FEDERAL COURT OF AUSTRALIA

MT (deceased) v State of Western Australia [2013] FCA 1302

THE COURT ORDERS THAT:

1.    The Kimberley Land Council Aboriginal Corporation be joined as a respondent to the proceeding to act in the capacity of native title representative body.

2.    Order 6 of the orders made by Wilcox J on 22 November 2002 be varied by allowing Mr Geoffrey Bagshaw’s “Anthropologist’s Report to the Federal Court of Australia on Native Title Determination Application WAG 6124 of 1998 (Djabera-Djabera)” dated September 2003 to be available to the parties to this proceeding, provided that Appendix 5 not be published without leave of the Court.

3.    The interlocutory application filed by the Kimberley Land Council Aboriginal Corporation on 10 October 2013 be otherwise dismissed.

4.    There be no order as to costs.

5.    The matter be referred for further case management to a Deputy District Registrar of the Court.

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

REASONS FOR JUDGMENT

overview

1    By interlocutory application filed 10 October 2013, the Kimberley Land Council Aboriginal Corporation (KLC) seeks orders to the following effect:

1.    That pursuant to s 84(5) Native Title Act 1993 (Cth) (NTA), the KLC be joined as a respondent to the proceeding to act in the capacity of native title representative body.

2.    That order 6 of the orders made by Wilcox J on 22 November 2002 be vacated or be varied by allowing Mr Geoffrey Bagshaw’s anthropological report in relation to the proceeding dated September 2003 (Bagshaw Report) to be used for the purpose of any application for an order that the proceeding be struck out or dismissed.

3.    That the proceeding be struck out pursuant to s 84C NTA or dismissed pursuant to R 26.01(1)(c) Federal Court Rules 2011 (Cth) (Rules).

2    The first two proposed orders are intended to facilitate the making of the third, proposed strike out order.

3    For the reasons which follow, the Court makes the first two orders sought, but dismisses the application to strike out the proceeding.

background

4    The interlocutory application first came before me for hearing on 25 October 2013. On that occasion counsel appeared on behalf of the KLC and the State of Western Australia (State). Additionally, Mr Gregory Francis and Ms Eileen Torres, two of the named applicants comprising the “applicant” on the primary native title determination application (claim) sought to appear for the applicant.

5    In the result, I adjourned the hearing of the application to 11 November 2013 at 9:30am. My reason for doing so was two-fold: first, to enable the applicant to obtain legal advice in relation to the matter and, secondly, to enable the applicant, through Mr Francis or Ms Torres, to indicate to the Court what proposals, if any, it wished to advance in relation to the prosecution of the claim given the long history of the matter.

6    On 11 November 2013, counsel for the KLC and the State again appeared and Mr Prus-Butwilowicz, of counsel, appeared by telephone from Queensland instructed on behalf of the applicant or at least Mr Francis and Ms Torres.

7    Mr Prus-Butwilowicz indicated that as a barrister he had received instructions directly from Mr Francis and Ms Torres to appear in the matter. He sought an adjournment of the application as he had only been briefed in the matter the previous Friday, although he had been generally acquainted with the matter as a result of a contact a little earlier, apparently on behalf of the applicant, through an organisation called the Original Sovereign Tribal Federation.

8    After hearing from Mr Prus-Butwilowicz, I adjourned the interlocutory application to 13 November 2013 at 2:15pm (WST) to enable counsel to obtain further instructions, having taken the view that the applicant should have been able to adequately brief a legal representative in the period since 25 October 2013 and thereby considered a longer adjournment not to be appropriate in the circumstances. In this regard, the circumstances included the desire of the KLC to obtain relevant orders in this proceeding (and generally related proceedings of the Nyul Nyul people), as a matter of urgency and in any event before 14 November 2013 as explained further below.

9    On 13 November 2013, counsel did not appear for the applicant, but Mr Gregory Francis appeared personally on behalf of the applicant. I then indicated I would allow the joinder of the KLC on the terms sought and would also allow the use of the Bagshaw Report for the purpose sought, in relation to which reasons would be published later. I then invited submissions on the strike out application.

10    These reasons deal with all three matters.

joinder

11    The first question that arises is whether the KLC should be joined as a respondent. The order sought by the KLC is not just that it be joined as a respondent, without qualification, but that it be joined as a respondent in the proceeding “to act in the capacity of native title representative body”.

12    It is common ground that the KLC is a native title representative body under and for the purposes of the NTA in relation to the Kimberley region of Western Australia.

13    Absent an order under s 84(5) NTA joining it as a respondent, the KLC is not presently a party to the proceeding, although it had at an earlier stage been a respondent, as the representative body, until about 2004 and had then, by its principal legal officer (PLO), been on the Court record as the applicant’s solicitor, from about 2007 until very recently.

14    The purpose of the KLC’s joinder application, as may be seen from the additional orders it seeks, is to enable it to move to strike out the proceeding. This may be considered unusual given that, until very recently, the KLC, by its PLO, has been acting for the applicant. But now, as the relevant representative body for the Kimberley region, it seeks to have the claim dismissed. The explanation for this seemingly conflictual conduct, which I will deal with further below, is that the KLC, as the representative body, has undertaken additional anthropological research and obtained instructions from relevant claim groups. As a result, it seeks to strike out this claim so that it may eventually be replaced with a combined Bindunbur (Area A), Bindunbur (Area B) and proposed Bindunbur (Area C) claim.

15    The original claim was lodged under the NTA, as it then applied, with the National Native Title Tribunal (NNTT) on 8 October 1996. It was a handwritten application that did not betray any particular assistance of a legal nature in its preparation. It was brought by Mr MC Torres (now deceased) on behalf of the Torres, Hunter and Corpus families, as well as for people identifying as the “Djabera Djabera people”.

16    On 29 September 1999, nearly three years later, the original claim was amended by order of the District Registrar of this Court. The application to amend was apparently prepared by private solicitors then acting for the proposed amended claim group. As amended, the claim was brought by the current applicant, which comprises persons who include Mr Francis and Ms Torres. The claim group identified by the amended application was listed in Attachment “A” to the amended claim (Att “A”). It constituted, as it still does, named individuals. It was not said to be the Djabera Djabera or any language, tribal or other named group. However, some materials comprising the amended claim, including some maps and the description of the applicant in the header of the affidavits of the named applicants supporting the application to amend, suggested the named claimants acted on behalf of “The Djabera Djabera Peoples”.

17    By November 2002, it appears Wilcox J considered that, in order to assist the resolution of difficulties in relation to the advancement of the claim, it was appropriate for the Court to appoint an expert anthropologist, Mr Geoffrey Bagshaw, to inquire into and report upon the identification, name or description of persons who might fall within the group of people described in the application as the “Djabera-Djabera People” and who might be members of any other group who apparently have such an association with the claimed land as might give rise to a native title claim in relation to the land and made an order to that effect.

18    The Court ordered Mr Bagshaw make such inquiry by seeking to interview the named applicants and such other persons named in Att “A” as may be available, officers of the Kimberley Land Council and other persons as he saw fit to interview.

19    His Honour also ordered that Mr Bagshaw’s report not be used for any other purpose without further court order.

20    Mr Bagshaw was required to report to the Court before 25 July 2003, although the period was subsequently extended.

21    Mr Bagshaw duly provided his report to the Court as required and parties were provided with a copy of it. In it he expressed the opinion that the area the subject of the claim comprises land traditionally associated with the “Jabirr-jabirr people” and “Nyul-nyul people”, as well as the Nimanbur people. He said the description “Djabera-Djabera” was an obsolete form of Jabirr-jabirr. He then considered the ancestry of the persons listed in Att “A” of the claim, who were said to be the claim group members. He found that some had no relevant ancestry from any of these three groups. He identified the others as Jabirr Jabirr, or Nyul Nyul, or Nimanbur by descent. He also said there were persons not in Att “A” who would appear to be capable of inclusion in the claim group by reason of their descent from one or other of these groups.

22    Following the circulation of the Bagshaw Report mediation between relevant parties was attempted apparently with a view to refinement of the existing claim or, perhaps, its withdrawal and the lodgement of new claims that reflected the opinions of Mr Bagshaw.

23    The evidence before the Court shows that, at a directions hearing on 12 December 2003 before Wilcox J:

    Mr Torres (deceased) informed the Court that “basically we are all happy with the report”.

    Ms K Guest appearing for the KLC (as the respondent representative body) informed the Court that the KLC was of the view that the claim needed to be withdrawn because it had no chance of success, and that depending on the outcome of a forthcoming meeting the KLC might take out a strike out application.

24    Further, at a directions hearing on 18 March 2005, counsel for the State in written submissions identified a range of apparent difficulties with the existing claim.

25    Nonetheless, despite attempts by the Court and all relevant parties and the National Native Title Tribunal as mediator, the circulation of the Bagshaw Report has achieved little, if anything, by way of resolution of the historic difficulties with the claim that Wilcox J identified in 2002.

26    As a result, on 2 August 2012, I ordered that mediation in the NNTT cease and that this proceeding be referred to case management before a deputy district registrar.

27    The KLC in recent material times has also represented the applicants in the Nyul Nyul WAD68/2010 proceeding, the Nyul Nyul #2 WAD250/2012 proceeding, the Bindunbur (Area A) WAD359/2013 proceeding and the Mount Jowlaenga WAD306/2013 proceeding. On 13 November 2013, I granted leave to the applicant in each of the Nyul Nyul proceedings to discontinue the proceeding: see KK (deceased) v State of Western Australia [2013] FCA 1234. These various claim areas are or were in part contiguous with the area claimed in the current proceeding.

28    The PLO of the KLC now has instructions to file a fresh native title determination application, to be known as the Bindunbur (Area B) claim, that will wholly overlap the area the subject of the current proceeding. The Court understands that Nyul Nyul persons, such as Mr Francis and Ms Torres and their families, are or would be members of the relevant claim group.

29    Ms Jemma Maree Arman, lawyer and legal officer in the employ of the KLC, by her affidavit dated 10 October 2013, states that she has been informed by Ms Jacki Cole, the PLO, that in the last four years or so a lot of time and money has been invested by the KLC in obtaining the necessary research required to better understand traditional law and custom in the Dampier Peninsula (in which these various proceedings are located) and the relationships between the various language groups with affiliations to that area. She says that the KLC has invested heavily in the work of anthropologists and also in the holding of dozens of family group meetings across the Peninsula. She says the KLC has also held several larger meetings with groups from across the Dampier Peninsula during this period. She says the authorisation of Bindunbur (Area A) and Bindunbur (Area B) claims is seen by the KLC as a direct result of that research and community engagement.

30    Ms Arman adds that Ms Cole advises that the KLC has now, by its operational plan, prioritised the mid-Dampier Peninsula area claims for native title, whether they proceed to consent determination or to trial. However, she says, the KLC has no funding set aside, by its operational plan, for this current proceeding. In essence this reflects, she says, the KLC’s assessment of its prospects of success.

31    It would appear, therefore, that the view of the KLC about the prospects of success of this proceeding is much the same as it was when Ms Guest made submissions on behalf of the KLC as the representative body to Wilcox J at the directions hearing following the circulation of the Bagshaw Report in 2003.

32    It is in these circumstances that the PLO of the KLC recently ceased acting as solicitor on the record for the applicant in this proceeding and the interlocutory application was filed seeking to join the KLC as a respondent in its capacity as a representative body, to use the Bagshaw Report in connection with an application to strike out or dismiss this proceeding, and to have the proceeding struck out or dismissed.

33    An initial question arises whether, in the circumstances, the prior involvement of the KLC, through the PLO, as solicitor on the record for the applicant, should preclude it from being joined as a respondent in its capacity as a native title representative body under the NTA.

34    Having given close consideration to this matter, I am satisfied that in the particular circumstances I have outlined above, and taking into account the steps taken which ensure the effectual separation of Ms Arman and counsel instructed by her (Mr T Keely of the Melbourne bar) in relation to the interlocutory application, there is no relevant conflict of interest which prevents the KLC from exercising its statutory functions as a native title representative body under the NTA and being joined on the terms sought.

35    Representative bodies under the NTA have significant and important functions to facilitate the achievement of the objectives of the NTA. The general functions of a representative body are set out in s 203B, within Div 3 of Pt 11 NTA. It has facilitation and assistance functions, certification functions, dispute resolution functions, notification functions, agreement making functions and internal review functions, as those particular expressions are further described in the NTA.

36    By s 203BA(1), a representative body must use its best efforts to perform its functions in a timely manner, particular in respect of matters affected by the time limits under the Act and elsewhere. By s 203BA(2), a representative body must perform its functions in a manner that amongst other things maintains organisational structures and administrative processes that promote the satisfactory representation by the body of native title holders and persons who may hold native title in the area for which it is the representative body.

37    By s 203BB(1)(a), a representative body has the function to research and prepare native title applications and to facilitate research into preparation of and making of native title applications.

38    By s 203BC(1)(a), a representative body in performing its facilitation and assistance functions in relation to any matter must consult with, and have regard to, the interests of any registered native title bodies corporate, native title holders or persons who may hold native title who are affected by the matter.

39    By s 203BE(1)(a), a representative body has the function to certify in writing applications for determination of native title.

40    By s 203BF(1)(a), it has a function to assist in promoting agreement in its constituents about the making of native title applications or the conduct of consultations, mediations, negotiations or proceedings about native title applications, future acts, indigenous land use agreements, rights of access and the like under the NTA.

41    Under s 203BH(1), a representative body has the function to be a party to indigenous land use agreements.

42    It may be seen from these briefly stated relevant functions that a body such as the KLC, as a designated native title representative body, has the significant responsibility to inquire into and ascertain who relevant native title holders might be in order to facilitate the efficient administration of the NTA.

43    It may be expected that, in the performance of its responsibilities under the NTA, a native title representative body will necessarily make informed and responsible decisions, but decisions nonetheless that do not always find favour with all persons who may be the holders or potential holders or claimed holders of native title within the representative body’s region; as is shown to be the case here.

44    It can be seen that in 2002 Wilcox J took the exceptional step of appointing, on behalf of the Court, an expert anthropologist to inquire into the native title basis of this proceeding. Despite the report of Mr Bagshaw, which was given to the parties, and with which a number of them appear to agree, nothing has developed in any material way so far as the refinement and advancement of this proceeding is concerned.

45    The report provided firm advice, based on Mr Bagshaw’s opinions, as to: (1) the traditional ownership by Aboriginal groups of the claim area; and (2) the language group identification of persons mentioned in Att “A” to the claim.

46    Not long after difficulties were encountered following the circulation of the Bagshaw Report, it is apparent from the Court record that the KLC ceased to be a respondent in the proceeding. Not until around 2007 did the KLC become formally involved on the record again, at which time it became, through the PLO, the solicitor on the record for the applicant. That involvement by the KLC led to the second amendment of the initial claim which, by reason of the order of Gilmour J on 6 September 2012, reduced the area of land and waters covered by the application. That amendment would appear to have been for the purpose of facilitating the filing and/or registration of one of the contiguous Nyul Nyul claims. This is explicable given that the Bagshaw Report identified the Nyul Nyul as the traditional owners of part of the claim area in this proceeding.

47    I am satisfied from the affidavits made by Ms Arman dated 10 October 2013 and 25 October 2013, that the conduct of the KLC in relation to the current interlocutory application flows from the KLC’s statutory responsibilities as a representative body under the NTA and that, with Ms Arman engaged as the instructing solicitor and Mr Keely briefed as counsel in relation to this interlocutory application, a discrete division has been established and maintained between the PLO of the KLC and others within the KLC who were in any way involved as solicitors for the applicant in the period from around 2007 until recently. This means in my judgment, the KLC in pressing the interlocutory application has avoided in a practical way any conflict of the duty it has to the applicant and its responsibilities as the representative body.

48    In circumstances where the KLC, as a representative body, has significant statutory functions under the NTA, I am satisfied that it is appropriate, in the particular circumstances of this case, and having regard to the history of the matter, and the quite unsatisfactory circumstances in which this proceeding has not developed in any useful way since the circulation of the Bagshaw Report more than 10 years ago, that the KLC is entitled to apply to be joined as a respondent in its capacity as a native title representative body under the NTA and that its prior and recent involvement in the proceeding does not prevent it from being joined.

49    That then leaves the question whether the Court has the power under s 84(5) NTA to order the joinder of the KLC as a respondent for this purpose and should exercise the power.

50    On one view, the authorities are ambivalent as to the Court’s power to join a native title representative body in circumstances like those here or more generally. In Bissett v Minister for Land and Water Conservation for the State of New South Wales [2002] FCA 365 (Bissett) at [16]-[22] Tamberlin J acceded to an opposed application by the New South Wales Native Title Services Limited (NSWNTS) to be joined as a party to the proceeding, appearing to accept that its performance of its statutory functions would be enhanced if it were made a party. His Honour thereunder took a detailed examination of the provisions of the NTA which, in his consideration, gave the native title representative body an “interest that may be affected by a determination of native title” in that proceeding for the purposes of s 84(5).

51    In Gale v New South Wales Minister for Land & Water Conservation [2002] FCA 972 (Gale), Madgwick J similarly ordered that the New South Wales Aboriginal Land Council (NSWALC) be given leave to withdraw from the proceeding and that the NSWNTS be given leave to be joined as a party to the proceeding.

52    In Woodridge v Minister for Land and Water Conservation (NSW) [2002] FCA 1109; (2002) 122 FCR 190, Hill J made similar orders.

53    All of these cases came about because on 6 December 2001 the Federal Minister withdrew NSWALC’s recognition as a native title representative body. NSWNTS was appointed effectively in its place. It was nevertheless necessary for NSWNTS to satisfy the requirements of s 84(5) NTA to be joined.

54    Soon after these three decisions, in Simms v Minister for Land and Water Conservation (NSW) [2002] FCA 15; (2002) 193 ALR 257 (Simms), Lindgren J observed that while there was an argument to the contrary (as to which see Emmett J in Munn v State of Queensland [2002] FCA 78) he did not consider the approach taken in those three cases to be clearly wrong. As a result, his Honour also made orders that NSWNTS be joined as a respondent in the proceeding. He also ordered that the proceeding be struck out. Thus, Simms provides a relatively close parallel to the circumstances of the present application.

55    In particular, Lindgren J, at [23], did not consider the circumstances of the three other cases were distinguishable from the case before him on the ground that in those cases, the NSWALC was already a party to the proceeding and the issue was whether or not it should be replaced. His Honour said that either the native title representative body did or did not have “interests which may be affected by a determination in the proceedings”.

56    In the result, I accept the wisdom of the four decisions referred to. Plainly, at the time a determination is made in a proceeding such as this, the interests of the KLC as the native title representative body for the Kimberley region may be affected. As Madgwick J observed in Gale, at [4], a “native title representative body has ‘facilitation and assistance functions’” as set out in s 203BB NTA which include subs (1)(b), namely, to assist native title holders and persons who may hold native title in consultations, mediations, negotiations and proceedings relating to, amongst other things, native title applications and any other matters relating to native title or to the operation of the Act.

57    When one considers the important and broad functions of a native title representative body, as discussed both in Gale and by Tamberlin J at some length in Bissett, then, with respect, I consider that Lindgren J was right to observe that the three decisions to which he referred were not clearly in error. I hold the same view; indeed I consider those three decisions to be correct.

58    In my view, the Court has the clear power to join the native title representative body as a party in the present case because it has an interest pursuant to its statutory functions that may be affected by a determination of native title in the proceeding and it is in the interests of justice that it be joined.

59    I also note that more recently in Connelly on behalf of the Mitakoodi and Mayi People #1 v State of Queensland [2009] FCA 1181 at [1], Dowsett J acceded to an application by Queensland South Native Title Services Ltd to be joined as a respondent on the basis that it had a close involvement with claims in the area and it would be of assistance to the Court, and in the interests of justice, if it became a party to that proceeding.

60    I consider it appropriate that the KLC be joined in its capacity as a native title representative body in this proceeding for similar reasons.

use of Mr Bagshaw’s report

61    The next question that arises, following the joinder of the KLC as a native title representative body, is whether order 6 of the orders made by Wilcox J on 22 November 2002 should be vacated or varied by allowing Mr Bagshaw’s anthropologist report to be used for the purpose of any application for an order that the proceeding be struck out or dismissed.

62    The Bagshaw Report, as explained above, came about because Wilcox J made orders on 22 November 2002 appointing Mr Bagshaw as a court expert.

63    On 22 November 2002, in anticipation of the report, Wilcox J made the relevant order now the subject of the application, namely, that without further order of the Court, the report not be used for any purpose other than to consider the joinder of persons in this matter.

64    I accept that because that order was made subject to the words “without further order of the Court”, it is open to this Court to consider vacating the order made or varying the order made.

65    The KLC accepts that using the Bagshaw Report for the purpose of an application for an order that the proceeding be struck out or dismissed is a purpose “other than to consider the joinder of persons in this matter”.

66    The KLC submits that, at a directions hearing on 12 December 2003, Mr Torres (now deceased), one of named applicants, informed the Court that “basically we are all happy with the report”, that is to say, the Bagshaw Report. I accept as a matter of evidence that that statement was made by Mr Torres. I understand that Mr Gregory Francis now holds a similar view. As to exactly what it means for one of the named applicants or the applicant to indicate that they are basically happy with the report, is perhaps another thing.

67    At the same directions hearing, Ms K Guest, appearing for the KLC, which was at that point a respondent party to the proceeding, but not acting for the applicant, made comments suggesting the proceeding may need to be struck out.

68    I accept that the State also made submissions at a directions hearing on 18 March 2005 then noting difficulties with the claim in light of the Bagshaw Report, although this was not in the context of a strike out application. The State in its written submissions addressed the Bagshaw Report, proposed amendments to the claim and orders and future progress of the claim and stated, amongst other things:

In the First Respondent’s submission, the Bagshaw Report serves to confirm that the WAD6124/98 applicant group, as presently constituted, is not a group capable of demonstrating that it, or any of its members, hold native title rights and interests as those rights and interests are defined in section 223 [NTA]…

69    The State also submitted that on the basis of the information presently available “the Court is unable to make a determination of native title in favour of the present WAD6124/98 applicant group” and gave reasons why that was said to be so.

70    I accept the submission now made by the KLC that notwithstanding these matters there has been no amendment to the native title claim group description since the provision to the parties of the Bagshaw Report in late 2003.

71    I also accept the submission that it may reasonably be inferred from the orders made and from the period that was allowed for the completion of the report that significant court resources were invested in it. I consider it is consistent with the overarching purpose of the civil practice and procedure provisions of this Court set out in s 37M of the Federal Court of Australia Act 1976 (Cth) that, absent good reason to the contrary, the Bagshaw Report should be available to the parties for use in the proceeding in any manner that may promote the resolution or determination of the proceeding, including for the purpose of any application for an order that the proceeding be struck out or dismissed.

72    In these circumstances, I consider that, rather than order 6 made by Wilcox J on 22 November 2002 being vacated, it should be varied in an appropriate manner to ensure that while the parties may now use the Bagshaw Report in the manner proposed, in relation to the strike out application, it should be subject to confidentiality orders in respect of Appendix 5, which relates to sensitive genealogical information. That use includes reference by the parties to its context on this interlocutory application.

strike out

73    While the interlocutory application seeks strike out or dismissal under s 84C NTA and R 26.01(1)(c) Rules, the KLC, by the written and oral submissions of counsel, makes it plain that it moves under s 84C NTA at this point.

74    Section 84C(1) NTA provides as follows:

(1)     If an application (the main application) does not comply with section 61 (which deals with the basic requirements for applications), 61A (which provides that certain applications must not be made) or 62 (which requires applications to be accompanied by affidavits and to contain certain details), a party to the proceedings may at any time apply to the Federal Court to strike out the application.

Note: The main application may still be amended even after a strike-out application is filed.

75    The KLC challenges the adequacy of the authorisation of the claim amended by the second amended application.

76    While the original application referred to the “Djabera Djabera”, as noted above the Form 1 application in relation to Sch A, as first and presently amended, now states that “the claim is brought on behalf of the people listed in Attachment ‘A’”. Attachment “A” comprises a list of persons who include the named applicants. Nowhere in the terms of Sch A or in Att “A” is it said that the application is brought on behalf of any particular named group of Aboriginal persons, whether by reference to some language group identity or tribal identity or clan identity or the like. I have noted above, however, that some maps comprising part of the Form 1 refer in their heading to the Djabera Djabera, as do the court headings on the authorisation affidavits made and filed by the named applicants in the proceeding but specifically, in my view, the key parts of the claim do not say it is made on behalf of the “Djabera Djabera people”. I make these observations notwithstanding the orders made by Wilcox J commissioning the Bagshaw Report which assumed, on one view, the claim was for the “Djabera Djabera people”.

77    Paragraph 2 of Pt A of the Form 1, that deals with “authorisation”, in response to the margin note which requires the capacity in which the applicant claims to be entitled to make the application, eg: a person authorised by the native title claim group to make the native title determination application pursuant to s 61(1) NTA, states:

The applicant is entitled to make this application as people authorised by the native title claim group to make the native title determination application.

78    Schedule B of the Form 1 deals with the identification of boundaries of the claim area. Schedule C deals with maps. Schedule D deals with searches. Schedule E then deals with the description of native title rights and interests. Again, no reference is made to any particular named group. Schedule F deals with a general description of native title rights and interests claimed. Again, it does not identify any particular named group. Schedule G deals with activities and again it does not deal with any particular named group. Schedules H to Q deal with prescribed matters and again do not identify any particular named group.

79    Schedule R deals with certification or authorisation and refers to s 190C NTA. Because the application was not certified by a representative body in Sch R the applicant was obliged to provide a statement that the applicant is a member of the native title claim group and is authorised to make the application, and deal with matters arising in relation to it, by all the other persons in the native title claim group; and the grounds on which the Registrar should consider the above statement is correct. In response to this apparent requirement set out in Sch R of the Form 1, the applicant stated :

The applicants are members of the native title claim group and are authorised to make the application and deal with matters arising in relation to it by all other persons in the native title claim group pursuant to a process of decision making that the persons in the native title claim group have also agreed to and adopted in relation to authorising the making of the application and dealing with matters and in relation to doing things of that kind.

Particulars:

The people in the native title claim group listed in Attachment ‘A’ have authorised the applicants to make the claim and act in relation to the claim on their behalf and also the decision making process adopted in relation to the said authorisation by providing express authorisation in writing or orally to the solicitors for the applicants or agents of the applicants.

80    Private solicitors were at this point acting for the applicant, which explains the last particular.

81    The requirements of Sch R at material times reflected the content of s 251B NTA concerning the authorising of the making of applications which are as follows:

251B Authorising the making of applications

For the purposes of this Act, all the persons in a native title claim group or compensation claim group authorise a person or persons to make a native title determination application or a compensation application, and to deal with matters arising in relation to it, if:

(a)     where there is a process of decision-making that, under the traditional laws and customs of the persons in the native title claim group or compensation claim group, must be complied with in relation to authorising things of that kind—the persons in the native title claim group or compensation claim group authorise the person or persons to make the application and to deal with the matters in accordance with that process; or

(b)     where there is no such process—the persons in the native title claim group or compensation claim group authorise the other person or persons to make the application and to deal with the matters in accordance with a process of decision-making agreed to and adopted, by the persons in the native title claim group or compensation claim group, in relation to authorising the making of the application and dealing with the matters, or in relation to doing things of that kind.

82    Also, at material times, s 62(1)(a)(v) NTA required a statement as to “the basis on which the applicant is authorised as mentioned in subparagraph (4)”. Not until that provision was amended by Sch 1, item 72 of the Native Title (Technical Amendments) Act 2007 (Cth) did the provision require “details of the process of decision-making complied with in authorising the applicant”, as now is the case. It is common to the parties that the current provision did not apply at the time the claimant application in this proceeding was made in 1996.

83    The claim when first amended in 1999 was supported by affidavits made by each of the named applicants who, in each case, relevantly stated:

I am authorised by all the persons in the native claim group to make the application and deal with matters arising in relation to the application pursuant to the process of decision making that:

(1)    under the traditional laws and customs of the persons in the native title claim group, must be complied with in relation to authorising things of that kind; and/or

(2)    the persons in the native title claim group have (also) agreed to and adopted in relation to authorising the making of the application and dealing with matters and in relation to doing things of that kind.

84    The KLC now says that the requirement of s 62(1)(a)(v) as it applied at material times was not met, as the “basis” on which the applicant is authorised was not dealt with.

85    In my view, while one might argue about the clarity of what is said in each of the affidavits made by the named applicants, when one considers what was stated in Sch R of Pt A of the Form 1 concerning the authorisation, including the reference to express authorisation in writing or orally to the solicitors for the applicants or agents of the applicants, and the express statements that all persons in the native title claim group have authorised each of the applicants to make the application pursuant to a process of decision-making that they have agreed to and adopted in relation to authorising the making of the application and dealing with matters and in relation to the doing of things of that kind, the relevant “basis” of the authorisation is provided. When note is taken also of the authorisation statement made at para 2 of Pt A, that I referred to above, as well as the statement made in Sch R concerning authorisation, it is clear that the applicants disclose that the basis upon which authorisation was given, thus reflecting the requirements of both parts of s 251B NTA.

86    Section 62, as noted above, was later amended to require the “details of the process of decision-making complied with in authorising the applicant”. If such a provision had been in place at the relevant time this claimant application was amended in 1999, then it might reasonably be said that the affidavits required by s 62 NTA were deficient, in that they did not set out the details of the process of decision-making: they did not explain, for example, whether there were meetings or how direct authorisation was given by individual members of the claim group to the applicants or some of them. As it transpired some of those details appear to be touched upon in the Bagshaw Report and may raise some questions. However, in my view, the basis upon which the applicant is authorised as mentioned in subpara (v) of s 62(1)(a) NTA as it applied at material times, was provided.

87    I would therefore not strike out the proceeding on this first contended for basis under s 84C(1) NTA.

88    The other authorisation ground pressed by the KLC to justify the dismissal of the proceeding is that, as explained in decisions such as Hazelbane v Northern Territory of Australia [2008] FCA 291 (Hazelbane), it is not permissible for a subgroup of a group of persons who hold native title to bring the claim in their name without their authorisation. In Hazelbane, Mansfield J held, on the facts of the claimant application made, the authorisation from two subgroups of Emu Clan members had not been obtained, when on the terms of the claimant application as lodged and explained in further affidavit evidence, that was necessary. See [28] and [29]. To similar effect the KLC submits that when one considers the terms of the claimant application and the observations and opinions expressed in the Bagshaw Report, the current claimant application may be seen as one brought by a subgroup on behalf of a larger group of persons, in circumstances where that larger group of persons, who ought to be in the claim group, are not mentioned and have not authorised the making of the application.

89    As a matter of fact, as explained above, I do not consider that the claimant application can be construed in the manner contended for. Further, I consider there are difficulties in relying on the Bagshaw Report in this regard. The report is not evidence in the proceeding. It has not been primarily adopted by the applicant. The statements made expressing agreement with it by Mr Torres (deceased) and from the bar table by Mr Gregory Francis are ambiguous in the sense that it is not clear exactly what they agreed with.

90    As noted above, the Form 1, as amended by the second amended application, is a claim brought by named applicants on behalf of the claim group identified in Att “A”. Despite being generally referred to as the “Djabera Djabera” claim by parties and in some documentation, this does not appear on its face. The Att “A” document does not make any reference to the claim being brought for the benefit of members of any particular named Aboriginal group, language group, tribal group, clan or the like. As mentioned above, none of the relevant schedules of Pt A of the Form 1 identify any relevant Aboriginal group in such terms either.

91    What the Bagshaw Report does is express the opinion, not yet proved or tested in evidence, that a number of persons within the claim group as identified in Att “A” are either members of the “Jabirr-jabirr” people (but not all such people), members of “Nyul-nyul” people (but not all such people), or members of the Nimambur people (but not all such people), or are persons who have no relevant connection to the land and waters claimed at all.

92    If one accepts the opinions expressed in the Bagshaw Report, as apparently people such as Mr Torres (now deceased) have in the past and Mr Gregory Francis does now, then that would suggest consideration should be given to the amendment of the claim so that it is refined in ways that would obviate the deficiencies in it identified by Mr Bagshaw.

93    Whether or not the claim at this point, on the basis of Mr Bagshaw’s opinions, might fail at a hearing is not relevant to the question whether there is a lack of authorisation by some wider group of claimants who are not presently included in the claimant application. As noted above, I do not consider the claim suffers from that deficiency, although, as I say, if the opinions of Mr Bagshaw were to be accepted at a hearing, the claimants, or many of them, might have difficulty in obtaining a determination of native title.

94    The authorisation point, both on the failure to provide the “basis” for the authorisation and because it is said a subgroup has applied for native title on behalf of others without the authorisation of the broader group, are the two particular points pressed by counsel for the KLC on the s 84C(1) strike out application. As neither is made out, the application of the KLC to strike out the proceeding should be dismissed.

further observation – time for action

95    Notwithstanding the Court’s finding that the grounds raised by the KLC for striking out this proceeding are not established, the observation must be made that the current state of this proceeding is far from satisfactory and it may be at risk of being struck out in the future.

96    Wilcox J plainly was so concerned with the difficult claim group issues raised by the proceeding in 2002 to have then commissioned the Bagshaw Report. That step, by a judge of this Court, was then, and remains today, an exceptional step. Normally the parties are expected, with the assistance of a native title representative body, to resolve issues concerning the traditional ownership of country. The Bagshaw Report was ordered to assist the claim group members, in particular, to resolve this issue. It appears mediation was ordered following the circulation of that report to the parties, but in 10 years since the circulation of the report, the proceeding has barely advanced.

97    Mr Gregory Francis has explained to the Court, from the bar table, that he has raised proposals for how the current proceeding might be dealt with in order to reflect opinions expressed in the Bagshaw Report. It is not at all clear to the Court, however, that all other members of the claim group or all other named applicants necessarily agree with the possible ways forward that Mr Francis has outlined. Certainly it appears that the KLC, as the native title representative body, does not agree with the maintenance of the proceeding.

98    What is clear from what has been said on behalf of the KLC in this proceeding, and by the Court in the related McKenzie v State of Western Australia [2013] FCA 1058 proceeding, is that considerable attention is being given by the native title representative body to the resolution of the range of issues identified in the Bagshaw Report in relation to this and related claim areas.

99    While the strike out application has not succeeded on this occasion, because of the longstanding lack of real progress in this proceeding, and the fact that resolution of the issues identified even 10 years ago by Wilcox J remains problematic notwithstanding the benefit of the Bagshaw Report, I will cause this proceeding to be returned immediately to case management by a registrar of this Court so that the relevant parties, particularly the applicant and the KLC, can engage in discussions and reflect on the best way forward.

100    If the proceeding continues to languish in the way that it has for much of the last 10 years, then it may be that the only option left to the Court will be for the Court to require the applicant, under the NTA, to show cause why the proceeding should not be dismissed due to its generally unsatisfactory formulation and state of progress. In that regard, in relation to another proceeding which was suffering from difficulties not unlike those I have identified in this case, the Court ultimately dismissed the proceeding: see Budby on behalf of the Barada Barna People v State of Queensland (No 2) [2013] FCA 314.

Associate:

Dated:    3 December 2013