FEDERAL COURT OF AUSTRALIA

Aplin on behalf of the Waanyi People v State of Queensland (No 2)

[2010] FCA 1326

THE COURT ORDERS THAT:

1.    The Northern Territory be dismissed from the proceedings;

2.    the notice of motion filed by the applicant on 1 October 2010 be dismissed; and

3.    the notice of motion filed by the sixth respondent on 6 October 2010 be dismissed.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. The text of entered orders can be located using Federal Law Search on the Court’s website.

REASONS FOR JUDGMENT

1    In these proceedings the applicant seeks a determination as to the existence of native title on behalf of the Waanyi people. The facts and circumstances of those proceedings appear from reasons which I published on 18 June this year, following an extensive hearing which took place in July, August and October of last year. They relate to land in the north west of Queensland near the Northern Territory border. Most aspects of the claim have been resolved as between the various parties.

2    One outstanding issue, which was resolved by my previous decision, was a dispute between the applicant and Mr Gregory Lloyd Phillips, who is a respondent in the proceedings. Mr Phillips is descended from a lady called Minnie, who was, as the evidence before me disclosed, an Aboriginal woman who died near Burketown in about 1943. She had married a Chinese man and had children by him, including a number of daughters who survived her and had issue. Mr Phillips is Minnie’s great grandson. Mr Phillips claims that Minnie was a Waanyi woman and that, as her descendent, he is entitled to membership of the claim group. Such membership, as defined for the purposes of these proceedings depends primarily upon descent from a recognized Waanyi ancestor. The claim group does not recognize Minnie as such. There are many other descendants of Minnie who would be included in the claim group if Mr Phillips were successful in establishing his claim.

3    This question was ventilated at great length before me during 2009. The matters in dispute involved the proper formulation of the criteria for membership of the claim group and whether Minnie satisfied that description. After considering the evidence concerning Minnie’s background and life, I declared as follows:

The laws and customs of the Waanyi People concerning who are Waanyi People are that a person is a Waanyi person if, and only if

(a)    the other Waanyi people recognise that he or she is descended (which may include by adoption) from a person whom they recognise as having been Waanyi; and

(b)    the person identifies him or herself as a Waanyi person.

4    I also declared that Minnie:

(a)    during her life identified herself as a Waanyi woman;

(b)    was understood by the late Roy Seccin, from the early to mid 1920s, to be a Waanyi woman;

(c)    has been understood by Yuen Hookey, from about 1942, to be a Waanyi woman;

(d)    was from 1888 until at least 1939 recognized by the Waanyi people at Lawn Hill as a Waanyi woman, and

(e)    was, from about 1916 until her death in 1943, recognised by the Waanyi people at Burketown as a Waanyi woman.

5    Lawn Hill and Burketown were identified in the evidence as significant Waanyi population centres. Lawn Hill is within the claim area; Burketown is not.

6    Although the decision was interlocutory, it is no longer capable of being challenged in these proceedings by Mr Phillips or, for that matter, by the applicant, other than by way of appeal. See Fidelitas Shipping Co Limited v V/O Exporchleb [1966] 1 QB 630 at 642. There has been no appeal.

7    The applicant now moves for an order that Mr Phillips cease to be a party to the proceedings pursuant to s 84(8) of the Native Title Act 1993 (Cth) (“the Act”) and O 6, r 9 of the Federal Court Rules.

8    Mr Phillips moves for the following orders:

1    that the proceedings in this application be adjourned and/or stayed, pursuant to order 20, rule 4 of the Federal Court Rules, until:

(a)    the native title claim group description in both schedule A and schedule 3 of attachment J, contained in the form 1 application for determination of native title rights and interests is amended so as to include Minnie Mayabuganji in the list of the known Waanyi ancestors, or

(b)    the native title claim group represented by the applicant hold a properly constituted meeting which would satisfy the requirements of section 251B of the Native Title Act conducted and chaired by a registrar pursuant to section 86B of the Native Title Act who is able to properly advise the native title group about the decision in Aplin [my earlier decision] on behalf of the Waanyi peoples, the State of Queensland, and the legal implications of that decision in relation to the acceptance of Minnie Mayabuganji as a Waanyi person;

(2)    those present at that meeting who were eligible to vote cast a vote for or against the acceptance of Minnie Mayabuganji as a Waanyi person, and

(3)    if the meeting accepts Minnie Mayabuganji as a Waanyi person then they authorise the applicant to amend the application so as to include Minnie Mayabuganji in the list of know Waanyi ancestors.

9    Mr Phillips’ motion was probably prompted by observations which I made at the end of my earlier reasons. I suggested that there may be ways in which decisions of a claim group, as to its composition, could be reviewed by the Court. I had in mind a procedure akin to that applying in connection with fraud on a power or oppression of a minority of shareholders in a corporation. In the course of my earlier reasons, I suggested that, in light of the factual findings which I had made, it would be appropriate for the claim group to reconsider the question of its composition. I made certain suggestions as to the way in which that might be done. On the basis of the evidence, I suggested that a large group, such as the claim group, was unlikely to be able to give nuanced consideration to my findings of fact and the inferences which might be available from them, concerning the Waanyi people’s previous acceptance of Minnie as a Waanyi woman, at least at Burketown and Law Hill.

10    I suggested that the claim group might appoint a small committee, perhaps constituted by those who constitute the applicant, to consider the question and make a recommendation to a meeting of the claim group for its adoption. It seems that this suggestion has been only partially adopted. There was consideration of the question by members of the applicant group. However two conflicting proposals were put to the meeting, one of which would have led to the recognition of Minnie as an apical ancestor and the other which would not have done so. Members of the Minnie family were invited to meet with the claim group but, in the end, the claim group decided to defer consideration of the question of Minnie’s status to a later time.

11    The matter has been set down for an anticipated consent determination on 9 December at the Century Zinc Mine. It would be less than frank of me were I not to observe that the proceedings today seem to be prompted on both sides by the desire to achieve a tactical advantage, the applicants seeking to determine Mr Phillips’ claims from the position of native title holders, and Mr Phillips seeking to prevent, as far as he can, a favourable determination in favour of the applicant, until such time as his claims have been recognised. The applicant contemplates difficulty in achieving a consent determination if Mr Phillips remains as a party, and so seeks to have him dismissed from the proceedings. Mr Phillips, on the other hand, seeks to have the hearing deferred, thus placing pressure upon the claim group to accede to his claims.

12    The applicant’s motion is primarily based upon s 84(8) of the Act, which provides that I may order that a party cease to be a party to the proceedings. It seems to me, however, that quite apart from any other considerations, it would be unwise to take that step at this time. Mr Phillips obviously has an ongoing interest in this matter and, although my earlier decision may have effectively left him without any prospect of success in these proceedings, he has made a series of concessions as to the factual basis of the claim, which, in my view, should be incorporated into the eventual determination so that they are clearly binding upon him as a party to the proceedings. Any future steps in this action will be more conveniently taken if he remains a party until such time as a determination has been made, unless, of course, he chooses to withdraw. For that reason alone, I would dismiss the applicant’s motion.

13    As to Mr Phillips’ motion, I doubt the court’s power to make the resolution of proceedings dependent upon the holding of a meeting of the kind claimed. The way in which a claim group conducts its meetings is regulated by traditional law and custom or by its own determination as to an appropriate process. I doubt whether the Court can properly intervene in the way which Mr Phillips suggests.

14    As to the question of amendment, there seems little prospect that the claim group will amend the claim at this stage to add Minnie as a known Waanyi ancestor. Perhaps it is acting beyond power or in abuse of power, or so as to constitute fraud on the power. Mr Phillips has asserted that there is a reasonable basis for asserting a claim for relief on a ground akin to fraud on the power. He also asserts that as a matter of discretion, I should not proceed to a consent determination pursuant to s 78, having regard to the matters which he has put before me. I shall, in a moment, refer to some of those matters, but many of them concern the way in which a meeting of the claim group held on 2 September was conducted, a matter in which, as far as I can see, Mr Phillips has no legitimate interest.

15    Firstly, Mr Phillips relies upon the affidavit of Mr Patrick Anderson filed on 8 October 2010. The affidavit refers to the fact that Mr Roy Dickson, who is recognised as a knowledgeable Waanyi elder, identified a person called Lawn Hill Mick as a Waanyi man from Lawn Hill. It was suggested that he was the brother of other recognised Waanyi men. Mr Dickson apparently made these statements at a meeting of senior men held during the claim group meeting.

16    In the evidence before me in the earlier proceedings, it was said that Mr Roy Seccin, also a knowledgeable elder, now deceased, had identified Lawn Hill Mick as Minnie’s father. There was some dispute about this. His alleged status as her father was not a significant part of the considerations which led me to make the findings which I did. However it is suggested, and was apparently suggested at the claim group meeting, that this statement reinforces Mr Phillips’ claim that Minnie was a Waanyi woman. Mr Phillips suggests that the fact that the meeting did not act upon this information is evidence of fraud on the power, or at least that is my understanding of the significance which he attributes to it.

17    Secondly, Mr Phillips points to the affidavit of Kerisca Hookey filed on 7 October 2010. In it, the deponent asserts that somebody at the meeting said that there were three or four Minnies, and that they did not know which was being talked about. This seems to relate to a reference in my reasons to evidence which suggested that there were a number of women called Minnie in the general area at relevant times and associated with Waanyi people. It was suggested that some of the accounts, including Mr Seccin’s opinion, may have involved misunderstandings as to which Minnie was being discussed. However, as I made clear in my reasons, I was satisfied that the woman being spoken of by Mr Seccin was the same woman as was spoken about by Mr Hookey, another elderly man who identified Minnie as Waanyi.

18    Mr Phillips also complains that somebody at the meeting suggested that the Minnie family were only seeking Native Title for the money. With reference to the remark allegedly made by Mr Hogan concerning Lawn Hill Mick, somebody asked, “How come we have had three anthropologists working on this claim, but this (that is, Minnie’s position) wasn’t brought up earlier?” Various other comments were made to the same effect.

19    Mr Phillips also relies upon two affidavits, one by Hayley Iles and the other by May Iles, both filed on 8 October 2010. The same passage appears at para 2 of each affidavit. It refers to a conversation with the solicitor for the applicant, Mr Beckett, in which, it is alleged, he referred to the question of there being other Minnies, said that the findings of the Court were not final and observed that the committee wanted to have another meeting on country to make a decision under customary law. Mr Beckett, I should say, denies these conversations. For present purposes, it is appropriate to treat them as being true.

20    Finally, Mr Phillips points to an affidavit by Rosalind Faye Sailor, filed on 11 October 2010. She suggests that Mr Beckett gave a presentation at the meeting which did not mention certain relevant matters, but mentioned other, allegedly irrelevant matters, including Professor Trigger’s evidence. It seems that he also suggested that the matter should not be decided on that day, but left for another time.

21    Having considered all of these matters individually and collectively, I accept that they demonstrate an ongoing reluctance to accept Minnie as an apical ancestor. However I do not find any justification for a finding of fraud on the power, if that is indeed a remedy which could be tailored to meet the needs of the present situation. As to the question of the discretion pursuant to s 87 to proceed to a consent determination, I doubt whether it will be possible to proceed in that way in view of Mr Phillips’ continuing opposition. I do not blame him for that. It is the inevitable consequence of the position which he adopts. However the proceedings before me last year and my decision proceeded upon the basis that all questions, other than the question of Minnie’s status, had been resolved. The question of Minnie’s status was not finally resolved by my reasons because it seemed to me that the matter had to be left to the claim group. The description of the claim group is drawn in a way which will not exclude the inclusion of new members as apical ancestors after the determination, if the Native Title holders conclude that they are in fact apical ancestors.

22    This position is unsatisfactory to Mr Phillips. He fears that the claim group may not have any real incentive to address the matter after determination. That may or may not be so, and there may or may not be a remedy for any unreasonable conduct by members of the claim group, individually or collectively. However the present question is as to the final resolution of this litigation. As far as I can see, all matters which need to be resolved in order to justify a determination as to the existence of native title, have been resolved as between the parties, including the issues raised for determination separately.

23    Only if I were willing to allow Mr Phillips to raise the separate issue of fraud on a power, or some associated matter at this stage in these proceedings would any matter remain for determination. I do not think that I should do so. I have concluded that there is not presently a sufficient basis for such assertion. These proceedings are at a very late stage and should be concluded. The very basis upon which the parties participated in the separate proceedings before me was to facilitate final resolution of the matter in the shortest practicable time. Mr Phillips should not now be permitted to disrupt the process, given that no issues remain for resolution between him and the other parties to the litigation as the proceedings are presently constituted. The issues which he now seeks to raise may effectively be dealt with in subsequent proceedings.

24    In those circumstances, I dismiss Mr Phillips’ notice of motion. We will proceed to a determination on 9 December. It will not be a consent determination. The parties, or those parties who are willing to participate in it, must give considerable thought to the way in which we are to proceed. I would think that it should be by a combination of steps, one of which will be the consents of other parties, and perhaps on the basis of admissions already made by Mr Phillips, together with my existing findings and reasons. I must leave it to the parties to sort out the matter.

Associate:

Dated:    14 June 2011