FEDERAL COURT OF AUSTRALIA

Colbung v The State of Western Australia [2003] FCA 774

NATIVE TITLE – application to strike out two overlapping applications on basis of non-compliance with requirements of s 61 of the Native Title Act 1993 (Cth)

NATIVE TITLE – persons authorised to make an application for native title determination – application listing members of claimant family – whether family or sub-group of native title claim group

NATIVE TITLE – requirement under unamended Native Title Act 1993 (Cth) that all persons claiming to hold native title be identified – ambiguous description – meaning of ‘family’ and ‘other related people’

EVIDENCE – evidence of deceased persons

Native Title Act 1993 (Cth) ss 61, 64, 84C(1), 251B

Evidence Act 1995 (Cth) ss 74, 75

Native Title Tribunal Regulations reg 5(1)(a)

Dieri People v State of South Australia [2003] FCA 187 applied

Risk v National Native Title Tribunal [2000] FCA 1589 applied

Tilmouth v Northern Territory of Australia [2001] FCA 820 applied

Mabo v State of Queensland [1992] 1 Qd R 78 applied

Ford v NSW Minister for Land & Water Conservation [2000] FCA 1913 applied

Edward Landers v State of South Australia [2003] FCA 264 cited

KEN COLBUNG, GLEN COLBUNG, DONALD CORBETT AND OTHERS (SOUTH WEST BOOJARAH), M VAN LEEUWEN ON BEHALF OF THE HARRIS FAMILY, V & C ISAACS, L BELLOTTI AND OTHERS ON BEHALF OF THE NYUNGAR PEOPLE (GNAALA KARLA BOOJA) v THE STATE OF WESTERN AUSTRALIA

WAG 6279, 6085, 6258 and part of 6274 of 1998

FINN J

29 JULY 2003

CANBERRA (HEARD IN PERTH)

THE COURT ORDERS THAT:

1. The motion be dismissed as it relates to the second Applicants.
2. The motion be allowed as it relates to the third Applicants.

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

REASONS FOR JUDGMENT

1                     These consolidated proceedings involve four overlapping native title applications.  For present purposes I need only refer to three of the applications to which I will for convenience refer as the “Colbung claim”, the “Harris claim” and the “Isaacs claim”.

2                     The notice of motion presently before me was filed by the Colbung claimants.  It seeks to have each of the Harris and Isaacs claims struck out under s 84C(1) of the Native Title Act 1993 (Cth) (“the Act”) for failure to comply with s 61(1) of the Act as it applied to each of those claims.  The Colbung claimants have not concealed in any way what, in part at least, is their objective in bringing this motion.  They have indicated that they envisage amending their application by combining it with other applications presently made in the South West of Western Australia.  It is their intent to have that enlarged application resolved by negotiation and amendment.  They see their task in this being rendered more difficult by the continued existence of overlapping claims.

3                     As to this last point, it need only be said that if either or both of the Harris and Isaacs claims are unimpeachable for the purposes of the present motion, the difficulty referred to is one which the Colbung claimants will have to endure.

4                     Because they raise separate legal and factual issues it will be necessary to deal with each of the impugned claims separately.  Before doing so I should refer to two matters relating to the Colbung claim.  The first concerns the amended Colbung application filed on 25 October 2000.  That application overlaps all, save a very small portion, of the land mass subject to claims in the Harris and Isaacs applications and it is significantly greater in its scope than both.  Nonetheless, it specifically excludes the Harrises and the Isaacs and their respective descendants from the claim group.  The reason for that exclusion was explained in a letter to the National Native Title tribunal from the Colbung claimants’ then representative.  It was that:

“2.       Those excluded are not accepted by the applicants or the claim group as having any common or group rights within the claim area.  To make this abundantly clear, they are excluded because there is a controversy between the claim and the excluded persons as to the legitimate entitlements of those persons to assert native title rights and interests in the claim area.”

5                     Secondly, preliminary genealogies of the Colbung applicants were filed in draft form on 14 August 2000.  They had been prepared by an anthropologist engaged by the representative council then acting for the Colbungs from information held by that council.  This document has been controversial from when it was filed.  I would merely note that members of all three claim groups (Colbung, Harris and Isaacs) are to be found in one or other of the various family trees contained in it.  I am not prepared to attribute any weight to this document at this stage in this proceeding.

THE HARRIS CLAIM

(a)        Factual Setting

6                     This claim was originally filed under the Act prior to the 1998 amendment which for present purposes significantly affected the making of applications under s 61 of the Act.  For convenience I will refer to the pre-1998 Act as “the Old Act”.

7                     It has not been suggested that the Harris application as filed was in any way objectionable for s 84C purposes.  I would simply note that that application was brought by Minnie Van Leeuwen whose claim was for “all those persons who are Harris family”.

8                     The Harris application was amended under s 64 of the Act subsequent to the 1998 amendment to the Act.  It is now in the new prescribed form and for present purposes is subject to the requirements of the Act as amended: Dieri People v State of South Australia [2003] FCA 187 at [18].  I will refer to those requirements below.

9                     The amended application, though entitled as having been brought by “Minnie Van Leeuwen on behalf of the Harris Family” in fact listed and described the claimants in a schedule.  The claimants were nineteen named people and the biological descendants of their children.

10                  The amended application form –

(a)        stated that the applicant was entitled and was authorised to make the application by the native title claim group;

(b)        specified the Schedule E native title rights and interests claimed which were said to be: 

            “the rights together with other Noongar people who are native title holders to the possession, occupation, use and enjoyment as against the whole world (subject to any shared right of exclusivity) of the area and any right or interest included within the same …”  (emphasis added);  and

(c)        contained the Schedule F description of the factual basis of the claim, including the following:

“A.  Association with the area

            The native title claim group has, and the predecessors of those persons had, an association with the area.  The claimant group are descended from the Noongar people who occupied the claim area at the time of sovereignty.  The members of the claimant group and their ancestors have since sovereignty continuously lived on, occupied and enjoyed the claim area.  The claim area is regarded as the traditional family lands of the claimant group by others as well as by themselves.

B.  Existence of traditional laws and customs

            There exist traditional laws and customs that give rise to the claimed native title.  The traditional laws and customs acknowledged by the claimant group are derived from and based on the traditional laws and customs acknowledged and observed by the Noongar people who occupied the claim area at the time of sovereignty.  Under those laws and customs the claimant group have an obligation to care for and look after the claim area;  particular sites within the claim area;  knowledge associated with those sites and fish, flora and fauna resources within the claim area.  The rights and responsibilities of the claimant group in relation to the claim area are recognised by others and the claimant group recognise other family groups who also hold rights and interests in the claim area.  The claimant group recognise the special role of elders in holding these rights and responsibilities and maintaining acknowledgment and observance of laws and customs.”  (emphasis added)

11                  An affidavit filed by Ken Colbung in this proceeding annexed a letter from the National Native Title Tribunal to the Colbung claimants’ previous adviser which noted that the Harris applicants had made “numerous statements … which acknowledge that there are a number of families with traditional connection to [their claim] area”.  Annexed to that letter were the Schedule F particulars referred to above.  Appended to them was the following:

“1.       Information contained in affidavit material

Affidavit of Caroline Harris sworn 20 August 1999

There is a community of families which have a traditional connection to the Busselton area including the Harrises, Hills and the Isaacs.

Many of the laws and customs I have described are commonly held and shared by Nyoongah people in the South-West of Western Australia.

Affidavit of Normal Harris sworn 20 August 1999

I believe that all these things are part of being a Nyoongah from the South-West.  These laws and customs are shared by other Nyoongah families.”

12                  The evidence before me explaining the description “Noongar”, “Nyoongah”, or “Nyungah” is contained in an affidavit of a Darryl Pearce, formerly Chief Executive Officer of the Noongar Land Council and now Chief Executive Officer of the South West Aboriginal Land and Sea Council.  It is that:

“As a consequence of the mechanisms to deliver [Commonwealth government] services and various other factors, Aboriginal people throughout Australia have come to be identified by the broader Australian society with either particular regions, titles or names.  Some of these identifiers may be either imposed through long association with a particular name, or a term adopted for the purposes of self-identification as a member of a group;  terms may be either tribal, language or other non-specific titles.

In the heavily populated regions of Australia where numbers of non-indigenous persons significantly exceed indigenous persons, such as Queensland, New South Wales, Victoria, areas of South Australia in and around Adelaide and the South West of Western Australia, Aboriginal people have adopted or been ascribed terms by which they self-identify.  In Queensland a collective term for Aboriginal people is, Murri;  in New South Wales and Victoria, Koori;  in and around Adelaide, Nunga;  in the South West of Western Australia, Noongar.”

(b)        The Act

13                  Section 61(1) of the Act describes the various persons who may make an application for a native title determination.  One such person is defined in sub-clause (1) to be:

“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.”

14                  The manner in which a person or person may be authorised to make an application is prescribed in s 251B.  It is unnecessary for present purposes to set out that section.

15                  Section 84C(1) in turn provides, in part:

“If an application (the main application) does not comply with section 61 (which deals with the basic requirements for applications) …a party to the proceedings may at any time apply to the Federal Court to strike out the application.”

16                  Section 61(4) and (5) of the Act insofar as presently relevant provide:

“(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.

(5)       An application must:

            (a)        be in the prescribed form.”

The Harris family’s amended application was in the prescribed form.

(c)        The Colbung claimants’ contention

17                  The Harris family, it is claimed, is not for s 61(1) purposes the “native title claim group”.  It is merely a family within, or a sub-group of, that group.  As such, the Harris family is not able under the Act to make an application on its own account under s 61(1).  The authorisation must come from all the persons who hold the common or group rights and interests:  Risk v National Native Title Tribunal [2000] FCA 1589;  Tilmouth v Northern Territory of Australia [2001] FCA 820.

18                  The Harris’ own material, it is said, makes it clear that the relevant claim group does not assert exclusive rights against other unidentified “Noongars”/families that hold native title rights and interests in the area claimed.  Indeed the identification of such others is positively acknowledged, albeit without any degree of specificity.  The Application makes it clear that the claim is on behalf of a family group “the Harris family”, which is one family of a broader group of Noongars.

19                  Equally the Harris’ do not demonstrate that they have authorisation to make the Native Title Determination Application from all the Noongar people or those families who they assert have traditional connections to the claim area under a common system of traditional laws and customs.

20                  It is contended that, as they are unable to demonstrate authorisation and as it is more likely than not that even with appropriate amendments they will be unable to obtain authorisation, their amended application should be struck out.

(d)        Conclusion

21                  This motion, in my view, asks me to anticipate what, after a full hearing of the matter, may be the outcome of the Harris claim.  That I am not prepared to do.

22                  There is no descriptive uncertainty in the claim group identified by the identified application nor any issue as to the authorisation of that claim group.  The application does not assert that the claim group are the sole holders of rights and interest in the claim area.  It recognises that other family groups also hold rights and interests in that area.  In this case the application does not make an exclusive claim.

23                  The uncertainty, such as it is, that is generated by the application and the very limited body of evidence before me, lies (a) in the explicit recognition of the rights and interests of others in the claim area;  and (b) in the claimants being descendants of “the Noongar people” who occupied the claim area “at the time of sovereignty” and from whom they derived their traditional laws and customs.

24                  I do not consider that either of these matters is fatal to the Harris claim for present purposes.  While the group does not claim that it alone has native title rights in the claim area, I do not consider that the application asserts other than that the particular rights and interests claimed by the Harris family group are held in virtue of their membership of that group and that group alone.  The Schedule E description has in it a level of ambiguity which, on an application of the present variety and in the early state of the evidence, should be interpreted favourably to the Harris claimants.  The Schedule F characterisation of the claim areas as “the family lands of the claimant group” supports such an interpretation.  And it may be that the Harris’ are able to establish their rights to those lands (or to part thereof) where others who are Noongar cannot.

25                  The recurrent reference to “Noongar people” does not, in my view, assist the Colbung claimants.  On the evidence before me that description may well be said to amount to no more than a category of residual reference for persons whose ancestors remain in the South West of Western Australia after the time of sovereignty, irrespective of the pre-sovereignty relationship of those ancestors.  As with the question of varying families etc having their own rights and interest in the claim area, so also with the alleged relationship of the Harris claimants to the “Noongar people”, I am, in a strike out application, being asked to make a decision on a matter that requires full hearing.  It needs to be emphasised no evidence has yet been taken of the laws, customs, etc observed by either the Colbung or Harris claimants.

26                  There is enough in the application to preclude it being doomed to failure as a claim by a sub-group (or family within) a larger group.  It raises issues that should not be predetermined.

27                  I would dismiss the motion as it relates to the Harris group claim.

THE ISAACS CLAIM

28                  This application was filed under the old Act and for the purposes of the s 84C strike out motion, it falls to be dealt with in light of s 61 in its pre-1998 form.  I will refer to that below.

29                  The named applicants were Victor Isaacs and Clarence Isaacs.  The other persons on whose behalf the application was made were described as:

“The Isaacs Family and other Related People including George Webb.”

30                  The section of the application dealing with “Other Relevant Information” includes the following:

“This Application was made because the Isaacs position and recognition was not clearly established as claimants.

Although they are recognised by other claimants as having valid right to be recognised and included in any form of claim over their area in the South West of Western Australia.”

31                  The actual area of the claim was significantly larger than, and overlapped the entirety of the land mass of, the Harris claim.

32                  The application stated that the evidence to be relied upon to support the claim was (inter alia) (a) documented historical material and (b) “oral knowledge from family members, relatives and other Nungar people”.

33                  The George Webb referred to in the Isaacs claim was also a named applicant in the amended Colbung application that was filed on 25 October 2000.  On 28 March 2001 Mr Webb swore an affidavit denying that he authorised the Isaacs to bring the application on his behalf and confirming he was a named claimant in the Colbung claim.  Mr Webb is now deceased.  While the affidavit is admissible:  see Evidence Act 1995 (Cth) ss 74 and 75; see also Mabo v State of Queensland [1992] 1 Qd R 78 at 88,  Clarence Isaacs has asked that I attribute no weight to the affidavit.  There is no evidence before me to indicate any specific reason for so doing.

(b)        The Old Act

34                  Section 61(1) provided, insofar as presently relevant, that a “Native title determination application” could be made by –

“(1)     A person or persons claiming to hold the native title either alone or with others.”

Section 61(2) and (3) then provided:

“(2)     An application must be in the prescribed form and be given to the Registrar.  It must also contain such information in relation to the matters sought to be determined as is prescribed.

(3)       An application made by a person or persons claiming to hold native title with others must describe or otherwise identify those others.  In doing so, it is not necessary to name them or to say how many there are.”

The relevant form prescribed by reg 5(1)(a) of the old Native Title Tribunal Regulations 1993 (“the old Regulations”), in turn, required both the identification and name and address of the applicant and –

“A.5    A description of the other persons with whom the applicant(s) claim(s) to hold title – if the application is made by (a) person(s) claiming to hold native title with others.”

35                  An application made under the Old Act is subject to the strike out provisions of s 84C of the Act, though the transitional provisions make plain that the relevant s 61 with which the application must comply is that of the Old Act.

(c)        The Colbung claimants’ contention

36                  The submission is that the generic description given in the Isaacs claim of the other persons on whose behalf the application was being made – ie “the Isaacs family and other related people including George Webb” – does not provide some actual description or means of identification of who these other persons were.  For that reason it did not contain the information prescribed by s 61(3), reg 5(1)(a) of the old Regulations and the prescribed form:  Dieri People v State of South Australia [2003] FCA 187 at [60].

37                  Further, the claim group included George Webb, a member of the Colbung claim group.  His inclusion in the Isaacs claim was unauthorised and this calls into question the actual description used for the claim group itself.

(d)        Conclusion

38                  The description of the persons on whose behalf the application is made is clearly inadequate.  The description “the Isaacs family” is itself difficult enough in the absence of explanation.  The word “family” as applied to people can be used in a variety of senses.  The Oxford English Dictionary (2^nd ed), for example, includes the following amongst possible meanings of “family”:

“3.a.    The group of persons consisting of the parents and their children, whether actually living together or not;  in wider sense, the unity formed by those who are nearly connected by blood or affinity.

4.a.      Those descended or claiming descent from a common ancestor:  a house, kindred, lineage.”

39                  Alternatively the term as used in the application may have its own dictionary or conventional meaning.  There is no evidence to suggest this is the case, but the additional description of the claim group “and other related people etc” suggests this might be so.

40                  The additional description merely compounds the fatal flaw in the formula used.  While it purports to be an inclusive formula, it is an ambiguous one in several respects.  The first ambiguity inheres in the word “related” and this is because of the varying possible meanings of family.  The second and more important ambiguity is whether the formula is intended to be definitive of the group, ie a related person is a member.  Or is it permissive, ie it includes such related persons who wish to participate in the claim.  The inclusion of George Webb in the group does nothing to clarify the matter, given Mr Webb’s own affidavit.

41                  The description used is incapable, without elaboration, of conveying meaning to the Court, or to individuals who may be contemplating applying to be joined:  Ford v NSW Minister for Land & Water Conservation [2000] FCA 1913.

42                  The group on whose behalf the claim is being pursued is, simply, too uncertain.  It is not one in whose favour a favourable determination could be made:  cf Edward Landers v State of South Australia [2003] FCA 264.

43                  The application does not comply with s 61.  In this I agree with the submission of the Colbung claimants.  Any amended application in this matter would have to comply with the provisions of the new Act and particularly its authorisation provisions.  In the circumstances the proper course is to allow the motion and to order that the Isaacs claim be struck out.

Associate:

Dated:              24 July 2003