FEDERAL COURT OF AUSTRALIA

Roberts v State of Western Australia [2010] FCA 1483

THE COURT ORDERS THAT:

1.    On or before 31 January 2011, the Applicant and the First Respondent are to confer with a view to agreeing upon a suitably qualified and experienced anthropologist to be appointed as a Court expert pursuant to O 34 r 2 of the Federal Court Rules (‘the Expert’) to inquire into and report upon the questions set out in Attachment A.

2.    On or before 14 February 2011, the Applicant or the First Respondent are to file and serve on all parties a report to the Court regarding any agreement that has been reached on the Expert, including the following matters:

(a)    Identifying the Expert who is to be appointed, and providing a copy of the Expert’s curriculum vitae;

(b)    Outlining the steps to be taken by the Applicant and the State to assist the Expert in preparing his or her report to the Court;

(c)    Setting out the agreed proposed terms of reference and instructions for the Expert;

(d)    Setting out any proposal as to orders regarding the payment of costs associated with the appointment of the anthropologist; and

(e)    Identifying the proposed time frame in which the Expert is to prepare his or her report to the Court.

3.    If the parties are unable to agree on the anthropologist to be appointed as Court expert:

(a)    on or before 14 February 2011, the Applicant and the First Respondent are to file and serve on all parties:

(i)    the curriculum vitae of the anthropologist whom the party contends should be the Court expert;

(ii)    written submissions as to why that expert should be the Court expert; and

(b)    the Court will determine the anthropologist to be appointed as Court expert and any orders concerning the costs of the anthropologist.

4.    The matter be re-listed for 10:15am on 21 February 2011 for the Court to make appropriate orders pursuant to O 34 of the Federal Court Rules, for the appointment of an anthropologist to act as a Court expert, either as agreed between the parties or failing agreement, as determined by the Court, and for the making of any other directions regarding the obtaining or recording of the evidence of Indigenous witnesses.

5.    The Federal Court’s costs of the video conference for today’s hearing be met by the Court.

6.    The notice of motion filed by Cornerstone Legal on behalf of Barkley Marshall Day, Zane Bradley Day, Joan Elizabeth Day and Richard Ernest Day on 10 August 2010 be struck out.

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.

ATTACHMENT A

1.    What are the traditional laws and customs regarding membership of the Kariyarra People?

2.    Having regard to the traditional laws and customs in 1 above, do any of the following groups of people satisfy the criteria to be members of the Kariyarra People:

(a)    The descendants of Tommy Anderson and Molly Todd (Todd/Dann family);

    (b)    The descendants of Fanny, mother of Sylvia Whalebone (Lockyer family);

    (c)    The descendants of Topsy McKenna (Barker family);

    (d)    The descendants of Alec Tjigari and Njitji (Alec family);

    (e)    Archie Captain and his descendants;

    (f)    Nelly Wally and her descendants (Pontroy family).

3.    Are there any traditional laws and customs of the Kariyarra people whereby people who are not Kariyarra may obtain native title rights and interests within the area of the Kariyarra applications, WAD 6169 of 1998 and WAD 232 of 2009?

4.    Having regard to the traditional laws and customs in 3 above, do any of the following groups of people satisfy the criteria to obtain native title rights and interests within the area of the Kariyarra applications, WAD 6169 of 1998 and WAD 232 of 2009:

    (a)    The descendants of Alec Tjigari and Njitji (Alec family);

    (b)    Nelly Wally and her descendants (Pontroy family);

    (c)    The descendants of Tommy Anderson and Molly Todd (Todd/Dann family);

    (d)    The descendants of Fanny, mother of Sylvia Whalebone (Lockyer family);

    (e)    The descendants of Topsy McKenna (Barker family);

    (f)    Archie Captain and his descendants.

THE COURT ORDERS THAT:

1.    On or before 31 January 2011, the Applicant and the First Respondent are to confer with a view to agreeing upon a suitably qualified and experienced anthropologist to be appointed as a Court expert pursuant to O 34 r 2 of the Federal Court Rules (‘the Expert’) to inquire into and report upon the questions set out in Attachment A.

2.    On or before 14 February 2011, the Applicant or the First Respondent are to file and serve on all parties a report to the Court regarding any agreement that has been reached on the Expert, including the following matters:

(a)    Identifying the Expert who is to be appointed, and providing a copy of the Expert’s curriculum vitae;

(b)    Outlining the steps to be taken by the Applicant and the State to assist the Expert in preparing his or her report to the Court;

(c)    Setting out the agreed proposed terms of reference and instructions for the Expert;

(d)    Setting out any proposal as to orders regarding the payment of costs associated with the appointment of the anthropologist; and

(e)    Identifying the proposed time frame in which the Expert is to prepare his or her report to the Court.

3.    If the parties are unable to agree on the anthropologist to be appointed as Court expert:

(a)    on or before 14 February 2011, the Applicant and the First Respondent are to file and serve on all parties:

(i)    the curriculum vitae of the anthropologist whom the party contends should be the Court expert;

(ii)    written submissions as to why that expert should be the Court expert; and

(c)    the Court will determine the anthropologist to be appointed as Court expert and any orders concerning the costs of the anthropologist.

4.    The matter be re-listed for 10:15am on 21 February 2011 for the Court to make appropriate orders pursuant to O 34 of the Federal Court Rules, for the appointment of an anthropologist to act as a Court expert, either as agreed between the parties or failing agreement, as determined by the Court, and for the making of any other directions regarding the obtaining or recording of the evidence of Indigenous witnesses.

5.    The Federal Court’s costs of the video conference for today’s hearing be met by the Court.

6.    The notice of motion filed by Cornerstone Legal on behalf of Barkley Marshall Day, Zane Bradley Day, Joan Elizabeth Day and Richard Ernest Day on 10 August 2010 be struck out.

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.

ATTACHMENT A

1.    What are the traditional laws and customs regarding membership of the Kariyarra People?

2.    Having regard to the traditional laws and customs in 1 above, do any of the following groups of people satisfy the criteria to be members of the Kariyarra People:

(a)    The descendants of Tommy Anderson and Molly Todd (Todd/Dann family);

    (b)    The descendants of Fanny, mother of Sylvia Whalebone (Lockyer family);

    (c)    The descendants of Topsy McKenna (Barker family);

    (d)    The descendants of Alec Tjigari and Njitji (Alec family);

    (e)    Archie Captain and his descendants;

    (f)    Nelly Wally and her descendants (Pontroy family).

3.    Are there any traditional laws and customs of the Kariyarra people whereby people who are not Kariyarra may obtain native title rights and interests within the area of the Kariyarra applications, WAD 6169 of 1998 and WAD 232 of 2009?

4.    Having regard to the traditional laws and customs in 3 above, do any of the following groups of people satisfy the criteria to obtain native title rights and interests within the area of the Kariyarra applications, WAD 6169 of 1998 and WAD 232 of 2009:

    (a)    The descendants of Alec Tjigari and Njitji (Alec family);

    (b)    Nelly Wally and her descendants (Pontroy family);

    (c)    The descendants of Tommy Anderson and Molly Todd (Todd/Dann family);

    (d)    The descendants of Fanny, mother of Sylvia Whalebone (Lockyer family);

    (e)    The descendants of Topsy McKenna (Barker family);

    (f)    Archie Captain and his descendants.

REASONS FOR JUDGMENT

1    Originally the Kariyarra applications for determinations of native title were explained to the Court as being likely to be resolved by consent of all the parties. There are two applications, one filed in 1998 and one in 2009. In the course of negotiations between the parties, it became clear that there were divergent views among the applicant group on the question of who were the right people to form the group seeking a determination of native title. The present applicant group agree that the Todd/Dann and Lockyer families do not qualify as members of the Kariyarra people, but there are divergent views between the applicant group as to the eligibility of the Barker, Captain, Alec and Pontroy families to be members of the group claiming native title.

2    As a result of the applicant group’s divergent views, proposals have been submitted by the applicant and the State to assist the Court in considering the way forward in these two applications. Both proposals involve the suggestion that a Court expert should be appointed under O 34 r 2 of the Federal Court Rules. The proposals involve the Court meeting the expense of the appointment of that expert. The expert would be an anthropologist who would report to the Court on specific questions concerning the connection of the group entitled to apply for a determination of native title.

3    Before looking at whether the proposals to appoint a Court expert should be accepted in their detail, it is necessary to address a preliminary question. The resources of the Court which would be required to meet the cost of appointment of such an expert are limited. The Court would only entertain such an application if the case was of sufficient importance for it to do so. Consequently, the Court sought the views of the parties represented today as to the appropriateness of the Court devoting its resources to the appointment of a Court expert in this case.

4    Mr Gishubl, who appeared for the respondent BHP Billiton companies, strongly urged that this was an appropriate case for the Court to meet the costs of the expert. He explained that the case is of high importance to the BHP Billiton companies as they have vital infrastructure facilities comprising a port and railway in the application area and they desire certainty about the native title position in relation to those assets.

5    Mr Ranson, who appeared as counsel for the State of Western Australia, said that this was, in the view of the State, an appropriate case for the Court to devote such resources.

6    The applicant was represented by Ms Tan, who explained that in the view of the representative body, Yamatji Marlpa Aboriginal Corporation, this was a deserving case for the Court to meet the costs of a Court expert.

7    Related to the question of the appropriateness of allocating Court funds to this particular case is the question of the purpose which is to be served by commissioning the expert report. I was told that the Kariyarra people had previously engaged anthropologists on various questions and the reports of the previous anthropologists had not resolved the issues in the community. Indeed, the general thrust of the submissions from both the applicant and the respondents was to offer a note of pessimism to the suggestion that the expert report might bring agreement within the community on these issues. Ms Tan was perhaps more positive than the other representatives. Her view is based on knowledge and experience from working with the community and should be accorded special weight. Ms Tan pointed out that even if the expert report did not produce entire agreement amongst the community as to the contentious issues, it may at least resolve the position in relation to some of the families. She further observed that even if no agreement were reached the report would be a valuable piece of evidence if the matter went to trial. In other words, it is likely that a number of the families would be selfrepresented. The work of an independent expert is likely to assist the delineation of the issues which need to be addressed and provide some clarity about the questions which the Court would then have to decide.

8    I am satisfied that this is a case which is of such importance that the Court should devote its resources to meet the reasonable costs of an independent anthropological expert. I am also satisfied that there is likely to be value in the submission of such a report, if not to the parties, then for the purpose of a trial of the matter.

9    Next it is necessary to consider the differences between the proposals submitted by the applicant on the one hand, and the State on the other.

10    Two issues arise upon consideration of the applicant’s and the State’s proposals. It is accepted by the applicant that the applications for native title determinations will need to be amended prior to any trial to reflect the proper constitution of the native title holding group. The first question which arises is whether that amendment should take place before or after the expert report is produced. The second issue is the scope of the question to be determined by the independent expert anthropologist.

11    As to the timing of the necessary amendment to the applications, the respondents voiced a strong view that it was necessary for clarity and certainty for the way forward that the amendments take place as soon as possible and before the expert report is obtained. The applicant, on the other hand, argued strongly for the report to be submitted before the amendments are made. Firstly, the report may provide a chance of agreement or part agreement between members of the community. Should that occur, then the nature of the amendment would be much easier for the applicant. Secondly, if the applications are amended, the applicant would suffer prejudice by having to devote resources to satisfy the registration test. The applicant argued that because resources are in short supply they should not be forced to incur the expense of an amendment which might require yet further amendment after the expert report has been obtained.

12    I have come to the view that the expert report should be provided before the applicant is called upon to amend their application. Whilst I have sympathy with the respondents’ position that clarity and certainty in the definition of the native title holding group is important, there is no prejudice which the respondents will suffer by that question being left over until after the provision of the expert report.

13    The final issue concerns the scope of the questions to be put to the Court expert. The questions proposed by the State are as follows:

1.    Assuming (without deciding) that other elements of proof of native title can be satisfied, what are the traditional laws and customs regarding membership of the native title holding group or groups within the area of WAD 6169 of 1998 and WAD 232 of 2009?

2.    Assuming (without deciding) that other elements of proof of native title can be satisfied and having regard to the laws and customs identified in 1 above, who are the members of the native title holding group or groups?

14    The questions proposed by the applicant are as follows:

1.    What are the traditional laws and customs regarding membership of the Kariyarra People?

2.    Having regard to the traditional laws and customs in 1 above, do any of the following groups of people satisfy the criteria to be members of the Kariyarra People:

a.    The descendants of Tommy Anderson and Molly Todd (Todd/Dann family);

b.    The descendants of Fanny, mother of Sylvia Whalebone (Lockyer family);

c.    The descendants of Topsy McKenna (Barker family);

d.    The descendants of Alec Tjigari and Njitji (Alec family);

e.    Archie Captain and his descendants;

f.    Nelly Wally and her descendants (Pontroy family).

3.    Are there any traditional laws and customs of the Kariyarra people whereby people who are not Kariyarra may obtain native title rights and interests within the area of the Kariyarra applications, WAD 6169 of 1998 and WAD 232 of 2009?

4.    Having regard to the traditional laws and customs in 3 above, do any of the following groups of people satisfy the criteria to obtain native title rights and interests within the area of the Kariyarra applications, WAD 6169 of 1998 and WAD 232 of 2009:

a.    The descendants of Alec Tjigari and Njitji (Alec family);

b.    Nelly Wally and her descendants (Pontroy family);

c.    The descendants of Tommy Anderson and Molly Todd (Todd/Dann family);

d.    The descendants of Fanny, mother of Sylvia Whalebone (Lockyer family);

e.    The descendants of Topsy McKenna (Barker family);

f.    Archie Captain and his descendants.

15    The questions posed in the applicant’s proposal are narrower than the questions proposed in the State’s proposal. Mr Gishubl contended that the questions should be broader even than the State’s questions and reflect the requirements of s 225 of the Native Title Act 1993 (Cth). I am persuaded by Ms Tan’s argument that there has been considerable anthropological investigation of the constitution of the group which makes unnecessary the wider investigation which would flow from the State’s proposal. Adopting the wider proposal would involve duplication by requiring the expert to traverse ground already covered in previous research. The State has already accepted that this earlier research has demonstrated connection to some extent. Consequently, the issue to be determined is properly confined by the question posed in the draft minutes submitted by the applicant.

16    It is not necessary to make any orders beyond the reference to an expert anthropologist at this stage. Nevertheless, the parties should understand that the Court intends that at least the group composition issue, if not resolved by agreement, will be heard by the Court in a trial to be conducted in the second half of 2011. Yamatji Marlpa Aboriginal Corporation has filed an affidavit of Mr Stanley Stylianou, its Chief Financial Officer, describing the financial circumstances of the representative body and the process by which funding for cases is obtained. It is hoped that, by the indication from the Court of its intention to conduct a trial in the second half of 2011, funding will be made available as required.

17    No doubt, the funding bodies will take into account the importance attached to the case as expressed to the Court by the applicant, the State and BHP Billiton companies.

18    The orders proposed by the applicant seek that the costs of the video conference facility be met by the Court. The video conference of the hearing today has been a most useful part of today’s proceedings because it has allowed some of the members of the native title group to gather in South Hedland to observe and participate in the proceedings. It has allowed the Court to explain that the independent anthropological expert will be supported by the Court partly in order to allow an objective scholarly opinion to be provided to the community in the hope that it might assist in bridging some of the differences which have prevented cohesion of the group to date.

19    The video conference facility has also allowed the Court to explain directly to members of the community that there is good reason for the community to provide, from its own resources, the basis for an agreement which would avoid having the Court as an outside, non-indigenous body, intervene in what are, essentially, very private indigenous issues. It also allowed the Court to explain that at the end of the day, if no agreement can be made, the matter will come to Court in the second half of next year, and it will be determined in a way which the law of Australia provides is binding upon the Aboriginal community involved. In those circumstances, it is appropriate that the costs of the video conference facility be borne by the Court as part of the administration of justice.

Associate:

Dated:    23 December 2010