FEDERAL COURT OF AUSTRALIA

TR (Deceased) on behalf of the Kariyarra People v State of Western Australia [2014] FCA 734

THE COURT ORDERS THAT:

1.    Leave is granted to the applicants to amend the Form 1 Amended Native Title Determination Claimant Application filed on 31 March 1999 in terms of the Substituted Further Amended Form 1 Native Title Determination Application filed on 4 April 2014.

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

THE COURT ORDERS THAT:

1.    Leave is granted to the applicants to amend the Form 1 Native Title Determination Claimant Application filed on 18 December 2009 in terms of the Substituted Amended Form 1 Native Title Determination Application filed on 4 April 2014.

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

REASONS FOR JUDGMENT

1        On 19 December 2013, the applicants in proceeding WAD 6169 of 1998, the Kariyarra Main Application, and the same applicants, in proceeding WAD 232 of 2009, the Kariyarra–Pippingarra Application, filed interlocutory applications seeking leave to amend the native title applications by, inter alia, substituting differently formulated native title claim groups.

2        The amendments to the claim groups (the claim group amendments) are opposed by six siblings, namely Gene Smith, Robert Dann, Mary Attwood, George Dann, Patricia Mason, and Shirley Lockyer (the opponents). There was no objection at the hearing on 4 April 2014 to additional amendments, other than the claim group amendments (the non-claim group amendments), in the Substituted Further Amended Form 1 in WAD 6169 of 1998, and in the Substituted Amended Form 1 in WAD 232 of 2009.

3        Just prior to judgment being delivered, the Court sought to confirm that only the claim group amendments were in dispute. The opponents responded and accepted that the claim group amendments were the only matters dealt with at the hearing, but explained that the Substituted Amended Form 1 in each case was only handed to them on the day of the hearing. The applicants' solicitor then sent an email stating that the opponent's solicitor was provided a copy of the Substituted Amended Form 1 in the Kariyarra-Pippingara Application, in which the opponents are respondents, on 12 March 2014. It appears from that email that the only non-claim group amendment was the removal of a proposed amendment to the names of deceased persons. It is unnecessary to take this discrepancy any further, as in any case, the opponents did not make any application to the Court to challenge or to be heard on any of the non-claim group amendments in the time between the hearing and time of the Court's inquiry. This judgment therefore proceeds on the basis that the only objection of the opponents was to the claim group amendments.

4        The State of Western Australia consents to both applications to amend.

5        The applicants were represented by Mr S Wright of counsel, and the opponents were represented by Mr P Clifford of counsel. The State was represented by Mr G Ranson of counsel.

6        Mr Vincent Lockyer also appeared at the hearing. He claimed to be a Kariyarra man, but is not part of the native title claim group in either native title application at present. With leave of the Court he was assisted by a lawyer, Mr B Mailman.

7        The Kariyarra Main Application was lodged in 1997 in the National Native Title Tribunal. It seeks a determination of native title over a large area generally south of Port Hedland in Western Australia. The Kariyarra–Pippingarra Application was filed in December 2009 in this Court and seeks a determination of native title over a much smaller area adjacent and to the east of the Kariyarra Main Application area.

8        The native title claim group in the Kayirarra Main Application is currently defined as 78 named individuals. The claim group in the Kariyarra–Pippingara Application is currently defined by reference to descendants of five apical ancestors, and to five individuals.

9        The claim group amendments proposed to both applications are identical and describe the native title claim groups by reference to the descendants of eleven apical ancestors. The effect of the claim group amendments is to expand the persons in the native title claim groups by including family members who are not named in the existing applications, and by including members of several new family groups who are not included in the existing applications.

10        The need for amendment to the native title applications is said to have arisen as a result of further anthropological work undertaken on the instructions of Yamatji Marlpa Aboriginal Corporation (Yamatji), which is the representative body acting for the Kariyarra People. Dr Kingsley Palmer provided an expert anthropological report in December 2013, which is said by the applicants to support the native title claim groups constituted by the descendants of the eleven apical ancestors.

11        At present, three of the six opponents are part of the native title claim group in the Kariyarra Main Application, and none of them are part of the native title claim group in the Kariyarra–Pippingarra Application. Mr Vincent Lockyer is not part of the native title claim group in either application. If the claim group amendments were allowed, all of the opponents, and Mr Lockyer, would be part of the native title claim group in each application. The opponents' objection is that the claim group amendments, and indeed the existing applications, make claims for people who are not Kariyarra and who therefore should not be included in the native title claim groups.

12        The opponents oppose the claim group amendments because they claim that the amendments were not authorised by the traditional decision making process as required by the Native Title Act 1993 (Cth) (the Act), that the amendments include people who are not Kariyarra, and that the amendments would cause prejudice. Each of these issues will now be considered.

AUTHORISATION OF AMENDMENTS

Preliminary questions

Is authorisation required to the Kariyarra Main Application

13        In relation to the Kariyarra Main Application, the question arises whether authorisation of the claim group amendment by the proposed amended native title claim group is required at all.

14         Section 61(1) of the Act makes it a condition of a valid application for a determination of native title that the application is authorised by the native title claim group. Section 84C(1) allows a party to apply to the Court at any time to have a proceeding struck out if the application does not comply with s 61. Consequently, where s 61 applies, it will ordinarily be relevant to the consideration of an application to amend the native title claim group to examine whether the members of the native title claim group as amended authorised the change. Otherwise, the amended application would be liable to be struck out under s 84C. Whilst such authorisation will usually be a relevant matter, it will not be determinative because s 84D of the Act gives the Court discretion to proceed with an application, despite a defect in the authorisation required by s 61(1).

15        When the application for native title was lodged in 1997, s 61 provided that the application could be made by a person or persons claiming to hold native title whether alone or with others. There was no requirement for authorisation by the native title claim group. Section 61 was amended by the Native Title Amendment Act 1998 (Cth) (the amending Act) effective from 30 September 1998. After that time, s 61 provided that an application for determination of native title could be made by a person or persons authorised by the native title claim group. However, transitional provisions in Item 21 of Schedule 5 of the amending Act provided that if the native title application was made before the commencement of the amending Act, the reference to s 61 in the strike-out provision, s 84C, was to s 61 of the Act before amendment.

16        In Quall v Risk [2001] FCA 378 (Quall) at [63]–[65], O'Loughlin J held that an application filed prior to the commencement of the amending Act which was amended after 30 September 1998 had to comply with the new provision. In Wharton on behalf of the Kooma People v State of Queensland [2003] FCA 1398 (Wharton), Emmett J also considered the issue on a strikeout application brought under s 84C, but took a different approach. His Honour referred to the transitional provision of the amending Act, and said at [27] that:

An amendment to the main application does not give rise to a new application. The scheme of the Act recognises that applications may be amended. There is nothing to suggest that, when an application is amended, it should thereupon be treated as a new application so as to lose the protection afforded by Item 21.

[Emphasis in original.]

17        His Honour also said when discussing Quall at [29]:

There may be some justification for treating as a fresh application, an application purporting to be made on behalf of a native title claim group different in substance from the group named pursuant to s 61(2) of the Old Act.

18        In Risk v Northern Territory of Australia [2006] FCA 404 at [64]–[75], Mansfield J set out the history of this issue and determined that he should follow the approach in Quall because it had been followed by a number of single judges and it was not contended before him that it was clearly wrong. I adopt the same course. Additionally, the proposed changes to the native title claim group in this instance may be regarded, on the view expressed by Emmett J in Wharton, to be a native title claim group different in substance, and hence provide the justification for treating the amended application as a new application attracting the requirement of authorisation by the proposed amended native title claim group. Consequently, the amendments to the applications must comply with the current s 61 of the Act, and must be authorised by the proposed amended native title claim groups.

    Standing

19        A more fundamental question arises in relation to the capacity of the opponents to raise the authorisation issue in the Kariyarra Main Application. The opponents are not respondents in the Kariyarra Main Application. Three of them are part of the native title claim group, but none of them are applicants in the proceeding. Mr Wright contended, correctly, that the opponents have no standing to oppose the amendment application in the Kariyarra Main Application. The power to deal with all matters arising under the Act in relation to the application is conferred on the applicants (s 62A), and the Act makes provision for the replacement of applicants if necessary (s 66B).

20        In the end, nothing turns on the opponents' lack of standing, because as these reasons for judgment shortly conclude, the Kariyarra Main Application was properly authorised.

21        The opponents do not face the same obstacle in the Kariyarra–Pippingarra Application. They have standing to oppose the amendment application in that proceeding because they are respondents.

    The challenge to authorisation

22        The issue in contention between the applicants and the opponents concerns the application of s 251B of the Act, which provides as follows:

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.

    [Emphasis in original.]

23        The applicants contend that there is no traditional decision making process applicable to the authorisation of the amendments within the meaning of s 251B(a). They say that the amendments were approved by a process agreed to and adopted by the native title claim group within the meaning of s 251B(b) of the Act.

24        The opponents argue that there is a traditional decision making process applicable, and that it was not followed. Consequently, they say that the claim group amendments were not authorised by the native title claim group and should be refused.

25        The applicants rely on four affidavits all affirmed on 11 December 2013. The affidavits were affirmed by Michael John Meegan, the Principal Legal Officer of Yamatji, Amy Constance Usher, an anthropologist employed by Yamatji, Rainer Mora Mathews, a lawyer employed by Yamatji who had principal responsibility for the native title applications between May 2006 and November 2010, and Donna Elizabeth Friedl, an executive assistant employed by Yamatji.

26        These affidavits explain the process used to authorise the amendments, and the events which occurred in consequence.

27        The process involved seeking the authority of three classes of people – the existing native title claim group in the Kariyarra Main Application, the existing native title claim group in the Kariyarra–Pippingarra Application, and the proposed native title claim groups in both applications. This was the process followed in Kudjala People v State of Queensland [2006] FCA 1564 at [13]–[15], Dodd on behalf of the Wulliwulli People v State of Queensland No 2 [2009] FCA 1180 at [14], and Doctor on behalf of the Bigambul People v State of Queensland No 2 [2013] FCA 746 at [56]–[57].

28        The affidavits explain that a meeting was to be held on 23 October 2013 in South Hedland, which was comprehensively advertised. No issue was taken by the opponents with the form of the notice.

29        On that day, attendees registered for each of the three groups to which they belonged, and were provided with a coloured wrist band designating the particular group or groups to which they belonged.

30        Representatives of all of the family groups, including senior law men and women constituting the proposed native title claim group, were present.

31        The meeting was facilitated by an independent facilitator, Brendan McKeague. After the meeting attendees were given some confidential legal advice, Mr Meegan and Cheryl Collins, a lawyer employed by Yamatji, conducted the authorisation process for the amendment of the native title applications.

32        First, a resolution in the following terms was projected on to a screen and also read out by Mr Meegan:

The persons present at the meeting today agree:

(a)    There is no process of decision making that under traditional laws and customs of the Kariyarra People that must be complied with in relation to amending native title claims or appointing or replacing applicants pursuant to the Native Title Act.

(b)    The persons present at the meeting agree to follow the same process of decision making that has been historically followed by the Kariyarra native title claim groups for making major native title decisions for the Kariyarra claims. The agreed and adopted process (informed by traditional law and custom) is:

•    Decisions should be made by consensus of the various Kariyarra families where possible.

•    In reaching consensus, the views of senior Law men and women are to be given particular weight.

•    Consensus does not necessarily give any individual or family a veto.

•    If necessary, consensus can be reached by a majority vote of families and senior Law men and women.

33         Ms Collins said to the meeting that this was the process which had been used in the past and would be used at this meeting.

34        A few days before the meeting, on 21 October 2013, Yamatji received a letter from Mr Rumsley, the solicitor for the opponents. Among other things, he challenged the proposed decision making process to be used at the meeting. The letter included the following references to the proposed decision making process:

Dr Palmer's report spends considerable time discussing the continuing customary law in relation to country, its rights and use, acknowledging changes have been necessary including by way of example the advent of motor vehicles and rifles [1010].

Clearly this establishes the Kariyarra people do have a decision making process under traditional laws and customs in relation to Native Title rights, which are recognised and preserved by the Native Title Act 1993.

To suggest the Kariyarra people do not have a process to deal with decisions under the Native Title Act 1993, is to suggest a lack of sophistication analogous to the legal fiction of Terra nullius, which was rejected by the High Court in Mabo v Queensland [1992] HCA 23, 175 CLR 1.

Although it may be more convenient to propose a majority vote to decide issues, it is inconsistent with the traditional customary consensus based process. As the Native Title Act 1993 provides for an adopted method ONLY where there is no traditional customary process that applies, the findings of Dr Palmer are fatal to any attempt to impose an adopted method of decision making. The State have consistently raised this point generally as a reason impeding a consent determination.

…

The proposed decision making process is clearly invalid and cannot be relied upon to make a decision, even if the group constitution issue were able to be resolved, which it is currently not.

As there can be no determination of the group membership and the proposed decision making process is contrary to the evidence and the Native Title Act 1993, it is inappropriate to suggest the meeting could consider either the land agreement or ILUA.

35        At the meeting, a spokesperson for the opponents referred to the letter. In his affidavit Mr Meegan said:

Other than that, I do not recall anyone in the meeting raising any objection to proceeding by way of the decision making process set out in the slide (either at the time the slide was shown, or at any time during the process of voting on the resolutions).

36        Mr Meegan then projected onto the screen, and read aloud, three resolutions each in similar terms which were to be voted on by the relevant family groups. By way of example, the resolution to be voted on by the proposed amended native title claim group was in the following terms:

RESOLUTION 4 – AMENDING THE CLAIM GROUP

(RED WRIST BANDS)

Those members of the proposed new native title claim group in Kariyarra native title proceeding WAD 6169 of 1998 and WAD 232 of 2009 present at the meeting authorise the Kariyarra Applicant to make the native title claimant applications and to deal with all matters arising in relation to each of them, including to do all things necessary to amend the claim group description to read as follows:

The native title claim group comprises those Aboriginal persons who:

(a)    are a descendant from one or more of the following apical ancestors:

    •    Jinapi            •    Fanny

    •    Wirtinpangu (Jimmy)    •    Nyitji

    •    Dougal Robinson    •    Maggie

    •    Puyubungu        •    Tommy Anderson

    •    Yanki Williams        •    Fauntleroy (Pontroy)

    •    Topsy McKenna

and        

(b)    recognise themselves as having rights and interests in the Claim Area under Kariyarra traditional law and custom.

37        The resolutions were opposed by two family groups. Consequently, Mr Meegan, Ms Usher, and Olivia Norris, who was employed by Yamitji as Director of Research and Heritage, spoke with the family groups and the members of the native title claim groups relevant to each resolution and asked for their decision. The results were as follows:

(a)    Resolution 2 – Amending the claim group for the Kariyarra main claim (Green wrist bands):

    Agree:    6 family groups

    Disagree: 1 family group

    Abstain: 1 family group

    Not applicable: 2 family groups

(b)    Resolution 3 – Amending the claim group for the Kariyarra Pippingarra claim (Blue wrist bands)

    Agree: 4 family groups

    Disagree: Nil

    Abstain: 1 family group

    Not applicable: 5 family groups

(c)    Resolution 4 – Proposed amended claim group (red wrist bands)

    Agree: 7 family groups

    Disagree: 2 family groups

    Abstain: 1 family group

    Not applicable: Nil

38        Evidence as to the decision making process of the Kariyarra People was given in the affidavits sworn by Ms Usher and Mr Mathews.

39        Ms Usher is the principal anthropologist allocated to the Kariyarra native title applications. She has been employed by Yamitji since August 2012. Her work has involved reviewing Kariyarra anthropological materials, attending field trips with consultant anthropologist Dr Kingsley Palmer, and attending meetings of the various Kariyarra family groups to discuss Dr Palmer's research findings. Her work has provided her with knowledge of Kariyarra laws and customs. Based on her anthropological research in relation to the Kariyarra People, she expressed the opinion that there was no traditional law or custom of the Kariyarra People for authorising the making of native title claims on their behalf or for things of that kind. She expressed a further opinion, based on her research, that the decision making process adopted at the meeting on 23 October 2013 had been used by the Kariyarra People since they had been represented by Yamatji, and that the process was consistent with the laws and customs currently observed by the Kariyarra People, whereby family groups are considered to speak for particular parts of Kariyarra country.

40        Mr Mathews was employed by Yamatji from May 2006 to November 2010, and during that time had primary responsibility for the Kariyarra native title applications. Since then, he has operated as a consultant and continued to work on future act and claim-related matters with the Kariyarra People. He attended numerous meetings of the Kariyarra People in the time he was employed by Yamatiji, and has observed a consistent process of decision making. Mr Mathews reviewed the files held by Yamatji and spoke to former staff members. From those sources he concluded that the same decision making process has been utilised by the Kariyarra People since 2001, when Yamatji was first instructed. Mr Mathews described the process thus:

8.    In my experience, the great majority of decisions at Kariyarra community meetings have been made by agreement of all present. However, in cases where disagreement at such meetings has arisen, decisions have been made by consensus of Kariyarra families. In such a situation, family groups have sat together separately and come to a common position themselves before reporting back to the broader group.

9.    Where a small number of families have disagreed with the rest of the families, they have often put aside their differences, so that there has been a unanimous position. Sometimes a family has formally abstained from a decision with which they did not agree. Where one family, or a small number of families, has held out or resisted a decision, they have generally been overridden by the rest of the community.

10.    Consideration has usually been given to views of elders with cultural authority, particularly within each family group, although their views have not necessarily been determinative.

41        The opponents rely on affidavits of Mary Attwood, sworn on 6 March 2014, of George Dann, sworn on 13 March 2014, and of Gene Smith sworn, on 24 March 2014.

42        Ms Attwood said that she is a Kariyarra woman who has lived on Kariyarra country for over 65 years and continues to practice the Kariyarra laws and customs. She said that the Kariyarra People make decisions according to traditional laws and customs by a process based on consensus, by which all of the people talk about a matter until consensus is reached. She said that it is not until consensus is reached that anything can be authorised under the traditional laws and customs. This process was followed when the Kariyarra Main Application was lodged in 1997. At that time the Kariyarra People were represented by the Pilbara Aboriginal Land Council Corporation. Ms Attwood said that after Yamitji became the representative body for the Kariyarra People she attended some meetings, but not all of them. At those meetings, decisions were made by a majority vote after a show of hands of individuals. In her experience, the process changed at a meeting held on 22 November 2012 when voting was done by family groups. There is a clear implication in Ms Attwood's affidavit that the voting process was changed at this meeting because, for the first time, her family had sufficient individual votes to control the outcome. Voting by family groups prevented her family carrying the day. Then, at a meeting on 5 March 2013 to authorise an agreement with a third party, the decision was made by a majority vote after a show of hands. Ms Attwood said that voting by family groups had not been used except at the meeting on 22 November 2012. Although his affidavit is not entirely clear on the point, it seems that Mr Dann agreed with Ms Attwood about the 22 November 2012 meeting. Ms Smith's affidavit was to the same effect as Ms Attwood's.

43        The deponents of these affidavits were not cross examined.

44        It will be recalled that when the Kariyarra Main Application was lodged in 1997, there was no requirement for authorisation by the native title group for the applicants to make the application. An amendment to that application for native title was filed on 5 January 1999. Paragraph 2 of that application, and each of the affidavits of the applicants, stated that the applicants were authorised in accordance with s 251B(b) of the Act to make the amended application. Another amended application was filed on 5 February 1999. Paragraph 2 of that application, and the affidavits of the applicants, again stated that the applicants were authorised in accordance with s 251B(b) of the Act to make the amended application. A further amended application was filed on 10 March 1999. Paragraph 2 of that application, and the affidavits of the applicants, stated that the applicants were authorised in accordance with s 251B(b) of the Act to make the amended application. Then, on 31 March 1999, another amended application for native title was filed. This is the current and operative amendment. However, [2] of the 31 March 1999 application and the affidavits of the applicants this time stated that the applicants were authorised to make the amended application in accordance with s 251B(a) of the Act.

45        Then, in 2009, the Kariyarra–Pippingarra Application was filed by the same applicants. That application for native title and the affidavits of the applicants stated that they were authorised by the native title claim group, under s 251B(b) of the Act, to make the application, albeit in respect of a different native title claim group.

46        The affidavits of Ms Attwood and Mr Dann stated that there was a traditional decision making process and that it required unanimity. The opponents also relied on the 31 March 1999 amendment to the Kariyarra Main Application and the applicants' affidavits in support, which asserted authorisation by a traditional decision making process under s 251B(a) of the Act. On the opponents' own evidence, however, the traditional process asserted by them had not been used at meetings concerning native title matters since 2001. Voting by a show of hands was used at a number of meetings which they attended, and presumably this signified decision making by majority vote. Then at the 22 November 2012 meeting, voting was done by family groups.

47        Against this evidence was the evidence of the 5 January 1999, 5 February 1999, and 10 March 1999 amendment applications and associated affidavits, which stated that there was no traditional decision making process. This was the position also reflected in 2009, when the Kariyarra–Pippingarra Application was filed. Further, all the families at the meeting held on 21 October 2013, other than the opponents, accepted that there was no traditional decision making process for decisions such as the amendment of the native title claim group. This was also the view of Ms Usher based on her anthropological research, and of Mr Matthews based on his experience from 2006 to the present, and his enquiries relating to the period from 2001 to 2006. The attendees of the meeting on 21 October 2013, other than the opponents, adopted the process of family group voting. There is an inherent improbability in the evidence of Ms Attwood, Mr Dann and Ms Smith that there was a traditional requirement of consensus decision making for all decisions. It is likely that there would have been occasions in the history of the Kariyarra People where the interests of different people could not be accommodated by consensus. That is just the way of humanity. To require consensus in such circumstances would have produced stalemate. It is improbable that the process of consensus decision making was to apply even where no consensus was possible. It may be proper to understand the evidence of Ms Attwood, Mr Dann and Ms Smith as suggesting no more than that traditional laws and customs provided a preferred process of consensus decision making. This would leave open what was to happen where consensus could not be reached.

48        The evidence favours the conclusion that in October 2013, the Kariyarra People did not have a traditional decision making process for decisions to amend the native title claim groups. The meeting on 21 October 2013 adopted a process of voting by family groups, and accepted that the decision would be made by a majority of the family groups.

THE INCLUSION OF NON KARIYARRA PEOPLE

49        The opponents argued that a number of the proposed apical ancestors were not Kariyarra People. For instance, they contended that Nyitji, Fanny, and Jinapi were Ngarluma People, Yanki Williams was Yindjibarndi and Pontroy was Nyamil. They challenged certain ancestors who relied on adoption, incorporation or regency to qualify as Kariyarra on the basis that such circumstances did not qualify a person as Kariyarra. As a result, the opponents said that authorisation by the descendants of the proposed apical ancestors was not authorisation by people entitled to the native title rights and interests, the native title claim group, as required by s 61(1) of the Act, and that the application it purported to amend was liable to be struck out under s 84C. It followed that the amendments which would produce an invalid application should not be allowed.

50        This argument treats the requirement for authorisation in s 61(1) as directed to the people who are ultimately found to be entitled to a native title determination, rather than directed to the people making the native title claim who may or may not succeed in obtaining a determination.

51        In Harrington-Smith v WA (No 9) 238 ALR 1; [2007] FCA 31, Lindgren J explained how the section works in these circumstances. His Honour said:

1192    How does s 84C, which assumes that it may be possible for an application to be struck out prior to the final determination of an application, accommodate the fact that the native title claim group is defined to mean the actual holders of the particular native title claimed? In my opinion, the answer is that the striking out remedy is available once it clearly appears that, if the application were to succeed according to its own terms, the applicants would not have been authorised by all those persons the Court would determine to be the actual holders of the particular native title claimed, that is to say, by all the members of the 'claim group' (all the 'claimants').

1193    I will take this approach also to the challenges to authorisation of all Claims before the Court, that is to say, I will assume that the claimants identified in the Form 1 are actual holders of the particular native title claimed in that Form.

52        The applicants urge that the same approach be taken in these applications. The Court should allow the claim group amendments if the people constituting the proposed amended native title claim groups authorised the amendments, even if, as the opponents argued, at the end of a trial the Court might find that some of the proposed apical ancestors do not qualify as Kariyarra People.

53        That course is appropriate for two reasons. First, the requirement for authorisation may be dispensed with in the interests of justice (s 84D(4)). Whether to exercise this discretion is a matter properly considered after a full hearing of the challenges to the membership of the native title claim group. Second, the grounds on which the opponents challenge the membership of some of the proposed apical ancestors are not straightforward. The opponents only sketched the reasons why they contended that some of the proposed apical ancestors were not Kariyarra People. They claim that the expert report of Dr Palmer supports their arguments. The applicants, on the other hand, say that Dr Palmer's report does not support these arguments. Thus, it will be necessary to hear evidence from Dr Palmer in order to understand his views. The opponents' arguments require detailed evidence about the history of the apical ancestors and their descendants, and detailed evidence about the laws and customs which qualify for membership of the group. An interlocutory application is not an appropriate forum for such an enquiry.

PREJUDICE

54        Finally, the opponents argue that the claim group amendments should be refused because, if granted, they would produce prejudice.

55        First, the opponents complain that for many years they have been excluded from negotiations with third parties about the use of the land. As a result, decisions have been made by people without the necessary knowledge of the land and with the potential threat to sacred sites.

56        It is unclear how the claim group amendments impact on this situation. The effect of the claim group amendments would be to include the opponents' family in the native title claim group in both applications. That would seem to advance their present position in which three members of the family are members of the native title claim group in the Kariyarra Main Application, but none are members of the native title claim group in the Kariyarra–Pippingarra Application. The complaint seems directed to the fact that the opponents are not applicants in the applications. In that capacity they would have direct control over such matters. But that issue is not before the Court.

57        The second prejudice claimed by the opponents is that they say that they have not received any benefits from the significant flow of funds arising from agreements with third parties over activities undertaken on the land, but members of the native title claim groups have received such benefits. Again, the claim group amendments would seem to only advance the opponents' interests in this respect.

CONCLUSION

58        For the reasons expressed, leave is granted to the applicants in both native title applications to amend the native title claim group to read as follows:

The native title claim group comprises those Aboriginal persons who:

a)    are a descendant from one or more of the following apical ancestors:

    (i)    Jinapi;

    (ii)    Wirtinpangu (Jimmy);

    (iii)    Dougal Robinson;

    (iv)    Puyubungu;

    (v)    Yanki Williams;

    (vi)    Topsy McKenna;

    (vii)    Fanny;

    (viii)    Nyitji;

    (ix)    Maggie;

    (x)    Tommy Anderson;

    (xi)    Fauntleroy (Pontroy);

and

b)    recognise themselves as having rights and interests in the area covered by the application under Kariyarra traditional law and custom.

Associate:

Dated:    9 July 2014

SCHEDULE A

Schedule of Parties

    No: (P)WAD6169/1998

Federal Court of Australia

District Registry: Western Australia

Division: General

Respondent:    CI MINERALS AUSTRALIA PTY LTD

Respondent:    PETER COPPIN

Respondent:    ALEXANDER BROWN

Respondent:    SHIRE OF ROEBOURNE

Respondent:    BORAL CONTRACTING PTY LTD

Respondent:    PILBARA ABORIGINAL LAND COUNCIL

Respondent:    TOWN OF PORT HEDLAND

Respondent:    BGC CONTRACTING PTY LTD

Respondent:    BHP BILLITON IRON ORE PTY LTD

Respondent:    SHIRE OF ASHBURTON

Respondent:    MITSUI IRON ORE CORPORATION PTY LTD

Respondent:    DOUGLAS JAMES COPPIN

Respondent:    ITOCHU MINERALS & ENERGY OF AUSTRALIA PTY LTD

Respondent:    IAN DUGGAN

Respondent:    LESLIE JOHN WILSON

Respondent:    GREENBUSHES LTD

Respondent:    UNIMIN AUSTRALIA LIMITED

Respondent:    JOHN SKEFFINGTON

Respondent:    ELAZAC MINING PTY LTD

Respondent:    ALWYN MOYA COPPIN

Respondent:    COLIN BRIERLY

Respondent:    FOUR SEASONS CORPORATION PTY LTD

Respondent:    GWALIA TANTALUM PTY LTD

Respondent:    LESLEY P IGNOTI

Respondent:    PERTH SHELL DISTRIBUTORS

Respondent:    PETER JOHN FULLARTON

Respondent:    PETER ALWYN IGNOTI

Respondent:    MCKERROW HOLDINGS PTY LTD

Respondent:    RUSSELL ADRIAN IGNOTI

Respondent:    PAUL MILES HAYLER

Respondent:    JOHN SMART

Respondent:    OIL ENERGY CORPORATION PTY LTD

Respondent:    MONTIEN HOLDINGS PTY LTD

Respondent:    KEVIN GORDON

Respondent:    WF FRANCIS

Respondent:    WESTRAINT RESOURCES PTY LTD

Respondent:    HE HARMEN

Respondent:    MICHAEL CLAYDON

Respondent:    STEPHEN CHARLES MCWHIIRTER

Respondent:    LYNN JANENE MANIFIS

Respondent:    MICHAEL NICHOLAS MANIFIS

Respondent:    ROBERT JOHN TUCKER

Respondent:    BRUCE RONALD DICKENSON

Respondent:    CHRISTINE DICKENSON

Respondent:    MICHAEL THOMPSON

Respondent:    WILLIAM DANIEL NORTH

Respondent:    JEREMY DANIEL NORTH

Respondent:    WESTRALIAN SHELLS

Respondent:    WILLIAM HAROLD DYSON

Respondent:    DAMPIER PEARLING CO PTY LTD

Respondent:    MJ FRANCIS

Respondent:    DEREK JAMES DUFALL

Respondent:    WAYNE EVANS

Respondent:    TELSTRA CORPORATION LIMITED (ACN 051 775 556)

Respondent:    FD NIX

Respondent:    MA NIX

Respondent:    PORT HEDLAND PORT AUTHORITY

Respondent:    SPECIFIED SERVICES PTY LTD

Respondent:    EXMOUTH PEARLS PTY LTD

Respondent:    PIONEER CONCRETE (WA) PTY LTD

Respondent:    MG KALLIS GROUP OF COMPANIES

Respondent:    STATE OF WESTERN AUSTRALIA

Respondent:    YAMATJI MARLPA ABORIGINAL CORPORATION

Respondent:    BHP BILLITON MINERALS PTY LTD

Respondent:    VINCE WILLIAMS

Respondent:    RAYMOND EDWARD DUNSTAN

Respondent:    KEVIN PATRICK DAWSON

Respondent:    AGNES EVELYN DAWSON

Respondent:    ROBERT BRUCE LOWDEN

Respondent:    RODNEY MONAGHAN

Respondent:    TEDDY ALLEN

Respondent:    MAURICE COPPIN

Respondent:    JOHNSON TAYLOR

Respondent:    DORIS MONAGHAN

Respondent:    COMMONWEALTH OF AUSTRALIA

Respondent:    TELSTRA CORPORATION LTD

SCHEDULE B

Schedule of Parties

    No: (P)WAD232/2009

Federal Court of Australia

District Registry: Western Australia

Division: General

Respondent:    TELSTRA CORPORATION LIMITED

Respondent:    THE COMMONWEALTH

Respondent:    MARY ATTWOOD

Respondent:    GEORGE DANN

Respondent:    ROBERT DANN

Respondent:    SHIRLEY LOCKYER

Respondent:    PATRICIA MASON

Respondent:    EUGENIA SMITH

Respondent:    BHP BILLITON DIRECT REDUCED IRON PTY LTD

Respondent:    BHP BILLITON MINERALS PTY LTD

Respondent:    BORAL CONTRACTING PTY LTD

Respondent:    DAMPIER SALT LTD

Respondent:    FMG PILBARA PTY LTD ACN 106 943 828

Respondent:    ITOCHU MINERALS & ENERGY OF AUSTRALIA PTY LIMITED (ACN 009 256 259)

Respondent:    MITSUI ITOCHU IRON ORE PTY LTD

Respondent:    MITSUI IRON ORE CORPORATION PTY LIMITED (ACN 050 157 456)

Respondent:    COLIN BRIERLY

Respondent:    BARKLEY MARSHALL DAY

Respondent:    JOAN ELIZABETH DAY

Respondent:    RICHARD ERNEST DAY

Respondent:    ZANE BRADLEY DAY