FEDERAL COURT OF AUSTRALIA

Forrest v State of Western Australia [2014] FCA 876

THE COURT ORDERS THAT:

1.    The applicant has leave to file an amended application in the form of the document which is annexure “JLC-4” to the affidavit of Jacki Lynn Cole sworn 24 June 2014, together with all supporting attachments and also the affidavits sworn or affirmed by each member of the applicant which meet the requirements of s 62(1)(a) of the Native Title Act 1993 (Cth).

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

REASONS FOR JUDGMENT

1    I made orders on 23 July 2014 granting the applicant leave to file an amended application. These are my reasons for so doing.

2    The application was not opposed. I have adopted, without attribution at every point, parts of the applicant’s written submissions, none of which were challenged and which I accept.

3    The applicant by interlocutory application filed on 24 June 2014 seeks the leave of the Court to file an amended Native Title Determination Application (Form 1), the amendment being to effect a change to the claim group description set out in Schedule A to the existing Form 1.

4    The applicant relies on an affidavit of Jacki Lynn Cole sworn on 24 June 2014 (Ms Cole's affidavit).

Nature of the proposed amendment to the native title claim group description

5    The current native title claim group is defined by reference to 157 apical ancestors:

(a)    106 of whom are described in Ms Cole's affidavit as "Ngurrara Apicals", meaning they are the apical ancestors whose descendants are the native title holders for the determined Ngurrara claim (Kogolo v State of Western Australia [2007] FCA 1703);

(b)    41 of whom are described in Ms Cole's affidavit as "South East Apicals", meaning they are the apical ancestors whose descendants are from country covered by the as-yet-undetermined Ngurra Kayanta claim (Helicopter Tjungarrayi & Ors v State of Western Australia (WAD 410/2012)); and

(c)    10 of whom are apical ancestors whose descendants are considered by the claimants as having their local ngurrara (or 'country') located in the Yi-Martuwarra Ngurrara claim area

(the current claim group description).

6    The proposed amendment involves amending the current claim group description by substituting the list of apical ancestors contained in Schedule A of the current Form 1 with an alternative list of apical ancestors (Amended Apicals). This amendment would result in the inclusion of some new apical ancestors, and the removal of some others from the current claim group description.

Legal requirements for a native title group seeking to amend its composition

7    In Doctor on behalf of the Bigambul People v State of Queensland (No 2) [2013] FCA 746, Reeves J refers to a "two-step process" required when a native title claim group wishes to alter its composition:

[56]    … That two-step process appears to have its origins in some observations made by Dowsett J to the effect that, if a native title claim group wishes to alter its composition, the existing claim group needs to meet and determine how the claim group is to be reconstituted and then the new or reconstituted claim group needs to meet and decide to authorise a new applicant to make the claim on behalf of that new claim group: see, for example, Kudjala People v State of Queensland [2006] FCA 1564 at [13]-[15] and Dodd on behalf of the Wulli Wulli People v State of Queensland (No 2) [2009] FCA 1180 (Wulli Wulli) at [14].

[57]    Section 61 of the Act makes it clear that the authority vested in the authorised applicant comes exclusively from the native title claim group on whose behalf the native title determination application is made. Further, the validity of that authority fundamentally relies upon the native title claim group following the authorisation process set out in s 251B of the Act. It follows that, if an existing claim group wishes to alter its composition, it must first meet as a whole and resolve to do that. If it does, then the new or reconstituted native title claim group must then meet and resolve in accordance with the process set out in s 251B to authorise an applicant to make a claim on its behalf under s 61. For these reasons, I respectfully agree with the observations of Dowsett J above.

Authorisation of the amendment – ‘Step 1’

8    The authorisation of the amendment to the current claim group description took place at a meeting held on 9 April 2014 at Fitzroy Crossing in the Kimberley region of Western Australia.

9    The meeting was open to be attended by both members of the claim group as presently described in Form 1 (Original Claim Group), as well as by any person who claims to hold native title rights and interests in the area of country contained within the Yi-Martuwarra Ngurrara claim area.

10    Details of that meeting, including the steps taken to notify the members of the Original Claim Group, are set out in Ms Cole's affidavit at [21]-[40].

11    In summary, Ms Cole's affidavit relevantly deposes to the following facts:

(a)    Prior to the authorisation meeting, the Kimberley Land Council (KLC) gave notice of that meeting by:

(i)    sending (both by post and email) a Notice of Meeting together with a covering explanatory letter to all members of the Yi-Martuwarra Ngurrara claim group whose relevant contact details are known to the KLC;

(ii)    publishing, on various dates between 20 and 29 March 2014, a public notice for the meeting in the Broome Advertiser, Kimberley Echo and Pilbara Echo (each being newspaper publications);

(iii)    hand delivering copies of the Notice of Meeting to members of the claim group in and around Fitzroy Crossing and surrounding communities;

(iv)    faxing or delivering copies of the Notice of Meeting to a number of community organisations, stores and roadhouses with a request that the notice be posted on relevant notice boards; and

(v)    KLC staff verbally advising Yi-Martuwarra Ngurrara claim group members about the upcoming authorisation meeting.

(b)    The Notice of Meeting advised that the meeting would consider, inter alia:

(i)    the history and previous authorisation of the Yi-Martuwarra Ngurrara claim;

(ii)    a proposal to amend the current Yi-Martuwarra Ngurrara claim group description; and

(iii)    decisions by the claim group about amending the current claim group description based on outcomes from discussions.

(c)    The Notice of Meeting set out the names of the apical ancestors contained in the existing Form 1 (as filed), as well as a second list of apical ancestors who were to be proposed to comprise an amended claim group description. This proposed list of apical ancestors effectively removed 41 names from the current claim group description, and added a further two names.

(d)    In the covering letter (described in [11(a)(i)] above) sent to members of the Yi-Martuwarra Ngurrara claim group it was stated that:

At the meeting the anthropologist working on this claim, Dr Daniel Vachon, will go through the list of apical ancestors currently in the claim group description to ensure it is the correct list of names. Following this discussion, the claimants will be asked to make a decision whether or not to change the current claim group description.

(e)    In excess of 100 people attended the meeting. The meeting was considered to be well attended and a fair and reasonable representation of all family or community groups which form part of the Yi-Martuwarra Ngurrara claim group was in attendance at the meeting.

(f)    Following extensive discussion between meeting attendees and Dr Vachon (the anthropologist engaged by the KLC to work on the Yi-Martuwarra Ngurrara claim), the meeting resolved, adopting the traditional decision making processes of the Ngurrara People, as follows:

It is decided by the Yi-Martuwarra Ngurrara claim group that the claim group description should be amended so only the apical ancestors discussed today and outlined in the document titled 'Yi-Martuwarra Ngurrara amended claim group description' will be the Yi-Martuwarra Ngurrara apical ancestors.

(g)    A copy of the document titled “Yi-Martuwarra Ngurrara amended claim group description” is annexed to Ms Cole's affidavit, marked “JLC-3”, at page 26. That document lists the names of the proposed Amended Apicals.

(h)    The Amended Apicals differ from the apical ancestors which define the current claim group description as follows:

(i)    24 of the apical ancestors are removed from the claim group description; and

(ii)    new apical ancestors are added to the claim group description.

(i)    That is, of those 41 names which the Notice of Meeting foreshadowed may be removed, only 24 were ultimately removed by the Original Claim Group. There were no apical ancestors removed from the claim group description who were not specifically identified in the Notice of Meeting as potentially being removed.

(j)    The names added to make up the Amended Apicals were names provided to Dr Vachon by attendees at the meeting and confirmed by the Original Claim Group as having native title rights and interests in the Yi-Martuwarra Ngurrara claim area.

12    The meeting process outlined above, and as detailed in Ms Cole's affidavit, satisfies the first step in the “two-step” procedure as identified by Reeves J in Doctor (No 2). That is, as the applicant submits, the notification procedures followed by the KLC resulted in a validly held meeting of the Original Claim Group on 9 April 2014 and, at that meeting, through the application of their traditional decision-making process, the Original Claim Group resolved to amend the list of apical ancestors set out in Schedule A to Form 1, and replace this list of apical ancestors with the Amended Apicals.

Authorisation of new applicant by reconstituted claim group – ‘Step 2’

13    Justice Reeves in Doctor (No 2), following earlier decisions of Dowsett J, found that following a decision by a claim group to amend its composition, “the new or reconstituted claim group needs to meet and decide to authorise a new applicant to make the claim on behalf of that new claim group”: at [56]. Further, this authorisation must take place in accordance with the authorisation process set out in s 251B of the Native Title Act 1993 (Cth) (the Act).

14    The applicant submits, and I accept, that this second step to amending the claim group's composition was completed in accordance with s 251B of the Act and occurred as follows.

15    Following the decisions to amend Form 1, the descendants of the Amended Apicals (the Reconstituted Claim Group) convened a meeting to authorise a “new” applicant. This meeting, for all intents and purposes, was a continuation of the meeting of the Original Claim Group in that it was held at the same venue immediately following the making of the decision of the Original Claim Group described in [11(f)] above.

16    I am satisfied that the members of the Reconstituted Claim Group were given proper notice of this second meeting by virtue of the notification procedures deposed to in paras [26]-[29] of Ms Cole's affidavit and being those which were undertaken in relation to the meeting of the Original Claim Group. This is evidenced in the form and contents of the notice as outlined in Ms Cole's affidavit.

17    In particular, I note the following:

(a)    the Notice of Meeting was addressed to the descendants of all apical ancestors listed in the Form 1 Native Title Determination Application (which includes the Ngurrara Apicals, the South East Apicals and the apicals of 'local' people from the claim area), as well as any person who claims to hold native title rights and interests within the Yi-Martuwarra Ngurrara native title claim area; and

(b)    the Notice of Meeting included both a list of the apical ancestors contained in Form 1, as well as a proposed new list of apical ancestors to make up an amended claim group description.

18    The only members of the Reconstituted Claim Group who were not specifically mentioned in the Notice of Meeting were those descendants of the new apical ancestors the Original Claim Group chose to include in the Amended Apicals. All other members of the Reconstituted Claim Group were notified of the meeting through the specific mention of their apical ancestor in the Notice of Meeting.

19    The applicant submits that, absent any evidence to the contrary, it is most likely that it was the descendants of those added apicals who themselves put forward these names to be added to the claim group description, which were subsequently accepted and included in the Amended Apicals by resolution of the Original Claim Group. It follows that, by virtue of these people being at the meeting of the Original Claim Group, they were aware of and participated in the decision of the Reconstituted Claim Group in the meeting which immediately followed. Certainly this appears to be a reasonable inference. More importantly, the proposed inclusion of these new apical ancestors was discussed by those present and agreed to by those present.

20    The decision-making process for the authorisation of the new applicant by the Reconstituted Claim Group is described in Ms Cole's affidavit which relevantly deposes (at [35] and [40]):

(a)    Upon the decision of the Original Claim Group [to amend the claim group description], the descendants of the Amended Apicals, and only those people, were then entitled to vote on resolutions to be made at that meeting.

(b)    Relevantly, those members of the Reconstituted Claim Group present decided that:

       (i)    decisions at that meeting would be made by the same traditional decision making process as has been used in previous meetings of the Yi-Martuwarra Ngurrara claimants; and

       (ii)    the presently named persons jointly comprising the applicant of the Original Claimant Group were confirmed to be (or to continue to be) authorised to act in that capacity.

21    Resolutions relating to the conditions and limits of the applicant's authority were also made by the Reconstituted Claim Group. Those decisions are not materially relevant to the issue of the amended claim group description.

22    I am thus satisfied that the correct legal process to amend a claim group's composition, as required by the Act and applied by the Court in cases including Doctor (No 2), Kudjala People v State of Queensland [2006] FCA 1564 and Dodd on behalf of the Wulli Wulli People v State of Queensland (No 2) [2009] FCA 1180, has been followed by the Yi-Martuwarra Ngurrara claim group.

23    There will be orders broadly in terms of those set out in the interlocutory application.

Associate:

Dated:    19 August 2014