FEDERAL COURT OF AUSTRALIA

Holborow v State of Western Australia [2002] FCA 1428

NATIVE TITLE – application to replace applicant in claimant application – whether applicant no longer authorised by native title claimant group – 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 in existence – whether other decision-making process – discretion to replace applicant

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

Daniel v State of Western Australia  [2002] FCA 1147

VALERIE HOLBOROW (NEE COSMOS), KEVIN COSMOS AND PATRICIA COOPER ON BEHALF OF THE YABURARA AND MARDUDHUNERA PEOPLE

v THE STATE OF WESTERN AUSTRALIA AND OTHERS

WAG127 of 1997

FRENCH J

20 NOVEMBER 2002

PERTH

THE COURT ORDERS THAT:

1.         Valerie Holborow (nee Cosmos), Kevin Cosmos and Robert Boona on behalf of  the Yaburara and Mardudhunera People (“the Replacement Applicants”) do jointly replace all the current Applicants.

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

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

4.         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.

REASONS FOR JUDGMENT

Introduction

1                     Valerie Holborow, Kevin Cosmos and Patricia Cooper are the persons named as applicants in a native title determination application brought on behalf of the Yaburara and Mardudhunera peoples.  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, Doreen Wescombe, Barbara Sinclair, Gail Sinclair, Robert Boona, Margaret Boona, Dorrie Walley and Danny Cooper

By a motion filed on 28 August 2002 and amended at a final hearing on 15 November 2002,  members of the native title claim group sought the removal of Ms Cooper as a named applicant.  Their application is made under s 66B of the Native Title Act 1993 (Cth).

The Principal Proceedings

2                     The application on behalf of the Yaburara and Mardudhunera people for a native title determination was lodged at the National Native Title Tribunal on 1 August 1996.  It was subsequently referred to the Federal Court where it acquired the file designation WAG127 of 1997.  So much of the application as relates to land and waters overlapping the Ngarluma and Yindjibarndi claim, WAG6017 of 1996, has been consolidated with that claim as has part of the Wong-Goo-tt-oo people’s claim, WAG 6256 of 1998.  Evidence in the trial of the consolidated proceedings has been heard by Nicholson J and the trial adjourned to a directions hearing on 2 December 2002.  The resumption of the trial is planned for early next year to hear final submissions. 

Future Act Negotiations

3                     For some time the State of Western Australia has been seeking to acquire land in the Pilbara region in and around the Burrup Peninsular for industrial and residential development.  The land in question is covered by the three applications mentioned.  The proposed acquisition also includes native title rights and interests.  The State has issued notices pursuant to s 29 and s 24MD(6A) of the Native Title Act, of its intention to effect the acquisitions.  The notices were issued between January 2000 and March 2002.  The State has been negotiating with the applicants in all three overlapping claims in the area.

4                     The overwhelming majority of the native title claim group in the present case have agreed that the named applicants should enter into an agreement with the State on their behalf relating to certain of the proposed acquisitions.  The agreement is the Burrup and Maitland Industrial Estate Agreement.  Ms Cooper has declined to join the other two named applicants and sign the proposed agreement on behalf of the group.  Such agreement would be made pursuant to s 31 of the Native Title Act.

History of these Proceedings

5                     The motion for the removal of Ms Cooper initially came on for hearing on 5 and 9 September 2002 at the same time as a similar motion filed in the Ngarluma and Yindjibarndi native title determination application for the removal of David Walker – WAG 6017.  A special general meeting of the Yaburara and Mardudhunera Aboriginal Corporation composed of members of the native title claimant group, was held on 3 September and is said to have resolved to withdraw authority from Ms Cooper to continue as a named applicant.  In reasons for judgment published on 13 September 2002, I made orders to effect the removal of Mr Walker in the Ngarluma and Yindjibarndi matter.  However in respect of the Yaburara and Mardudhunera application the orders were as follows:

“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.”

6                     In the reasons for judgment published on 13 September, I made the following observations in relation to the motion dealing with Ms Cooper’s position:

“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. 

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. 

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.”

Mr Papertalk is Ms Cooper’s husband.

7                     The matter came on for directions on 18 September 2002.  At the time Ms Cooper did not appear although her daughter spoke on her behalf by telephone.  I then made orders in the following terms:

“1.       The motion adjourned on 13^th September 2002 is re-listed for further hearing on 3^rd October 2002 at 10.15.

2.         Any party wishing to file further affidavits is to do so by 27^th  September 2002.

3.         All persons swearing affidavits are to be available for cross examination unless the party against whom they are called advises to the contrary.

4.         Liberty to apply.

5.         The Associate is to notify the Applicants, the State and the 11^th  Respondents in the event that any affidavits are filed on behalf of Ms Cooper.”

Following the publication of the reasons for judgment, a further meeting of the native title claim group was convened by telephone hook-up on 25 September.  Again, it is said, that resolutions were passed at that meeting authorising Ms Cooper’s removal as a named applicant.  As appears below, Ms Cooper did not participate in that meeting.

8                     Affidavits filed thereafter in the proceedings were as follows:

1.         Ronald Thomas Parker – Anthropologist – sworn 26 September 2002.

2.         David Thompson – Manager/Administrator and Accountant of  Yaburara and Mardudhunera Native Title Claimant Group and Yaburara and Coastal Mardudhunera. Aboriginal Corporation – sworn 26 September 2002.

3.         Patricia Cooper -  sworn 1 October 2002.

4.         Paul Thomas Williams – Solicitor for applicants – sworn 3 October 2002.

5.         Patricia Cooper – sworn 3 October 2002.

9                     At the resumed hearing on 3 October 2002, Ms Cooper appeared by video link with her husband, Mr Ken Papertalk, again speaking on her behalf.  Following discussion with the parties and submissions, I formed the view that nothing less than a face-to-face meeting of the native title claimant group was necessary to endeavour to resolve the issue and to ensure that resolutions, if any, passed by the group reflected the intentions of its members.  The following declarations were then made: 

“1.       The hearing of the application is adjourned to 15 November 2002 in Karratha at a time and venue to be notified.

2.         The Applicants are to arrange a meeting of the claimant group at Karratha on 14 November 2002 to which Ms Cooper is invited.

3.         The Court notes the offer of the Yaburara and Coastal Mardudhunera Aboriginal Corporation to pay the reasonable transport costs of Ms Cooper and a legal or other representative to the meeting at Karratha and to pay the reasonable costs of Ms Cooper’s legal representative in this application provided she has satisfied the Corporation that she is unable to do so herself.

4.         In addition to the affidavits filed so far oral evidence may be taken at the reconvened hearing on 15 November 2002.

5.         There is liberty to apply.

6.         Costs today be reserved.”

10                  A meeting of the native title claimant group was held in Karratha on 14 November at the Tambrey Centre.   At the request of representatives of the claim group the National Native Title Tribunal provided a member, Mr Bardy McFarlane, to provide mediation assistance.  Mr McFarlane wrote to members of the claim group and to Ms Cooper on 5 November 2002 advising of the meeting and stating that he would be facilitating and chairing it as a member of the National Native Title Tribunal and as an independent person.  Although he proposed that the meeting would be conducted on “a confidential and without prejudice basis” he also said in his letter to Ms Cooper and the other parties:

“Those attending should note that I propose to provide the Federal Court with a report of the meeting for its use the following day, should the proposed Directions Hearing go ahead.  That report will detail the process followed and any outcomes reached.  I will endeavour to discuss the content of the report with you and the other members of the claim group before I submit it to the Court.  One issue you may wish to consider is whether such a report should be provided to the other parties involved in the hearing.”

The purpose of the meeting was described as being:

“…to discuss the circumstances leading to the s66B application and discuss with you and the other claimants whether this issue can be resolved without the necessity to pursue the s66B application.”

A proposed agenda was attached.

11                  In the event matters were unable to be resolved between Ms Cooper and the members of the native title claim group at the meeting. A report of the meeting described as a mediation report was provided to the Court, by Mr McFarlane, prior to the hearing on 15 November in Karratha.  The report did not canvass any of the matters which had been discussed at the meeting but did record the timing, those present and various resolutions that were passed at the end of the meeting.  The report was eventually put in evidence at the hearing, evidence having been given verifying its accuracy as a description of the process which was adopted and the outcomes in terms of the resolutions recorded in it. 

12                  As appears from the report the various members of the native title claim group were present at the meeting including Ms Cooper and her husband, Mr Papertalk.  The meeting commenced at 10.30am and concluded at 4.30pm.  Shortly before lunch, Ms  Cooper left the meeting and did not return.  Subsequently Ms Doreen Wescombe also left the meeting.

13                  At the end of the meeting the following resolutions were passed, as recorded in Mr McFarlane’s  report and verified by Mr Parker and Ms Holborow:

“1.       That the Yaburara and Mardudhunera People 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 Yinjibarndi People (the s31 Agreement).

In favour.        Mr Kevin Cosmos, Mr Robert Boona, Ms Audrey Cosmos, Ms Barbara Sinclair, Ms Gail Sinclair, Ms Janice Cosmos, Ms Margaret Boona, Ms Susan Mowarin, Ms Valerie Holborow, Mr Danny Cooper, Ms Linda Delower and Ms Dorrie Walley.

Abstained:       Mr Colin Cosmos

2.         That the decision made by the Yaburara and Mardudhunera Aboriginal Corporation made on the 11^th July 2002 to sign the s31 Agreement be ratified and confirmed.

In favour:        Mr Kevin Cosmos, Mr Robert Boona, Ms Audrey Cosmos, Ms Barbara Sinclair, Ms Gail  Sinclair, Ms Janice Cosmos, Ms Margaret Boona, Ms Susan Mowarin, Ms Valerie Holborow, Mr Danny Cooper, Ms Linda Delower.

Abstained:       Mr Colin Cosmos and Ms Dorrie Walley

3.         That upon the failure of Patricia Cooper to sign the sign (sic) the s31 Agreement on behalf of the Yaburara and Mardudhunera People that Mrs Cooper is no longer authorised by the Claim Group to make the application and to deal with matters arising in relation to it.

In favour:        Unanimous

            Mr Kevin Cosmos, Mr Robert Boona, Ms Audrey Cosmos, Ms Barbara Sinclair, Ms Gail Sinclair, Ms Janice Cosmos, Ms Margaret Boona, Ms Susan Mowarin, Ms Valerie Holborow, Mr Danny Cooper, Ms Linda Delower, Mr Colin Cosmos and Ms Dorrie Walley.

4.         Alternatively by reason of Patricia Cooper’s failure to sign the s31 Agreement, Mrs 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.

In favour:        Unanimous

            Mr Kevin Cosmos, Mr Robert Boona, Ms Audrey Cosmos, Ms Barbara Sinclair, Ms Gail Sinclair, Ms Janice Cosmos, Ms Margaret Boona, Ms Susan Mowarin, Ms Valerie Holborow, Mr Danny Cooper, Ms Linda Delower, Mr Colin Cosmos and Ms Dorrie Walley.

5.         It is resolved that the amended notice of motion dated the 2^nd October 2002 seeking to remove Mrs Patricia Cooper as an applicant be proceeded with in the Federal Court.

In favour:        Unanimous

            Mr Kevin Cosmos, Mr Robert Boona, Ms Audrey Cosmos, Ms Barbara Sinclair, Ms Gail Sinclair, Ms Janice Cosmos, Ms Margaret Boona, Ms Susan Mowarin, Ms Valerie Holborow, Mr Danny Cooper, Ms Linda Delower, Mr Colin Cosmos and Ms Dorrie Walley.

6.         That Valerie Holborow (nee Cosmos), Kevin Cosmos and Robert Boona (the Replacement Applicants) on behalf of the Yaburara and Mardudhunera People (the Claim Group) do jointly replace all the current applicants and that the Replacement Applicants continue to be and are authorised by the Claim Group to make the application and to deal with matters arising in relation to it.

In favour:        Unanimous

            Mr Kevin Cosmos, Mr Robert Boona, Ms Audrey Cosmos, Ms Barbara Sinclair, Ms Gail Sinclair, Ms Janice Cosmos, Ms Margaret Boona, Ms Susan Mowarin, Ms Valerie Holborow, Mr Danny Cooper, Ms Linda Delower, Mr Colin Cosmos and Ms Dorrie Walley.”

It appears from the report that Robert and Margaret Boona were not present when the first five resolutions were passed but subsequently, and prior to the passing of the sixth resolution, went through each of the first five resolutions with Mr McFarlane indicating their support for them.

The Affidavit Evidence

14                  The original motion for the removal of Ms Cooper was supported from the outset by an affidavit said to have been sworn by Ms Holborow on 5 September 2002.  The original which is on the Court file is an unsworn version.  A sworn version was said to have been faxed to the Court.  A copy of the faxed version sworn by Ms Holborow has been obtained and placed on the file subsequently.  Its contents were agreed to in supporting affidavits sworn by Kevin Cosmos, David Thompson and the applicants’ solicitor, Mr Williams. 

15                  As appears from Ms Holborow’s affidavit, the Yaburara and Coastal Mardudhunera Aboriginal Corporation was incorporated on 16 February 1998.  The members of the Corporation are members of the native title claimant group.  The committee of the Corporation runs it on behalf of the group and is made up of five members of the group.  A purpose of incorporation was to provide a means for the group to negotiate and reach agreement with industry and developers who wanted to do work on the land the subject of the native title determination application. 

16                  Ms Holborow said that the group used the Corporation both as a means of decision-making and for implementing decisions from the time of its incorporation.  Her summary of the process by which the group did this was set out in her affidavit:

“8.1.    the Group discusses the relevant proposal amongst themselves.

            8.2.      once the Group has reached a decision they tell the Committee.

8.3.      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.”

17                  According to Ms Holborow the group has used the Corporation’s structure and processes to form and appoint both a heritage survey team and a negotiation team.  The effect of these processes is that the wishes of the majority of the group have been and are implemented by and on behalf of the group.  Ms Holborow referred to a number of successfully negotiated and concluded future act and related agreements with the various developers.  She also deposed to the process of negotiation between the group through its Corporation and the State of Western Australia in relation to the Burrup Peninsular developments.  She said the group considered the 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 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 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 the Corporation’s accountants and Corsers who were representing Ms Cooper and certain other members of the native title claim group.

18                  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 Peninsular.  After agreeing this memorandum of understanding further meetings were held.  Meetings took place at the Tambrey Centre in Karratha on 11 and 12 June 2002 and 11 July 2002.  At each of those meetings the State produced a draft version of a proposed agreement under s 31 of the Native Title Act  which was considered and discussed by those present. 

19                  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 s 31 agreement and also agreed that each of the named applicants should sign it.  Ms Holborow and Kevin Cosmos signed the s 31 agreement.  Ms Cooper subsequently indicated that she would not sign it.

20                  A special general meeting of the Corporation was then held on 3 September 2002.  At that meeting, according to Ms Holborow, it was decided that the group wanted Ms Cooper to sign the s 31 agreement or resign.  Resolutions passed at the meeting included 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.”

21                  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 link up were Sally Bruce, a solicitor from Corsers, Paul Williams from Williams & Co, Linda Delower, Danny Cooper, Dorrie Walley, Valerie Holborow, Barbara Sinclair and Gail Sinclair.  Mary Cosmos, Doreen Wescombe and Patricia Cooper were not in attendance.  The meeting finished at 6.36pm. 

22                  The affidavit of David Thompson, the manager/administrator and accountant of the Yaburara and Mardudhunera native title claimant group and the Yaburara and Coastal Mardudhunera Aboriginal Corporation, also verified the affidavit of Valerie Holborow.  He said 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 each year.  He said he attends the meetings, normally held in Karratha, and that all members of the group are invited to them.  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 of five members of the group, representing three families. 

23                  He referred to the establishment of the negotiating committee set up by the Corporation in November 2001 which comprised five members of the group.  Three members must attend all meetings.  The negotiating committee represents 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. 

24                  Mr Thompson was present at the general meeting of the Corporation held on 11 and 12 June 2002 at which approximately twelve members of the group participated.  Ms Cooper did not attend.  Neither did she attend the meeting held on 11 July.  At the second meeting the members of the group decided to sign an authority for the negotiating committee to execute the s 31 agreement.  He also attended the general meeting of the Corporation in Karratha on 3 September noting that Ms Cooper was represented there by Ms Sally Bruce from Corsers.  He exhibited the resolutions set out above.

25                  Mr Williams, of Williams & Co, the solicitors for the applicants, swore an affidavit agreeing with the affidavits of Valerie Holborow, Kevin Cosmos and of David Thompson.  Among the 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 Walley, Danny Cooper, Linda Delower and Doreen Wescombe.  Linda Delower, Danny Cooper and Dorrie Walley voted against Ms Cooper being removed as a named applicant at the special general meeting.  However, they 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 wanted her to 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. 

26                  I accept the evidence of the factual history set out in the affidavits to which I have referred.  It does not appear to be seriously in dispute.  There is a dispute, referred to below, about decision-making procedures relating to culturally significant matters.  There is also dispute about the extent of consultation with, and information made available, to Ms Cooper.  It is also the case that at no time was Ms Cooper separately represented by Corsers.

27                  In her affidavit of 3 September 2002, Ms Cooper primarily referred to conversations with Mrs Walley, Danny Cooper and Linda Delower to the effect that they had not authorised the motion under s 66B to be filed on their behalf.  Their affidavits, in common form, to that effect are problematical.  It may reflect the fact that there had in truth been no meeting to authorise the lodgement of the original motion. However, as appears below, that issue has been overtaken by events and in particular the meeting of 14 November. A further affidavit sworn by Ms Cooper 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.  Ms Cooper says that 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.

28                  In relation to the special general meeting held on 3 September 2002, Ms Cooper 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 from Corsers 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 told her, and she believed, that she and her aunt, Dorrie Walley, 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 had told her that she and Mrs Walley and Mr Cooper may have voted in a contradictory manner by approving some motions and rejecting others inconsistently.  It was against the background of this material and the circumstances in which the matter came on for hearing that I adjourned it for further hearing after 13 September.

29                  Further affidavits have been filed in relation to the motion since the judgment on 13 September.  In an affidavit sworn on 26 September 2002, the anthropologist, Ronald Parker, said that he had read the affidavits of David Thompson sworn 4 September 2002 and Valerie Holborow and Kevin Cosmos sworn 5 September 2002 and agreed with their contents, in particular regarding the decision-making processes of the group.  He first became involved with the group in 1999 when he was requested to prepare an anthropological report by the group’s former solicitors.  The preparation of that report involved consultation with about three quarters of the group, field excursions, research and analysis in addition to collecting information from another anthropologist, Michael Robinson, associated with the Ngarluma and Yindjibarndi claim.  The consultations and field excursions relating to the anthropological report were all undertaken on the land the subject of the application, in particular the Burrup Peninsular and areas around Karratha.  The preparation of the report involved Mr Parker and five of his firm’s staff over a period of about six months.  He has also been hired to assist with approximately twenty heritage surveys conducted by or on behalf of the applicants.  He has assisted with the presentation of the applicants’ evidence in the trial of the proceedings before Nicholson J in early 2001.

30                  Mr Parker said that on the basis of his observations and knowledge of the group’s laws and customs:

1.         The group is comprised of mainly three families, being the Cooper/Walley branch, the Boona branch and the Cosmos branch.

2.         The Cooper/Walley branch and the Boona branch are representatives of the Mardudhunera people and the Cosmos family are representatives of the Yaburara people. 

3.         All three families are one generation removed from ancestors who were strongly traditional in their world view and (colonised) life adaptation.

4.         The majority of the group live in or near to their claim country and have done so most, if not all, of their lives.

5.         The structure of the claim administration follows an adaptation of the consensus model of traditional times.  In that model members of the group discussed an issue to the extent necessary to arrive at a consensus.  During that process, dissenters would often withdraw from the group temporarily, until only consenting members remained and their decision would then be implemented.

6.         This model is paralleled in the group in that meetings are held at intervals throughout the year to resolve any issues that arise pertaining to the administration of the claim.  The decisions of those meetings are communicated to the three named applicants for the group who are required to abide by the decisions of the majority of the group.

Mr Parker added that he had observed the group’s decision-making process as set out on a number of occasions when he had attended their meetings. 

31                  A further affidavit was sworn by Mr Thompson on 26 September.  In that affidavit he said that following the judgment on 13 September, the committee of the Corporation decided to convene a further special general meeting of the Corporation.  The solicitors commenced notifying each member of the native title claim group on Wednesday, 18 September 2002 of the meeting which was to be convened on Wednesday, 25 September 2002.  Among the notices sent was a notice to Patricia Cooper which was sent on letterhead from Williams & Co.  A facsimile was also sent to Corsers.  A further copy of the notice was sent to Ms Cooper on 23 September in which she was requested to telephone Mr Thompson’s firm, Barrack & Associates, to confirm her attendance by telephone.  Mr Thompson convened the further special general meeting by telephone on 25 September.  He arranged with Telstra to organise conference call facilities.  His records indicate that those attending by telephone were himself, Janice Cosmos, Audrey Cosmos, Kevin Cosmos, Barbara Sinclair, Gail Sinclair, Valerie Holborow, Mary Cosmos, Dorrie Walley and Linda Delower.  Robert Boona did not attend.  Ms Cooper was telephoned by Telstra and a message left with her daughter to call.  Before the special general meeting Colin Cosmos, Robert Boona, Margaret Boona and Susan Mowarin telephoned his offices and advised that they would not be able to attend and that they had authorised other members of the group to vote on their behalf.  Various resolutions were said to have been passed at this meeting.  Eleven members of the group were said to have voted for the replacement of Ms Cooper as a named applicant.  This count appears to have included proxy votes on behalf of Colin Cosmos, Susan Mowarin, Robert Boona and Margaret Boona.

32                  Patricia Cooper swore an affidavit on 1 October indicating that she was informed of the meeting by letter from Corsers on the day after the meeting had been held.  This, she said, was the only advice of the meeting which she received.  She pointed out that Corsers are not her solicitors.  She said Williams & Co are aware of that fact.  This affidavit elicited a further affidavit from Mr Williams dated 3 October to the effect that he had caused a copy of the notice to be mailed to Ms Cooper on 18 September and that it was sent to her post office box number in Mullewa.  All this was no doubt intended to demonstrate the probability that Ms Cooper had in truth received the notice within time. 

33                  I regard the evidence of the circumstances surrounding the meeting of 25 September 2002 and the telephone hook-up process used as unsatisfactory.  It was for those reasons, inter alia, that I made the further directions on 3 October to provide for a face-to-face meeting of all the claimants in Karratha preceding the resumed hearing. 

34                  A further affidavit was filed on behalf of Ms Cooper, sworn on 2 October, by way of reply to Mr Parker’s affidavit.  Ms Cooper took issue with Mr Parker’s contention that the Yaburara and Mardudhunera group is comprised of three families.  She referred in this connection to his anthropological report in the court proceedings in which he showed Dorrie Walley as being a member of the Boona “branch” and the Cooper “branch” as a separate entity.  She asserted in her affidavit that he had altered the facts to falsely suggest that the Walleys are part of the Cooper family.  She asserted her belief that he had altered facts to make it appear the Cooper family had been involved in the consultative process concerning the native title claim and the giving of evidence in front of Nicholson J.  She referred to another part of his report in which he had stated that not all claimants forming the second applicant’s group had been consulted given time constraints and the lack of resources available.  She said it was a matter of historical fact that she was forced to give evidence on behalf of the Cooper family before Nicholson J because Mr Parker refused to consult her or the other Coopers and to take instructions from them as they were protesting that persons who had no involvement in traditional law and culture were purporting to carry out surveys for financial gain.  Because Mr Parker was involved in this activity himself, she believed he was now faced with the problem of having to claim knowledge of the traditional laws and customs of the Mardudhunera people as held by the Cooper family branch but could not make such a claim as he had never spoken to them.  She asserted that he had falsely rewritten the family links to make it appear that by talking to Dorrie Walley he had spoken to a member of the Cooper branch. 

35                  Ms Cooper referred also to Mr Thompson’s contention, with which Mr Parker agreed, that decisions of the Corporation that relate to Aboriginality and culturally significant decisions were made independently of the sub-committees and were decided by the senior members of the group after all members had the opportunity to express an opinion.  These types of decisions were said to have been made separately from commercial decisions.  According to Ms Cooper, there had been only two such culturally significant issues to deal with since the initiation of the Yaburara and Mardudhunera peoples native title claim.  The first was the lodgement of the claim itself and the second was the matter of the signing of the future act agreement with the State in 2002.  The sole precedent in decision procedures, namely the lodgement of the Yaburara and Mardudhunera peoples’ application in 1996, followed discussions among the various claimant families over a period of time.  According to Ms Cooper, the decision before the group in relation to the future act agreement is clearly culturally significant as there is at least a danger that an irreplaceable part of the heritage of her people will disappear if some of the proposed developments in the West Pilbara go ahead.  She believes that the other signatories do not have a background in traditional law and culture.  She said the group must revert to the decision procedure utilised in the lodgement of the claim.  This requires unanimity.  Otherwise she said, tribal people like herself will be blamed and probably punished tribally for the actions and decisions of non-tribal town dwellers.  There is also the danger of spiritual ills happening to the people of the Pilbara unless the issue is properly and calmly debated.  She asserted that Mr Parker had never witnessed a decision procedure involving a culturally significant issue. 

The Hearing in Karratha

36                  When the matter came on for hearing again in Karratha, following the meeting on 14 November, Ms Cooper did not appear.  Mr Papertalk appeared on her behalf and sought an adjournment of the hearing.  He produced a letter signed that day by Ms Cooper in which she said she had attended the meeting in Karratha but for medical reasons was unable to continue at it.  She also said that during the meeting she put up a draft agreement to be approved by the claimants before she would go ahead and sign the State agreement.  She said she is willing to sign the State agreement providing she reaches agreement with the claimants.  She asked the Court to adjourn for two weeks to give the claimants a cooling down period and for herself to put a barrister in place. 

37                  Attached to the letter was a medical certificate from the Karratha Medical Centre in which it was said:

“This is to certify that Mrs Patricia Cooper attended this practice on 14^th November 2002.  She is unfit for Court for 2 days, from 15/11/02 to 16/11/04 inclusive.”

There were medical notes attached to the certificate which indicated a diagnosis of hypertension and vestibular neuronitis.  As I determined at the hearing, the material put before me did not warrant the granting of an adjournment.  The date of the hearing had been fixed more than five weeks previously.  A number of the parties and the Court had travelled to Karratha to resume the hearing of the motion and to ensure that the relevant parties had an opportunity to be present in person rather than by telephone or video link.  In the event, Mr Papertalk was permitted to appear and speak on behalf of Ms Cooper as he has done on previous occasions and to put questions to the two witnesses who were called by the applicants.  These witnesses were Mr Parker and Ms Holborow.  Both verified the substance of the process outlined in the mediation report from Mr McFarlane.  In addition, Mr Parker gave oral evidence responding to the criticisms of his affidavit contained in Ms Cooper’s most recent affidavit to which I have earlier referred.  He reiterated that the native title claim group is made up of three essential factions or alliances or groupings.  In his experience the Cooper and Walley family work closely together, the Boona family is the second of those three groups and the Cosmos family is the third of the group.  It was those three groupings to which he referred in his affidavit. 

38                  In response to Ms Cooper’s contention that the decisions of the group were not made on a consensus but on a unanimous model, he said he did not understand what she meant.  The decision-making model to which he had referred in his affidavit is quite widely referred to in the literature.  It is a model whereby the group discuss any point to a stage where everybody present agrees with the decision that has been taken or else do not actively dissent from it.  In the instance where a person or persons do disagree, it is not uncommon for them to remove themselves from the meeting and often remove themselves from the community temporarily.  He said that this process had been seen in operation in the meeting held on 14 November. 

39                  In answer to Ms Cooper’s contention that he had never witnessed the decision-making process of the group in relation to a culturally significant issue, he said he had attended many meetings with the group in the field addressing culturally significant matters.  This was the very purpose of meeting in relation to heritage issues.  He was then asked about the meeting the previous day and how the decision-making process adopted compared with previous observations of decision-making processes of the group.  He said:

“The end results were essentially a classic example of the process that I have previously described with this particular group.  Yesterday was no exception; however, of course, I can’t comment on what took place in the time that I wasn’t there.  I saw the results of their … decision making process, not how they actually move towards it.”

40                  In answer to a question from the Court, Mr Parker said that the opportunities he had had to work with the Yaburara and Coastal Mardudhunera people had been insufficient for him to ascertain what their traditional methods of decision-making may have been.  His experience with them had been such that they did generally fall within a process that was very common for indigenous populations in Australia.  The process adopted the previous day was not a traditional structure.  It was enunciated at the start by the National Native Title Tribunal member as to the agenda and the sequence of events that was to follow.  He said that even within that structure, which was not an Aboriginal traditional structure, the outcomes were still those that fitted into the common way of reaching decisions in groups by Aboriginal people generally.  He could not identify the process adopted as being one peculiar to the Yaburara and Coastal Mardudhunera people.  However, it was common within Aboriginal peoples of Australia.

41                  In answer to questions from Mr Papertalk, Mr Parker discussed his attendance at heritage meetings.  He said that the group shared responsibility and connection and knowledge of the land to a varying degree and had input into discussions and consultations regarding the land.  He had worked with the majority of the members of the group and he said different members had different levels of knowledge of different areas of land within the claim boundaries.  The effect of Mr Papertalk’s questions to Mr Parker seemed to be that there was in effect a traditional decision-making process which involved the exercise of authority by some people who were called “elders”.  Mr Parker said he was aware of people who held authority as elders within the group.  However, there was a dichotomy between the two groups, the Yaburara people on the one hand, and the Coastal Mardudhunera people on the other.  The Yaburara people were centred around the Fortescue River and its mouth, and the Mardudhunera people around the Burrup Peninsular.

42                  Generally speaking, I accept Mr Parker’s account of the decision-making processes which he observed in relation to the native title claimant group and their consistency with decision-making processes used among indigenous people generally.  In doing so, I allow for the fact that traditional decision-making processes may well vary from one community to another.  Mr Parker was not, however, in his evidence addressing a traditional decision-making process.  A matter of particular significance is his observation of the dichotomy between the two groups who together make up the native title claim group.  That dichotomy is indicative of a situation in which there would appear to be no single mandated process of traditional decision-making covering both groups.

Statutory Framework

43                  The motion is 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.”

44                  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.”

45                  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

46                  The application of s 66B was discussed in my previous judgment in Daniel v State of Western Australia [2002] FCA 1147 and it is unnecessary to repeat that discussion here.  It is necessary, however, to bear in mind the conditions to be satisfied by those who would invoke s 66B.  Those conditions are as follows:

1.         There is a claimant application.

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

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

Conclusions

47                  I find that there is a claimant application, namely the native title determination application of the Yaburara and Coastal Mardudhunera people.  Under the proposed amended notice of motion filed in Court on 15 November, those moving the motion are Valerie Holborow (nee Cosmos), Colin Cosmos, Kevin Cosmos, Janice Cosmos, Mary Cosmos, Susan Mowarin, Linda Delower, Audrey Cosmos, Danny Cooper, Margaret Boona, Barbara Sinclair, Gail Sinclair and Dorrie Walley.  I am satisfied that each of them is a member of the native title claim group.  I am also satisfied that they are authorised by the native title claim group to bring the motion.  This fact is evidenced by the resolutions passed at the meeting in Karratha on 14 November, in particular, resolution 5 which was unanimously supported by those at the meeting.

48                  I accept that there is a question whether the original motion was authorised as required prior to its filing in September.  There has undoubtedly been a degree of haste and sloppiness attending the preparation and presentation of the matter which is not entirely explained by the difficulties of getting the group together.  Nevertheless, I am satisfied that the relevant authority exists as was evidenced by the most recent resolutions.

49                  The key question remains whether Ms Cooper is no longer authorised by the claim group to make the application and to deal with matters arising in relation to it. 

50                  Having regard to the definition provision, s 251B, I am not satisfied that there is any process of decision-making that, under the traditional laws and customs of the persons in the native title claim group, must be complied with in relation to authorising decisions of the claim group in relation to the land the subject of the application.  There is no evidence of a traditional decision-making method that must be complied with.  The fact that the great bulk of members of the native title claim group were prepared to adopt the decision-making process used in this case contraindicates the existence of a mandatory traditional decision-making method.  This is consistent also with the evidence of Mr Parker.  It may be that traditional decision-making processes relevant to land can be located within the sub-groups of the native title claimant group represented respectively by the Yaburara and the Coastal Mardudhunera people.  This, however, is a native title determination application which covers both groups.  That is not an uncommon phenomenon.  It is not surprising in such cases that there would not be traditional decision-making processes embracing all elements of the hybrid claim group.  I accept that the process of decision-making by a meeting of the native title claim group such as was held in Karratha on 14 November was a process agreed to and adopted by the persons in the group as described by Ms Holborow in her affidavit filed on 5 September and verified by Mr Kevin Cosmos, Mr Parker and Mr Thompson.  In my opinion also, Ms Cooper, in failing to comply with the directions of the group, has exceeded her authority.  That appears most recently in her refusal to sign the State agreement except on conditions which she wanted to agree with other members of the group.

51                  It is a sad fact that Ms Cooper appears to have fallen out with most of the other members of the native title claim group over the issue of the proposed State agreement.  There is antagonism between her and her husband on the one hand, and the solicitors for the applicants on the other.  There is a possibility foreshadowed by Mr Papertalk that she may seek to initiate the lodgement of a separate native title determination application on behalf of her own family group.  Whether that is so or not, it is obvious that the group cannot progress in dealings in respect of the native title determination application while she remains a named applicant with what amounts to a veto on any agreement that might be reached. 

52                  I regard the process by which this point has been reached as less than completely satisfactory.  Nevertheless, the conditions required to be satisfied under s 66B are satisfied and, in my opinion, in the exercise of my discretion the order sought ought to be made.  Ms Cooper of course remains a member of the native title claim group and is entitled to participate in its deliberations.

Acting Associate:

Dated:              20 November 2002