FEDERAL COURT OF AUSTRALIA

Barunga v State of Western Australia (No 2) [2011] FCA 755

THE COURT ORDERS THAT:

1.    The respective motions for joinder filed by each of the applicants on the motions 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    Eight members of the Mayala Native Title Claim Group filed separate motions, dated 16 May 2011 and later, seeking orders that each be joined as a respondent in this proceeding. The party applicants, as I will call them, are Sandy Isaac, Delphine Winsome Hudson/Cox, Dennis Cox, Laurie Isaac, Maxwell Steve Ejai (Meegee), Alma Ejai (Minaway), Clayton Keith Ejai (Garrdarkkey) and Janella Isaac (Marginii).

2    By making these applications, the party applicants, as individual members of the Mayala Claim Group assert that the boundary between what I will call the Mayala application and the present application which I will call the Dambimangari application is in the wrong place, such that some of the land and waters in the Dambimangari application area should instead be in the Mayala land and waters.

3    I heard the motions together, on an urgent basis, in Broome on 24 and 25 May 2011 and gave lengthy ex tempore reasons at the end of the second day’s hearing at which time I dismissed each of the motions.

4    These are the reasons edited by me but not so as to alter their substance.

5    The motions were supported by affidavits by each of the party applicants as well as oral testimony given by Mr Paddy Neowarra. Reliance was also placed by the party applicants on a further nine affidavits, a list of which has been provided to me through my associate by counsel for the party applicants:

1.    Gavin Troy Hunter

2.    Rodney Ejai(Jarwolloo)

3.    Sharon Kaye (Coomarang)

4.    James Edward Barron

5.    Stephen Cox (Ungardy)

6.    Jacki Hunter (Gidarewungoon)

7.    Aubrey Owen Tigan (Galowa)

8.    Henry Mowaljarli (Bilangu)

9.    Lorna Hudson

6    I was informed, following inquiries made by my associate that none of these affidavits had in fact been filed with the Court. However, counsel for the applicants on the motion, Mr Walker, gave an undertaking on behalf of those deponents that they would be filed. Accordingly I treated them as evidence in the matter.

7    The motions were opposed by the applicant. The other respondents neither opposed nor consented to them. The applicant read affidavits by Ms Justine Twomey of the 23 and 24 May 2011; Mr Robert Powrie of 24 May 2011 and Mr Nolan Hunter of 24 May 2011. The applicant also tendered in evidence an affidavit of Professor Valda Blundell, an anthropologist. She also gave oral testimony as did Ms Kara Dunn, an anthropologist employed by the Kimberley Land Council Aboriginal Corporation (KLC).

Background to dispute

8    The following background to this dispute is taken from the 23 May 2011 affidavit of Justine Twomey, who is the acting Principal Legal Officer of the KLC.

9    These proceedings (WAD 6061 of 1998) are an application under s 61 of the Native Title Act 1993 (Cth) (Native Title Act) for a determination of native title rights and interests. This application is known as the Wanjina-Wunggurr Dambimangari Application.

10    Application WAD 6106 of 1998 (Kenny Oobagooma Application WC 96/74) was lodged with the National Native Title Tribunal (NNTT) pursuant to s 61 of the Native Title Act on 24 June 1996. WAD 6106 of 1998 was made under the Native Title Act as it stood prior to the commencement of the Native Title Amendment Act 1998 (Cth) (the "old Act"). WAD 6106 of 1998 was notified by the Native Title Registrar pursuant to s 66 of the old Act. The period of notification referred to in s 66 of the old Act ended on 11 November 1996.

11    Application WAD 6061 of 1998 (Dambimangari Application WC 96/03) was lodged with the NNTT pursuant s 61 of the Native Title Act on 15 January 1996. WAD 6061 of 1998 was notified by the Native Title Registrar pursuant to s 66 of the old Act. The period of notification referred to in s 66 of the old Act ended on 7 August 1996.

12    On 27 April 1999, Applications WAD 6106 of 1998 and WAD 6061 of 1998 were combined by an order of the Federal Court of Australia made by District Registrar Jan. Pursuant to that order Application WAD 6061 of 1998 was amended such that it was combined with, and included, Application WAD 6106 of 1998. Application WAD 6061 of 1998 was to be the lead application and the two applications were to “be continued in and under” the heading in that application (“Wanjina-Wunggurr Dambimangari Application”).

13    The Wanjina-Wunggurr Dambimangari Application is made by Victor Barunga, Heather Umbagai, Kenny Oobagooma (deceased), Janet Oobagooma, Donny Woolagoodja, Nelson Barunga and Fredmund Oobagooma (deceased) (the "Applicant") on behalf of the Wanjina-Wunggurr community.

14    The Wanjina-Wunggurr Dambimangari Application was given NNTT File No. WC 99/07 and submitted to the registration test by the Native Title Registrar. The Wanjina-Wunggurr Dambimangari Application was found to have addressed the criteria of the registration test and the application was entered on the Register of Native Title Claims on 27 May 1999.

15    The Wanjina-Wunggur Dambimangari Application was subsequently referred to the NNTT for mediation, although the date of that referral is not recorded in the files held by the KLC and reviewed by me.

16    The Wanjina-Wunggurr Dambimangari Application is the second of three Wanjina-Wunggurr applications: Wanjina-Wunggurr Wilinggin (WAD 6016 of 1996, WAD 6015 of 1999 and WAD 6006 of 2002) ("Wanjina-Wunggurr Wilinggin Application"); Wanjina-Wunggur Dambimangari; and Wanjina-Wunggurr Uunguu (WAD 6033 of 1999) ("Wanjina-Wunggurr Uunguu Application").

17    The Wanjina-Wunggurr Wilinggin Application was the subject of a judgment, reported as Neowarra v State of Western Australia [2003] FCA 1402, and a determination of the Federal Court, reported as Neowarra v State of Western Australia [2004] FCA 1092. In the Neowarra judgment, his Honour Sundberg J found at [373] and [394] that the members of the Wanjina-Wunggurr Community constituted a society and were bound together by a normative system of laws and customs which had continued to be acknowledged and observed by its members in a substantially uninterrupted manner since prior to the declaration of sovereignty over Western Australia.

18    Following the determination of the Wanjina Wunggurr Wilinggin application, the parties to the Wanjina-Wunggurr Damibmangari application entered into mediation before the NNTT for the purposes of negotiating the terms of a determination of native title by consent. The first mediation before the NNTT was held on about 13 November 2006.

19    In 2010, with the assistance of the NNTT, the parties reached an agreement as to the terms of the determination and a form of orders to recognise the native title rights and interests held by members of the Wanjina-Wunggurr Community in relation to almost all of the land and waters covered by the Wanjina-Wunggurr Dambimangari Application. The parties to the proceedings as of that date, and who have consented to the terms of the proposed determination, are:

(a)    the Applicants;

(b)    the State of Western Australia;

(c)    The Commonwealth of Australia;

(d)    Waterford Bay Pty Ltd;

(e)    Warren Melvyn Arms;

(f)    Lenden Nominees Pty Ltd;

(g)    WA Seafood Exporters Pty Ltd;

(h)    the Western Australian Fishing Industry Council (Inc);

(i)    Maxima Pearling Co Pty Ltd;

(j)    Paspalcy Pearling Company Pty Ltd;

(k)    Pearls Pty Ltd;

(l)    Roebuck Pearl Producers Pty Ltd; and

(m)    Telstra Corporation Ltd.

20    A minute seeking orders by consent for the determination as agreed between the parties of this application was filed in the Court on 13 April this year, together with joint submissions from the applicant and the first respondent in support of the proposed orders. Following the filing of the minute on that date, this matter was fixed for a consent determination hearing on country on 26 May 2011.

21    A separate native title determination application has been brought on behalf of the Mayala Native Title Claim Group: Aubrey Tigan on behalf of the Mayala People WAD 6255 of 1998.

22    The KLC provides legal services to the applicant as well as to the applicant in the Mayala application. There are presently five named persons who constitute the Mayala applicant. The Mayala Claim Group, I accept, consists of approximately 970 persons.

23    In his affidavit, Mr Robert Powrie, who was in the period 23 June 2006 to 10 December 2010 the Principal Legal Officer for the KLC, states that the KLC records indicate that the KLC received instructions from both claim groups in 1998. Both claim groups authorised the KLC to lodge applications for a determination of native title based on agreed boundaries and the constitution of the claim groups. This followed a series of meetings between senior people from both claim groups as well as large meetings of the individual claim groups.

24    Those agreed boundaries have never been amended during the nearly thirteen years since the two applications came before the Court and they are in effect recognised in the description of the determination area agreed between all the parties the subject of the proposed consent determination.

25    The Mayala application has been referred to the NNTT for mediation but it is not presently in active mediation. However, the KLC commenced negotiations with the State Government about a possible resolution of the Mayala claim and those negotiations it seems are relatively well advanced.

26    For the past three years, in the performance of its dispute resolution function, the KLC has attempted to resolve a dispute between the Dambimangari claim group and a small number of persons who are members of the Mayala Claim Group. That dispute resolution process is set out in detail in Mr Powrie’s affidavit. According to him the dispute arose late in 2008 when a small number of Mayala people commenced agitating about the mediation for a consent determination in the Dambimangari claim. The dispute regards recognition of interest that cross the boundary between the two applications and the location of the border between those groups.

27    The Mayala Claim Group had three claim group meetings in 2009 and four in 2010. There were in addition to this, four joint meetings of Mayala and Dambimangari claim groups or senior people.

28    The KLC organised a number of meetings in an attempt to resolve the issues between some of the Mayala people and the present applicant or senior people within the applicant claim group. The following description of those meetings is taken from the affidavit of Robert Powrie at paras 14 to 109 inclusive and 111 to 123 inclusive.

29    In 2008 the KLC engaged Dr Daniel Vachon for the purposes of providing expert advice on the genealogical description and composition of the Mayala Claim Group, met with members of the Mayala Claim Group in furtherance of that, and provided advice on the connection of members of the Mayala and Dambimangari claim groups to the disputed area: Cone Bay/Yaloon area and West Yampi coast.

30    On 5 - 6 July 2008, Dr Vachon attended a meeting of the Mayala Claim Group for the purposes of providing that advice. Mr Powrie did not attend that meeting, but he reviewed the minutes.

23 February 2009 Dambimangari claim group meeting, Mowanjum

31    Further to his engagement, Dr Vachon attended a meeting of the Dambimangari claim group on 23 February 2009 to present the findings of his research, in particular in relation to the connection of members of the Mayala and Dambimangari claim groups to the Cone Bay / Yaloon and West Yampi coast. Mr Powrie did not attend that meeting but received a report on the outcomes of that meeting from the solicitor engaged by the KLC to provide legal advice and representation to the Dambimangari Applicant, Ms Justine Twomey. The report from Ms Twomey included the resolution passed by the Dambimangari claim group on Dr Vachon's report (the Dambimangari Resolution).

13-16 March 2009 Mayala Claim Group Meeting, Derby

32    There was a meeting of the Mayala Claim Group on 13-16 March 2009. Mr Powrie did not attend that meeting, though he reviewed the minutes. The Dambimangari resolution was presented to the Mayala meeting for discussion.

16-17 April 2009 Joint Senior Meeting

33    This meeting was the first time Mr Powrie had attended a meeting of Mayala and Dambimangari claim group members. Sandy Isaac, Aubrey Tigan and Janella Isaac were present. Donny Woolagoodja was also present.

34    There was a disagreement about Mr Woolagoodja's right to be in the Mayala Claim Group. As a result, Mr Woolagoodja became visibly upset and left the meeting.

35    During that meeting Tony Fitzgerald, a Native Title Officer working with the KLC, gave a history of the Dambimangari application and said words to the following effect:

The Dambimangari claim is reasonably close to a determination, it could be agreed maybe as soon as September 2009.

36    At that meeting, it was explained that the anthropological evidence collected suggested that historically two groups had permitted each other access onto the other party's country for the purpose of hunting, fishing and collecting resources but that these were not strictly Native Title rights.

37    The KLC also explained that the anthropological evidence also showed that there were families who lived in the disputed area, which had genealogical connection to both the Mayala and Dambimangarri claims, and that these families should go on both claims.

38    These families are not the people who are seeking to become a respondent to the Dambimangari Claim.

39    As a further option, Mr Powrie also explained the possibility of having an agreement between the Mayala and Dambimangari claim groups which would ensure the co-existing rights were recognised on each side of the boundary between both claims.

19-20 May 2009 Mayala Claim Group Meeting

40    Mr Powrie attended a meeting of the Mayala Claim Group on 19 May 2009. Aubrey Tigan and Sandy Isaac were present along with 37 others.

41    The claim group resolved that Aubrey Tigan, Sandy Isaac, Henry Mowaljarlie, Daphne Wilfred, Lorna Hudson and Adrian Isaac should attend the next joint meeting to negotiate with Dambimangari. However, later in the meeting Lorna Hudson asked to be removed from that list. The following day it was resolved by the claim group to replace her with Rosa Tigan.

42    There was discussion about how the Mayala Claim Group should be constituted. It was unanimously agreed (with one abstention) that the apical ancestors for Mayala should be:

(a)    Galawa;

(b)    Ngalgamunga;

(c)    Jabadayim;

(d)    Kudimili's father; and

(e)    Ulgirr.

43    It was also resolved that the senior people should discuss a possible sixth apical ancestor, Ugurti.

44    At that meeting, Mr Powrie advised that there was the chance to negotiate an agreement with the Dambimangari people which could resolve the concerns of those Mayala people who were concerned with the Dambimangari claim.

20 August 2009 Joint Senior People's Meeting, Minyirr Park Base Camp

45    On 20 August 2009 there was a meeting of the Dambimangari and Mayala senior people. Sandy Isaacs, Aubrey Tigan, Henry Mowaljarlie, Adrian Isaac, Rosa Tigan and Daphne Wilfred attended for Mayala.

21 August 2009 Mayala Claim Group Meeting, Minyirr Park Base Camp

46    On 21 August 2009 Mr Powrie attended a meeting of the Mayala Claim Group at the Minyirr Park Base Camp.

47    In that meeting Mr Powrie explained again about how an indigenous land use agreement (ILUA) between the two groups could set out their respective rights over each other's country after determination. At the end of that explanation he advised the meeting that the best option was to seek a resolution of the dispute through a formal agreement, before the matter went to a Consent Determination.

48    After that discussion, Sandy Isaac said words to the effect of:

Sharing and caring but where do the traditional owners sit? What are the benefits?

49    Aubrey Tigan said words to the effect of:

The agreement to come about with Ugurti into Mayala side - but the recognition has to come from the Mayala people. No pushing one another - work with everyone.

50    After Mr Tigan spoke, the Mayala Claim Group unanimously passed resolutions to the effect that they wanted to have an agreement with Dambimangari. Six senior people, including Sandy Isaac and Aubrey Tigan, were selected by the Mayala Claim Group to negotiate with Dambimangari at a proposed senior people's meeting.

51    The meeting then broke for lunch. After the lunch break there was renewed disagreement. Mr Powrie adjourned the meeting shortly afterwards as he did not think that people would calm down sufficiently to make any progress.

10 September 2009 Senior Meeting

52    On 10 September 2009 Mr Powrie attended a joint meeting of the senior people of the Dambimangari and Mayala Claim Groups. The purpose of the meeting was for the senior people to discuss the best form of agreement between the two Claim Groups about how they would manage their co-existing rights to access the land and sea country on either side of the boundary between the two native title claims.

53    Sandy Isaac and Aubrey Tigan were among those present and Sandy Isaac said words to the effect of:

I am not wanting to say anything about what has been said before. Can we have a claim group meeting for Mayala on the 16th and 17th and have the lawyer present. We want to have the lawyer present, Steve. We just got a notice for this a day away from this meeting. I didn't get notice about this meeting. I only heard about this meeting on Tuesday this week.

54    By this time KLC were already organising a Mayala Claim Group meeting for 24 September 2009.

55    At the time Mr Powrie understood Mr Isaac to be referring to Stephen Walker. Mr Powrie responded in words to the effect of:

I said we would be prepared to fund a lawyer to look at how an agreement would look. The KLC act for the Dambimangari and Mayala people and we have to take instructions from those groups and these are the instructions that we act on. The senior people were there and made a decision on that.

56    After some further discussion, the Mayala senior people left to have a private discussion. After that discussion the meeting resumed, but Sandy Isaac continued to disrupt the agenda by insisting that nothing could happen until there was another Mayala Claim Group Meeting.

57    In response, Mr Powrie said to him words to the effect of:

Do you understand that if you insist on waiting for another claim group meeting you might miss the chance to have an agreement before the Dambi Consent Determination? I think we need to be very clear that this meeting was so that we could get as much done so there was an agreement that people will be happy with before the determination. You need to be clear about that.

Meeting at KLC offices with Stephen Walker

58    On or about 28 August 2008 Mr A Isaacs, Sandy Isaacs, Aubrey Tigan and Graeme Ejai visited the KLC offices and brought with them Stephen Walker, a barrister.

59    The Mayala Claim Group members who attended Mr Powrie’s office on that date said that they were unhappy about how things were going. They claimed that they did not understand what an ILUA was or how it would operate. Mr Powrie advised the groups that he had explained the nature and effect of ILUAs at the meeting the previous week and had given them copies of the NNTT fact sheet. He also advised that he had explained the process on other occasions and that he was aware that a former Principal Legal Officer (PLO) of the KLC, Julie Melbourne, had also advised them about ILUAs in relation to a dispute about other issues. After lengthy discussion about their concerns Mr Powrie agreed that he would brief Stephen Walker to provide the KLC advice on how an ILUA, or other form of formal agreement, could be employed to protect the rights of the Mayala people. At no stage did he advise them that the brief to Mr Walker was to advise the people in the meeting or the Mayala group as a whole.

24 September 2009 Mayala Claim Group meeting, Derby

60    Mr Powrie attended a meeting of the Mayala Claim Group in Derby on 24 September 2009. Janella Isaac, Aubrey Tigan, Sandy Isaac and Dennis Cox were present, along with 45 other Mayala Claim Group members.

61    Also present at the meeting was Stephen Walker, who had come at the invitation of Mr A Isaac.

62    Frank Davey, a Mayala Claim Group member and the then KLC Deputy Chairman, also attended the meeting. As soon as the meeting opened, Sandy Isaac asked if that was a conflict of interest with Mr Davey's attendance. Mr Davey responded that he was attending in his capacity as a member of the Mayala Claim Group and not in his capacity as the KLC Deputy Chairman.

63    There were issues about who could speak at the meeting. KLC staff left the room to allow the Mayala people to decide whether Stephen Walker and certain other people (including in-laws of Mayala Claim Group members) were allowed to sit in or speak. When they returned, they reported that Stephen Walker should be allowed to sit in as an observer.

64    Nolan Hunter, the Deputy CEO of the KLC, and Mr Powrie explained how an ILUA between Dambimangari and Mayala could work. They explained the history of the Mayala and Dambimangari claims and how the boundary line between them had come to be.

65    Mr A Isaac and Sandy Isaac were very vocal. Mr A Isaac said words to the effect of:

We are concerned that because there are three groups in Dambimangari they have taken our rights away. People are going to feel like they can't go hunt in that area.., in the first meeting Donny walked away. At the second meeting he said we had to come to some agreement. We feel you are pushing it on us.

66    It was Mr Powrie’s understanding at the time that he was referring to Donny Woolagoodja leaving the meeting in April 2009, as referred to in para 34 above.

67    After that, Stephen Walker spoke and suggested that the KLC should put the Dambimangari claim on hold to give the parties time to sort their agreement out, as at that point a determination was scheduled to take place in late 2009.

68    There was a discussion to the following effect:

Mr A Isaac: We say from the floor we will become respondent.

Stephen Walker: If you want to take that step you have to do it in the next week.

Nolan Hunter: If there are any instructions to KLC it has to come from the whole claim group... KLC will not act for one group who acts against another. We could not fund it. You have it in your rights to make the decisions but it has to come from the whole claim group, not individuals and not lawyers who do not have the legal representation for the whole claim group.

Robert Powrie: If Mayala say to me today this is what we want I will have to do it. It can't happen next week because it is the KLC's AGM. We have to give proper notice and it requires a lot of logistics, time and effort.

69    Janella Isaac wrote the following resolutions on the board:

(a)    for KLC to put the Dambimangari claim on hold;

(b)    for KLC to provide funding for an independent lawyer to advise them in talking to the Dambimangari claim group; and

(c)    if KLC would not put a hold on the Dambimangari determination, that the claimants would take whatever steps necessary to protect their rights to their country, including becoming a respondent.

70    Mr Powrie responded to the effect of:

(a)    We would act on instructions and we could make recommendations to Dambimangari with respect to their claim but had to act on their instructions as well. If Dambimangarri said they would not put the claim on hold then there was little KLC could do about that;

(b)    it was practice for KLC to mediate when there were conflicts between claim groups, and an independent lawyer could be agreed upon by all sides to act as mediator, but to provide funding for an individual lawyer for Mayala would create conflict; and

(c)    the third resolution was not an instruction for the KLC.

71    There was no vote by the whole claim group adopting those resolutions.

72    Mr Powrie also made a statement to the effect of:

If you want us to provide funding for an independent lawyer you have to put in an application.

73    Once again, the Mayala Claim Group nominated a group of people to negotiate with Dambimangari. Those selected were Graham Ejai, Aubrey Tigan, Joe Davey, Roy Wiggin, Lorna Hudson, Sharon Commerang, Sandy Isaac and Patsy Achoo. Aubrey Tigan subsequently withdrew from the group as he had other commitments.

3-4 March 2010 Dambimangari Claim Group Meeting, Derby

74    There was a meeting of the Dambimangari claim group on 3 and 4 March 2010. Mr Powrie did not attend that meeting but he instructed another legal officer, Laurelea Robb, to present the issue to Dambimangari.

75    The outcome of this meeting was that Dambimangari wished to review the genealogical information of the families in the boundary area and that they wanted to have a joint meeting with Mayala to discuss it.

10 March 2010 Mayala Claim Group Meeting, Broome

76    On 10 March 2010, Mr Powrie attended a Mayala Claim Group Meeting.

77    Sandy Isaac, Aubrey Tigan and Alma Ejai were present, along with approximately 50 others. There was a morning meeting of only Mayala Claim Group members, without any KLC staff present. The part of the meeting that they attended was recorded and photographs were taken.

78    At that meeting, in response to some comments people had made, Mr Powrie said words to the effect of:

There has been some talk about how people who sit on the Dambi claim can not sit on Mayala. That is not the case. Some people do sit on both claims and those people have the right to stay and participate in this meeting.

79    There was also a disruption regarding the attendance of Stephen Walker at this meeting. Mr Powrie made several attempts to arrange for the entire claim group to vote on whether they wished to allow Mr Walker's attendance but Mr A Isaac, Janella Isaac and Sandy Isaac disrupted that process. Eventually the vote was taken and the group agreed to have him sit in but only as an observer.

80    After the vote was taken, Sandy Isaac, Aubrey Tigan and around 20 others walked out of the meeting.

81    Mr Powrie explained to the remaining Mayala Claim Group members how things could work with Dambimangari and what they had agreed to. He gave an explanation about the problems that could happen if they attempted to file a new application over the area that some of them felt should be in Mayala and not Dambimangari.

82    It was after that explanation that the people who had walked out started to return, including Stephen Walker.

83    Mr Powrie further explained the history, including regarding Mr Walker's involvement. He told them the Dambimangari claim had not been progressed to a determination, as he had agreed previously, but the issue still needed to be resolved. When Janella Isaac asked about the other resolutions passed at the meeting on 29 September 2009. Mr Powrie said words to the following effect:

The KLC will not override your rights. There will be no determination until this is resolved. As to the second about funding a separate lawyer, we also advised that KLC would not fund separate legal representation... the third resolution was not an instruction ... how can KLC act on that?

84    Sandy Isaac asked how the ILUA would work and who would make decisions about it. Mr Powrie answered to the effect that the Mayala people needed to make the decisions.

85    The meeting again turned into a heated discussion about how the boundary between the two claims was selected. Mr Powrie again explained the process from 1996 and 1997 prior to when the claims were lodged. He also explained what would happen if they wanted to change the boundary. He invited the senior men to meet with KLC's senior anthropologist to talk about it.

86    Afterwards, the meeting broke up and a brief meeting was held with those Mayala Claim Group members who were descended from Jabadayim, and some others.

87    The Jabadayim family group are in both the Mayala and Dambimangari Claim Groups. They were very concerned about what was going on and stated that they supported the resolutions to have an agreement about shared rights between Mayala and Dambimangari. At the same time, they expressed concern about being overruled by both Dambimangari, as it is a large group, and Mayala.

88    The following day there was another conversation with the Jabadayim family members but it was interrupted by Sandy and Mr A Isaac. Sandy Isaac accused the KLC of supporting one side of the argument. Mr Powrie denied this allegation to Sandy.

89    After that, the Mayala Claim Group meeting resumed. Sandy Isaac, Janella Isaac, Alma Ejai and Dennis Cox were present, along with approximately 60 others.

90    There was concern that there were family members and others who were not members of the Mayala Claim Group present and that it would invalidate any voting on resolutions.

91    There was a conversation to the following effect:

Sandy Isaac: Since the 1980s we have gotten more educated and now we have come up with words that suit us in this age of 2000. We are different, we are more straight forward, and the words are more prepared to stand up to our traditions and our custom.

Rob Powrie: All I can say to that, is the agreement about the border was reached in '97. It was an agreement by traditional people.

Sandy Isaac: You are not listening, we are more prepared.

92    Mr Powrie informed the meeting that Dambimangari had said at their last meeting that if Mayala goes ahead with disputing the border, Dambimangari will dispute all of the Mayala claim. If that happened, KLC would not act for either but it would assist both to get funding for their own lawyers from the government.

93    Mr A Isaac stated that when the boundary was agreed to it was not clear what it was about.

94    Those present unanimously agreed to have a meeting between the families from both Mayala and Dambimangari who speak for the disputed area, followed by a meeting of all of the members of both claim groups.

95    After a break Alma Ejai (Choolong), Graham Ejai, Lorna Hudson, Mr A Isaac, Aubrey Tigan, Henry Mowaljarlie, Frank Davey and Philip McCarthy (Bibido) were selected to represent Mayala at that first meeting.

96    Following another break the independent lawyer issue was raised again. Nolan Hunter and Mr Powrie both informed the meeting that the Mayala Claim Group or members of it would have to make an application for funding and it would go to the KLC board to determine.

97    Mr Powrie denies that he ever said funding would not be given if an application was made.

98    Votes were taken on what sort of application to make for funding and when the funding should start. Not everyone voted.

12 May 2010 Joint Family Group Meeting, Birdwood Downs

99    On 12 May 2010, Mr Powrie attended a meeting of members of the Dambimangari and Mayala Claim Groups. The meeting was attended by those claim group members who are on both claims, as well as other members of the claim groups. There were 32 claim group members present, including Aubrey Tigan, Rosa Tigan, Mr A Isaac, Henry Mowaljarlie, Alma Ejai and Graham Ejai.

100    Trish Sinclair-Jones from the NNTT and Stephanie Monk, who had been requested to attend as an independent facilitator were also present.

101    Mr A Isaac said words to the following effect:

When we sat at the hall in One Arm Point in 1997 to do the markings, they were talking about trochus. The line is for the white man, we did not understand the ways of the future for the claim and the line was just for Trochus and fishing.

102    Frank Davey agreed that the line drawn in the 1990s was for trochus.

103    The anthropologist Daniel Vachon attended this meeting and explained his recollection of how the line was made and what everyone had understood it to mean at the time.

104    After that, people left the meeting to allow the senior people, including Mr A Isaac, Donny Woolagoodja and others, to discuss the matter. Most of the men present had gone up to look at the map. When they returned, some of them had drawn a new line on the map.

105    The Mayala people present agreed that the coastline was Dambimangari, but that the Mayala people had shared rights there to hunt and collect.

106    Mr A Isaac was still not happy but Stephanie Monk asked him to show where he thought the line should be. He refused and left the meeting with Graham Ejai, Lorna Hudson, Aubrey Tigan and Henry Mowaljarlie. Trish Sinclair-Jones met with these people after they left.

107    The remaining Mayala Claim Group members at the meeting, many of whom were also members of Dambimangari, were concerned about how they would be affected if the boundary changed.

108    There was also a discussion about what would happen if those that had left became respondents to the Dambimangari application.

109    Justine Twomey, a legal practitioner engaged by the KLC, and Trish Sinclair-Jones of the NNTT both gave explanations about what would happen if any member of the Mayala Claim Group became respondents to the Dambimangari application.

110    There was also discussion about the apical ancestor Jabadayim and his country, as well as discussion about Donny Woolagoodja. Mr Woolagoodja explained what his country was and who his family was.

111    The remaining people at the meeting voted to recommend to both the Dambimangari and Mayala Claim Groups that the Dambimangari claim should go ahead unchanged.

112    A second resolution was passed that they would recommend to both claim groups that the claim groups recognise the rights and interests across the border and support making an agreement.

29 June 2010 Mayala Claim Group Meeting, One Arm Point

113    On 29 June 2010, Mr Powrie attended a meeting of the Mayala Claim Group at One Arm Point Community Hall.

114    Lorna Hudson wrote on the white board a resolution that Western Legal become solicitors for the Mayala Application in place of the KLC.

115    KLC staff were asked to leave while a vote was taken on this resolution. While they were outside a number of people came out of the meeting. Bibido McCarthy said words to the following effect to Mr Powrie:

I tried to have in-laws and outlaws prevented from voting on the resolution and to make them have a proper discussion about it but I was shouted down and they refused to listen to me.

116    Several other Mayala Claim Group members came outside and said words to the effect of "we have been rail-roaded into this" and "they would not let us talk".

117    After they went into the meeting Mr Powrie was repeatedly shouted down by Mr A Isaac, Janella Isaac, Sandy Isaac and others.

118    As the meeting was unworkable, the KLC staff left and reconvened at Stumpagee Camp.

119    A number of members of the Mayala Claim Group accompanied them to Stumpagee Camp. They were joined by a number of claim group members, in particular the Long Island members of the Mayala Claim Group.

120    Those present unanimously approved a resolution for KLC to ask the NNTT to hold a further meeting for a proper vote as there was no notification about the resolution to remove the KLC as the legal representatives of the Mayala application.

22 July 2010 - Dambimangari Authorisation Meeting, Birdwood Downs

121    On 22 July 2010 there was a meeting of the Dambimangari Claim Group at Birdwood Downs. Mr Powrie did not attend that meeting.

122    One of the outcomes of this meeting was that Dambimangari resolved to proceed to their consent determination.

6 October 2010 - Mayala Authorisation Meeting, One Arm Point

123    On 6 October 2010 a meeting of the Mayala Claim Group was held at One Arm Point. The purpose of that meeting was for the claim group to consider the authorisation of the current applicant and to consider authorising a new applicant.

124    The meeting was chaired by Darryl Pearce, an independent facilitator engaged by the KLC.

125    Approximately 190 Mayala Claim Group members attended including, Dennis Cox, Stephen Cox, Clayton Ejai, Max Ejai, Gavin Hunter, Jacki Hunter, Janella Isaac, Laurie Isaac, Sandy Isaac and Aubrey Tigan.

126    The KLC gave a green arm band to each claim group member, to ensure that other people who were in attendance were not counted in voting.

127    The meeting was videoed to ensure a proper record was kept.

128    The group voted unanimously to replace the named applicants and nominations were taken for new named applicants.

129    Sandy Isaac nominated himself then withdrew. Stephen Cox also asked to not be a named applicant.

130    The meeting voted in favour of the nine nominees, who included Max Ejai, Stephen Cox, Donny Woolagoodja and Aubrey Tigan.

131    After the nominees were voted on, there was a problem as the vote meant that the five apical ancestors were not represented.

132    After some discussion it was Sandy Isaac who moved a resolution that the named applicants should be changed to Phillip McCarthy, Graham Ejai, Lorna Hudson, Aubrey Tigan, Donny Woolagoodja and Christopher Sesar.

133    This resolution was passed.

134    In July 2010, Western Legal, a firm of solicitors, filed a notice of change of the solicitor on the record for the Mayala application. The KLC successfully challenged the notice on the grounds that not all of the named persons who are the Mayala applicant had consented to that course of conduct. I will refer to that matter later.

135    The several affidavits relied upon by the party applicants are together both lengthy as well as detailed. They include, significantly, assertions that the Mayala people are the traditional owners of the islands. There was evidence that this claim extended to the sea in which the islands sit and the mainland from the bottom tip of Secure Bay up to and beyond Kingfisher Island, this side of Montgomery Island, then across the top to Macleay Island then to Caffarelli Island, then through the Sunday Strait to Helpman Island and then down to the top of Stokes Bay on the coastline; then above Oobagooma, then straight up to the tip of the beginning of Secure Bay. There was other evidence that the claimed area includes Dugong Bay, Cone Bay, Old Wotjalum Mission, Cockatoo Island and Koolan Island.

136    These descriptions were broadly represented by the demarcation or boundary line drawn on the map which is Exhibit ‘A’ by the witness Mr Paddy Neowarra and which is the subject of his oral evidence. Mr Neowarra, now aged 81, is the senior Ngarinjin man within the broader Wanjina-Wunggurr people. He was not, self-evidently I infer, the senior law person in 1972 when Professor Blundell was conducting anthropological research in the area of the present Dambimangari claim area. I do not know what role, if any, he took in 1998 when the present boundaries were drawn for the Dambimangari and Mayala applications.

137    The party applicant’s affidavits severally and in different ways but I think commonly, state that they have been complaining about the boundary lines for years; certainly since 2005, which was the year that Janella Isaac’s father, one of the party applicants, stepped down as one of the two members of the then Mayala applicant. There is other evidence that suggests that there were more than two named persons who were the original applicant. Nothing turns on that difference.

138    There were then five new persons who became the members of the Mayala applicant. They remain to this day. Sandy Isaac in his affidavit evidence says that the boundary lines as drawn in the Mayala application filed with this Court between the two claims “were to do with the Trochus Shell, and anyway it is the wrong boundary and we’ve been trying to tell the KLC this, but they won’t listen”. When he says “they” he is not referring to the Mayala applicant.

139    However, Nolan Hunter, the present Acting Chief Executive Officer for the KLC wrote to Adrian Isaac, a Mayala Claim Group member and a part of the faction within that group seeking changes to the boundaries in line with those sought by the present party applicants. The letter is dated 4 September 2009 and includes the following. Before I read it I should say that Adrian Isaac was joint chair of a Joint Claim Group meeting held on 21 April 1997 when the present boundaries, that is, those contained in the applications before the Court were struck. The letter of 4 September 2009 is headed “Mayala Claim Group”. It includes the following:

I am writing to express my disappointment about your actions in relation to the current issues concerning the Mayala Dambimangarri (sic) boundary issues.

. . .

I note also that you are seeking separate legal representation in relation to the current Mayala Dambimangarri (sic) boundary issues.

Under the heading of History of Mayala Boundary Issues he wrote:

As you are aware the Mayala claim has been lodged for many years. You were present at meetings in October 1996 when the Dambimangarri and Mayala claimants sat together and drew the boundaries on a map and entered into an agreement to work cooperatively together. Senior men, such as Aubrey Tigan, Monty Wilfred and Mr Stumpagee actually drew the boundaries and this was checked and approved by other Mayala and Jawi people including yourself and members of the Coomerang and Davey families. This map was used as the basis for lodging the current Mayala and (sic) Dambimangarri claims. The KLC has continued to use this map on the understanding that this reflected the wishes of both claim groups.

I find that what is contained in this paragraph to be statements of fact.

140    The letter continued:

The KLC has also contracted with a number of experienced anthropologists to investigate the Native Title rights and interests of the 2 claim areas (particularly from the Dambi side). The research indicates that the right people are speaking for the country. However, our research also indicates that the Mayala people did access the Yampi coastline for the purpose of hunting fishing and harvesting certain products, for example, wood for rafts and spears. We are confident that we have a very clear picture of the rights and interests of both groups.

141    Under the heading ‘Mayala Claim Group Instructions’ Mr Hunter wrote:

Both the Mayala and Dambimangarri claims have been lodged for over thirteen years.

. . .

The Dambimangari claim is close to getting a determination of native title.

142    Certainly, as at September 2009, that was a fact. The letter continued:

The Dambimangarri people, in good faith, passed a resolution in March this year in which they offered to allow the descendants of ALL Mayala apical ancestors to share this country. In return the Mayala would accept that the descendants of Ugerti would be entitled to share the native title rights and interests in the Mayala claim area. You’ve stated that the KLC has not kept the Mayala people informed of the process of what has been happening. This proposal has been put to the Mayala claim group three times this year. We have also had two joint meetings of senior Dambi and Mayala people to discuss these issues and to work out the best possible agreement. At the last Mayala claim group meeting the claim group gave instructions to the KLC to assist and negotiate an agreement between the two groups. Despite this you now appear to be challenging the instructions of the group and the agreement reached by the senior Mayala people in October 1996.

143    Mr Hunter then referred to four resolutions that were passed at the 21 August 2009 meeting, including that the resolution of the Dambimangari meeting was accepted and that the Mayala people wanted to have an agreement with the Dambimangari people about the shared country. He then stated:

Given the process of consultation has occurred over the past thirteen years regarding boundaries research previous agreements and endorsements by the whole claim group I’m conscious that your actions could have the potential to jeopardise both the Dambimangari and Mayala claims. If there are any consequences arising out of your actions you may be asked by the claim group to explain your actions.

144    Under the heading ‘Instructions to the KLC’ he wrote:

You should be aware that only the entire claim group can make any decisions that affect the claim group as the solicitors on the record for both the Mayala claim group were obliged to act in the claim group’s best interest not for individuals within the claim group. Your actions are contrary to the instructions we received at the last full Mayala claim group meeting held on 21 August 2009. You are of course entitled to seek independent legal advice on your own behalf but this does not bind the entire group and the KLC will not fund a separate representation. If you do use an independent lawyer, then you will need to ensure that all costs are met by you.

145    It is important to remember that the KLC necessarily takes its instructions, as indeed Mr Hunter pointed out in that letter, in relation to the Mayala application, from the Mayala applicant which consists of five persons who are required to act unanimously. It has never received instructions from the Mayala applicant to challenge the boundary lines in either the Dambimangari application or the Mayala application.

146    Mr Powrie, in his affidavit, deposes that at the Joint Dambimangari and Mayala Claim Group meeting held at Birdwood Downs on 12 May 2010, the meeting voted to recommend to both the claim groups that the Dambimangari claim should go ahead unchallenged and further that they would recommend to both claim groups that the claim groups recognise the rights and interests across the border and support making an agreement.

147    The party applicants have something to say about that meeting and I will refer to that later in context.

148    A resolution was moved by Sandy Isaac and passed at the 6 October 2010 Mayala authorisation meeting held at One Arm Point to change the constitution of the applicant in the Mayala application. This however, whilst brought before the Court pursuant to the provisions of s 66B of the Native Title Act never went to judgment because of opposition from those on the side, if I can put it broadly, of the present party applicants, and indeed included opposition from at least two if not three of the six who had been authorised at that meeting to become the new members of the Mayala applicant.

149    At the 6 October meeting the recommendation of the Joint Claim Group meeting held at Birdwood Downs was never mentioned.

150    Now for his part, Mr Powrie in his affidavit has deposed that at all times during his involvement in the process of negotiations concerning this dispute the KLC has acted impartially in its handling of the dispute between the Dambimangari and a minority of the members of the Mayala Claim Group. He also says that to the best of his recollection no member of the Mayala Claim Group has ever submitted a written application for funding for an independent lawyer to the KLC.

151    Sandy Isaacs deposes that he was present at what he describes as a Madja men’s law meeting held at One Arm Point on 7 October 2010. It is put by the party applicants that the meeting that was held the day before, was scheduled to run for two days but only ran for one. So on day two, as it was scheduled for the meeting, there was held instead the meeting which Mr Isaacs has referred to.

152    Mr Isaacs deposes at paragraph 11 of his affidavit as follows:

I was at a Madja men’s law meeting held at One Arm Point on 7 October 2010. This Madja law man meeting decided that the Wanjina can’t come over to any part of Mayala country as our traditional song line will be severed by Wanjina. I and many other Mayala people are very upset about the idea that the Dambi claim (as he described it. I take Dambi to be a reference to Dambimangari) will go through as it is and this is causing a lot of upset among Mayala people and also with Bardi and Jawi people.

153    This meeting caused a note to be sent to the KLC pointing out, amongst other things, that the Birdwood recommendations were made only when Mayala people were not present, the other seven having left beforehand.

154    Mr Isaacs further deposes to a number of other matters as follows. The references variously to “Dumby” are to the Dambimangari Claim Group.

[13]    Towards the end of 2009 we were told by the KLC that the Dumby claim was coming up towards a consent determination and it might be done that year. This worried me a lot and many other Mayala people who spoke with me because we reckon its wrong to have some of our country in a claim where we are not part of the group being given native title by the Federal Court.

[14]    A lot of Mayala people, including some of the senior people like Aubrey Tigan, Adrian Isaac, Graham Ejai, Henry Mowaljarlie and Lorna Hudson and myself got really worried about this. We were not happy with the only idea that came from the KLC to help sort out this problem which was to have what they called an ILUA, (an Indigenous Land Use Agreement) as an agreement between the two groups. We decided we wanted to get another lawyer to help us in understanding this idea and to do whatever we have to do to get all our country properly sorted out in the native title laws.

[15] We don’t get any papers from the KLC showing what’s happening in Court and we got really worried about when the Federal Court might be going to give native title to the Dumby group. We wanted a way for the two claim groups to talk through in a proper way where the boundary should be and to have some independent legal advice.

[16] Two resolutions were passed at Mayala claim group meetings in late 2009 and early 2010 asking the KLC to provide funding for independent legal advice on the boundary with Dumby. However, both times the KLC never answered those requests at all.

[17] That in June 2010 at a Mayala claim group meeting the Mayala people decided to appoint new solicitors to represent us in place of Robert Powrie from the KLC. Three of the five named applicants also wanted to appoint those new solicitors. The main reason was that the KLC is in conflict of interest in representing both claim groups, when the Mayala people are saying that we are the traditional owners for some of the country which is inside the Dumby claim area.

. . .

[19] I was happy then that our new lawyers would help us to negotiate with the Dumby claim group and make sure that we can look after our country.

[20] However, the Court decided that the decision to appoint our new solicitors did not count and the KLC again is representing us. It is also representing the Dumby claim group in its claim for native title in the Federal Court.

155    I take the reference to the alleged decision of the Court that the appointment of the new solicitors did not to count to be an indirect reference to a decision which I delivered: Tigan v State of Western Australia (2010) 188 FCR 533. That case involved a motion brought by the Mayala applicant challenging the unilateral notice of change of solicitors filed by those who are within the faction of the party applicants.

156    The notice of motion when it came before me was supported by affidavits affirmed by members of the named applicant, Valerie and David Wiggan, of the 28 July 2010. They deposed that they had not consented to any change of solicitor in the matter.

157    This is but one of numerous examples in the evidence of what is patently a dissension in the Mayala Claim Group and indeed within the Mayala applicant.

158    Returning to the affidavit of Mr Isaac at para 21:

[21]    In about November, December 2010 several senior Mayala people wrote a letter to the KLC and our elders asked Mr Powrie to apply to the Federal Court for us to become respondents to the Dumby claim. He told us that he would not do that. So now I see that the only thing I can do is become a respondent to the Dumby claim.

159    No such application was made by him or by any other Mayala person until last week. There is, in the affidavit of Nolan Hunter, the Acting CEO of the Kimberley Land Council, an unsigned and undated letter addressed to Wayne Bergmann who was formerly CEO of the KLC and it is common ground that this letter was sent around the end of November 2010 to Mr Bergmann. Although not signed it is on the letterhead of ‘Mayala Traditional Owners’. It ends “yours sincerely, Mayala Traditional Owners” but I find that it was not sent by or on behalf of the Mayala applicant but rather was sent by or on behalf of those within or some of those within the faction in which the party applicants reside. The letter asked the KLC “as our representing body” to make an application to the Federal Court for the attached list of Mayala traditional owners to become respondents to the present application.

160    Whatever the author(s) of that letter thought to be the case, as a matter of law, it is plain that only the named persons comprising the Mayala applicant were capable of instructing the KLC to do anything of that kind, and not surprisingly the KLC did not accede to that request. There was no barrier to those who signed their names on the list of persons, attached to that November letter, to have done a number of things to protect the position that they were then, and now, asserting. I will return to this later.

161    The culmination of all of that background was the filing of these motions which are now before the Court.

The Law

162    The joinder of a person as a party to these proceedings is governed by s 84(5) of the Native Title Act, which currently provides:

The Federal Court may at any time join any person as a party to the proceedings, if the Court is satisfied that person's interests may be affected by a determination in the proceedings and it is in the interests of justice to do so.

163    The phrase “and it is in the interests of justice” was added by way of the Native Title Amendment Act 2007 (Cth) (NT Amendment Act). However, that amendment applies only in respect of proceedings commenced on or after 15 April 2007. These proceedings commenced before that date. Accordingly, the relevant provision governing these applications is s 84(5) as it stood before that date:

The Federal Court may at any time join any person as a party to the proceedings, if the Court is satisfied that person’s interests may be affected by a determination in the proceedings.

However, the addition of these words adds nothing to the matters that the Court must consider in these applications.

164    Thus, the following elements must be considered when making a decision under s 84(5):

(a)    Whether the person has an interest;

(b)    Whether the interest may be affected by a determination in the proceedings; and

(c)    Whether, in any event, in the exercise of its discretion the Court should join the person as a party.

165    For the purpose of s 84(5), a sufficient interest need not be “... proprietary or even legal or equitable in nature ...”, nonetheless it must be: genuine; “... not indirect, remote, or lacking substance ...”; capable of clear definition; and “be affected in a demonstrable way” by the determination in the proceedings.

166    A person claiming to hold native title rights and interests over an area of land or waters affected by a native title determination application will ordinarily have a sufficient interest to be joined to proceedings under s 84(5). Such an interest may be asserted defensively in order to protect the claimed native title rights and interests.

167    However, a person cannot become a respondent to an application in order to seek a determination of native title in their favour over parts of the land covered by the application. A positive determination of the existence of native title can only be obtained by way of an application under s 13(1) of the Native Title Act. Further, a person joined as a respondent cannot act in a representative capacity on behalf of others claiming the same rights or interests. If he or she wishes to do that, he or she must make an application under s 13(1) and comply with the authorisation provisions of s 61. While the party applicants are not explicitly acting in a representative capacity, they are claiming rights and interests that are not otherwise asserted by the Mayala applicant.

168    Accordingly, in summary, s 84(5) of the Native Title Act relevantly requires first, a demonstration of whether the person seeking to be joined has an interest; second, whether the interest may be affected by a determination in the proceedings; and third, whether in any event, in the exercise of its discretion the Court should join the person as a party. I will deal with each in turn.

Is there an interest?

169    In my opinion, consistent with authority to which I have referred, each of the eight party applicants has demonstrated a relevant interest within s 84(5) of the Native Title Act. It was not contended otherwise by the applicant. The applicant accepts that there are shared interests to some degree between the two claim groups. In that sense the Western notion of boundary lines is not always apt and in this case it is not apt. I will refer to that in more detail later.

Is there an interest that may be affected?

170    It is important to emphasis that the eight party applicants do not speak for the Mayala Claim Group. They represent a small minority. Even having regard to the additional affidavits I have received, upon the undertaking given by Mr Walker, counsel for the party applicants, that position remains. Their individual and combined assertions as to the boundary lines are at odds with the boundary lines agreed to in 1996 and later set out in the record of the claimants in effect at the joint meeting which occurred on 15 April 1997. That is disputed by counsel for the party applicants. Nonetheless I find that to be the fact.

171    Amongst others, one of the apical ancestors now deceased and whose name I will not, as a matter of respect, mention as I understand it, as well as one of the six named apical ancestors in the Mayala application were present at that April 1997 meeting as indeed was Mr Adrian Isaac and Mr Aubrey Tigan on the Mayala side.

172    The position of the party applicants is for the same reason necessarily at odds with the boundaries claimed in the 1998 Mayala application. This last fact is one, in my opinion, which is of very great importance in the context of these motions.

173    Professor Valda Blundell, an anthropologist, gave evidence both written and oral concerning the interplay between the Dambimangari and Mayala claims. I have considered, with some care, the entirety of her written and oral testimony. However, for present purposes, I propose to refer only to part of her affidavit in particular and again, as in other cases, the fact that I do not refer to other paragraphs should not be seen as an indication that I did not regard them as relevant.

174    Professor Valda Blundell is Emeritus Professor of Anthropology at Carlton University in Ottowa, Canada. She studied anthropology at the University of Wisconsin and completed a Ph.D in 1975. She worked extensively in the Kimberley region since 1972 when she conducted anthropological fieldwork for her Ph.D dissertation regarding the cultural traditions and country connections of Wanjina-Wunggurr people. She worked with senior Wanjina-Wunggurr people including people connected to Worrora, Unggarrangu, Umida, Ngarinjin and Wunambal language countries. She returned to the Kimberley in 1976 and 1977 for post doctoral research.

175    In 1994 she resumed anthropological fieldwork in the Kimberley with people that she had worked with in the 1970s along with many of their offspring. Since 1994 she has continued this research, spending time in the Kimberley nearly every year. During this period she has worked with those Aboriginal people on a project called the Family History Project. This project has brought together information regarding the forebears of members of the Wanjina Wunggurr people. It has involved extensive discussions with senior Wanjina Wunggurr people and the integration of information from historical records in the resulting database.

176    She has been an expert witness in the Wanjina Wunggurr Wilinggin native title claim which was determined in 2004. She has written several scholarly articles based on her Kimberley research including a book co-authored with Donny Woolagoodja and other members of the Wanjina Wunggurr community entitled Keeping the Wanjinas Fresh: Sam Woolagoodja and the Enduring Power of the Lalai published by Freemantle Press in 2005.

177    In para 6 Professor Blundell states the following:

In my opinion, members of the Wanjina-Wunggurr Dambimangari claim group are connected to country that falls geographically within the homeland of the Wanjina-Wunggurr people. These people share a set of traditional laws and customs commonly known as the Wanjina-Wunggurr culture. Geographically, the majority of the Wanjina-Wunggurr homeland falls within the Wanjina-Wunggurr Dambimangari claim area, the Wanjina-Wunggurr Uunguu claim area, and the Wanjina-Wunggurr Wilinggin native title determination area. However, a small portion of the Wanjina-Wunggurr homeland, namely, a part of the Dambimangari claim area extends into the Mayala claim area. This area is “under the platform (or umbrella)” of the Wanjina-Wunggurr culture, as contemporary Wanjina-Wunggurr people sometimes explain. Accordingly, it is my opinion that members of the Wanjina-Wunggurr Dambimangari claim group are connected to both the Mayala and the Wanjina-Wunggurr homeland through the laws and customs of their Wanjina-Wunggurr culture.

178    At paragraph 11 her opinion is:

It is also important to stress that Aboriginal societies are not isolated from other Aboriginal societies. This point is especially relevant with regard to the coast and islands (and adjacent ocean waters) of the Mayala claim area which are located at the margins of the Wanjina-Wunggurr homeland and adjoin (or may very well overlap) country associated with a different cultural system. Comments by Alan Rumsey and Anthony Redmond in a report prepared for the Wanjina-Wunggurr Wilinggin native title application are especially pertinent in this regard. As they write:

The concept of a ‘boundary’ for the cultural domain [i.e. the Wanjina-Wunggurr Culture] needs to be understood in terms of the permeability of social worlds which are open to influence from neighbouring regions… Just as there are clear areas where different dambun [i.e. local countries, also called dambima] share a social/physical space within the Wanjina-Wunggurr region and different languages overlap on country in the Wanjina/Wunggurr region, there are areas where different social systems, cultural domains overlap. People who belong to neighbouring cultural regions participate in and use the cultural repertoire of both systems.

179    At 12, Professor Blundell then expands on this matter of the boundaries. Then at 14 she deposes, “in my view, to understand the relationship between the Dambimangari and Mayala claim areas and associated claimants, there is a need to consider additional factors.”

15. The first of these is the geographical location of the Mayala claim area, which appears to occupy a transitional zone between two dominant cultural domains namely Wanjina-Wunggurr and a cultural domain that includes Bardi and Jawi culture.

16. The second of these is the geographical location of the southern and south-western part of the Dambimangari claim area at the margins of the Wanjina-Wunggurr region.

17. These two factors suggest to me that we are dealing here with a ‘transitional space,’ that is with a ‘border’ or ‘boundary’ area that Indigenous people perceive as a ‘zone of interaction’ in the sense that Lloyd et al, have suggested.”

180    True it is, as was put to her by counsel for the party applicants, that the focus of her dealings in the anthropological context has been with the Wanjina-Wunggurr people but that is no reason in my view to discount her testimony. There is no anthropological evidence which is inconsistent with the opinions expressed by her.

181    The opinion of Professor Blundell as to shared interests as I have described, is reflected in the fact that the shared interests held across the Mayala application area and the Western Yampi coast are accommodated by overlapping membership of the Mayala and the Dambimangari native title claim groups. Specifically descendants of Jabadayim and Jacob Sesar are members of both claim groups.

182    The fact that the Dambimangari native title claim group is connected to the Mayala application area through the laws and customs of their Wanjina-Wunggurr culture is in evidence. This means, I accept, that any interests of one group that are asserted in the other application area are reciprocal such that a hard boundary is not an appropriate delineation between them. And certainly, in my opinion, there is evidence to support the view that the exercise of those rights may be the subject of negotiation.

183    The agreement reached on 9 October 1996 to which I have referred between the Dambimangari native title claim group and the Bardi Jawi precursors of the Mayala native title claim group, to the effect that members of the two groups who have customarily exercised rights in the other area will be recognised by the other claimant group as being entitled to continue to exercise those rights in the other area, seems to me to be a relevant factor also.

184    I accept that there is a commitment by the applicant in the Dambimangari application and by the Dambimangari claim group that they are prepared to negotiate with the Mayala Claim Group about the mutual recognition of traditional rights of access and usage along the West Yampi coast and the Mayala Islands.

185    The commitment by the applicant in the Mayala application and by the Mayala Claim Group that they are prepared to negotiate with the Dambimangari claim group about the mutual recognition of traditional rights of access and usage along the West Yampi coast and the Mayala Islands is also supported on the evidence.

186    I now turn to the detail of some of the documents to which I was taken variously by both counsel for the party applicants and for the applicant.

187    Caitlin Fegan affirmed her affidavit on 24 May 2011. Ms Fegan is a legal officer with the KLC. Her affidavit includes, in effect, a paraphrase or a translation of the agreement reached on 9 October. One finds the following at para 4 of her affidavit:

The Worrora, Umiida, Yawijibaya and Uuggarrangu people always used to fish around the islands. Never mind these islands are in the Bardi Jawi claim, Worrora people can still come and fish there.

It’s the same with Bardi Jawi people, they used to fish along the mainland. Never mind this country is in the Worrora, Umiida, Yawijibaya and Unggarrangu Claim, Bardi-Jawi people can still come and fish there.

This is not just with fishing, what people used to do in the past, they can still keep on doing. It doesn’t matter there is a boundary there.”

188    A meeting occurred at the Head Office Derby. I am not sure which head office but that is what is contained in the document headed Memorandum addressed to Mr Malcolm Allbrook dated 21 April 1997. It was a meeting of the Worrora and Bardi Jawi men claimants discussing the boundary line of both claims. Now amongst others on behalf of the Bardi Jawi claimants included Mr Isaacs who I have referred to before and Jacob Sesar. KLC staff were also present. The memorandum includes the following:

There were a lot of arguments for where the new claim boundary should go. What made a big difference to where boundary line should go is when Frank [I understand that is a reference to Frank Davey] asked Jacob if he is claiming his mothers side. Which is near the inland end of Strickland Bay. He said yes, then Roy said that well then, Jacob should be put him in the Worrora Claim (which he agreed too, as well as all T/O’s at meeting) and to make things easier the line shouldn’t go in Strickland Bay (because it’s Jacob’s area if he is going in the Worrora Claim), Cone and Cascade Bay area then. Should go from in between Irvine and Cockatoo Islands, going through Goose Channel, down through Whirlpool Pass going down in between Muddle and Cussen Islands straight down to Scott Island, coming around through Hells Gate and splitting Cascade Bay. (As you can see on map attached).

Also said boundary line to go passed Cone Bay because there are claimants living out in Cone Bay and it is their rightful boundary.

This was agreed on by all of the Bardi/Jawi claimants . . . End of meeting claimants from both parties agreed that this line is only for the Government and doesn’t matter where line goes, either side of line can be shared by both groups.

189    There was a Dambimangari claim group meeting on 23 February 2009 and the minutes of that meeting are in evidence in Ms Fegan’s affidavit. Resolutions were proposed and passed it appears, unanimously, including those on page 34 which are as follows:

1.    Members of the Dambimangari claimant group agree that all of the Mayala apical ancestors, just like the Japadayim, and their descendants, should be recognised as having rights and interests to the country along the Yampi coast from Helpman Island to Dugong Bay, including Koolan Island and Cockatoo Island;

2.    They also agree that Junggarra (Ugurti’s father) and his descendants, all of whom are Dambimangari descendants, have rights and interests to lands and waters in the Mayala claim; just like Japadayim and his descendants;

3.    The meeting would like this resolution taken to the Mayala claimants for their consideration/discussion.

4.    Dambimangari claimants would like the Mayala claimants to consider having a joint meeting; and

. . .

190    There was then a combined Mayala and Dambimangari senior claim group meeting on 16 and 17 April 2009. The resolutions proposed at that meeting are at page 47 of the Fegan affidavit and it can be seen that they are to the same effect as the resolutions put and passed on 23 February 2009 to which I have referred.

191    At that meeting a Mayala working group was constituted. It involved Mr Isaac, Aubrey Tigan, Lorna Hudson, Roy Wiggan, Frank Davey and Paddy Neowarra. There was then a Mayala native title claim group meeting on the 21 August 2009. The minutes are in evidence in the Fegan affidavit and a resolution passed unanimously which is contained at page 77 of the affidavit. The resolution was as follows:

1.    the resolution of the Dambi meeting (read out today) is accepted

2.    the Mayala people want to have an agreement with the Dambi people about shared country

3.    the Mayala people want to negotiate the best for of agreement     

4.    the 6 people who negotiated with the Dambi people yesterday negotiate the agreement (names read out).”

192    There was then a Dambimangari native title claim group meeting at Derby on 23 September 2009, and resolution broadly consistent with the resolutions passed both by the Dambimangari claim group earlier in 2009 and by the Joint Claim Group meetings as set out at page 93 of the Fegan affidavit. There was the following day on 24 September 2009, a Mayala native title claim group meeting and it passed resolutions. These are set out at page 107:

1.    The Mayala claimants ask the KLC to put a hold on the Federal Court Determination for the Dambimangari claim so that the Mayala and the Dambimangari can properly talk through …

2.    The Mayala claimants ask the KLC to provide funding for independent lawyer to advise them in talking to the Dambi claim group.

3.    If KLC will not put a hold on the Dambi determination, then Mayala claimants will take whatever to protect their rights to their country including becoming respondent …

I take     the last resolution to mean becoming a respondent to this application.

193    On 12 May 2010, there was a meeting of the Mayala and Dambimangari Family Group for the Yampi Sound. I referred to this earlier. The minutes of that joint meeting are in Ms Fegan’s affidavit. Some 32 people in total for the two claim groups attended as well as KLC staff and some others. Six, possibly seven, Mayala people left during the meeting with one of them, that is Mr Isaacs stating “… we are back to square one. I will be responding. See you in Court”. If that was a threat of legal action, as I take it to have been, for example, an application for joinder of some Mayala people to the Dambimangari application then it appears to have been an empty threat.

194    In any event, those who remained, including some Mayala people voted to recommend that the written outcomes of the Dambimangari and Mayala meeting of 12 May 2010 held at Birdwood Downs to be provided to:

(a)    the Dambimangari claim group meeting ;

(b)    the Mayala Claim Group meeting; and

(c)    the National Native Title Tribunal

and a recommendation was to be made to the Dambi(mangari) and Mayala Claim Groups that the Dambi(mangari) native title claim goes to determination with no change to the boundary. Those resolutions concerning those recommendations were passed.

195    Then it appears from the minutes that a new resolution was put in terms that a recommendation be made to the Dambi(mangari) and Mayala Claim Groups that the two groups recognise the rights and interests on the Yampi West coast of the descendants of the Mayala, Japadayim, Olgirr, Gudimilid, Ngarlgudmunn, Galawa, Dambi-Japadayim, Ugerti, and to support working towards an agreement to make this happen. This resolution was passed unanimously.

196    I accept that a number of Mayala Claim Group persons left the meeting before those resolutions were passed. This was a matter for them: they were not asked to leave but chose to leave. Whatever be the effect of the motions they demonstrate, it seems to me, a consistency of attitude and purpose on the part of the Dambimangari claim group members or at least those who were at the meeting, as well as, I might say, of some of the Mayala Claim Group members.

197    I referred earlier to the Mayala native title claim group meeting that occurred at One Arm Point on 6 October 2010. The agenda for that meeting included the following:

1.    The recommendations of the joint meeting held between the representatives of Mayala (WAD 6255 of 1998) Native Title Claimants and the Wanjina Wungurr Dambimangari (WAD 6061 of 1998) Native Title Claimants held at Birdwood Downs on Wednesday 12 May 2010 (“The Recommendations”)

2.    Adopting the recommendations or rejecting The Recommendations

3.    If the Mayala Claim Group elect to adopt The Recommendations directing each of the persons who comprise the Applicant to sign an undertaking that will take all necessary steps to implement The Recommendations.

4.    If one or more persons who comprise the Applicant are unwilling to accept the directions of the claim group directing that the Applicant be replaced.

5.    Authorising other members of the Mayala Claim Group to be the Applicant to deal with the matters arising in relation to Native Title Determination Application Mayala WAD 6255 of 1998.

198    I mentioned earlier, that when the second day of this meeting did not proceed, that there was instead a Mayala Madja men’s meeting. I also mentioned before that the recommendations the subject of the 12 May 2009 meeting were not raised for discussion on 6 October. A resolution however was passed at that meeting which I consider to be a matter of some importance in respect to these motions. It was that the then current applicant in the Mayala application, David Wiggan, Lorna Hudson, Aubrey Tigan, Valerie Wiggan, Henry Mowaljarlie were no longer authorised to proceed with the Mayala application or to deal with matters arising in relation to it.

199    It appears on the same day that a further resolution was passed to authorise six persons, some different, some the same as the persons who were then the current applicant, to become the new members of the applicant. However, as I said earlier, that matter when it came before me in the Federal Court never proceeded to judgment because of opposition from those who are within the faction represented by the party applicants.

200    Taking all of these matters into account I consider it is arguable, but not strongly, that the interests of the party applicants may be affected by a determination in the proceedings.

Discretion

201    The following factors are relevant to the exercise of the Court’s discretion:

(a)    Proceedings for a determination of native title are proceedings in rem: they bind non-parties. It is also fundamental that an order which directly affects a third person’s rights or liabilities should not be made unless the person is joined as a party: Gamogab v Akiba (2007) 159 FCR 578 at [59], [60] per Gyles J.

(b)    Consideration of the rights and interests of the party joined would lead to a more accurate definition of the native title rights and interests claimed, including by limiting the scope of the rights and interests of an applicant: Akiba and Others on behalf of the Torres Strait Regional Seas Claim People v State of Queensland (No 2) (2006) 154 FCR 513 at [37].

(c)    A party joined would also be able to protect the native title rights and interests they claim to hold from erosion, dilution, or discount by the process of the Court determining the claims of an applicant: Bonner on behalf of the Jagera People #2 v State of Queensland [2011] FCA 321 at [17].

(d)    Whether the interest asserted can be protected by some other mechanism. For example, a factor in the exercise of the discretion in Akiba was that the interests could be protected under the Torres Strait Treaty: Akiba at [38].

(e)    Whether the applicant for the determination would be prejudiced if the party applicant is joined: Worimi Local Aboriginal Council v Minister for Lands for New South Wales (2007) 164 FCR 181 at [37]; and

(f)    The history of the proceedings: Worimi at [5], [34].

202    As I have already observed, as a matter of law, each party applicant brings their respective motion in their individual right, and not on behalf of the Mayala Claim Group. However, there can be no doubt that in their individual and collective assertions found in their affidavits it is not just they themselves, but indeed the entire Mayala people who, they assert, are the traditional owners of the land described by Sandy Isaac and others and to which I have referred.

203    Mr Sandy Isaac says as much, as do the other party applicants, describing the disputed boundary area variously as “our country”, “our traditional Mayala country”, “our traditional boundaries” and like expressions.

204    Against that background, it seems to me, it was always open to the party applicants and indeed to any other member or members of the Mayala native title claim group to seek to persuade the body of the Mayala native title claim group as a whole to their point of view as to the disputed boundary. There is no evidence that would support a finding of fact that their views are supported by the Mayala Claim Group as a whole. I refer in that respect to the decision of Ward v Northern Territory [2002] FCA 171 at paragraphs [24] and [25].

205    It was not disputed by counsel for the party applicants that there is dissension on the boundary issue within the Mayala Claim Group and, in a procedural sense, more importantly, within the persons who constitute the Mayala applicant.

206    Justice Drummond in Ankamuthi People v State of Queensland (2002) 121 FCR 68 referred to the not uncommon problem of intra-indigenous dissension in native title matters when considering the matter of discretion.

207    I considered Ankamuthi in the judgment I delivered concerning the Mayala application: Tigan v State of Western Australia. There, a notice of change of solicitors was filed unilaterally by some of the present party applicants but without the authority of the Mayala applicant.

208    In my judgment in Tigan I referred at paras [13]-[14] to what Drummond J said in Ankamuthi:

[13] The decision in Ankamuthi People v State of Queensland (2002) 121 FCR 68 was a case similar to the present one. In Ankamuthi dissension had broken out in the Native Title Claim Group. It seems that a large majority of them were unhappy with the way their native title claim was being conducted by their authorised applicants in respect of three native title applications. A notice of discontinuance was filed by a Land Council purportedly on behalf of the Ankamuthi People or at least the great majority of them.

[14]    Drummond J rejected the validity of the notice stating at [5]-[8]:

5.    But it is, in my view, beyond argument that the course adopted by the Land Council to give effect to what it understood to be the views of the large majority of the Ankamuthi People is without any legal foundation and can properly be described as a subterfuge to avoid compliance with the provisions of the Native Title Act 1993 (Cth).

6.    There is a procedure laid down in s 66B the Native Title Act to deal with what appears to be the dissension that has developed within the Ankamuthi People. If the applicants no longer have the authority of the Ankamuthi People to run this action on their behalf, they can be replaced by new applicants who now have that authority. But that can only be done by the Court on notice to all the parties. Instead of following that course, however, the Land Council followed the unjustified course that has provoked the present motion.

7.    The provisions of that Act are clear. Section 61 makes provision for, among other things, a person authorised by all members of the native title claim group to bring an application for determination of native title on behalf of the claim group. Such a proceeding is obviously a representative proceeding. By s 61(2), it is provided that where a person authorised by a claim group to bring an application of native title on behalf of the group makes such an application, that person is the applicant and none of the other members of the claim group is the applicant.

209    The actions of the party applicants and in the past of some of them, in my opinion amount to unilateral challenges outside of the structure for affecting such changes which are contemplated by the Native Title Act.

210    If, as I have found, the party applicants are seeking to protect not merely individual rights but in truth the rights of the whole Mayala Claim Group then it has been open to them for a number of years to either persuade the Mayala applicant to lodge a new native title claim asserting native title rights over an extended area including the disputed boundary zone or, to substitute a new applicant by persuading a meeting of the Mayala Claim Group to that end and for that new applicant to lodge a new and extended claim.

211    None of this has occurred even although the resolution of a Mayala Claim Group meeting on 6 October 2010 to replace the existing Mayala applicant with a substitute applicant was passed. I have mentioned the circumstances under which that did not translate to a s 66B Native Title Act approval by this Court.

212    No new authorisation meeting has, since October 2010, been held by the Mayala Peoples claim group.

213    Likewise, as a defensive strategy, it has always been open to the party applicants and any other member of the Mayala Claim Group to seek to be joined as respondents to this claim. The member Mr A Isaacs, I infer, threatened to do as much at the joint meeting of some members of the claim group members on 12 May 2010. Sandy Isaac in his affidavit said that as at November/December 2010 he realised that the only thing to do was to become a respondent to this application. Nearly 70 people it appears wrote, or a letter was written on their behalf, to the KLC about this prospect in November 2010.

214    It is beyond question, in my view, that the party applicants, or some of them at least, have known since late 2009 that a consent determination in this application was imminent. Yet they sat on their hands. Counsel for the party applicants, Mr Walker, disputes this and submits that they did all that was reasonable to be expected of them in the circumstances. I have no hesitation in rejecting that submission. It flies in the face of the facts to which I have referred. The party applicants say that they did not know about the consent determination until some two weeks ago. Even accepting this, it does not alter the fact that its imminence has been known for more than a year and that the need for a joinder application was seriously contemplated by at least some of the senior people within the Mayala Claim Group, at the latest as at November last year.

215    Moreover, Mr Walker, albeit not to the same extent as presently, was to a significant extent involved in this dispute since at least August 2009 on the part of those party applicants or at least a faction within the Mayala Claim Group which includes them.

216    Confronted by what was inevitable namely that a date was fixed for the consent determination hearing on Thursday 26 May, Mr Walker, with some assistance, marshalled and mounted these motions in a very short space of time and thereby demonstrated the party applicant’s capacity to protect their asserted interests.

217    I accept, on the evidence, that each of the Dambimangari and the Mayala Claim Groups is willing to negotiate with the other claim group about the boundary dispute and further that each of the party applicants it appears, is willing to negotiate with the Dambimangari claim group about the boundary dispute. I accept the submission of the applicant that while the Dambimangari claim group and ultimately the Mayala Claim Group are open to a resolution process, individuals within the Mayala Claim Group have adopted an uncompromising position which has made attempts to resolve this matter very difficult. The party applicants are but a part, a small part and a dissenting part within the Mayala Claim Group, most of which agrees with the existing boundary between the Mayala and Dambimangari application areas.

218    I infer this last fact from the relatively small degree of support for these motions in the context of the size of the Mayala Claim Group as a whole.

219    As to the question of delay, this would not of self be a reason for denying the relief which the party applicants seek. However, it is in this case against the background as I have described it a powerful ingredient in the mix of factors which I have taken into account. I refer generally to the observation of French J as his Honour then was, in Sampi v State of Western Australia (No 2) (2005) 224 ALR 358. In saying that, I acknowledge that Sampi is not entirely on all fours with the present case. Nonetheless there are observations within his Honour’s judgment which are apt by analogue to the present case.

220    I consider that the party applicants are genuine and sincere in their claims. It is nonetheless incumbent on the Court to consider the legitimate expectations of the other parties involved in the proceeding. In my view, there exist powerful and legitimate expectations on the part of the Dambimangari claim group as well as the respondents to their claim that a determination by consent would proceed tomorrow. All of the parties to the claim have worked assiduously to that end through a process of mediation over a number of years. The Dambimangari claim group have been waiting since 1998 for what is scheduled to occur tomorrow. I do not think they should have to wait any longer. It would work a very significant prejudice to all the existing parties were I to accede to these motions.

221    I have no reason to think that the Dambimangari people will not negotiate in good faith with the Mayala people or such of them as wish to involve themselves either as a whole or in part toward mutual recognition of shared interests. Indeed, the evidence demonstrates positively that they have for a long time, intended to do so and have said that they will do so and I find that they are likely to do so.

222    A final factor which I have taken into account although it has not carried as much weight as the other factors is the fact that significant resources have been committed to the staging of the consent determination hearing by the KLC and the Dambimangari Aboriginal Corporation. While final invoices will not be received until after 26 May 2011, according to the affidavit evidence of Justine Twomey, these costs are likely to be in the order of $200,000 exclusive of staff time and wages. She also deposes that, at this late stage, the majority of these costs would be irrecoverable if the proposed consent determination hearing did not proceed. I emphasise that this consideration is but one of a number which I have taken into account in coming to my conclusion.

223    I would, in the exercise of my discretion, decline to join the party applicants to these proceedings.

224    For all these reasons I would order that the motions of each of the party applicants be dismissed.

225    The other parties advised the Court that they did not seek their costs from the party applicants.

226    Accordingly there will be no order as to costs.

Associate:

Dated:    5 July 2011