FEDERAL COURT OF AUSTRALIA

Holborow v State of Western Australia (No 2) [2013] FCA 1040

THE COURT ORDERS THAT:

1.    The Form 1 Native Title Determination Claimant Application in this proceeding be re-amended in the form that it appears in annexure CKS-2 to the affidavit of Chau Kim Savas sworn 1 July 2013 and filed in this form as soon as practicable.

2.    The service of the interlocutory application for leave to amend and supporting documentation on any other person other than the State of Western Australia be dispensed with, but the applicants notify other respondents of the making of this order as soon as practicable.

3.    The applicants are to provide a copy of the re-amended Form 1 Native Title Determination Claimant Application to any respondent upon request, but otherwise service of the re-amended Form 1 Native Title Determination Claimant Application be dispensed with.

4.    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        By interlocutory application filed on 14 June 2013, the applicants seek to amend (or re-amend) the claimant application filed in this proceeding.

2        The essence of the proposed amendment is to widen the membership of the claim group so that the people on whose behalf the claim is brought are stated to include the descendants of Mirbin Lowe and nine other apical ancestors mentioned who recognise themselves, and are recognised by a substantial number of those other Aboriginal people who are cognatic descendants of one or more of these ancestors, as a member of Mardudhunera community or group.

3        The original claimant application was lodged with the National Native Title Tribunal on 1 August 1996. It was later amended by order of the Court on 27 January 1999.

4        Section 64 of the Native Title Act 1993 (Cth) (NTA) provides for the amendment of claimant applications. However, s 64 deals only with certain types of amendments involving the land or waters claimed. Apart from s 64, amendment of applications is controlled by the Federal Court Rules 2011 (Cth) and the leave of the Court to amend an application is therefore required pursuant to R 8.21.

5        It also appears that the requirements of s 251B of the NTA have to be met in order for an amendment to a claimant application to be effective: Lovett on behalf of the Gunditjmara People v State of Victoria (No 3) [2011] FCA 867 at [9]. Section 251B deals with the process of authorisation of an application by the claim group according to a process of decision-making under the traditional laws and customs of the persons in the claim group, or, where there is no such process, according to a process agreed to and adopted by the claim group.

6        Section 66B of the NTA also has application, but only where one or more members of the native title claim group seek to replace a current applicant on the claimant application. This is not relevant in this case.

7        In this case, pursuant to an earlier application under s 66B on 20 November 2002, Patricia Rosalie Cooper was replaced as an applicant by Robert William Boona: Holborow v State of Western Australia [2002] FCA 1428. Valerie Holborow and Kevin Kelvin Cosmos remained listed as applicants. These “replacement” applicants now seek to re-amend the claimant application in the manner described above.

8        By affidavits affirmed on 22 May 2013, each of Kevin Cosmos and Robert Boona confirm they are one of the named members of the applicant and that the applicant group continues to be authorised by all persons in the native title claim group to deal with matters arising in relation to the claimant application and that the applicant group applied to amend the application in its amended form. They also say that the area covered by the amended claimant application does not exceed the area covered by the application as currently entered in the National Native Title Register. Thus, the particular terms of s 64 of the NTA are not relevant as there is no relevant change to the claim area.

9        The application to amend the claimant application is also supported by affidavits of Chau Kim Savas sworn on 25 June 2013 and 1 July 2013, and Graham O’Dell affirmed on 1 July 2013.

10        In her first affidavit Ms Savas explains that on 17 and 18 September 2012 she attended a meeting in Wickham between members of the Kuruma Mardudhunera people (WAD6069/1998) (KM) and the Yaburara Mardudhunera people (WAD127/1997) (YM). She says the meeting was mediated by the National Native Title Tribunal and was for the purpose of attempting to resolve the overlap between the KM and the YM at that stage. At the meeting, the KM proposed that the two groups enter into an inter-indigenous agreement which would provide that the KM would amend their boundary to withdraw from the overlap area, and the YM would amend their claim group description to include all Mardudhunera people. No resolution was reached at that meeting.

11        She further says that following that meeting, further discussions and amendments were made to the proposed inter-indigenous agreement which subsequently became acceptable to the parties.

12         Accordingly, she says, between 16 and 23 April 2013 each of the KM and YM applicants signed an inter-indigenous agreement dated 1 May 2013 and a deed of variation dated 12 June 2013 giving effect to what was proposed at the 17 and 18 September 2012 meeting.

13        Ms Savas further says that on 28 March 2013, a notice was given to members of the YM claim group of a meeting to be held on 2 May 2013 to authorise the amendment of the claim. She says all members of the applicant group of the Yaburara and Coastal Mardudhunera people and who were descendants of the following ancestors were invited to attend:

(1)    Mirbin Lowe

(2)    Willy Cooper

(3)    Alf Boona

(4)    Woggi

(5)    Pantun    

(6)    Tutparinya

(7)    Eva

(8)    Mabel

(9)    Jessie

(10)    Toby

14        A copy of that notice is produced by Ms Savas.

15        Ms Savas further says that she has had the opportunity to observe the YM’s decision-making process and has observed that the community adopt a decision-making process by which representatives at a community meeting discuss a proposed decision amongst each other and then with family members before voting by a show of hands at a further meeting. A resolution is passed when there is a majority of those present and voting at the community meeting.

16        She further says that on 2 May 2013, she attended a meeting at Wickham Community Hall which was attended by members of the KM and YM claim groups and in accordance with that decision-making process it was resolved to instruct Corser & Corser, solicitors, to file the claimant application and to amend the YM claim group description of the Yaburara and Mardudhunera people in accordance with the terms of set out in the proposed amended claimant application.

17        By her second affidavit, Ms Savas annexed the proposed amended claimant application dated 7 May 2013, noting that the filed amended claimant application was incorrect as it incorporated p 3 from a previous draft version and that p 3 should be amended in accordance with the authorisation described by her.

18        Mr O’Dell by his affidavit confirmed that a notice was sent to members of the KM claim group who have a Mardudhunera ancestry, and a copy of that notice is produced. It included materials that incorporated the substance of the notice that Ms Savas produced concerning the notice to the YM claim group.

19        He also said that on 2 May 2013, he attended a meeting at the Wickham Community Hall. He understood that YM claim group members were present and said that the meeting was also attended by members of the KM group described in the KM meeting notice who are of Mardudhunera descent.

20        Mr O’Dell further stated that the authorisation meeting occurred in two parts, due to cultural sensitivities on the day. Some members of the YM claim group were split into one group (first YM group) whom Ms Savas joined and managed the process of passing the resolution. Other members of the YM claim group were split into another group (second YM group) whom he joined and managed the process of passing the resolution.

21        He says that in his presence the second YM group unanimously resolved and authorised the following resolution:

Claim Authorisation

In accordance with the agreed and adopted decision making process affirmed today the members of the Marduhunera People present at this meeting resolve:

1.    to authorise a Marduhunera native title claim over the country, for the Marduhunera People;

2.    to authorise these people to be the Applicants for that claim, for the purpose of the Native Title Act

a.    Kevin Cosmos

b.    Valerie Holborow

c.    Robert Boona

3.    That further research be made south of the Fortescue River to confirm the traditional boundaries and membership of the native title claim group.

4.    If the research shows the land south of the Fortescue is Kurrama, the Marduhunera claim will be removed on that land.

The Mardudhunera People are those Aboriginal people who:

–    are a cognatic descendant of one or more of the following apical ancestors:

•    Mirbin Lowe

•    Willy Cooper

•    Alf Boona

•    Woggi

•    Tutparinya

•    Pantun

•    Eva

•    Mabel

•    Jessie

•    Toby

–    recognise themselves as, and are recognised by a substantial number of the other persons referred to above, as a member of the Mardudhunera community or group.

22        I infer that the same claim authorisation was made by both the first YM group and the second YM group, as it has been described by Mr O’Dell, and also infer that the authorisation process described above by Ms Savas was the same in respect of the second YM group.

23        In light of this affidavit material I am satisfied that the applicants in WAD127/1997 move for the amendment of the claimant application and that the members of the initial claim group as well as the proposed enlarged claim group including the KM people of Mardudhunera descent as individual groups and as a whole have authorised the amendment of the claimant application in the manner proposed. Thus, I am satisfied that the requirements of s 251B of the NTA have been met.

24        In these circumstances I would grant leave to amend or re-amend the claimant application in this proceeding in the form that appears in annexure CKS-2 to the affidavit of Chau Kim Savas sworn on 1 July 2013, require the re-amended claimant application to be filed but otherwise dispense with service of it, and make other consequential orders.

ORDER

25        The Court orders that:

1.    The Form 1 Native Title Determination Claimant Application in this proceeding be re-amended in the form that it appears in annexure CKS-2 to the affidavit of Chau Kim Savas sworn 1 July 2013 and filed in this form as soon as practicable.

2.    The service of the interlocutory application for leave to amend and supporting documentation on any other person other than the State of Western Australia be dispensed with, but the applicants notify other respondents of the making of this order as soon as practicable.

3.    The applicants are to provide a copy of the re-amended Form 1 Native Title Determination Claimant Application to any respondent upon request, but otherwise service of the re-amended Form 1 Native Title Determination Claimant Application be dispensed with.

4.    There be no order as to costs.

Associate:

Dated:    10 October 2013