FEDERAL COURT OF AUSTRALIA

Smith v Marapikurrinya Pty Ltd [2011] FCA 330

THE COURT ORDERS THAT:

1.    The Registrar of the Court deliver copies of the papers filed in this proceeding together with a copy of these reasons to the solicitors for the applicant in the Kariyarra Peoples Native Title Claim WAD 6169 of 1998: Teddy Roberts v State of Western Australia by 12 April 2011.

2.    The solicitors for the applicant in the Kariyarra Peoples Native Title Claim WAD 6169 of 1998 file and serve any written submissions they wish to make in relation to this matter and, in particular, the issue of standing of the applicants by 29 April 2011.

3.    The matter be listed for further directions at 9.45 am on Tuesday 3 May 2011.

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    These proceedings commenced in the Federal Magistrates Court. The applicants broadly sought injunctive relief against the respondents under the provisions of the Trade Practices Act 1974 (Cth) (the TPA).

2    The respondents, in turn, sought summary dismissal of the proceedings pursuant to s 17A of the Federal Magistrates Act 1999 (Cth). That application, on 29 January 2010, was dismissed and the matter ordered to be transferred to this Court: Smith v Marapikurrinya Pty Ltd [2010] FMCA 5.

3    The amended statement of claim in this Court contains, relevantly, the following allegations:

1.    The First Respondent is and at all material times was:

    1.1    a company duly incorporated according to the Corporations Act 2001;

    1.2    the provider of consultancy services in relation to Native Title matters including in relation to heritage surveys and cultural impact assessments; and

    1.3    engaged in trade or commerce, for the purposes of the Trade Practices Act 1974.

. . .

4.    The Applicants are and at all material times were:

    4.1    members of the Aboriginal race of Australia;

    4.2    Born in Port Hedland;

    4.3    children of Molly Dann;

1.4    grandchildren of Mary (Yinbung) Anderson; and

1.5    members of the Kariyarra People, by descent.

5.    The First to Third Applicants have at all material times since or about March 1999, been registered claimants named in “Attachment A” to the Karriyarra People’s Native Title Determination application before the Federal Court in Federal Court Action WAD 6169 of 1998, Teddy Roberts & Ors v State of Western Australia & Ors (the Native Title Action).

6.    The Native Title Action covers the area of Port Hedland and surrounding land and waters, as further particularised in “Attachment C” to the Native Title Action.

7.    From or about September 2007 the First Respondent, through the Second and Third Respondents has represented and stated that the First Respondent is (the Representations):

1.1.1    a representative of the Kariyarra People;

1.1.2    is a part of the Kariyarra Native Title claim group;

1.1.3    a corporate entity of the Kariyarra People;

1.1.4    authorised to negotiate with third parties in relation to the rights of the Kariyarra People, including without limitation, their Native Title rights;

1.1.5    authorised to enter into agreements on behalf of the Kariyarra People to authorise and carry out ethnographic and archaeological surveys and cultural impact assessments;

1.1.6    authorised to take part in ethnographic and archaeological surveys and cultural impact assessments, on behalf of the Kariyarra People;

1.1.7    authorised to authorise third parties applications to the Department of Indigenous Affairs seeking Ministerial approval to conduct works notwithstanding the potential to impact ethnographic and archaeological sites; and

1.1.8    authorised to seek injunctive relief in the Supreme Court of Western Australia in relation to the ethnographic and archaeological sites in the area traditionally inhabited by the Kariyarra People.

Particulars of Representations

7.2    To the extent the Representations were oral they were made in conversations between the Second and Third Respondents with representatives of BHP Billiton Iron Ore (BHPBIO) and Fortescue Minerals Group from September 2007 including:

1.1.1    At the offices of BHPBIO from about November to December 2007 in relation to the negotiation of a heritage agreement;

1.1.2    At the offices of BHPBIO on or about 22 January 2008 in relation to the Respondent’s involvement in BHPBIO’s offsets programs;

1.1.3    With representatives of Gavin Jackson Pty Ltd in 2008 during surveys of archaeological sites;

1.1.4    With representatives of Anthropos Australis from about December 2007 to March 2008 during a survey and cultural impact assessment; and

1.1.5    Further particulars will be provided prior to Trial.

7.3    To the extent the Representations were written they were contained in correspondence, reports and agreements between the Respondents, BHPBIO and FMG, including:

1.1.1    A Heritage Agreement between BHPBIO and the First Respondent dated 3 December 2007, in relation to a survey of the proposed port expansion area both ethnographically and archeologically;

1.1.2    A Preliminary Advice of Aboriginal Archaeological Survey prepared by Gavin Jackson Pty Ltd of 2008;

1.1.3    A Report of an Aboriginal Ethnographic Survey and Cultural Impact Assessment of about March 2008, prepared by Anthropos Australis; and

1.1.4    Further particulars will be provided after the parties have provided discovery.

8.    In reliance on the Representations:

    8.1    BHPBIO have negotiated with the Respondent from about September 2007 and entered into agreements with the Respondents in relation to the rights and interests of the Kariyarra People, without communicating with the Kariyarra People or the Applicants.

    8.2    BHPBIO lodged an application with the Department for Indigenous Affairs dated 20 June 2008 seeking Ministerial Approval to conduct works notwithstanding the potential to impact potential ethnographic and archaeological sites; and

    8.3    FMG have negotiated with the Respondents from about September 2007 and entered into agreements with the Respondents in relation to the rights and interests of the Kariyarra, without communicating with the Kariyarra People to the Applicants.

9.    BHPBIO and FMG would not have acted as pleaded in paragraph 8 above, if the Representations had not been made.

10.    The Representations were false in that the First Respondent is not:

1.1.1    a representative of the Kariyarra People;

1.1.2    a part of the Kariyarra Native Title claim group;

1.1.3    a corporate entity of the Kariyarra People;

1.1.4    authorised to negotiate with third parties in relation to the rights of the Kariyarra People, including without limitations, their Native Title rights;

1.1.5    authorised to enter into agreements on behalf of the Kariyarra People to authorise and carry out ethnographic and archaeological surveys and cultural impact assessments;

1.1.6    authorised to authorise third parties applications to the Department of Indigenous Affairs seeking Ministerial approval to conduct works notwithstanding the potential to impact ethnographic and archaeological sites; and

1.1.7    authorised to seek injunctive relief in the Supreme Court of Western Australia in relation to the ethnographic and archaeological sites in the area traditionally inhabited by the Kariyarra People.

4    The alleged conduct is there pleaded as contravening s 52 of the TPA. The second and third respondents, who are also the directors of the first respondent, are then alleged to have been directly or indirectly knowingly concerned in, or a party to the contravention of s 52 of the TPA for the purposes of s 75B of that Act.

5    The parties, in June 2010, filed a minute of consent orders to give effect to an agreed settlement of the proceedings in the following terms:

1.    The First Respondent and the Second and Third Respondents, in their capacity as directors of the First Respondent, do not have and have not previously had authority to act for or on behalf of the Applicants in relation to any matters.

2.    The Action be otherwise dismissed.

3.    There be no order as to costs.

6    The first ‘order’ is in the nature of a declaration. I declined at that time to make the orders sought and in due course invited the parties to make submissions on the question of standing in light of my judgment in Roe v Kimberley Land Council Aboriginal Corporation [2010] FCA 809. I was concerned as to the applicant’s standing to bring these proceedings.

7    In Roe I held that, pursuant to s 62A of the Native Title Act 1993 (Cth) (NTA), in the case of a claimant application, standing is granted exclusively to the “applicant” in the native title determination application to deal with “all matters arising under the (NTA) in relation to the application”.

8    The applicants submit that Roe has no application to this proceeding. Whilst they accept that none is a member of the applicant in the Kariyarra Native Title claim (Teddy Roberts v State of Western Australia, WAD 6169 of 1998) they say that they have brought these proceedings on their own behalf, not on behalf of the members of the Kariyarra Native Title claim group and, it follows, not in relation to the Kariyarra Native Title claimant application. The first to third applicants nonetheless, are claimants listed in “Attachment A” to the Kariyarra Native Title determination application.

9    They say that Lucev FM, in his judgment referred to earlier, dealt with the question of standing. However, correctly understood, his Honour was concerned with the standing of the applicants in the context of the respondents’ assertion that the applicants were not biological descendants of Kariyarra People: Smith v Marapikurrinya Pty Ltd at [18]-[20]. There was no issue before his Honour as to the standing of the applicants in the sense in which that question is articulated in Roe.

10    The question in this case is whether, despite the assertion of the applicants that these proceedings are not brought on behalf of the Kariyarra Native Title claim group, the relief sought is such as only the “applicant” in the Kariyarra Native Title claim may seek.

11    Certainly Lucev FM in his judgment at [34] considered that there was an “interconnectedness between this matter and the Kariyarra Native Title claim in the Federal Court”. The question with which I am concerned is the extent of that connectedness and the implications, on standing, if any, which flow from that.

12    The parties, in support of the orders they seek by consent, filed a Statement of Agreed Facts, signed by their solicitors dated 13 July 2010. It is in the following terms:

1.    The Applicants and the Second and Third Respondents are Aboriginal people that live in Port Hedland and South Hedland, Western Australia.

2.    The Applicants are the children of Molly Dann.

3.    The First to Third Applicants and Second and Third Respondent are claimants listed at Attachment A to the Native Title Determination Claim of the Kariyarra People, being Federal Court Action WAG 6169 of 1998 (the Native Title Claim).

4.    The Native Title Claim covers the area of Port Hedland and surrounding land and waters.

5.    The third Respondent is a named applicant in the Native Title Claim.

6.    The Second and Third Respondents are the sole directors and shareholders of the First Respondent.

7.    The Applicants have no legal or beneficial interest in the First Respondent.

8.    The First Respondent by its officers the Second and Third Respondent has negotiated agreements in relation to heritage surveys and has engaged heritage consultants and Aboriginal people to conduct heritage surveys, in the area of the Native Title Claim.

9.    On 3 December 2007 the First Respondent entered into an agreement with BHP Billiton Iron Ore for the conduct of heritage surveys. This agreement was not entered into by the First Respondent as agent for or otherwise for and on behalf of, the Applicants and was not contractually binding on them.

10.    In or about 2008 the First Respondent arranged heritage surveys for Fortescue Metal Group Ltd in and around Port Hedland.

11.    The activities of the First Respondent referred to in paragraphs 8 to 10 were not conducted by it as agent for the Applicants and the First Respondent did not otherwise have authority to contractually bind the Applicants in respect of any agreements it may have entered into.

12.    The Applicants have not given the First Respondent authority to act for or on behalf of the Applicants in relation to any matters, whether by its directors, the Second or Third Respondent, or otherwise.

13    The Statement of Agreed Facts bears out the observations made by Lucev FM to which I have just referred.

14    I remain concerned that this proceeding, in its true effect, involves matters, in whole or part, which are matters arising under the NTA in relation to the Kariyarra Native Title determination application. I am therefore not prepared, at present, to make the declaration and orders which the parties have proposed by consent, be made. Moreover, I propose to direct the Registrar of the Court to serve the papers filed in this matter together with these Reasons for judgment on the solicitors for the applicant in the Kariyarra Peoples Native Title claim, with a view to providing them with an opportunity to file submissions in relation to this matter should they so wish by 29 April 2011. I will have the matter listed for further directions at 9.45 am on Tuesday 3 May 2011.

Associate:

Dated:    6 April 2011