows any individual member of the Ngarluma and Yindjibarndi people to act on behalf or speak for them in a way contrary to their wishes.  Under the traditional laws and customs of the Ngarluma and Yindjibarndi people individual members of the group are not authorised to put a position on behalf of the whole Ngarluma and Yindjibarndi people which is contrary to the decisions that were made by them.”

46                  In his affidavit in opposition to the motion, Mr Walker described himself as an elder, law man and custodian of traditional and customary sites of the Ngarluma people and as a member of the Ngarluma and Yindjibarndi native title claim who was appointed as an applicant on behalf of the Ngarluma.  He said the Burrup contains the most important sites in Ngarluma culture, tradition and custom.  He acknowledged that there have been meetings about the Burrup.  He said he went to a few of these meetings but they were controlled by the Yamatji Land and Sea Council lawyers.  He said that he and a lot of other claimants refused to go because they could not have a say, the Yamatji lawyers would not listen to or talk to them in a proper way about their native title in the Burrup.  He claimed the negotiations were done by Yamatji and the State.  He disputed that there were ongoing meetings to discuss and/or endorse the process of the negotiations.  He said that when he decided not to sign, he also considered the future of the children and grandchildren and so on.  The most important issue for him was that the peoples’ land, sites and history, their stories, dreaming and songs should be kept in that place for the future.  He said:

“I refused to sign this agreement because the Ngarluma elders must continue to manage and control our sites and our culture because it ties us to our land and it identifies us through our song, stories and dreamings and I did not understand the agreement and how it would affect this.  As it is so important to the Ngarluma people I went to another lawyer to get advice.”

47                  Mr Walker said he had not seen a copy of the minutes of the meeting of 10 July 2002, or who was there and what happened.  He said that as far as he was aware only a few people went to that meeting.  He said he had requested a copy of the agreement and was told he could not have one.  The only information he saw was the summary of the agreement from the Yamatji Land and Sea Council which did not include all the information necessary to allow an informed decision to be made.  The summary also asserted that they had read the agreement.  He said he had made inquiries with his extended family and with other members of the Ngarluma people in other communities who say they were never consulted about the agreement.  He said that Helen Lawrence of the Yamatji Land and Sea Council told his lawyers they could not have a copy of the agreement.  He was not able to get a copy until the evening of 17 July 2002 when he had arranged for Messrs McKie and Rumsley of McKie and Associates, Solicitors, to come to Roebourne to meet with him and Ngarluma and Yindjibarndi people.  He said he arranged for a meeting on 18 July with Ngarluma and Yindjibarndi people at the Roebourne Hotel to talk about the agreement.  At that meeting his lawyers, who had not had time to review the agreement, answered questions from claimants based on the Yamatji summary.  David Daniel, Roger Barker and Trevor Solomon were present at that meeting and agreed it was a good idea to get independent advice from other lawyers on the agreement. 

48                  Based on the lawyers’ comments he was concerned about the Yamatji summary of the agreement.  He said he did not sign it because he was not involved in the negotiations, he was not given the opportunity to look at the documents and was not given any advice about it until he obtained advice from his own lawyer.  He said that he has not been able to consider his position in relation to the agreement since getting advice because he is now dealing with the application to remove him from the claim.  He agreed that he did not attend any negotiation meetings but said that as far as he was aware no Aboriginal people attended the negotiation meetings.  They were conducted between Yamatji and the Government.  He referred to advice from his lawyer that there was no guarantee that the Ngarluma and Yindjibarndi people would receive all the benefits outlined in the agreement.  The government would control all the sites in the Burrup and rights and interests would be extinguished forever.  He said:

“If I have to make decisions in relation to our rights and our sites then as an elder who has the responsibility for these things – then as an elder and lawman that is what I have to do.”

He also asserted that, at the meeting held on 12 August 2002, five of the people present did not belong to the Ngarluma and Yindjibarndi claimant group, there were only fourteen Ngarluma people, fifty seven were Yindjibarndi and there were twelve Yamatji staff at the meeting.  He said there were eighty nine adults and the rest were children.

49                  Mr Walker referred to a number of Ngarluma and Yindjibarndi people he has spoken to since 12 August who have indicated they do not agree with the resolution to remove him.  He said there are also Ngarluma and Yindjibarndi people in Port Hedland and Marble Bar who do not support the resolution to remove him.  He has not yet had a chance to speak to them.

50                  Mr Walker referred also to the affidavits of David Daniel, Trevor Solomon, Daisy Moses, Les Hicks, Jill Churnside and the Yindjibardni claimants.  He said they had supported Roger Barker’s affidavit so his response to Barker’s affidavit applied to them also. He added that Daniel and Cheedy are part-time workers with Yamatji and therefore have a conflict and a pecuniary interest in the matter and should have been involved in the procedural matters because of a possibility of bias.  He said that he is an elder of the Ngarluma people and that he and his family did not authorise the registered claimants to sign the State agreement or to apply to the Federal Court to remove him as an applicant.

51                  The question whether David Walker is no longer authorised by the claim group within the meaning of s 66B(1)(a) depends upon whether there has been a withdrawal of his authority in accordance with the processes referred to in s 251B of the Native Title Act.  In my opinion the evidence does not disclose a process of decision-making of the Ngarluma and Yindjibarndi people that could be described as a process of decision-making under the traditional laws and customs of the native title claim group.  Indeed, although there has been a close association between the Ngarluma and Yindjibarndi people over the last fifty years or so, the evidence, particularly that of Mr Robinson, suggests that they have developed no form of common or joint decision-making applicable to native title determination applications which could be called decision-making under traditional law and custom.  It may well be that within each group there are internal mechanisms of traditional law and custom which inform the process of joint decision-making in relation to matters connected with the native title determination application.  But, in my opinion there is on the balance of probability no process of the kind contemplated in s 251B(a) of the Native Title Act. The evidence does support the inference that decisions of that kind are taken in accordance with a process of decision-making which has been adopted by the persons in the native title claim group and by inference agreed to by them over a period of time.  That process involves the conduct of community meetings of the kind convened on 10 July 2002 and 12 August 2002 on matters of major concern in connection with the native title determination application.

52                  The process of decision-making undertaken on 12 August 2002 may be criticised as pressured by reason of the matters to which the decisions related, the magnitude of their impact on the lands of the claim group, the magnitude of the benefits that might flow under the State agreement, the limited time frame which persons there present were advised was available for finalising the State agreement, the input of the lawyers and the formal character of the resolutions which were eventually passed at the meeting.  These factors have to be seen however in the context of the much longer period of negotiation which led up to the meeting of 10 July 2002 at which the claim group authorised execution of the State agreement.  They received advice from their lawyers on 12 August.  That advice may have been emphatic.  However, it is not to be supposed that members of the claim group which had been for so long engaged in processes associated with their native title determination application and with the negotiation of the State agreement were not capable of making an informed decision reflected in the resolutions which were eventually passed.  In my opinion, the applicant, Mr David Walker, is as a result of the decisions taken at the meeting of 12 August 2002, no longer authorised by the claim group to make the application or to deal with matters arising in relation to it.

 Whether the Proposed Applicants are Authorised by the Claim Group to Make the Application and to Deal with Matters Arising in Relation to it.

53                  I accept that at the meeting of 12 August 2002, those of the claim group who now bring the s 66B application were authorised to make it and to deal with matters arising in relation to it and in relation to the native title determination application.  It is true that in order to secure an early hearing date the solicitors for the applicants had filed their motion prior to the meeting of 12 August.  The motion has subsequently been amended and at the time it came on for hearing had the authority of the native title claim group.  I do not accept the objection made to it on the basis that it was not authorised at the time it was filed.  On the other hand, I do not condone the procedure which was adopted.  It should not be repeated.

Whether the Orders Sought Should be Made

54                  The conditions for the exercise of the power under s 66B having been satisfied, the question that then arises is whether, in its discretion, the Court should make the orders which are sought.  In my opinion it should.  This is a case in which one of a large number of registered applicants is holding up the execution of an agreement which has been authorised by the native title claim group and which is of substantial importance to its members.  To decline to make the order in these circumstances would be to undermine the authority of the claim group and to frustrate its legitimate decisions.  In the circumstances, I propose to make the orders which are sought.  I will also make orders removing the names of deceased persons from the named applicants as requested.  

55                  I should add that submissions were also made in opposition to the motion by Mr RI Viner QC representing the Wong-goo-tt-oo People.  The Wong-goo-tt-oo people have no direct interest in this motion as it does not concern their application.  It appears that there may be a desire on the part of all or some of those applicants to oppose the execution of the agreement.  However, an important aspect of the submissions made by Mr Viner was that it was not appropriate that I should on the hearing of this motion make findings which might involve determination of the issues to be determined by Nicholson J who is the trial judge in the consolidated proceedings.  I should note in that respect that I have made orders that the affidavits filed in these proceedings are, unless otherwise directed, only to be used for the purposes of the removal motions.

56                   In my opinion, the concerns advanced by senior counsel for the Wong-goo-tt-oo People are unfounded.  The issues before me do not involve any determination of issues going to questions of connection or the subsistence of native title rights and interests.   And to the extent that they do they are findings made for the purposes of the s 66B motions only.

The Yaburara and Mardudhunera Peoples Claim – WAG 127 of 1997

57                  The current form of the amended native title determination application brought by the Yaburara and Mardudhunera people names three persons as applicants, Mrs Valerie Holborow, Mr Kevin Cosmos and Ms Patricia Cooper.  The native title claim group is set out in Schedule A of the application and comprises the following persons:

“Colin Cosmos, Janice Cosmos, Patricia Cooper, Audrey Cosmos, Susan Mowarin, Kevin Cosmos, Valerie Holborow, Mary Cosmos, Linda Delower, Dorene Wescombe, Barbara Sinclair, Gail Sinclair, Robert Boona, Margaret Boona, Dorrie Wally and Danny Cooper.”

58                  Ms Holborow has sworn an affidavit exhibiting an extract from the amended application.  She also exhibits an affidavit dated 1 March 1999 in these proceedings in support of the amendment of the native title determination application.  It traces her authority to make the application to discussions among the various claimant families over a period of time prior to the lodgment of the original native title determination application on 1 August 1996.  She says that during the course of those discussions Colin Cosmos, Patricia Cooper and herself were nominated by all of the other members of the claimant group as applicants to file the application on their behalf.  She and Patricia Cooper accepted the position, while Colin Cosmos proposed that his brother, Kevin Cosmos, be nominated in his place.  Kevin Cosmos accepted the nomination soon thereafter.  During a meeting on 27 March 1997 in Karratha at which she, Colin Cosmos, Audrey Cosmos, Kevin Cosmos, Susan Mowarin, Linda Delower, Janice Cosmos, Dorene Wescombe, Pat Cooper, Margaret Boona, Mary Cosmos and Danny Cooper were present, the sixteen applicants were identified and finalised and the authority for herself, Pat Cooper and Kevin Cosmos to act as applicants was reaffirmed by those present. 

59                  I find therefore, that there is a relevant claimant application and that those said to be moving for the order under s 66B pursuant to the Minute of Proposed Amended Notice of Motion, are members of the native title claim group as defined in s 253.  Those persons are:

Valerie Holborow, Colin Cosmos, Kevin Cosmos, Janice Cosmos, Mary Cosmos, Susan Mowarin, Linda Delower, Audrey Cosmos, Danny Cooper, Margaret Boona, Barbara Sinclair, Gail Sinclair and Dorrie Wally.”

 

The Orders Sought

60                  The orders sought in the amended notice of motion are:

“1.       Valerie Holborow (nee Cosmos) and Kevin Cosmos on behalf of the Yaburara and Mardudhunera (“the replacement applicants”) do jointly replace all the current applicants on the grounds that:

            1.1       Patricia Cooper is no longer authorised by the claim group to make the application and to deal with matters arising in relation to it.  Patricia Cooper has exceeded the authority given to her by the claim group to make the application and to deal with matters arising in relation to it; and

            1.2       The Replacement Applicants continue to be and are authorised by the claim group to make the application and deal with matters arising in relation to it.

2.         The application be amended by the removal of Patricia Cooper’s name from the title to the action and Schedule.

3.         A copy of this order be served on the respondents.

4.         Such other directions as the Court thinks fit.”

61                  There is a threshold difficulty in this case in that a number of affidavits have been filed sworn by persons named as members of the claim group moving the motion in which they have stated that they have never given authority for such a motion to be brought on their behalf.  Linda Delower has sworn, on 3 September, that she has never knowingly signed any document giving to Williams & Co, Lawyers, authorisation to make the notice of motion on her behalf.  She also said that she has never knowingly given verbal or other form of authorisation for the notice of motion to be given on her behalf or for her name to be included as a party to it.  She said that Patricia Cooper has always been and continues to be fully authorised by her to make the application and to deal with matters arising from it.  Similar affidavit were sworn by Danny Cooper and also by Dorrie Wally.   Mr Williams, appearing on behalf of the movers of the proposed motion, says that the content of these affidavits has been overtaken by events.  The event that overtook their content was the meeting or special general meeting of the Yaburara and Coastal Mardudhunera Aboriginal Corporation which took place on Tuesday, 3 September 2002.  According to Mr Williams, the affidavits of Delower and Cooper are inconsistent with the votes that were recorded at the special general meeting of the Corporation.  The only concession he was instructed to make in respect to those affidavits related to one of them sworn by Doreen Wescombe whose name was then removed from the list of movers of the motion. As to that, I note for the moment that the three affidavits to which I have referred were sworn on 3 September, the same day as the special general meeting and that they have not been retracted, nor are the subject of any direct contradiction.

62                  In the affidavit sworn by Valerie Holborow it was said that Yaburara and Coastal Mardudhunera Aboriginal Corporation was incorporated on 16 February 1998.  The members of the Corporation are the members of the claimant group.  The committee of the Corporation runs it on behalf of the group and is made up of five members of the group.  One of the main purposes for the incorporation was to provide a means for the group to negotiate and reach agreements with industry and developers who wanted to do work on the land the subject of the native title determination application.

63                  Ms Holborow said that since February 1998 the group used the Corporation both as a means of decision-making and for implementing decisions.  A summary of the process by which the group has done this was set out in her affidavit:

1.         The group discusses the relevant proposal amongst themselves.

2.         Once the group has reached a decision they tell the committee.

3.         The committee then tell the three named applicants what to do for example, whether or not to sign documents on behalf of the group and the Corporation.

Ms Holborow said that the group have used the Corporation’s structure and process to form and appoint both a heritage survey team to deal with heritage survey matters on behalf of the group and a negotiation team to attend meetings to deal with negotiations with developers on behalf of the group and Corporation.  The effect of these decision-making processes, according to Ms Holborow, is that the wishes of the majority of the group have been and are implemented by and on behalf of the group.  She referred to a number of successfully negotiated and concluded future act and related agreements with the various developers.

64                  Ms Holborow deposed to the process of negotiation between the group through its Corporation and the State of Western Australia in relation to the Burrup Peninsula developments.  She said the group considered a negotiation protocol submitted by the State and directed the committee and therefore the named applicants to agree with that negotiation protocol.  After entering into the protocol, the State then requested the group to consider a proposed timetable for negotiations.  The group gave consideration to that and directed the committee to agree the timetable with the State.  Between about September/October 2001 and 11 July 2002, some sixteen meetings took place between representatives of the State, the developers, the National Native Title Tribunal, the group, the group’s lawyers, Williams & Co, Barrack & Associates who were the group’s and Corporation’s accountants and Corsers who were representing Ms Cooper.

65                  According to Ms Holborow, in December 2001 the group directed the committee that it wished to enter into a Memorandum of Understanding with the State regarding a future act agreement to allow five developers access to land on the Burrup Peninsula.  After agreeing the Memorandum of Understanding, further meetings were held.  On 11 and 12 June 2002 and 11 July 2002 meetings took place at the Tambray Centre in Karratha.  At each of those meetings the State produced a draft version of a proposed agreement under s 31 of the Native Title Act which she says was considered and discussed by those present.

66                  Ms Cooper did not attend the meeting of 11 July 2002 although she was invited and funding was available to pay for the cost of her travel to and from Karratha.  At that meeting, each of the members of the group present agreed to adopt the Section 31 Agreement and also agreed that each of the named applicants should sign it.  Ms Holborow said that pursuant to the resolution she and Kevin Cosmos signed the Section 31 Agreement on behalf of the group and the Corporation.  Subsequently, however, Ms Cooper indicated that she would not sign the Section 31 Agreement.

67                  According to Ms Holborow, a special general meeting of the Corporation was held on 3 September 2002.  At that meeting it was decided that the group wanted Cooper to sign the s 31 agreement or resign.  Resolutions were passed at the meeting, including resolutions in the following terms:

“5.       That Valerie Holborow and Kevin Cosmos are and remain authorised by the Yaburara & Mardudhunera People, and the Corporation. 

6.         That Patricia Cooper is not authorised by the Yaburara & Mardudhunera People, and the Corporation, to maintain her role as a named Applicant.

7.         The previous resolution of the Yaburara & Mardudhunera People, and the Corporation, to adopt the Burrup and Maitland Industrial Estate’s Agreement between the Premier for and on behalf of the State of Western Australia and the Western Australian Land Authority and the Ngarluma and Yindjibarndi People and the Yaburara & Mardudhunera People (“the Section 31 Agreement”) as at 11 July 2002 be ratified and confirmed.

8.         That Patricia Cooper, a named Applicant on behalf of the Yaburara & Mardudhunera People, immediately:

            8.1       execute the Section 31 Agreement and cause same to be delivered to the offices of Barrack & Associates at Suite 1, 310 Churchill Avenue, Subiaco, WA 6008; or

            8.2       resign as a named Applicant on behalf of the Yaburara & Mardudhunera People.

9.         In default of Patricia Cooper immediately complying with motion 8 above, Williams & Co, Lawyers on behalf of the Yaburara & Mardudhunera  People, and the Corporation, continue to prosecute the Application to remove Patricia Cooper as a named Applicant, pursuant to Section 66B of the Native Title Act.”

68                  The meeting started at 4.35pm.  David Thompson from Barrack & Associates, Janice Cosmos, Audrey Cosmos, Kevin Cosmos, Susan Mowarin, Robert Boona, Margaret Boona and Colin Cosmos were present in person.  Attending by telephone linkup were Sally Bruce a solicitor from Corsers, Paul Williams from Williams & Co, Linda Delower, Danny Cooper, Dorrie Wally, Valerie Holborow, Barbara Sinclair and Gail Sinclair.  Mary Cosmos, Doreen Wescombe and Pat Cooper were not in attendance.  The meeting finished at 6.36pm.

69                  Kevin Cosmos has also sworn an affidavit, on 5 September 2002, in which he said that he had read the affidavit of Valerie Holborow and agreed with its content.  He was present at the meetings at the Tambray Centre in Karratha on 11 and 12 June 2002 and 11 July 2002.  He saw and heard each of the members of the group present at those meetings agree that the Section 31 Agreement should be adopted and that each of the named applicants should sign it on behalf of the group and the Corporation.  After the meeting on 11 July 2002 he signed the Section 31 Agreement as resolved at that meeting.  He said he also attended the special general meeting of the Corporation on 3 September.  He exhibited a copy of the resolutions referred to above.

70                  There was also an affidavit by David Thompson, who is the manager/administrator and accountant of the Yaburara and Mardudhunera native title claimant group and the Yaburara and Coastal Mardudhunera Aboriginal Corporation.  He said he has read the affidavit of Valerie Holborow and agrees with its content.  He has met and known members of the group personally and professionally since 1981.  Since 1998 the Corporation has had an average of three general meetings and one annual general meeting per year.  He attends the meetings normally held in Karratha and all members of the group are invited to the meetings.  He said he believes that Ms Cooper has only attended one of the meetings.  He referred to the committee structure of the Corporation and indicated that the committee of management is made up of five members of the group representative of three families. 

71                  He went on to refer to the establishment of a negotiating committee to conclude future act and related agreements with various developers.  That was set up by the Corporation in November 2001 and comprises five members of the group.  Three members must attend all meetings.  The negotiating committee is representative of three families in the group.  Doreen Wescombe, Ms Cooper’s sister, is a member of the negotiating committee which, he says, is authorised to make decisions on behalf of the Corporation.

72                  Mr Thompson to the general meeting of the Corporation held on 11 and 12 June 2002 which was attended by approximately twelve members of the group.  Ms Cooper did not attend it.  Neither did she attend the meeting held on 11 July 2002.  He confirmed that at the second meeting the members of the group decided to sign an authority for the negotiating committee to execute the Section 31 Agreement on behalf of the Corporation.  He also attended the general meeting of the Corporation in Karratha on 3 September 2002, noting that Ms Cooper was represented there by Ms Sally Bruce from Corsers.  He also exhibited the resolutions passed at the meeting to which reference has been made.

73                  Mr Williams swore an affidavit stating that he agreed with the affidavits of Valerie Holborow, Kevin Cosmos and of David Thompson.  Among those documents exhibited to his affidavit was a letter from Corsers dated 4 September 2002 in which the author of the letter, Mr Bower a partner in that firm, indicated that his firm’s only role was to provide independent advice to Patricia Cooper, Dorrie Wally, Danny Cooper, Linda Delower and Doreen Wescombe.  As he pointed out, Linda Delower, Danny Cooper and Dorrie Wally at the special general meeting voted against Ms Cooper being removed as a registered applicant but voted in favour of the execution of the Burrup/Maitland Agreement with the State of Western Australia, the Western Australian Land Authority and other contracting parties.  That voting produced a situation in which Ms Cooper had not signed the agreement but three of the other clients whom they independently advise from the same group wish that she would do so.  In those circumstances, according to Mr Bower, his firm had a conflict of interest.  For this reason he had not been able to represent Ms Cooper separately in these proceedings.

74                  In her affidavit of 3 September 2002, Ms Cooper primarily referred to those persons, Mrs Wally, Cooper and Delower, who had not authorised the motion under s 66B to be filed on their behalf.  A further affidavit sworn by her on 9 September and faxed to the Court at the time of the hearing of the motion, referred to the alleged late service upon her of documents being relied upon in support of the motion.  She explained that her reservations regarding the agreement and her requirement for more time to consult in respect of it, arose not from commercial considerations but from culturally significant considerations.  According to Ms Cooper, few members of the Yaburara and Mardudhunera claimant group come  from a traditional Aboriginal or so called “tribal” background as do members of her family.  She says it is only relatively recently and accidentally that she became aware of at least some of the contents of the Agreement and of the areas and locations of land contained within it.  At approximately the same time she says she received approaches from several senior tribal Aboriginal elders from the Pilbara region reminding her of her late father’s status in their law and of her duties towards the heritage of their people.  Her reluctance to sign a document that might result in the desecration of a huge amount of the sacred heritage of her people without further extensive consultation with Pilbara elders arose not from commercial considerations but from a fear of the spiritual and physical ills that might flow from that action.  The matter was thus a culturally significant issue to her.  She also complained of having been totally omitted from negotiations and from information regarding the agreement and being left to find out about it through reading a newspaper article.  She asserted that Williams & Co had never sent her any information whatever regarding the agreement.

75                  In relation to the special general meeting held on 3 September 2002, she complained that she was not given the required seven days notice of that meeting in any of the ways contemplated by the rules of the Corporation – see par 17.2 of the Rules.  The only advice she had with respect to the meeting, she said, was a chance remark from Linda Delower in the course of a telephone conversation between themselves some four hours before the meeting took place.  She also denied that she had asked Ms Bruce to represent her at the meeting.  She did not know Ms Bruce.  She referred to a telephone conversation with her sister, Linda Delower, on the morning of 4 September 2002.  Ms Delower had advised her and she believed that she and her aunt, Dorrie Wally, and Danny Cooper were confused by the telephone linkup joining them to the meeting, that all three were “bullied” by Mr Williams and Mr Thompson and by “the Cosmos mob” and were unsure as to how they were voting.  She advised that she and Mrs Wally and Mr Cooper may have voted in a contradictory manner by approving some motions and rejecting others inconsistently.

76                  The hearing of the motion relating to Ms Cooper was conducted in unsatisfactory circumstances.  It was brought on at short notice.  Documents were served at short notice.  Ms Cooper was participating by telephone link from Geraldton without any legal representation although she had the aid of Mr Papertalk who spoke on her behalf.  I indicated at the time of the hearing that I would reserve on the question whether, as a matter of procedural fairness, I should make a judgment on the motion at all, or adjourn it for further hearing.

77                  Having reviewed the materials, I do not think that I am in a position safely to proceed to make a decision on the matters raised in the motion.  There are persons named in the motion who say that they did not authorise it.  Moreover the material before me does not disclose whether there is a relevant process of decision-making according to traditional law and custom which requires consideration.  There is no equivalent of the anthropological evidence which was given by Mr Robinson in support of the Ngarluma and Yindjibarndi motion.

78                  In the circumstances, I propose to adjourn the motion for further hearing at a time convenient to the parties.  It would be highly desirable if Ms Cooper could be separately represented and the contending parties be in Court in person.  The venue of the adjourned hearing is a matter upon which the Court will be open to suggestions from the parties and their representatives. 

I certify that the preceding seventy-eight (78) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice French.

Acting Associate:

Dated:              13 September 2002

Counsel for the Applicants in WAG 6017 of 1996:	Ms CL Tan and Mr M O’Dell
Solicitor for the Applicants in WAG 6017 of 1996:	Dwyer Durack
Counsel for the Applicants in WAG 127 of 1997: Solicitors for the Applicants in WAG 127 of 1997: Counsel for the Applicants in WAG 6256 of 1998:	Mr PT Williams Williams & Co Mr RI Viner QC
Counsel for the First Respondent:	Mr SJ Wright
Solicitor for the First Respondent: Counsel for Dwyer Durak: Solicitor for Dwyer Durak: Counsel for the Eleventh Respondents and the West Australian Fishing Industry Council: Solicitors for the Eleventh Respondents and the West Australian Fishing Industry Council: Counsel for Mr David Walker: Solicitor for Mr David Walker: Counsel for Ms P Cooper:	State Crown Solicitor Mr R Le Miere QC Minter Ellison Mr MT McKenna Hunt & Humphry Mr AP Rumsley Mr McKie & Associates Ms Cooper represented herself assisted by Mr Papertalk
Dates of Hearing:	5 and 9 September 2002
Date of Judgment:	13 September 2002