FEDERAL COURT OF AUSTRALIA

Far West Coast Native Title Claim v State of South Australia (No 6)

[2013] FCA 1270

REASONS FOR JUDGMENT

1    On 8 November 2013, I made orders on the amended interlocutory application of Robert Victor Miller of 30 October 2013 that the orders sought on his amended interlocutory application were refused. The question of costs was reserved.

2    At that time, I indicated that reasons for those orders would be published at a later time. I now publish those reasons.

BACKGROUND

3    The relevant history of the Far West Coast Native Title Claim and of Mr Miller’s concerns about it have largely been set out in Far West Coast Native Title Claim v South Australia (No 2) (2012) 204 FCR 542 at 544-545 ([4]-[11]), in Far West Coast Native Title Claim v South Australia (2011) 191 FCR 381 at [6]-[12], and in Far West Coast Native Title Claim v State of South Australia (No 5) [2013] FCA 717 at [5]-[23].

4    In summary, the present Far West Coast Native Title Claim came about by way of orders made on 18 January 2006 giving leave to consolidate two previously separate native title claims, the Far West Coast Native Title Claim (the proceeding number of which was the same number as that of the present proceeding, SAD 6008/1998) (old FWC claim) and the Mirning Native Title Claim (the proceeding number of which was WAD 6016/1998) (old Mirning claim), into a new combined proceeding (the present proceeding).

5    Those orders gave effect to an agreement between the old FWC claim group and the old Mirning claim group (Spear Creek agreement) reached at a meeting in 2004 at Spear Creek (Spear Creek meeting). At a further meeting in July 2005 at the Standpipe Hotel in Port Augusta (Standpipe meeting), the old Mirning group had authorised certain persons to do all that was necessary to consolidate the old Mirning claim with the old Far West Coast claim. At yet further meetings in December 2005 in Ceduna (Ceduna meeting), the old Far West Coast claim group had agreed to consolidate their claim with the old Mirning claim, and then the new Far West Coast claim group had authorised the new claim’s applicants to bring the new Far West Coast claim.

6    Mr Miller is a Mirning man. He is a member of the native title claim group in the current proceeding. He is not a party to the new FWC claim in his own right under s 84 of the Native Title Act 1993 (Cth) (the NTA).

7    It has been noted in the past judgments referred to above that this matter has been progressing towards a consent determination. Since the last judgment in this matter, significant steps have been taken towards that end.

8    At a meeting on 3 August 2013, the native title claim group in the present proceeding approved in principle the resolution of the native title determination application by consent. On 1 and 2 November 2013, a further meeting was held. At that meeting, the native title claim group approved a draft consent determination. While Cabinet had not then formally approved the draft consent determination (it has now done so), it was then understood that the solicitors for the State of South Australia are content with the present terms of the draft consent determination. A hearing has been listed for 5 December 2013 when the Court will be asked to make orders by consent pursuant to s 87 of the NTA that will recognise the native title rights and interests of the native title claim group in the present proceedings. Those orders, if made, will finally dispose of the present proceeding.

MR MILLER’S INTERLOCUTORY APPLICATION

9    On 30 September 2011, Mr Miller filed an interlocutory application, and then amended that application on 16 March 2012. By that amended application, Mr Miller sought the following orders:

(1)    that the old Mirning claim be re-instated as a separate application and not be combined with the old FWC claim (in effect, that is, that the consolidation be undone) (order 1);

(2)    that Mr Miller be joined as a respondent party to the present proceeding under s 84(5) of the NTA so as to be in a position formally to advance his (and others’) concerns (order 2);

(3)    in the alternative to order 2, that the applicant produce evidence to the Court in relation to the new FWC claim of the character specified in subs 84D(1)(a) and (b) of the NTA (order 3); and

(4)    such other orders as the Court deems appropriate (order 4).

10    Mr Miller relied on s 84D(2)(c) of the NTA for his standing to seek order 3.

11    On 10 July 2012, order 1 was refused: Far West Coast Native Title Claim v South Australia (No 2) (2012) 204 FCR 542 at 549 [34]. The other orders were not adjudicated upon at that time. Subsequently, the applicant filed an affidavit of Osker Linde of 14 November 2012. That affidavit amounted to the production of the evidence sought by order 3 of Mr Miller’s application: Far West Coast Native Title Claim Group v State of South Australia (No 4) [2012] FCA 1468 at [2].

12    The remaining orders 2 and 4 were listed for hearing on 17 December 2012. At that hearing, counsel for Mr Miller indicated that order 2 was no longer sought (the order that Mr Miller be included as a respondent party): Far West Coast Native Title Claim Group v State of South Australia (No 4) [2012] FCA 1468 at [3]. That left only order 4, an order for “such other orders as the Court deems appropriate”.

13    At the hearing on 17 December 2012, counsel for Mr Miller proposed that Mr Miller’s interlocutory application be further amended to seek the following additional orders:

(5)    that the Court finds that the authorisation resulting in the orders of 18 January 2006 (consolidating the previous native title claims to form the present proceeding) was defective (order 5);

(6)    pursuant to s 84D(4)(b), that the consent determination orders include three specific provisions relating to the establishment of a separate Mirning Aboriginal Corporation and that the Far West Coast Aboriginal Corporation, the proposed prescribed body corporate for any consent determination, refer matters arising on Mirning country to the Mirning Aboriginal Corporation (order 6); and

(7)    that the claim group be redefined so as to include the descendants of Gordon Charles Naley as part of the Mirning people (order 7).

14    I refused to give leave at that time for any of those additional orders to be sought: Far West Coast Native Title Claim Group v State of South Australia (No 4) [2012] FCA 1468 at [4].

15    As to order 5, I held at [5]-[6] that:

It is obvious that [order 5] does not seek interlocutory orders or any orders. That may well be because s 84D provides for any defects in authorisation to be accommodated within Court orders, rather than to necessarily result in the termination of an application under s 61 but it necessarily involves, as the argument was foreshadowed, the final determination as to the quality of the authorisation to bring the application itself. It is not presently clear how such a final determination can be made on an interlocutory application.

I am cautious about making a determination on an ultimate issue of fact on an interlocutory application. Counsel for Mr Miller has not persuaded me at present that such a step is arguably appropriate.

16    As to order 6, I held at [7]-[9] that:

I am … cautious about the power, or the appropriateness, if there is power on an interlocutory application to make … order 6 ... Indeed, it appears to me that there is a somewhat inherent contradiction in the proposition that the Court should, on the application of a person who is a member of the claim group, require a consent determination where presently there is none to include certain terms which may not be supported by the applicant, the claim group, or indeed by the persons who constitute one of the several sub groups of the claim group identified as the Mirning people, or by the respondents. There is then by definition no consent.

It is a matter for the applicant as to what terms of a determination the applicant will agree to, and for the State and other respondents as to what terms of a determination they will agree to, if indeed there is agreement at all. As is commonplace, counsel for the applicant has indicated that, in the event of a consent determination being agreed upon at that level, the applicant will then revert to the claim group as defined in the native title application for general instructions at a meeting which would then take place.

At present, therefore, I am not disposed to allow the amendment of the interlocutory application to seek [order 6].

17     Order 7 was rejected on grounds set out at [10]-[11] of those reasons.

18    I stood over the remainder of Mr Miller’s interlocutory application, which consisted only of order 4, “such other orders as the Court deems appropriate”, to a later date to be fixed on the following terms set out at [13]:

The proposed consent determination, if there ever becomes one proposed, may or may not accommodate [the] concerns [of Mr Miller and associated Mirning people]. I do not know. Indeed they too do not know yet. If it does not, and notwithstanding that the claim group as a whole supports the consent determination which is proposed, it may then be an appropriate time for the Mirning people, or at least some of the Mirning people, to express their concerns through the revival of some application before the Court. I am not to be taken as accepting that they should do that, or that if they do that it would be a successful application but it seems to me that that is the appropriate time at which the sort of concerns which are now expressed, but expressed on behalf of some only of those people who identify as Mirning at present, should [be raised].

19    On 30 October 2013, Mr Miller filed an amended interlocutory application in this proceeding that sought the following orders:

1)    Such other orders as the Court deems appropriate:

A)    That the Court make a declaration that the authorisation (resulting in the orders of 18 January 2006) did not meet the criteria for authorisation contained in section 251B of the Act and is accordingly defective.

B)    That the Court make declarations that the Spear Creek Agreement to combine the Mirning and Far West Coast Native Title Claims and the Spear Creek Agreement to include Ted Roberts and his family in the Far West Coast Native Title Claim, both dated 22 May 2004:

(i)    are binding on the Applicants; and

(ii)    include a provision that Mirning People have final say over Mirning land and sea.

C)    That, pursuant to section 84D(4)(b) of the Act, the Court make orders:

C.1    that the orders of 18 January 2006 be suspended until such time as

(i)    a meeting of the members of the native title claim group of WAD6008/98 [sic] is held; and

(ii)    if the meeting of the members of the native title claim group of WAD6008/98 [sic] decide to authorise the amalgamation of WAD6008/98 [sic] with SAD 6008/1998 (as it was prior to 18 January 2006) then a joint authorisation meeting of the native title claim groups of WAD6008/98 [sic] and SAD 6008/1998 (as it was prior to 18 January 2006) be held to determine whether to authorise the amalgamation.

C.2    That the Consent Determination comply with the declarations in B above.

20    I proceed on the assumption that the references to “WAD6008/98” are references to the old Mirning claim (proceeding number WAD 6016/1998). (The matter with proceeding number WAD 6008/1998 was the Koara Native Title Claim, finalised in 2008.) SAD 6008/1998 is clearly a reference to the old FWC claim, which had the same proceeding number as the present proceeding.

THE HEARING

21    The amended interlocutory application was listed for hearing on 8 November 2013. At the hearing, Mr Miller’s principal argument appeared to be either that the present proceeding had not been properly authorised, or that it had been prosecuted in a manner that went beyond, or was contrary to, what had been authorised. While Mr Miller’s argument was expressed as relating to the quality of the authorisation, in fact the substance of the argument appeared to be better characterised as relating to the quality of the actions of the authorised applicant, and whether those actions were authorised. There were chiefly two actions of the authorised applicant that were brought into question. The first is the decision to amend the native title determination application so as to excise from the claim waters beyond the intertidal zone that had previously been part of the native title determination application, and which waters are said by counsel for Mr Miller to be Mirning country. The second is the decision to approve the consent determination as presently drafted, which counsel for Mr Miller contends insufficiently protects the rights of Mirning people in relation to the other members of the native title claim group.

22    In order to better understand Mr Miller’s argument, I requested counsel for Mr Miller to clarify exactly what findings of fact Mr Miller contended for in order to support the orders sought. Counsel for Mr Miller produced a list of 21 factual findings that Mr Miller invited the Court to make. It is useful to set out those findings:

(1)    That the Western Australian Mirning were not invited to the Standpipe meeting of July 2005.

(2)    That the Western Australian Mirning were not invited to the Ceduna claim group meeting of December 2005.

(3)    That the consolidation of the Mirning and Far West Coast Native Title Claims was consequently invalid.

(4)    That the Spear Creek May 2004 ‘agreement’ binds all the authorised applicants and the respective groups that each is intended to represent.

(5)    That the Mirning people have final say over the land and sea that was previously subject to the old Mirning claim.

(6)    That the reduction of the claim so as to excise the sea area was not put to the Mirning people by the authorised applicant for the native title claim group who was meant to represent Mirning interests in the Far West Coast Native Title Claim.

(7)    That prior to the consolidation of the old Mirning claim and Far West Coast claim into this proceeding, the Mirning claim was the only claim over the sea area.

(8)    That by reason of facts 6 and 7 above, the Mirning authorised applicant Clem Lawrie exceeded his authority.

(9)    That the proposed consent determination does not refer to the Spear Creek agreement nor does it incorporate it.

(10)    That the proposed Rules for the proposed Prescribed Body Corporate (PBC) to be established upon determination of this proceeding, the Far West Coast Aboriginal Corporation (PBC Rules), do not define the various claim groups within the consolidated claim and, in particular, do not define the Mirning people or Mirning land and sea.

(11)    That the consent determination does not provide a working mechanism that implements the Spear Creek agreement, nor does it clarify the interaction between the consolidated groups in a prescriptive or preventative manner.

(12)    That the consent determination is silent as to the interaction between the claim areas and traditional laws.

(13)    That the PBC Rules do not provide a working mechanism that implements the Spear Creek agreement, nor do they clarify the interaction between the consolidated groups in a prescriptive or preventative manner.

(14)    That the PBC Rules are silent as to the interaction between the claim areas and traditional laws.

(15)    That Mirning connection is simultaneously with the land and sea and cannot be separated.

(16)    That the consent determination document was not provided to either all or some of the native title claim group for consideration at the meeting of 1 and 2 November 2013.

(17)    That at the meeting of 1 and 2 November 2013 there was no discussion of the effect of the consent determination on first, Mirning people, or second, other claimant groups.

(18)    That there was no discussion at the meeting of 1 and 2 November 2013 as to whether the Spear Creek agreement was implemented or not in the proposed consent determination.

(19)    That, from the above matters, it can be concluded that the consent determination has not been properly authorised.

(20)    That the PBC Rules’ referencing of the Spear Creek agreement is an insufficient protection because it may be changed by a majority or similar of the Far West Coast native title claim group as a whole claim group.

(21)    That the Mirning people were not consulted as to who the directors of the PBC should be at the meeting of 1 and 2 November 2013.

23    Counsel for Mr Miller sought to call three witnesses: Dr Neil Draper, Mr Miller, and Bunna Lawrie. I did not allow any of those witnesses to be called. My reasons for those decisions follow.

24    In reply, counsel for the applicant argued that Mr Miller had no standing to seek the orders sought, that at least some of the orders sought were in the nature of final orders rather than interlocutory relief, and thus could not be sought on an interlocutory application, and that a number of the sought orders were very similar to orders that had been previously sought by Mr Miller and refused, and that there were no new circumstances that now made those orders appropriate.

CONSIDERATION

25    I have no doubt that Mr Miller genuinely holds personal concerns about the present proceeding and the proposed consent determination. I further do not doubt that his concerns reflect the concerns held by some other Mirning people, including, apparently, some senior Mirning people. Mr Miller does not suggest that his concerns represent the views of all Mirning people, and he could not do so on the material that is before the Court.

26    Nonetheless, I declined to make the orders Mr Miller sought or to make the findings of fact Mr Miller sought to be made at the hearing.

Standing

27    Mr Miller does not have standing to bring his interlocutory application. Mr Miller is not a respondent to this proceeding. He chose not to pursue that status. As has also been noted, Mr Miller at one stage sought orders that he become a respondent party to this proceeding under s 84(5) of the NTA, but abandoned that order: Far West Coast Native Title Claim Group v State of South Australia (No 4) [2012] FCA 1468 at [3]. Mr Miller is a member of the native title claim group. He is not an authorised named applicant of the native title claim group. A member of a native title claim group is not a party to a native title determination application unless he or she is an authorised named applicant or becomes a respondent pursuant to s 84(5) of the NTA. Generally, only a party can make an interlocutory application.

28    An exception to that general rule is provided by s 84D(2)(c) of the NTA, which enables a member of the native title claim group to apply for an order under s 84D(1) of the NTA. Section 84D(1) of the NTA states:

The Federal Court may make an order requiring:

(a)    a person who, either alone or jointly with another person, made an application under section 61, to produce evidence to the court that he or she was authorised to do so; or

(b)    a person who has dealt with a matter, or is dealing with a matter, arising in relation to such an application, to produce evidence to the court that he or she is authorised to do so.

29    None of the orders sought are of that nature. It has been noted above that Mr Miller has previously sought an order of this nature, but that the applicant has provided evidence to Mr Miller such as to comply with any such order: Far West Coast Native Title Claim Group v State of South Australia (No 4) [2012] FCA 1468 at [2].

30    Apart from s 84D(2)(c) of the NTA, in my view, members of a native title claim group have no status to seek orders of the character now sought, without first becoming a party to the application under s 84(5) of the NTA. Counsel did not direct me to any authority to the contrary. There would otherwise be no material limit on members of any claim group seeking to intervene in the conduct of a claim under s 61 of the NTA, when it provides for a claim to be authorised and then pursued through the persons nominated to be the applicant: see generally Kulkalgal People v Queensland [2003] FCA 163; Kokatha Native Title Claim v South Australia (2005) 143 FCR 544; Butterworth v Queensland (2010) 184 FCR 397; Starkey v South Australia (2011) 193 FCR 450 at [46].

31    Even though Mr Miller no longer seeks to become a respondent party to this application, it is open to me to join Mr Miller as a party to this proceeding, pursuant to s 84(5), on the Court’s own motion. However, I would not exercise my discretion to make such an order in circumstances where Mr Miller has expressly abandoned an application to become a party.

32    Counsel for Mr Miller argued that he had standing on an alternative basis; namely, as a person petitioning the Court to exercise its inherent jurisdiction to grant declaratory relief: Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 per Mason CJ, Dawson, Toohey and Gaudron JJ at [38]; Federal Court of Australia Act 1976 (Cth), ss 21 and 22. However, it is not correct to say that the Court’s inherent power to grant declaratory relief means that any non-party can make an interlocutory application in a proceeding and seek declarations. The filing of an interlocutory application is not generally the proper means by which to obtain declaratory relief of the character now sought. It does not follow from the fact that the Court has jurisdiction to grant declarations, that any non-party may routinely apply for and be granted declaratory relief by way of interlocutory application in a proceeding. For reasons which are given above and the cases referred to, in any event I would decline in my discretion to make declaratory orders.

33    Since Mr Miller has no standing to seek the orders sought, I refused to make the orders sought.

Orders previously sought

34    Even if Mr Miller did have standing, I would nonetheless have refused to make order (A) of the amended interlocutory application of 30 October 2013.

35     That order is almost identically worded (and is identical in substance) to order 5 sought on 17 December 2012 by Mr Miller. I have set out above my reasons for refusing to give leave to Mr Miller to seek that order on 17 December 2012. Those reasons apply with equal force now. The order sought is not in the nature of an interlocutory order.

36    I would also have refused to make order (C.1) in any event. That order, in my view, is substantially similar to the one I refused to make in my judgment on Mr Miller’s interlocutory application given on 10 July 2012. In circumstances where Mr Miller has not been able to point to any relevant new circumstance that has arisen since that time, I do not think it is appropriate to reconsider that decision.

37    Finally, I would also have refused to make order (C.2). The order sought would involve the Court ordering what is to be included in a consent determination. An order of that nature was previously sought by Mr Miller as to order 6, and rejected by this Court. I do not think it is appropriate for the Court to make orders about what must be included in a consent determination. I rely on my conclusions in relation to order 6, that I have quoted above.

Substantive arguments

38    Even if I did not refuse the application on the above grounds, I would have refused the application in any event. To explain why, it is necessary to turn to the factual findings for which counsel for Mr Miller contended.

39    There were four broad arguments to be supported by the factual findings contended for: first, that the consolidation of the present proceeding was never properly authorised (findings 1-3); second, that the meeting of 1 and 2 November 2013 at which the proposed consent determination was approved by the native title claim group in the present proceeding was affected by irregularities (findings 16-19, 21); third, that the decision to “excise” the sea area from the present proceeding went beyond the terms of the authorisation (findings 4-8, 15); and finally, that the proposed consent determination and the rules for the new prescribed body corporate insufficiently safeguard Mirning interests as against the interests of non-Mirning members of the native title claim group (findings 9-14, 20). I will now look at each of these arguments in turn.

(i)    The initial consolidation

40    Counsel for Mr Miller sought factual findings that those Mirning people who come from Western Australia were not invited to two 2005 meetings – the Standpipe meeting, and the Ceduna meeting. From those facts, counsel submitted, it follows that the consolidation of the old Mirning claim and old FWC claim was “invalid” (findings 1-3 above).

41    Counsel for Mr Miller produced no positive evidence in support of this contention. Instead, it was submitted that the absence of any proof that advertisements for the meeting were placed in Western Australian newspapers, or that letters were sent to Western Australian Mirning people, in circumstances where, it was further submitted, it would have been easy to provide such proof, indicates that those Mirning people were not invited to the meetings in question.

42    In relation to the Standpipe meeting, Mr Linde’s affidavit of 14 November 2012 annexes another affidavit of his of 4 January 2006. In the latter affidavit, Mr Linde lists the newspapers in which he published a notice of the Standpipe meeting. None of the newspapers mentioned are Western Australian newspapers. He also sent facsimiles to “approximately twenty-five Aboriginal organisations around South Australia” giving notice of the meeting. He also advertised the meeting on Imparja Television, which does not broadcast in Western Australia. Finally, Mr Linde sent a letter to “approximately sixty members of the Mirning native title claim group” giving notice of the meeting. Who those members were, and their location, is not specified.

43    In relation to the Ceduna meeting, Mr Linde states in his affidavit that notice of the meeting was “advertised in local newspapers”. It is unclear whether that included Western Australian newspapers. Mr Linde also states that “letters and notices” for the meeting were “sent to all persons on the ALRM database known to be members of the Far West Coast and Mirning native title claim groups and the combined Far West Coast native title management committee”. Mr Linde goes on to state:

I am now aware that at the time that notices were sent to persons on the ALRM database Andrew Beckworth of this office had been provided with an excel [sic] spread-sheet showing the names and addresses of persons known by Goldfields Land and Sea Council to be part of the Western Australian Mirning native title claim. I have no way to determine whether a copy of the letter and notice for the 19-20 December 2005 meeting was sent to these persons. …

44    An attendance record from the Ceduna meeting is annexed to Mr Linde’s affidavit. That record lists a small number of Western Australian people in attendance. One man records that he is from “Boulder, WA”, several others, from “Tjuntjuntjara, WA”, and several more from “Kalgoorlie”, which is in Western Australia. That is obviously not conclusive proof that Western Australian Mirning people were properly invited.

45    As it stands, this evidence is insufficient to support a finding that Western Australian Mirning people were not invited to, or were unaware of, the Standpipe and Ceduna meetings. On the other hand, Mr Linde’s affidavit does not prove that Western Australian Mirning people were invited to those meetings. Particularly in relation to the Standpipe meeting, there does, prima facie, appear to be some grounds for doubt as to whether they were expressly invited. In my view, though, there is not sufficient evidence to support a finding that they were not invited.

46    It must however be pointed out that it is no more than assertion that any Western Australian Mirning people were entitled to participate in those meetings, as the claim area does not extend west of the South Australian border. The present proceeding has been on foot for a long time. There is clearly an awareness of some Western Australian Mirning people as to its existence. The notification requirements under the NTA have been carried out. No Western Australian Mirning person has pursued an assertion that the claim group in the old Mirning claim, or in the current proceeding, is incorrect by excluding that person or some persons or that the interests of that person or some Western Australian Mirning persons have interests in the claim area of the current proceeding which are not properly being protected. If any such situation had existed, those claims could have been pursued by that person or persons, in the first place by seeking to be joined as a party to the present proceeding. No such person has sought to be joined as a party in any timely way or at all.

47    In any event, on the present proceeding, if necessary I would apply s 84D(4)(b) of the NTA and proceed to hear and determine the application despite the asserted (but not established) defect in the authorisation. The case for the application of s 84D(4)(b) is particularly strong in regard to this issue, where there have been two recent meetings of the claim group which have endorsed the proposed consent determination. There is no good reason why the alleged failure to notify some Western Australian Mirning people of meetings that occurred close to a decade ago should be raised only weeks before the proposed consent determination hearing where it has the general support of the claim group.

48    No other potential deficiency in the authorisation of the consolidation has been identified. In those circumstances. There are no grounds to find that the consolidation was not properly authorised. It necessarily followed that, even if it was otherwise appropriate (which I have found it is not), order (A) sought in Mr Miller’s amended interlocutory application should not be made.

(ii)    The meeting of 1 and 2 November 2013

49    Second, counsel for Mr Miller contended that there were various deficiencies with the authorisation of the proposed consent determination given by the native title claim group on 1 and 2 November 2013 at a meeting at Ceduna (findings 16-19, 21).

50    The alleged deficiencies are as follows:

    The consent determination document was not provided to all or some of the claim group members at the meeting (finding 16);

    There was no discussion at the meeting of the effect of the consent determination on Mirning people specifically, or on other claimant groups specifically (finding 17);

    There was no discussion at the meeting as to whether the Spear Creek agreement was implemented in the consent determination (finding 18);

    Mirning people were not consulted at the meeting as to who the PBC directors should be (finding 21).

51    From these matters, counsel for Mr Miller contended that I should conclude that the consent determination has not been properly authorised (finding 19).

52    There is simply no evidence of these alleged deficiencies. Counsel for Mr Miller wished to call Mr Miller to give evidence orally about these alleged deficiencies. No notice had been given before the hearing that Mr Miller was to be called. Counsel for Mr Miller, in describing the matters upon which Mr Miller was to give evidence, made it clear that Mr Miller’s evidence about the conduct of the meeting of 1 and 2 November 2013 involved serious allegations that went far beyond the alleged deficiencies identified above. I ruled that Mr Miller could not give such evidence without notice, as the unfairness caused to the other parties from having such serious allegations being made without any notice (where no good reason was given for the lack of notice) would be too great. Equally importantly, in the course of exchanges with Mr Miller’s counsel, it was apparent that his proposed evidence in that regard represented subjective perceptions of the conduct of the meetings rather than objective observations about what was done or said. However, on one distinct issue – whether Mirning people were properly consulted at the meeting as to who the PBC directors should be – I reserved to Mr Miller’s counsel the right to apply for leave to call Mr Miller to give evidence on that distinct topic at a later stage of the hearing. Mr Miller’s counsel did not pursue that opportunity.

53    In those circumstances, I do not accept that there was any deficiency in the conduct of the meeting of 1 and 2 November 2013 and there was no proposed evidence of Mr Miller which would have carried weight to establish the contrary.

(iii)    The excision of the sea

54    Third, counsel for Mr Miller seeks a number of findings broadly related to an argument that the excision of the sea part of the new FWC claim was an action that exceeded the authorisation given by the native title claim group (findings 4-8 and 15).

55    An in-principle decision was made to agree to exclude from the proposed consent determination that part of the claim that consists of waters beyond the intertidal zone on 2 August 2013 at a meeting of the Far West Coast Traditional Lands Association Incorporated Governing Committee. That decision appears in the minutes of that meeting, which are annexed to the affidavit of Robert Miller of 29 October 2013, filed by him in support of this application. The motion passed relevantly read:

The Far West Coast Governing Committee hereby approve in principle the offers for settlement and recognition of native title presented by the State Government at this meeting, in particular … [the] reduction of the claim area to the intertidal zone in recognition of the fact that a further native title claim can be filed over these areas in due course and subject to further evidence. …

The Far West Coast Governing Committee will recommend the above proposal to the Community at the meeting tomorrow with a view to further negotiating the details of the agreements with the State Government to be authorised at a further community meeting in due course prior to the consent determination.

56    Firstly, it should be noted that it is clear from the above extract that there is no suggestion that the sea claim was to be abandoned forever. It was expressly acknowledged that a further claim could be made over the sea area “in due course”.

57    Secondly, it is clear from the above extract that the decision made at the Committee meeting was not final. The next day, on 3 August 2013, a meeting of the native title claim group occurred at which the group approved the proposed consent determination in principle. On 2 November 2013, at a meeting at Ceduna, the native title claim group resolved to approve the proposed consent determination. The proposed consent determination includes a description of the relevant lands and waters, excluding those waters beyond the intertidal zone.

58    The argument of Mr Miller in respect of this issue appears to rely upon a provision of the Spear Creek agreement:

Whilst the [governing committee] will be responsible for making decisions about matters arising in the course of the claim, within the claim area, each group has distinct areas of responsibility and will be consulted when an issue arises which is specific to that area.

The Mirning people will be consulted when issues arise in relation to the Nullabor [sic].

59    Mr Miller asserted that, prior to consolidation, the old Mirning claim was the only claim over the now excluded sea area (finding 7). It therefore follows, it is contended, that the exclusion of that sea area was an issue “specific to” the Mirning “area of responsibility”, and thus the Mirning people should have been “consulted” (findings 5 and 8). In fact, asserted finding 7 is incorrect. The relevant application forms filed with the Court indicate that the old FWC claim, at the time of the consolidation, claimed native title over the same waters that the old Mirning claim also claimed.

60    However, it could perhaps be alternatively contended that the Spear Creek agreement specifically provides that the Mirning people will be consulted when issues arise in relation to the Nullarbor, and that the relevant excised waters should be regarded as part of “the Nullarbor”, and thus the Mirning people should have been consulted.

61    The relevant part of the Spear Creek agreement may lack a little clarity. First, in the context of the rest of the Spear Creek agreement, the relevant provision concerning the Nullarbor may mean that the Mirning people must be consulted only in regard to issues that are specific to the Nullarbor area, not in regard to any issue that has any bearing upon any part of the Nullarbor area. Second, the reference to “the Nullarbor” is not very precise. A starting point may be that “the Nullarbor” is generally regarded as synonymous with “the Nullarbor Plain”. The Macquarie Dictionary defines “Nullarbor Plain” as “a plain lying behind the Great Australian Bight, stretching from the WA-SA border 300 km to the west and 250 km to the east, at its widest 400 km”. The expression “Nullarbor” would not clearly include the waters adjacent to the Nullarbor. Even if, in the context of the Spear Creek agreement, one concludes that the reference to “the Nullarbor” was intended to encompass waters adjacent to the Nullarbor, the Nullarbor extends only 250 km to the east of the WA-SA border. The waters beyond the intertidal zone claimed by both the old Mirning claim and the old FWC claim (and which are to be excluded from the proposed consent determination) extend from the WA-SA border to a point roughly 375 km east of the WA-SA border. So even if “the Nullarbor” is interpreted, contrary to its ordinary meaning, as including waters adjacent to the Nullarbor, the issue as to whether to exclude the waters beyond the intertidal zone was not an issue that arose in relation to the Nullarbor specifically, as a substantial amount of the water in question was not adjacent to the Nullarbor.

62    There are four more important reasons why the issue is not one Mr Miller personally can raise.

63    The first is that he does not represent, or purport to represent, the Mirning People. He has his personal views, and they are to some extent shared by some other Mirning People.

64    The second is that the Far West Coast People, that is the claim group on the present proceeding, have accepted the proposed consent determination, including the fact that it does not cover the intertidal waters.

65    The third is that the responsibility for conducting the present proceeding – assembling the evidence, engaging and instructing and consulting the anthropologists, negotiating with the State (and others) – lies with the persons who together constitute the applicant, and who were authorised to make decisions about how to progress and resolve the claim by the Ceduna meeting, and who were in turn proposed to be part of that group by the separate meetings of the former claim groups in the old Mirning claim and the old FWC claim at the Standpipe meeting and one of the Ceduna meetings at the time. They have received advice. They know what the State says about various issues. They are best placed to make proper decisions on such matters. And, as reason two above shows, they have properly then submitted the outcome of their careful work to the claim group itself, which has approved it.

66    The fourth reason is that the proposed consent determination does not preclude the present claim group, or another different claim group (if that group can otherwise satisfy the requirements of the NTA) making a claim for recognition of native title rights over the intertidal waters. In the present proceeding, the proposed consent determination does not include a determination that native title does not exist over those waters. That question is left open, but the proposed order provides simply that, in addition to the detailed terms for recognition of native title, this claim over the intertidal waters will be dismissed. Whether the proof to support such a claim, either to the satisfaction of the State or if necessary by a Court hearing, will be available in the future is not a matter I comment on.

67    Two further matters should be noted.

68    First, counsel for Mr Miller sought a finding that Clem Lawrie, the “Mirning authorised applicant”, “exceeded his authority” in relation to the decision to exclude the water beyond the intertidal zone (finding 6). That submission seems misguided. The exclusion of the waters beyond the intertidal zone was not a decision made by Mr Lawrie alone. He is one of the persons who are the authorised applicant. The authorised applicants’ their decision has been adopted by the native title claim group.

69    Second, counsel for Mr Miller sought another finding that “Mirning connection is simultaneously with the land and sea and cannot be separated” (finding 15). That is a general proposition, but the material available to the applicant, and to the State, does not appear to have prevented them from reaching the proposed consent determination. If there is such a relationship, the material to support a claim to the intertidal waters should be available. At present, that stands simply as an assertion.

70    On this topic, I refused to allow counsel for Mr Miller to call Mr Bunna Lawrie and Dr Neil Draper (an anthropologist) to give evidence. Partly that was because proper notice was not given of Mr Miller’s intention to call them, and it is unfair to the other parties to permit one “party” to give such evidence without the other parties having a proper opportunity to proffer their own evidence. That highlights the issue about the standing of Mr Miller. In addition, I did not think that the proposed evidence would have advanced Mr Miller’s argument beyond the general assertion of the inter-relationship between land and waters.

71    It was not put forward as so critical a relationship that the proposed consent determination could not be made, because that relationship necessarily required that a determination under the NTA could only be made of land and waters together. Counsel for Mr Miller accepted that the recognition of native title under the NTA, a legislative construct for recognition of native title rights, is a different matter from the existence of the traditional rights themselves.

(iv)    Insufficient protection of Mirning interests in consent determination and PBC Rules

72    Finally, perhaps the primary focus of Mr Miller’s counsel’s submissions was the argument that the proposed consent determination and the Rules for the proposed Prescribed Body Corporate (PBC), the Far West Coast Aboriginal Corporation, do not sufficiently protect Mirning people’s interests, and, essentially, could lead to the non-Mirning members of the claim group preventing the Mirning people from fully exercising their proper native title rights and interests.

73    Counsel for Mr Miller noted that the Spear Creek agreement specifically protected Mirning people’s rights. However, counsel contended, the proposed consent determination does not refer to the Spear Creek agreement, nor does it incorporate it, nor does it “provide a working mechanism that implements the Spear Creek agreement” (findings 9 and 11). More broadly, it was contended, the proposed consent determination and the proposed PBC Rules do not “clarify the interaction between the consolidated groups in a prescriptive or preventative manner”, and they are “silent as to the interaction between the claim areas and traditional laws” (findings 11, 12, 13 and 14).

74    The proposed PBC Rules do, as counsel for Mr Miller accepts, refer to the Spear Creek agreement. Rule 6.2(f) of those rules (annexed to the affidavit of Mr Miller of 30 October 2013) states:

The prescribed body corporate acting as representative of the common law holders must abide by the Spear Creek Agreements annexed to these rules when consulting with common law holders about native title decisions.

75    Rule 13.4.3 provides a similar protection, again specifically mentioning the Spear Creek agreement.

76    Counsel for Mr Miller contends, however, that the PBC Rules do not “provide a working mechanism that implements the Spear Creek agreement” (finding 13). That phrase lacks precision. But so far as I understand it, I reject that contention. It is unclear why rule 6.2(f) above does not constitute a “working mechanism”.

77    Counsel for Mr Miller further contends that “the PBC Rules’ referencing of the Spear Creek agreement is an insufficient protection because it may be changed by a majority or similar of the … native title claim group as a whole claim group.” (finding 20).

78    I do not accept that Mirning people are insufficiently protected. Apart from the protections currently found in the proposed PBC Rules, the native title claim group has approved a “co-management agreement” in respect of Nullarbor Wilderness Protection Area and Regional Reserve. As part of that agreement, an advisory committee will be established comprised only of Mirning representatives, in clear adherence to the Spear Creek agreement.

79    At the moment, therefore, the proposed arrangements that would take effect if the consent determination is made are consonant with the Spear Creek agreement. There is nothing to suggest that the Spear Creek agreement will be disregarded, and in fact there are measures in place to ensure it is respected.

80    Within those protections, it is not appropriate that the Court intervene into “intramural” issues amongst the claim group, and the more so if the intervention is anticipatory only. That is firmly established. In Gumana v Northern Territory of Australia (2005) 141 FCR 457, Selway J at [138]-[141] held:

Given the role of the PBCs in acting for and on behalf of the native title holders and given the potential difficulties that a detailed determination might cause if it detailed the “internal” issues relating to the native title holders, the plain intention of the NTA would seem to be that those rights should be left to later resolution from time to time in the context of the performance by the PBC of its own functions and duties …

For this reason it is not necessary to identify the native title holders by individual name; it is sufficient that the persons be members of an identified group or groups … These groups can be identified by adopting the relevant group descriptions under traditional law. They do not require further definition. …

Similarly, so long as the rights of all of the native title holders are expressed in detail, it is not then necessary for the determination to identify expressly which particular group can exercise what particular rights. That is an issue that can be left for resolution by the PBC.

…[T]he potential for conflict between the traditional owners (with their traditional “political” structures) and the PBC is obvious. However, that is a problem that falls outside of the issues raised in this case.” (emphasis added)

See also Starkey v South Australia (2011) 193 FCR 450 at [62]-[63]:

81    For these reasons, I made the orders indicated above.

Associate:

Dated:    4 December 2013