FEDERAL COURT OF AUSTRALIA

Anderson v State of Western Australia [2002] FCA 1558

NATIVE TITLE – application to replace applicant in claimant application – insufficient evidence – incomplete process of resolution of authorisation questions by native title claimant group – whether motion should be adjourned or dismissed – motion dismissed

Native Title Act 1993 (Cth)

Daniel v State of Western Australia [2002] FCA 1147

CEDRIC ANDERSON, DONALD COLLARD, SYLVIA RACHEL COLLARD AND OTHERS ON BEHALF OF THE BALLARDONG PEOPLE v THE STATE OF WESTERN AUSTRALIA

WG6181 OF 1998

FRENCH J

13 DECEMBER 2002

PERTH

THE COURT ORDERS THAT:

1. The motion filed 15 April 2002 is dismissed.

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

REASONS FOR JUDGMENT

ON MOTION TO REMOVE APPLICANT

1                     On 10 July 1997, an application for a native title determination was lodged with the Registrar of the National Native Title Tribunal (“the Tribunal”). The application named Cedric Anderson and others as applicants on behalf of the Ballardong People. The application covers an area in excess of 114,000 square kilometres in the wheatbelt areas of Western Australia. It includes Dalwallinu in the north west portion of the claim area, Wagin in the south, Lake King in the east and Southern Cross and Koolyanobbing in the north eastern section. The application became a proceeding in the Federal Court on 30 September 1998 following the 1998 amendments to the Native Title Act 1993 (Cth).

2                     On 5 July 2000, the application was amended by combining it with five other applications. The named applicants were originally some sixteen persons, one of whom was Robin Yarran. It included also Cedric Anderson and Donald Collard. The representative bodies for the area covered by the application were the Noongar Land Council and the Aboriginal Legal Service of Western Australia (Inc). The Noongar Land Council was instructing the solicitor on the record for the applicants. The combined claim in Ballardong was referred to the Tribunal for mediation on the completion of notification. Although notification on the pre-combination claims had been completed, notification pursuant to s 66A was required in respect of the combined application. At this stage however the applications are still not currently in mediation. Two of the pre-combination applications had been referred to mediation pursuant to s 72 of the Act as it stood prior to the 1998 amendments.

3                     On 21 September 2000, orders were made consolidating the Bullenbuk-Noongar claim, WAG6097 of 1998 with the Ballardong claim, the Wom-ber claim, WAG6130 of 98 and the Ngadjunngarra claim, No WAG6221 of 98 to the extent of their geographic overlaps with the Bullenbuk-Noongar claim.

4                     On 15 April 2002, a motion was filed, purportedly on behalf of the applicants, to remove Robin Yarran as a named applicant for the Ballardong native title determination application. It was proposed that Justin Reece John Kickett be included as a named applicant in lieu thereof. Leave was also sought to amend the application. The motion was supported by an affidavit of Allan Robert Jones, another of the named applicants. It was also supported by an affidavit of Lynette Pauline Lund, the Native Title Manager with the South West Aboriginal Land & Sea Council Aboriginal Corporation (SWAL&SC) which was recognised under the Act as the native title representative body for the south west, in place of the Noongar Land Council, with effect from 1 February 2002. Affidavits of Mr Kickett and a number of the other named applicants were also filed. Rather oddly, all the affidavits were exhibited to Mr Jones’ affidavit.

5                     On 15 April 2002, the motion was made returnable for mention and directions on 23 April. The directions hearing was otherwise adjourned to 15 July. The SWAL&SC was joined as a respondent. On 23 April, the motion was set down for hearing on 17 May and the applicants were required to give notice of the hearing date and of associated directions to Robin Yarran on or before 24 April. On 17 May, the motion was further adjourned to 9 October 2002. The SWAL&SC was directed to file and serve on or before 9 September any affidavit it sought to rely on on the question whether it has authority to be appointed as agent for the claim group. Applicants or claim group members asserting that the Council did not have authority to represent them and/or that some other body did were to file and serve affidavits on or before 23 September. The question of representation of the group and of Mr Yarran’s authority was referred to mediation. This was supplemented by an order made on 4 July 2002 that the referral to mediation so made was made pursuant to s 53A of the Federal Court Act 1976 (Cth). A direction was also made that the mediator was to be nominated by the District Registrar on the recommendation of the Tribunal.

6                     On 9 October 2002, the hearing of the motion was further adjourned to 10 December at 10.15am. The applicants were to file and serve any further affidavits they relied upon in support of the application by 10 November 2002. Mr Yarran was to file and serve any affidavits in reply by 29 November.

7                     The applicants had filed and served the affidavits already referred to in support of the motion on 15 April 2002. No further affidavits were filed pursuant to the direction of 9 October. Mr Rynne, appearing on behalf of the applicants, instructed by the SWAL&SC, has accepted that on the present state of the evidence, the application to remove Mr Yarran could not succeed. Mr Rynne informed the Court that the SWAL&SC has laid out a process which will attempt to resolve the problem between Mr Yarran and other applicants consensually. If at the end of that time the process does not produce a result, then nothing more would be able to be done. Indeed, the applicants might have some difficulty in prosecuting their application any further. He moved for a further adjournment of the motion on the basis that ultimately if proceedings were to be conducted in this Court they would be done with the least possible disruption. Mr Yarran asked that the motion be dismissed recognising as he did so that this would not prevent a further motion being brought.

8                     It is not necessary for present purposes to revisit the general discussion of s 66B of the Act and the evidentiary requirements for applications under that section which were considered in Daniel v State of Western Australia [2002] FCA 1147. What must be shown before an order can be made removing an applicant under the section is:

1. There is a claimant application.

2. Each person applying for the 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 native title 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.

9                     In this case the motion is expressed in terms as a motion by “the applicants” in the native title determination application. That category necessarily includes Mr Yarran who is the person whom the other applicants seek to remove. It is necessary at the outset to identify the persons bringing the motion, to show that each of them is a member of the native title claim group and to show that they are authorised by the native title claim group to bring the application. That authority itself is to be conferred in accordance with the requirements of authorisation defined in s 251B of the Act. In this case, given that the motion purports to be brought on behalf of all the named applicants, including Mr Yarran, it cannot satisfy that condition.

10                  The present named applicants on the native title determination application are:

(a) Cedric Anderson

(b) Reg Hayden

(c) Allan Jones

(d) Winnie McHenry

(e) Doug Nelson

(f) Rickie Nelson

(g) Robert Riley

(h) Tim Riley

(i) William Riley

(j) Dianne Taylor

(k) Alec Yarran

(l) Reg Yarran

(m) Robin Yarran

(n) Saul Yarran

According to the affidavit sworn by Ms Lynette Lund, the present governance arrangement within the Ballardong native title claim group is that the claim is managed by a working party of people who are members of the claim group. This is said to be by agreement of the claimants. The working party includes some applicants and some persons who are not applicants. Effectively it makes decisions on behalf of the group with the concurrence of both the applicants and the group.

11                  According to Ms Lund, at some time prior to November 2001, members of the Ballardong native title claim working group issued instructions to the then representative body, the Noongar Land Council, to convene a meeting for the purposes of removing Robin Yarran as an applicant on the Ballardong native title claim. The working group placed an advertisement in the West Australian newspaper classified section on 12 November 2001 in the following terms:

“UNDER the instructions of the BALLARDONG NATIVE TITLE CLAIM WORKING PARTY a Ballardong native title community meeting will be held to discuss and to decide whether or not application should be made to the Federal Court to have ROBIN YARRAN removed or replaced as an applicant from the BALLARDONG NATIVE TITLE CLAIM under Section 66B of the Native Title Act. The meeting is open to all Ballardong Native Title claimants.

TIME: 10:00AM-12:00PM

DATE: 15 November 2001

VENUE: Lesser Hall, Avon Terrace, YORK”

It is doubtful that a notice of this kind, in fine print appearing among classified advertisements relating to creditors meetings of companies and the like, had any real prospect of coming to the notice of those who might need to know about the meeting.

12                  In the event a meeting took place on 15 November at York attended by twenty two members of the native title claim group including Robin Yarran. According to minutes of the meeting, it was chaired by Kevin Fitzgerald, a Field Office with the Noongar Land Council and addressed by the then Chief Executive Officer of the Council, Darryl Pearce, and Ettienne Van Tonder, the Council’s lawyer. Following these addresses, according to the minutes, a number of motions were passed in the following terms:

“The members of the Ballardong Native Title Claim Group apply to the Federal Court under Section 66B of the Native Title Act 1993 for an order that ROBIN YARRAN is replaced on the following grounds:

1. The current named applicant Robin Yarran is no longer authorised by the claim group to make the claimant application (WAG6181/98) and to deal with matters arising in relation to it.

2. The current named applicant, Robin Yarran has exceeded the authority given to him by the Ballardong Native Title claim group to make the claimant application (WAG6181/98) and to deal with matters arising in relation to it.”

Fifteen persons voted for the motion, three against and two abstained.

“The remainder of the people forming the current applicant (sic) to remain and are authorised by the Ballardong Native Title Claim Group to make and continue the claimant application (WAG6181/98) and to deal with matters arising in relation to it.”

There were thirteen votes in favour of that motion and three against.

“The members of the Ballardong Native Title Claim Group apply to the Federal Court under Section 66B(1) of the Native Title Act 1993 for an order that all the members of the current applicant (sic), of claimant application (WAG6181/98) except for Robin Yarran, replace the current applicant (sic) for the claimant application on the grounds that:

1) The current applicant is no longer authorised by the Ballardong Native Title Claim Group to make the application and to deal with matters arising in relation to it, and

2) The current applicant has exceeded the authority given to it by the Ballardong Native Title Claim Group to make the application and to deal with matters arising in relation to it.”

There were eighteen votes in favour of that motion and none against.

“The Ballardong Native Title Claim Group instructs and authorises the Noongar Land Council to make application to the Federal Court for order to either:

1) Remove Robin Yarran from the current applicant and retaining the remainder of the people forming the current applicant to continue with the claimant application (WAG6181/98) and to deal with matters in relation to it, or

2) Replace the current applicant with all those members forming the current applicant save for Robin Yarran.”

There were seventeen votes in favour of the motion and three against.

13                  In Mr Jones’ affidavit he agreed with the facts contained in Ms Lund’s affidavit. His affidavit was sworn on 9 April 2002. In it he said, inter alia:

“Also, and at a meeting specially convened for the named applicants of the Ballardong native title claim group and held on 12 March 2002, all named applicants that were in attendance did, in accordance with the authorisation bestowed on them through a process of decision-making by the native title claim group, unanimously authorise Justin Reece John Kickett to be a named applicant in the application, to make this application on behalf of the native title claim group, and to deal with matters arising in relation thereto…”

He referred to an affidavit sworn by Mr Kickett verifying the contents of his affidavit in so far as it related to him and consenting to his inclusion as a named applicant.

14                  The reference to the meeting of 12 March 2002 is a reference to a meeting of the named applicants authorising Mr Kickett to be a named applicant. This, of course, is a matter for the native title claim group to authorise. It is not clear that the appropriate authorisation has in fact occurred, unless it is suggested that the applicants were exercising a delegated authority for the native title claim group.

15                  The evidence so far filed in support of the motion is clearly insufficient to meet the evidentiary requirements of an application under s 66B. That is particularly so in relation to proof of questions of withdrawal of authorisation, excess of authority and authorisation of the ongoing applicants required in terms of s 251B. Again, it is unnecessary for present purposes to revisit the discussion of that topic in the Daniel case.

16                  In an affidavit sworn 6 December 2002 in support of the application to adjourn the s 66B motion, Ms Lund said that, pursuant to the order of the Court on 17 May, the Tribunal conducted a mediation with the Ballardong native title claim group addressing the issues of representation and the removal of Mr Yarran. Following that meeting, the SWAL&SC met with the Noongar Land Council, which is representing Mr Yarran. The purpose of the meeting was to find some common ground between him and those members of the claim group seeking to replace him. Neither the Tribunal meeting nor the meeting with the Noongar Land Council resulted in any clear resolution of relevant issues. Ms Lund expressed the view, which appears to be common ground, that the difficulties between Mr Yarran and other members of the claim group relates to agreements concerning proposed future acts, rather than the prosecution of the native title determination application itself. Ms Lund indicated that to facilitate resolution of the intra-indigenous issues, the SWAL&SC has made an offer of legal assistance to the Noongar Land Council. This is reflected in a letter, a copy of which was provided to the Court and which is dated 4 December 2002, from the SWAL&SC to Peter David, the Chief Executive Officer of the Noongar Land Council.

17                  That letter, which was signed by Ms Lund on behalf of Mr Pearce, stated, inter alia:

“… I confirm that an interim grant of assistance has now been offered to all Ballardong native title claimants to assist them with their application for determination of native title. In addition, arrangements have been put in place to hold a community meeting of all Ballardong claimants in February 2003. This community meeting is to be chaired by Mr Tony Lee from the National Native Title Tribunal.

One of the aims of the community meeting will be to settle issues arising from the current operation of the working group and to put in place clear working party agreements and protocols to ensure that there is a clear working relationship between the claimants, the named applicants and the members of the working group.

In view of these developments and the potential that the current issue may be resolved through this community process SWALSC will be seeking an adjournment of the proceedings listed for the 10 December 2002 to a date following the Ballardong community meeting in February 2003. We have advised the Federal Court of this and will be filing an affidavit in support of the application.

In the interim and in view of the above developments SWALSC has considered the application for assistance and the NTRB offers Mr Yarran a grant of assistance for the following:

. Legal advice and representation of Mr Robin Yarran in relation to the Federal Court proceedings listed before French J on 10 December 2002.

The offer is made on the following terms and conditions:

. That the grant of assistance is for the limited purpose as described above.

. That SWALSC provides the grant by way of a brief to counsel selected from the SWALSC register of legal consultants.”

One difficulty with that offer is that Mr Yarran’s choice of counsel, Mr Ron Bower, is not on the SWAL&SC register of legal consultants. It does not appear however, that as a practical matter, there would be any real difficulty in him applying to become and being accepted as a member of that register.

18                  According to Ms Lund, the Ballardong native title claim group meeting is scheduled to occur on 14 February 2003 and it is hoped that the process of the community meeting will resolve issues currently in dispute.

19                  Mr Yarran filed his own affidavit in which he described himself as an Elder of the Ballardong People, nominated as an applicant on the Ballardong claim at the time it was lodged with the Tribunal and the Federal Court. He was one of sixteen persons originally nominated as applicants including four members of the Yarran family. He says he is an Elder of the Yarran family. He refers in his affidavit to his association to country within the Ballardong claim and asserts that at the mediation meeting held on 7 September 2002 approximately 20% of those persons present supported his continuation as an applicant. They represented members of the Yarran family. He also accepted that the current action taken against him to remove him from the claim related to future act matters and, in particular, his unwillingness to agree to sign a proposed agreement which he named as the Portman-Ballardong-Central West Goldfields Agreement. It is not necessary to refer, for present purposes, to the balance of his affidavit which deals with the grounds of his opposition to signing that agreement. He claims to have acted properly and in the best interests of the Ballardong people.

20                  There was also an affidavit filed by Peter David, the Chief Executive Officer of the Noongar Land Council. In his affidavit he said, inter alia:

“I am the Advocate on the Court Record for Robin John Yarran in the matter before His Hon Judge French of the Federal Court of Australia.”

This affidavit was sworn on 11 September 2002. On 17 May 2002, I had given Mr David leave to represent Mr Yarran until further order. That leave was revoked by order on 9 October 2002. Mr David referred to Mr Yarran as his “client” in a covering submission to the Court filed on 12 September. While I gave Mr David limited leave to speak after I had heard from Mr Yarran on 10 December 2002, that leave does not continue. Nor, having regard to Mr David’s inclination to raise extraneous matters concerned with ongoing disputes between the Noongar Land Council and the SWAL&SC, do I think it useful to renew that leave. Henceforth, Mr Yarran will be required to speak on his own behalf unless he has legal representation. I do not consider that Mr David’s submissions have been of material assistance or are likely to be in the foreseeable future.

21                  In my opinion, counsel appearing for the applicants, instructed by the SWAL&SC, Mr Rynne, was correct in conceding that in its present state the application for removal under s 66B cannot succeed. Indeed, I am inclined to think that the whole process of authorisation of that application and of the replacement applicants should be revisited if it is to be renewed. In addition, attention will have to be given to the question of proof of authorisation by reference to either traditional decision-making processes or the alternative decision-making processes contemplated in s 251B of the Act. In the circumstances, I propose to dismiss the motion. It is perhaps unnecessary to make the point that this does not prevent a fresh motion being lodged at any subsequent time.

22                  In the meantime it would plainly be in the interests of all parties if Mr Yarran be provided with proper legal representation. The SWAL&SC continues to be the only body with the funding and, in my opinion, the authority to instruct solicitors on behalf of the applicants as a whole. I will continue to treat its instructed solicitors as their representatives for the purpose of proceedings on the native title determination application.

Acting Associate:

Dated: 13 December 2002