FEDERAL COURT OF AUSTRALIA

Roe on behalf of the Goolarabooloo and Jabirr Jabirr Peoples v State of Western Australia [2011] FCA 421

THE COURT ORDERS THAT:

1.    Mr Roe’s notice of motion filed on 22 February 2011, is 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    On 3 August 2010, at Broome, a meeting of the Goolarabooloo/Jabirr Jabirr native title claim group was held to consider a number of resolutions in relation to the replacement of the current applicant on the native title determination claim brought on behalf of the Goolarabooloo and Jabirr Jabirr Peoples (the GJJ claim).

2    At the time of that meeting, Mr Joseph Roe and Mr Cyril Shaw comprised the current applicant of the GJJ claim. However, for some time prior to the meeting, Mr Roe and Mr Shaw had been unable to agree on how to deal with issues arising in relation to the GJJ claim. It was as a consequence of this impasse, that the 3 August meeting of the GJJ native title claim group was convened for the purpose of considering whether to replace the current applicant. Mr Shaw consented to his replacement as a person comprising the applicant. However, Mr Roe did not, and at the meeting unsuccessfully sought appointment as the applicant. The resolution proposing that Mr Roe be appointed as a member of the replacement applicant of the GJJ native title claim group was defeated, with 7 votes for and 109 against.

3    Those attending the GJJ native title claim group meeting, however, passed, by an overwhelming majority, a resolution that Ms Rita Augustine, Ms Cecilia Djiagween, Mr William McKenzie, Ms Patricia Torres, Mr Anthony Watson and Mr Ignatius Paddy replace the current applicant. Each of these persons is a member of the Jabbir Jabbir People. These persons, who I will describe as the applicant movers, then applied to the Court for an order under s 66B of the Native Title Act 1993 (Cth), that they replace the current applicant. Mr Roe opposed the application by the applicant movers. Mr Roe took a number of objections as to the validity of the GJJ claim group meeting and the right of some of the applicant movers to be members of the GJJ claim group.

decision of the primary judge

4    Following a hearing which lasted several days and at which witnesses were crossexamined, the primary judge ordered that Ms Rita Augustine, Mr Anthony Watson and Mr Ignatius Paddy on behalf of the Goolarabooloo and Jabirr Jabirr Peoples do replace the persons currently comprising the applicant.

5    The primary judge was satisfied that those who attended the 3 August 2010 authorisation meeting and voted, were members of the GJJ native title claim group for the purposes of s 66B of the Native Title Act. The primary judge was also satisfied that the other requirements of s 66B had been established.

6    The primary judge then went on to consider whether he should exercise his discretion not to make the orders under s 66B of the Native Title Act.

7    The primary judge recorded at some length, the history of the GJJ native title determination application and the fact that in recent years, division had emerged between the Jabbir Jabbir People and the Goolarabooloo People.

8    The primary judge went on to observe that the Jabirr Jabirr People had filed a separate native title determination application, WAD 124 of 2010, on behalf of a claim group comprising only Jabirr Jabirr People. This native title determination application claimed native title rights over the same area covered by the native title determination application brought on behalf of the GJJ claim group. The applicant on the Jabbir Jabbir application was comprised of the same persons who were authorised at the Broome meeting on 3 August 2010, to constitute the applicant on the GJJ claim.

9    The primary judge also observed that the Goolarabooloo People had authorised Mr Roe and three other people to make a native title determination application on their behalf claiming native title over part of the area covered by the GJJ claim.

10    In considering whether to exercise the Court’s discretion not to make an order under s 66B(2) of the Native Title Act, the primary judge had regard to two main considerations which had been raised by Mr Roe.

11    First, the primary judge considered whether the relief should be withheld on the basis that there was no commonality of interest between the Goolarabooloo People and the Jabirr Jabirr People in vindicating the common or group rights and interests claimed in the GJJ claim. In considering this issue, the primary judge then referred to the history of the GJJ native title determination application and the division that emerged between the Goolarabooloo People and the Jabbir Jabbir People and the fact that separate native title determination applications had been made by each of these Peoples. However, the primary judge found that division between various subgroups was not uncommon in native title determination claims, and was not a sufficient basis on which to withhold the making of orders under s 66B.

12    The primary judge also referred to the anthropological research that had been carried out by Ms Ophelia Rubinich and Dr Daniel Vachon. The primary judge recorded that they had expressed a view that the general region of the GJJ claim was Jabirr Jabirr country. However, the primary judge also observed that Ms Rubinich had given evidence that more anthropological research needed to be carried out. The primary judge went on to observe:

Any determination of native title is complex and will involve questions of fact and degree at the substantive hearing and, in my opinion, should not be determined finally in the context of a s 66B application: Daniel at [56]. It would be premature to conclude that there is no commonality of interest as submitted by Mr Roe. The rights and interests of all Goolarabooloo and Jabirr Jabirr claimants will be dealt with by way of evidence in the substantive native title proceedings. Ultimately it is a legal question for determination by the Court whatever present partisan views may have been expressed by some of those who are Goolarabooloo people or Jabirr Jabirr people. This is particularly so in respect to the identification of the relevant society or societies. The authorisation meeting of 3 August was attended by members of both Goolarabooloo and Jabirr Jabirr people. I do not know the precise make up. The resolutions that the present applicant was no longer authorised and that the applicant on the motion be authorised were passed by 112 votes in favour and 37 votes against. It was the vote of both peoples and should be so regarded. At the same meeting the vote against Mr Roe becoming a member of the replacement applicant was overwhelming: 7 votes for and 109 against. Nonetheless he remains a member of the GJJ Native Title Claim Group and as such has a voice in its affairs as do all Goolarabooloo members.

13    Secondly, the primary judge considered whether in the exercise of the Court’s discretion, the making of an order should be withheld on the grounds that the applicant movers may be affected by a conflict of interest arising from the fact that they were also the persons comprising the applicant on the Jabbir Jabbir claim.

14    The primary judge then considered whether it was likely that any such conflict of interest would inhibit the applicant movers from performing their function as the applicant on behalf of the GJJ native title claim group. The primary judge observed that there were a number of factors limiting the likelihood of a conflict of interest materialising.

15    These factors included the fact that under s 190C(3) of the Native Title Act, the Jabirr Jabirr claim could not be registered so long as the substantive GJJ claim was extant and registered. Therefore, said the primary judge, the applicant on the Jabirr Jabirr claim would not be a negotiation party with respect to any proposed compulsory acquisition dealing with land covered by the GJJ claim. By contrast, the GJJ claim gave rise to the applicant on the GJJ claim having accrued rights to negotiate on behalf of the GJJ native title claim group.

16    Further, said the primary judge, one of the resolutions passed by the GJJ claim group at the authorisation meeting, was that if any agreement was reached with third parties as part of the right to negotiate process, then the persons comprising the replacement applicant must not enter into any “agreement that affects the land and waters covered by the GJJ claims unless authorised to do so by the GJJ claim group”. Accordingly, said the primary judge, Mr Roe and his family would have an opportunity to be heard and authorise, or not, the agreement, at that time.

17    At the hearing before the primary judge, three of the persons who comprised the applicant on the Jabirr Jabirr claim, namely, Ms Rita Augustine, Mr Anthony Watson and Mr Ignatius Paddy, stated that they were no longer willing to act as such. The other three persons, who were among the persons comprising the applicant on each of the Jabirr Jabirr and the GJJ claim, said that they were no longer willing to act as persons comprising the applicant on the GJJ claim. It is on that basis, that the primary judge made an order under s 66B of the Native Title Act, for the replacement of the current applicant on the GJJ claim, with Ms Rita Augustine, Mr Anthony Watson and Mr Ignatius Paddy jointly.

application for leave to appeal

18    By this application, Mr Roe has sought leave to appeal against the decision of the primary judge. The primary judge’s decision is an interlocutory decision. For leave to appeal to be granted, it is necessary for Mr Roe to demonstrate that the decision of the primary judge is attended with sufficient doubt to warrant the grant of leave to appeal, and also that Mr Roe would suffer a substantial injustice, if leave was refused.

whether the decision of the primary judge is attended with sufficient doubt

19    Mr Roe challenged only that part of the primary judge’s decision that dealt with the exercise of the primary judge’s discretion. Mr Roe made two challenges to the manner in which the primary judge had exercised his discretion.

No commonality of interest

20    First, Mr Roe contended in his written submissions that:

The primary judge wrongly found at [139] that in all the circumstances it was premature to conclude that there was no commonality of interest between the Jabirr Jabirr and Goolarabooloo peoples in vindicating the common or group rights comprising the particular native title claimed in the GJJ claim.

21    Mr Roe referred to the circumstances set out at paras 2(a)-(l) in the draft notice of appeal which described the division between the Goolarabooloo and Jabirr Jabirr Peoples, particularly since 2008, and the fact that each of the groups had recently commenced their own native title determination application, in which each group claimed different common or group rights in respect of the area of land covered by the GJJ claim. Mr Roe went on to say that, in light of those circumstances, the primary judge should have found that there was no commonality of interest in vindicating the common or group rights to native title claimed in the GJJ claim. Mr Roe contended that the primary judge’s discretion had miscarried by finding that it was premature to determine whether there was a commonality of interest. As I understood his submission, Mr Roe contended that the primary judge failed to recognise and deal with the gravamen of his complaint. The gravamen of his complaint was, said Mr Roe, that the circumstances set out at paras 2(a)-(l) in the draft notice of appeal, demonstrated so wide a division and divergence of interest, between the two Peoples that the GJJ claim could not be pursued by the applicant movers on behalf of the group as a whole, because the applicant movers were affected by a conflict of interest which disqualified them from acting to vindicate native title rights on behalf of the GJJ claim group as a whole. Mr Roe submitted that this was a different question to the question of whether the anthropological evidence supported the existence of native title in the joint GJJ claim group.

22    In my view, the primary judge did not misapprehend Mr Roe’s contention, nor did he fail to deal with it.

23    The primary judge was acutely conscious of the facts referred to by Mr Roe and repeated at paras 2(a)-(l) in the draft notice of appeal, and had regard to them. The primary judge also acknowledged, and dealt with, what Mr Roe said, was the special factor in the case which distinguished it from the case of “Pooncarie” Barkandji (Paakantyi) People v NSW Minister for Land & Water Conservation [2006] FCA 25, namely, the potential conflict of interest in the applicant movers arising from their position as persons comprising the applicant in the Jabbir Jabbir claim.

24    The primary judge acknowledged that there was a division between the two groups and, in fact, recorded that the applicant movers did not seek to downplay that fact. However, the primary judge went on to find that such intergroup divisions were not uncommon in native title determination applications. The primary judge found that the existence of such a division was not inevitably inimical to the pursuit of a joint native title claim on behalf of a group comprising both Peoples. The primary judge referred to the fact that the applicant movers had declined Mr Roe’s invitation to discontinue the joint GJJ claim, and also to the fact that the authorisation meeting held on 3 August 2010, had been attended by persons who were from the Jabirr Jabirr People and also from the Goolarabooloo People.

25    The primary judge also acknowledged that the fact that the applicant movers were also persons comprising the applicant on the separate Jabirr Jabirr claim, gave rise to a question of conflict of interest. However, at [140]-[141] of his reasons for decision, the primary judge specifically considered the prospect of the conflict of interest materialising so as detrimentally to affect the vindication of the rights of the GJJ claim group as a whole. The primary judge decided that the prospect of this occurring was only limited and insufficient to justify the exercise of the discretion to withhold making the orders under s 66B of the Native Title Act.

26    In my view, this approach to the exercise of his discretion, and the finding that he made, was plainly open to the primary judge.

27    Further, insofar as Mr Roe sought to raise before the primary judge the question of the existence of common or group native title rights in the GJJ claim area, the primary judge correctly held that that was a matter for trial.

28    In my view, Mr Roe has not demonstrated that this aspect of the primary judge’s decision is attended with sufficient doubt to warrant the grant of leave to appeal.

Conflict of interest

29    Mr Roe’s second challenge to the primary judge’s decision, was that the primary judge erred in failing to find that the applicant movers were, by reason of their conflict of interest, unable to represent, adequately and fairly, the interests of the combined GJJ claim group.

30    Mr Roe contended that there was a potential conflict of interest in the three persons comprising the applicant on the GJJ claim, whom the Court approved to replace the current applicant.

31    Mr Roe said that the potential conflict of interest was manifest by reason of the fact that each of these persons had sworn affidavits in support of the Jabirr Jabirr claim, asserting Jabirr Jabirr native title rights over the claim area of the GJJ claim. Mr Roe said that the applicant movers could not also swear affidavits in support of a claim for native title rights over the same land, on behalf of the GJJ claim group. Mr Roe contended that this potential conflict was not met by the fact that the three applicant movers who were approved by the Court as the replacement applicant on the GJJ claim, had withdrawn from the group of persons comprising the applicant on the Jabirr Jabirr claim.

32    As already mentioned, in dealing with the question of conflict of interest, the primary judge focused on the likelihood of the conflict actually materialising in such a manner so as to prejudice the vindication of the rights of the GJJ claim group as a whole. In my view, it is apparent that the primary judge did not regard the affidavit factor as constituting, as a matter of practical reality, an obstacle which would preclude the three persons from effectively performing their duties as applicant on behalf of the GJJ claim group as a whole, particularly in relation to the exercise of the GJJ claim group’s right to negotiate. The primary judge referred to the fact that the applicant movers had declined the invitation of Mr Roe to discontinue the GJJ claim.

33    In my view, as I have already mentioned, in considering the prospect of any conflict of interest actually impinging upon the capacity and willingness of the applicant movers to carry out their function as the applicant in respect of the joint GJJ claim, to the benefit of the joint claim group as a whole, the primary judge did not err. As I have, also, already mentioned, the adoption of this approach, to the exercise of his discretion, and his findings made under this approach, were open to the primary judge.

34    In my view, Mr Roe has not demonstrated that this aspect of the primary judge’s decision is attended with sufficient doubt to warrant the grant of leave to appeal.

substantial injustice

35    The second criterion for the grant of leave to appeal is whether, if leave was withheld, Mr Roe would suffer a substantial injustice.

36    Mr Roe has no personal right to claim native title. Native title determination proceedings are representative proceedings. Native title rights are vindicated as part of a native title claim group. Mr Roe remains a member of the GJJ claim group.

37    Further, Mr Roe has no personal right to be a member of the persons comprising the applicant. There is no provision in the Native Title Act which provides that an applicant must be comprised of representatives of each of the subgroups within the native title claim group. See Coyne v State of Western Australia [2009] FCA 533 at [24], Butterworth on behalf of the Wiri Core Country Claim v Queensland [2010] FCA 325 at [31] and Que Noy v Northern Territory of Australia [2007] FCA 1888 at [23].

38    Mr Roe accepted that, in his personal capacity, he was not able to demonstrate that if leave to appeal was refused, he would suffer a substantial injustice

39    However, Mr Roe said that he would suffer a substantial injustice as a member of the GJJ native title claim group because the rights of the GJJ native title claim group as a whole, would not be properly vindicated if the Court’s order under s 66B was not set aside.

40    Mr Roe, however, has no authority to complain on behalf of the GJJ native title claim group. In particular, Mr Roe has no authority to complain on behalf of the GJJ claim group, about the capacity of the applicant movers to act as the applicant, in circumstances where these persons were, at an authorisation meeting of the GJJ native title claim group, appointed to act as the applicant to replace the current applicant which comprised Mr Roe and another person.

41    The Native Title Act contemplates that issues relating to the capacity or authority of the persons comprising the applicant to represent the interests of members of a native title claim group, are to be determined in a meeting of the native title claim group. If the primary judge had exercised his discretion not to order that the persons approved by the meeting of the GJJ claim group replace the current applicant, Mr Roe and Mr Shaw would, quite contrary to the expressed wishes of the GJJ claim group, have, by the operation of the Native Title Act, remained the current applicant. The impasse arising from the dysfunctional relationship between Mr Roe and Mr Shaw would have continued.

42    It follows that Mr Roe’s application for leave to appeal is dismissed.

Associate:

Dated:    29 April 2011