FEDERAL COURT OF AUSTRALIA

Cheinmora v State of Western Australia [2013] FCA 727

THE COURT ORDERS THAT:

1.    The affidavit of Jemma Maree Arman affirmed 20 June 2013, is to be used only for the hearing of the applicant’s interlocutory application dated 12 June 2013 regarding the removal of Kalumburu Aboriginal Corporation as a party to this proceeding.

2.    The Kalumburu Aboriginal Corporation cease to be a party to the proceedings pursuant to s 84(8) of the Native Title Act 1993 (Cth).

3.    There be no order as to costs.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

1    I made orders on 21 June 2013 principally in terms of the applicant’s interlocutory application filed on 12 June 2013 removing Kalumburu Aboriginal Corporation (KAC) as a party to the proceedings. These are my reasons for so ordering. They, to a large extent, reflect the detailed written submissions filed by the applicant, and which I substantially accept. No substantive submissions were filed by KAC and its counsel was granted leave not to appear at the hearing.

2    In support of the application the applicant filed an affidavit of Jacki Lynn Cole sworn 12 June 2013 (Cole affidavit) and an affidavit of Jemma Maree Arman, affirmed 20 June 2013 (Arman affidavit).

Joinder of Kalumburu Aboriginal Corporation

3    I made an order joining KAC as a respondent on 13 September 2011. At that time, KAC’s interests were described as being its “proprietary interests” in the general lease J284270, comprising Lots 21, 41 and 42 of Kalumburu Reserve 21675 (GL J284270), and which were said to be interests that may be affected by a determination of native title in these proceedings. The applicant, at that time, accepted that this was a sufficient interest, prima facie, which may be affected by a determination in the proceedings. However, the applicant, as I will explain, has put forward provisions within a proposed Minute of Consent Determination of Native Title (MCDNT) to acknowledge and protect the interests of KAC.

The Court’s power to dismiss a respondent to native title proceedings

4    The Court’s power to dismiss a party to native title proceedings arises from s 84(8) and (9) of the Native Title Act 1993 (Cth) (the Native Title Act), which provide:

Dismissing parties

(8)    The Federal Court may at any time order that a person, other than the applicant, cease to be a party to the proceedings.

Court to consider dismissing parties

(9)     The Federal Court is to consider making an order under subsection (8) in respect of a person who is a party to the proceedings if the Court is satisfied that:

(a)     the following apply:

(i)    the person's interests may be affected by a determination in the proceedings merely because the person has a public right of access over, or use of, any of the area covered by the application; and

(ii)    the person's interests are properly represented in the proceedings by another party; or

(b)    the person never had, or no longer has, interests that may be affected by a determination in the proceedings.

5    Section 84(8) reflects a wide and unfettered discretionary power. Section 84(9) provides particular circumstances where dismissal is contemplated but is not exhaustive of the circumstances where the Court's power to dismiss a party from a native title proceeding can be exercised under s 84(8): Butterworth v Queensland (2010) 184 FCR 397 at [39].

6    In Starkey v South Australia (2011) 193 FCR 450, Mansfield J made an order under s 84(8) dismissing an indigenous respondent, although his Honour was proceeding on the assumption that that respondent continued to have a relevant "interest" in the proceedings. At [70], his Honour said:

… [i]t is not in the interests of justice that [he] remain a party to the proceeding, as his continued status as a respondent will be likely to delay and interfere with the progress of the claim towards a consent determination, and there is not otherwise sufficient reason shown for him to remain a party.

7    The interests of justice as characterised in a particular case will be enough to warrant the exercise of the discretionary power under s 84(8).

What constitutes an “interest” for the purposes of section 84(9)

8    “Interests” for the purposes of s 84(9) bears the same meaning as “interests” for the purposes of s 84(5): Budby on behalf of the Barada Barna People v State of Queensland [2010] FCA 1017 at [12]. 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: Byron Environment Centre Incorporated v Arakwal People (1997) 78 FCR 1 at 7-8 per Black CJ. A sufficient interest may be “that of a corporation whose activities may be curtailed or otherwise significantly affected by a determination”, but that does not extend to an interest in furthering the interests of the corporation’s members: Byron; Adnyamathanha People No 1 v South Australia (2003) 133 FCR 242; Budby.

Consideration

9    The original creation and vesting of Kalumburu Reserve and the various amendments to its area as set out in the reserve record are past acts pursuant to s 228 of the Native Title Act as they occurred before 1 January 1994.

10    The applicant has pressed a claim for the application of s 47A of the Native Title Act to Kalumburu Reserve. It is unnecessary for present purposes to consider the merits of that claim.

11    Pursuant to s 47A(3)(a)(i), a determination of native title over the area does not affect the validity of the grant or vesting of the reservation and pursuant to s 47A(3)(b) the non-extinguishment principle applies to the grant and vesting of the reservation.

12    Section 238(3) and (4) of the Native Title Act sets out the effect of the non-extinguishment principle as follows:

Rights and interests wholly ineffective

(3)    In such a case, if the act is wholly inconsistent with the continued existence, enjoyment or exercise of the native title rights and interests, the native title continues to exist in its entirety but the rights and interests have no effect in relation to the act.

Rights and interests partly ineffective

(4)    If the act is partly inconsistent with the continued existence, enjoyment or exercise of the native title rights and interests, the native title continues to exist in its entirety, but the rights and interests have no effect in relation to the act to the extent of the inconsistency.

13    The operation of s 238 operates, therefore, to suppress the exercise or enjoyment of native title rights and interests to the extent that they are inconsistent with the rights granted by the past act. In this case, the relevant rights are the rights granted to the Aboriginal Lands Trust (ALT) pursuant to the vesting of Kalumburu Reserve and then further granted by the ALT to KAC pursuant to GL J284270.

14    The applicant submits, and I accept, that KAC’s rights and interests pursuant to GL J284270 are derived from, and limited by, ALT’s rights and interests in Kalumburu Reserve.

15    Accordingly, to the extent that there is an inconsistency between the rights of KAC pursuant to GL J284270 and the enjoyment or exercise of native title rights and interests pursuant to a determination of native title in these proceedings, KAC’s rights prevail as a matter of law.

Recognition of Kalumburu Reserve and GL J284270 in the MCDNT

16    The applicant, by letter to KAC’s lawyer, Mr Midena, of 14 May 2013, proposes to recognise GL J284270 as an “other interest” pursuant to s 225(c) of the Native Title Act in the MCDNT and, pursuant to s 225(d), to set out its relationship to the native title rights and interests in the manner set out in the 14 May 2013 letter. The draft proposed MCDNT is in evidence before me.

17    To the greatest extent necessary and possible, the rights of KAC in GL J284270 are acknowledged and preserved by the terms proposed in the draft proposed MCDNT. KAC has not raised any concerns about these proposed terms.

18    I accept the submission of the applicant that KAC’s interest in GL J284270, while being an interest which is a relevant interest for the purposes of s 84(5), will be appropriately acknowledged by the proposed MCDNT. Section 238 affords full protection to KAC in respect to its interest in GL J284270.

KAC’s interest in post determination governance

19    Through the nomination of Balanggarra Aboriginal Corporation (BAC) as the Prescribed Body Corporate (PBC) filed in these proceedings by the applicant on 10 May 2013, the governance structure that has been adopted by the claim group is the result of extensive consultation and was authorised by the claim group at a meeting which took place from 1-2 May 2013.

20    At the 1-2 May 2013 meeting the claim group instructed BAC to incorporate Land Management Corporations to allow Land Groups to set up and work through those Land Management Corporations, on behalf of the PBC, to do native title business in their Land Group area. There are four Land Groups.

21    KAC has asserted to the applicant that it has an interest in the post determination management of native title in the area of its interest and has stated at case management conferences that it will not consent to a determination of native title in these proceedings unless the determination is that native title should be held by two separate prescribed bodies corporate.

22    However, I do not accept that KAC, for the purpose of these proceedings, has a legitimate interest in the way in which native title is managed by the claim group or their nominated prescribed body corporate after determination.

KAC’s role with respect to community members

23    In an email from Mr Midena to the KLC of 15 May 2013, he wrote that earlier correspondence from the KLC did not acknowledge:

•    that Land Group 1 has authorised 3 of its elders to represent the Group in relation to the native title claim, namely, Trevor Waina, Augustine Unghango and Doreen Unghango.

24    However, the claimed authorisation of those individuals to act on behalf of Land Group 1 is not relevant to the question of KAC’s role as a respondent in these proceedings. In any event, the three named individuals are members of the claim group in the current proceedings. As such, their native title rights and interests are represented by the applicant. Neither these individuals nor the persons whom they are purported to represent have made applications to become respondents to these proceedings in their own right.

25    The purported authorisation of those three individuals aside, it is not clear on what basis KAC is claiming to represent the interests of those individuals or of Land Group 1 in general. KAC has not to date asserted that it is authorised to act on behalf of the named individuals or “Land Group 1” generally.

26    Moreover, 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. However, a person joined as a respondent cannot act in a representative capacity on behalf of others. 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.

27    Even were there evidence of authorisation, and there is none, KAC cannot act in a representative capacity for the named individuals or for “Land Group 1” generally.

KAC’s purported interest arising out of its objectives

28    Further, in the email from Mr Midena to the KLC of 15 May 2013, Mr Midena noted that the KLC’s letter of 14 May did not acknowledge:

•    that KAC's purposes (at Rule 3 of its Rule Book) include supporting the local traditional owners.

29    It appears from this, that to some extent, KAC’s goal in becoming and remaining a respondent to these proceedings was to support the local traditional owners. Comments made by Mr Midena on behalf of KAC in recent case management conferences, deposed to at [36]-[38] of the Cole affidavit, further indicate that that is the case.

30    However, an Aboriginal corporation is not able to rely on the interests of its members as a basis for becoming, or remaining as, a respondent to a native title proceeding.

31    In Harrington-Smith on behalf of The Wongatha People v State of Western Australia [2002] FCA 184, Lindgren J, summarising the authorities, considered at [2] :

… a society, organisation, association or other body which voices, protects or promotes the concerns and interests of its members does not, by reason of that circumstance alone, have "interests [which] may be affected by a determination in the proceedings" for the purposes of subs 84(5) of the Act.

32    In Budby at [10]-[12] Collier J provided a more detailed review of previous decisions:

[10]    In Byron Environment Centre Incorporated v Arakwal People (1997) 78 FCR 1, the Full Court articulated principles identifying the scope of “interests” for the purposes of s 84(5) of the Act. Section 84(5) provides, inter alia, that the Federal Court may at any time join any person as a party to proceedings if satisfied that the person's interests may be affected by a determination. In Byron 78 FCR 1 the Court found in summary that the claimed “interests”:

(a)    need not be proprietary, legal or equitable in nature;

(b)     must be above that of an ordinary member of the public and must be not that of a mere intermeddler or busybody;

(c)     must be genuine and the affectation must be genuine, and must be more than mere emotional, conscientious or intellectual interests;

(d)     must be “not indirect, remote or lacking substance…”, “capable of clear definition” and “of such a character that they may be affected in a demonstrable way by a determination”;

(e)     may be that of a person who has a special, well-established non-proprietary connection with land or waters which is of significance to that person, or persons who habitually or regularly use or enjoy public land or waters;

(f)     may be that of a corporation whose activities may be curtailed or otherwise significantly affected by a determination.

[11]    Subsequently, in Adnyamathanha People No 1 v South Australia (2003) 133 FCR 242 Mansfield J refused an application by an Aboriginal corporation to join proceedings under s 84(5) on the basis that, although the relevant corporation had an active role in promoting the articulation and understanding of the relationship of Aboriginal persons to country, had an interest in maintaining the integrity of those programs and had an interest in furthering the benefits to aboriginal persons of intellectual property which they owned, nonetheless those interests were not “interests” in terms of s 84(5) of the Act. In effect, the interests of the relevant corporation in that case were interests of the individual Aboriginal persons who were members of the corporation, and who could themselves be parties to the application (at [34]). Similarly in Combined Dulabed and Malanbarra/Yidinji Peoples v State of Queensland (2004) 139 FCR 96 Spender J found that there was no evidence that the interests of the relevant Aboriginal corporation could be affected by a determination in the proceedings beyond the interests of its individual members, and that accordingly no basis had been shown for joining the corporation as a party to the proceedings.

[12]    In my view the principles articulated in these cases are applicable because “interests” for the purposes of s 84(5) bears the same meaning as “interests” for the purposes of s 84(9) of the Act.

    (Original emphasis)

33    In these proceedings, to the extent that the interests asserted by KAC arise out of its objectives as set out above, those interests are the interests of the individual Aboriginal persons who are members of KAC and, as such, are not a sufficient basis for KAC’s continued involvement as a party to these proceedings. Any interest that KAC claims to have which arises out of its desire to further the interests of its members is not a sufficient basis on which to maintain KAC as a party to the proceedings.

34    Furthermore, the objectives set out in KAC’s current rule book include the following:

3.2     ...

    d)    To help and encourage Aboriginal people to maintain their traditional culture, heritage and social values.

...

3.3     g)    To make or join in or support any application for Native Title of any land and hold any titles to land, directly or indirectly, whether or not as a result of Native Title Claim, on behalf of the traditional owners or any aboriginal community.

h)     to take such action or support as the corporation decides is appropriate in relation to any application under the Native Title Act made by any person or corporation and to discharge any functions under that Act.

...

k)    to work within and to respect aboriginal tradition and culture.

35    There is nothing in a determination of native title that would affect KAC’s ability to carry out its objectives in the future.

36    Any interest which KAC claims to hold which arises out of:

(a)    its power to do anything lawful to carry out its objectives;

(b)    its objectives as set out in 3.2(d) or 3.3(g), (h) or (k) of its current rule book; and

(c)    an action which KAC has chosen to take in accordance with its objectives to further the interests of a sub group of members of KAC, who are also members of the claim group, and who have or may have a special attachment to a particular area of the determination area,

is remote and is not a sufficient basis on which to maintain KAC as a party to the proceedings.

The 2013 BAC Rules

37    It is of note that the 2013 BAC Rules require that native title decisions must be made in accordance with the decision of the “Balanggarra People whose native title rights and interests are affected by the decision”, after ensuring that those people understand the purpose and nature of the decision and consent to it. In other words, the decision should be made in accordance with the traditional decision making processes of the affected native title holders or, if there is no appropriate traditional decision making process, through a process agreed to and adopted by them.

38    This process for native title decision making, therefore, fully recognises the primacy of traditional decision making processes and bind BAC to ensure that the persons whose native title rights and interests are most affected by any given native title decision are the ultimate decision makers.

39    The resolution to adopt a “Land Management Corporation” made at the 1-2 May 2013 authorisation meeting represents an acknowledgement by the wider claim group of the need of the relatively isolated community of Kalumburu to have a local team for the management of native title in that area.

40    This approach is not inconsistent with the broad acknowledgement of the primacy of “local traditional owners” in decision making that is evidenced by the creation of the Land Group model by Balanggarra in the late 1990s and which can be seen as the dominant view of the small group consultations evidenced in Dr Doohan’s account of the small group consultations held in late 2012.

Delay to the finalisation of the proceedings and the costs

41    The continued participation of KAC in the proceedings is likely to cause delay to the determination of the proceedings. The Balanggarra application was lodged with the National Native Title Tribunal in 1995, almost 18 years ago.

42    Indeed, there have been statements made by Mr Midena in the case management conferences referred to at [36]-[38] of the Cole affidavit which evidence that KAC would cause delay to the finalisation of the proceedings on the basis of its claimed interest in any post-determination governance model.

43    Provisional listings for a determination of these proceedings were made for 10 December 2012 and 29 May 2013. Each of those listings was ultimately abandoned for reasons unrelated to this interlocutory application.

44    Given the length of time that has already passed since commencement, it is in the interests of justice to resolve these proceedings as expeditiously as possible.

Exercise of the Court’s discretion

45    I am well satisfied that the Court should exercise its discretion under s 84(8) to order that KAC cease to be a party to the proceedings.

46    KAC’s interest in GL J284270 will not be prejudicially affected by a determination of native title in the proceedings and in fact will be specifically recognised as being an interest which prevails over the rights and interests of the native title holders. KAC has no other interest in the proceedings that is sufficient for it to remain a party.

47    The continued presence of KAC as a party to the proceedings will likely delay and interfere with the progress of the claim towards a consent determination in circumstances where the parties are working toward a hearing for the purposes of determining the native title claims by consent on country in the week of 5 August 2013.

48    It is in the interests of justice that KAC be dismissed as a party.

49    There will be orders in terms of the interlocutory application. I will also make an additional order that the affidavit of Jemma Maree Arman affirmed 20 June 2013, be used only for the hearing of the applicant’s interlocutory application dated 12 June 2013 regarding the removal of KAC as a party to this proceeding.

Associate:

Dated:    25 July 2013