FEDERAL COURT OF AUSTRALIA

Stock v State of Western Australia [2014] FCA 179

THE COURT ORDERS THAT:

1.    David Stock, Raymond Drage, Victor Parker, Billy Cadigan and Leonard Stream (replacement applicant) do jointly replace the applicant to the current Nyiyaparli native title determination claimant applications WAD6280/1998 and WAD196/2013 (Nyiyaparli applications) on the grounds that:

(a)    The current applicant group is no longer authorised by the claim group to make the Nyiyaparli applications or to deal with matters arising in relation to them; and

(b)    The persons who comprise the replacement applicant are authorised by the claim group to make this interlocutory application under s 66B of the Native Title Act 1993 (Cth), and are authorised to bring the Nyiyaparli applications and deal with matters arising in relation to them.

2.    The heading in the Nyiyaparli applications be amended to reflect the names of the replacement applicant in the title to these two actions.

3.    Service of this interlocutory application and supporting documentation on any person other than the first respondent be dispensed with, but the applicant is to notify the other respondents of the making of the order by email communication or post as soon as possible.

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

THE COURT ORDERS THAT:

1.    David Stock, Raymond Drage, Victor Parker, Billy Cadigan and Leonard Stream (replacement applicant) do jointly replace the applicant to the current Nyiyaparli native title determination claimant applications WAD6280/1998 and WAD196/2013 (Nyiyaparli applications) on the grounds that:

(a)    The current applicant group is no longer authorised by the claim group to make the Nyiyaparli applications or to deal with matters arising in relation to them; and

(b)    The persons who comprise the replacement applicant are authorised by the claim group to make this interlocutory application under s 66B of the Native Title Act 1993 (Cth), and are authorised to bring the Nyiyaparli applications and deal with matters arising in relation to them.

2.    The heading in the Nyiyaparli applications be amended to reflect the names of the replacement applicant in the title to these two actions.

3.    Service of this interlocutory application and supporting documentation on any person other than the first respondent be dispensed with, but the applicant is to notify the other respondents of the making of the order by email communication or post as soon as possible.

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

REASONS FOR JUDGMENT

1    Before the Court is an interlocutory application brought by David Stock, Raymond Drage, Victor Parker, Billy Cadigan and Leonard Stream (replacement applicant) who seek to replace David Stock, Gordon Yuline, Raymond Drage, Victor Parker and Billy Cadigan (current applicant) in each of claimant applications WAD6280/1998 and WAD196/2013 (Nyiyaparli applications).

2    The replacement applicant seeks to replace the current applicant on the basis that Gordon Yuline is no longer authorised to make the Nyiyaparli applications and deal with matters arising in relation to them.

3    The Court’s power to make such an order arises under s 66B of the Native Title Act 1993 (Cth) (NTA).

4    By s 66B(2) the Court may make the order if it is satisfied that the grounds set out in subs (1) are established.

5    Section 66B(1) provides that:

(1)     One or more members of the native title claim group (the claim group) in relation to a claimant application, or of the compensation claim group (also the claim group) in relation to a compensation application, may apply to the Federal Court for an order that the member, or the members jointly, replace the current applicant for the application on the grounds that:

(a)     one or more of the following applies to a person who is, either alone or jointly with one or more other persons, the current applicant:

(i)     the person consents to his or her replacement or removal;

(ii)     the person has died or become incapacitated;

(iii)     the person is no longer authorised by the claim group to make the application and to deal with matters arising in relation to it;

(iv)     the person has exceeded the authority given to him or her by the claim group to make the application and to deal with matters arising in relation to it; and

(b)     the member or members are authorised by the claim group to make the application and to deal with matters arising in relation to it.

Note:    Section 251B states what it means for a person or persons to be authorised by all the persons in the claim group to deal with matters in relation to a claimant application or a compensation application.

6    The issues on the determination of the interlocutory application are therefore:

(1)    Whether the replacement applicant is comprised of members of the claim group.

(2)    Whether one or more of the following applies to a person who is, either alone or jointly with one or other persons, the current applicant:

(i)    the person, that is to say Mr Yuline, has consented to his replacement or removal;

(ii)    Mr Yuline has died or become incapacitated;

(iii)    Mr Yuline is no longer authorised by the claim group to make the application and to deal with matters arising in relation to it;

(iv)    Mr Yuline has exceeded the authority given to him by the claim group to make the application and to deal with matters arising in relation to it.

(3)    Whether the replacement applicant is authorised by the claim group to make the application and deal with matters arising in relation to it.

(4)    Whether it is appropriate that such an order be made.

Whether the replacement applicant is comprised of members of the claim group

7    I am satisfied that the replacement applicant, which makes the interlocutory application, is comprised of persons who are members of the claim group in relation to the Nyiyaparli applications.

whether mr yuline is no longer authorised

8    As to the alternative circumstances mentioned in s 66B(1)(a), the only relevant circumstance in this case is whether Mr Yuline is no longer authorised by the claim group to make the claimant applications and deal with matters arising in relation to them.

9    In that regard, I accept the evidence contained in the affidavits of Leonard Stream dated 14 August 2013, Billy Cadigan dated 14 August 2013, Imogen Marianne Dexter dated 19 August 2013, Katherine Anne Holloman dated 19 August 2013 and Kylie Chalmers dated 21 October 2013, concerning the events and decision-making that resulted in the claim group no longer authorising Mr Yuline as a member of the applicant.

10    A community meeting on 6 August 2013 authorised changes to the applicant list. The meeting had the usual attendance of Nyiyaparli claim group members. I find those claim group members present were an appropriate representation of the families which comprise the Nyiyaparli claim group, including cultural elders.

11    I accept that the usual accepted method of convening meetings of the Nyiyaparli claim group was followed, including by way of notices given and word of mouth notification, which led to the August meeting.

12    Additionally, notices were published into regional Pilbara newspapers, emailed to the Karlka Nyiyaparli Aboriginal Corporation and pinned to the noticeboard of Yamatji Marlpa Aboriginal Corporation’s (YMAC) office in Tom Price, South Hedland and Karratha.

13    I accept that at the August meeting, the Nyiyaparli claim group resolved to make resolution 1, resolution 2, resolution 3 and resolution 4, the consequence of which is this interlocutory application to replace the applicant.

14    On the day the interlocutory application came before the Court, Mr J Marshall, solicitor, appeared by telephone seeking leave to represent Mr Stock and Mr Yuline in relation to the application. Leave to appear for Mr Stock was refused, Mr Stock already being a party to the proceeding, namely one of the current applicant and one of the proposed replacement applicant, for whom Ms Tan appeared, instructed by Mr Michael Meegan of YMAC. Mr Marshall was, however, given leave to appear for Mr Yuline and to read an affidavit of Mr Yuline shortly before faxed to the Court. Mr Marshall also sought an adjournment of the proceeding which the Court refused.

15    The Court noted receipt of the affidavit. The other parties, particularly Ms Tan for the replacement applicant, had not seen the affidavit. Accordingly, a brief adjournment of the proceeding was made to enable her to consult the document. In the result, after Ms Tan and other parties made submissions, the Court reserved its decision in order to properly consider the terms of Mr Yuline’s affidavit and to weigh it as appropriate against the other affidavit material.

16    The Court has now had the opportunity to consider the terms of Mr Yuline’s affidavit. There is nothing in it that, in my view, should lead to the Court not accepting the affidavit evidence referred to and relied upon by the replacement applicant as indicating that, at a properly authorised meeting of the claim group, the resolution was passed to replace the applicant by, in effect, removing Mr  Yuline as one of the named applicants.

17    In his affidavit, Mr Yuline states that he is a senior primary elder and Law man of the Nyiyaparli people and an original native title applicant in WAD6280/1998.

18    Mr Yuline appears to assert that the proceeding in WAD196/2013 is an unauthorised claim.

19    He says he has made it known that his father handed down the position he holds and he has authority customarily handed down to him from his father.

20    He also refers to the customary basis upon which he represents Nyiyaparli people.

21    Mr Yuline makes various allegations including that members of claim groups do not have rights according to Nyiyaparli culture and tradition and that Pilbara Native Title Services and YMAC have been asked not to act.

22    Mr Yuline also asserts that “Nyiyaparli elders on behalf of the Nyiyaparli people unanimously refute the claim by Yamatji Marlpa Aboriginal Corporation that there is no process of decision-making under traditional laws and customs of the Native Title claim group” and that Nyiyaparli elders have not given authorisation to do things on behalf of the claim group.

23    In my view, there is nothing in Mr Yuline’s affidavit that affects the weight to be given to the affidavit evidence filed in support of the interlocutory application and the overwhelming evidence that indicates that Mr Yuline is no longer authorised by the claim group to make Nyiyaparli applications and to deal with matters arising in relation to them.

Whether replacement applicant is authorised

24    I accept the affidavit evidence also establishes that the replacement applicant is authorised by the claim group to make the applications and deal with matters arising in relation to them.

whether it is appropriate to make order

25    Finally, it is accepted that by s 66B(2) the Court has a discretion as to whether or not in any case the order replacing an applicant should be made: Ward v Northern Territory [2002] FCA 171 at [16]. There is, in my view, no reason why the orders sought should not be made.

26    In these circumstances, the Court will make the orders set out in the interlocutory application dated 21 August 2013 at [1], [2] and [3].

orders

27    The Court orders that:

1.    David Stock, Raymond Drage, Victor Parker, Billy Cadigan and Leonard Stream (replacement applicant) do jointly replace the applicant to the current Nyiyaparli native title determination claimant applications WAD6280/1998 and WAD196/2013 (Nyiyaparli applications) on the grounds that:

(a)    The current applicant group is no longer authorised by the claim group to make the Nyiyaparli applications or to deal with matters arising in relation to them; and

(b)    The persons who comprise the replacement applicant are authorised by the claim group to make this interlocutory application under s 66B of the Native Title Act 1993 (Cth), and are authorised to bring the Nyiyaparli applications and deal with matters arising in relation to them.

2.    The heading in the Nyiyaparli applications be amended to reflect the names of the replacement applicant in the title to these two actions.

3.    Service of this interlocutory application and supporting documentation on any person other than the first respondent be dispensed with, but the applicant is to notify the other respondents of the making of the order by email communication or post as soon as possible.

Associate:

Dated:    4 March 2014