FEDERAL COURT OF AUSTRALIA

Giggles on behalf of the Gobawarrah Minduarra Yinhawangka People v State of Western Australia [2016] FCA 792

ORDERS

THE COURT ORDERS THAT:

1.    Save in respect of paragraph 5, the interlocutory application filed 2 June 2016 be dismissed.

2.    The extracts of the 1999 ethnographic research materials contained in annexures “AMC18" and "AMC19" to the affidavit of Ambrose Cummins affirmed 1 June 2016, are to be used by respondent parties only for the purpose of these proceedings and respondent parties are to notify the applicant if and when any copies are made for use in relation to these proceedings.

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

REASONS FOR JUDGMENT

BARKER J:

1    On 2 February 2016, I made orders requiring the claimants to file and serve a properly authorised interlocutory application to amend the native title determination application in this proceeding (the GMY claim) in the manner specified in those orders by 30 June 2016. In the event the claimants failed to do so, the GMY claim was to be struck out pursuant to s 84C of the Native Title Act 1993 (Cth) (NTA).

2    On 2 June 2016, the claimants filed an interlocutory application seeking the following orders:

1.    The date for compliance with order 1 of the orders made by the Court on 2 February 2016 be changed to 31 March 2017.

2.    The applicant has leave to file and serve, on or before 31 October 2016, an expert anthropological report in relation to the Gobawarrah Minduarra Yinhawangka claim.

3.    The applicant has leave to lead early or preservation evidence from up to two male Aboriginal witnesses at a hearing in October 2016, provided that the applicant makes an application by no later than 5 August 2016 for detailed orders in relation to the hearing of such evidence.

4.    The applicant may, on or before 5 August 2016, apply for leave to tender into evidence materials resulting from the 1999 ethnographic research conducted by Philip Haydock and others with members of the Gobawarrah Minduana Yinhawangka claim group. The application for leave must be accompanied by an affidavit from a person or persons able to depose to the material facts in relation to the authorship and creation of the materials proposed to be tendered.

5.    The extracts of the 1999 ethnographic research materials contained in annexures ‘AMC18’ and ‘AMC19’ to the affidavit of Ambrose Cummins affirmed 1 June 2016 are to be used by respondent parties only for the purpose of these proceedings and respondent parties are to notify the applicant if and when any copies are made for use in relation to these proceedings.

6.    The matter be adjourned to [date in early November 2016] for a further case management hearing.

3    At the hearing of that interlocutory application on 21 June 2016, I made orders dismissing the interlocutory application, save paragraph 5.

4    What follows are edited reasons for my decision and a background to the proceeding.

Background

5    The GMY claim was originally lodged on 26 June 1997 and registered by the National Native Title Tribunal on 29 October 1999. The GMY claim has been amended on several occasions with the most recent amendment being filed on 3 August 2010.

6    Prior to the 2010 amendment, the land and waters in respect of which native title was claimed (GMY claim area) overlapped with those claimed by the Innawonga claimants in WAD 6285 of 1998 and the Jurruru claimants in WAD 6007 of 2000.

7    Following negotiations, the GMY and Innawonga claimants together lodged a single claim over the Innawonga claim area, including the portion overlapping with the GMY claim area. The 2010 amendment to the GMY claim facilitated the removal of the overlap between the GMY claim area and the area together claimed by the GMY and Innawonga claimants, by shifting the eastern boundary of the GMY claim so as to exclude the overlapping portion.

8    The GMY claim area, as amended, continues to overlap land and waters in relation to which native title is claimed in proceedings WAD 6007 of 2000 and WAD 327 of 2012 (Jurruru claims). Part of WAD 6007 of 2000 was the subject of a consent determination on 1 September 2015.

9    On 16 May 2011, Yamatji Marlpa Aboriginal Corporation (YMAC) ceased to act for the GMY claimants in light of the resolution of the GMY claim group not to accept YMAC’s advice to negotiate an intra-indigenous access agreement with the Jurruru claim group in relation to the overlap areas.

10    The Jurruru claimants in WAD 6007 of 2000 were then joined as respondents to this proceeding on 19 August 2011, and the proceeding was adjourned for the purposes of a settlement conference, which conference ceased on 23 October 2014.

11    On 3 July 2015, I made orders requiring the GMY claimants to file and serve a statement of issues, facts and contentions addressing, amongst other things, the basis on which the GMY claim was said to be properly authorised, on or before 25 September 2015.

12    On 24 August 2015, the GMY claimants filed a notice of appointment of a lawyer, namely Cross Country Native Title Services, who then applied for an extension of time in which to file and serve the statement of facts, issues and contentions to 30 October 2015, which extension was granted.

13    In light of the materials then filed, which disclosed that the GMY claim was advanced on the basis that the GMY claimants were a sub-group of the Yinhawangka (previously referred to above as Innawonga) claim group, the Court then made orders the subject of the present interlocutory application, requiring the claimants to file and serve a properly authorised interlocutory application to amend the GMY claim in a manner consistent with, amongst other things, the statement of facts, issues and contentions filed 30 October 2015, by 30 June 2016. In short, the GMY claim needed to be authorised by the Yinhawangka claim group.

14    Following that order, by interlocutory application dated 19 March 2016, the GMY claimants sought to list the proceeding for the taking of preservation evidence. The Court made orders and the preservation evidence of Ms Nancy Tommy (and Mr David Cox at the instance of the Jurruru respondent) was consequently taken on 16 and 17 May 2016 around and in Paraburdoo.

15    It is in this context that the interlocutory application of 2 June 2016 was made and reasons given.

CONSIDERATION

16    This is a matter that, obviously, I, as the judge case managing this proceeding, have been involved with for a little time past.

17    On 2 February this year, I made the orders which are effectively the subject of a variation application by the GMY claimants today. I then ordered, putting it shortly, that pursuant to section 84D of the NTA, the claimants file and serve a properly authorised interlocutory application to amend the GMY claim by 30 June 2016, so that it was consistent with certain paragraphs of the statement of issues, facts and contentions earlier filed on 30 October 2015, paragraph 8 of Mr Ambrose Cummins’ affidavit of 27 January 2016, and also other submissions filed by the claimants on 27 January 2016.

18    The question of the authorisation of the GMY claim is the paramount issue and always has been. As soon as it became clear that the GMY claimants were not putting forward a discrete claim, saying that they and they alone, under traditional law and custom, were the holder of all rights and interests in the claim area, it became apparent and was acknowledged that, in fact, they were part of a broader group of Yinhawangka people and that other Yinhawangka people had rights and interests in the area.

19    Authorities have been referred to, and it is undoubted and not in dispute that in circumstances like these the whole group needs to authorise the claim. It is not necessary on an occasion like this to go into the legal or policy analysis that has produced that outcome. It is accepted, it is undoubted. Indeed, in Mr Cummins’ submissions today, it is not only acknowledged, but the application now before the Court is really designed to provide the GMY claimants with the opportunity to, in a formal way in the Court, either adduce evidence or bring forward information that, generally speaking, will be on the record for all, including other Yinhawangka people, to see and, I think, not putting it unfairly, from the claimants’ point of view, to be satisfied that they ought to authorise this GMY Claim.

20    Already, and in recent times, preservation evidence was taken from Ms Tommy, in the course of which materials were received into evidence that involved what her late mother had to say about the family’s connection with the claim area. And in many respects, it can be seen that not only was that important preservation evidence, but it also had the potential to inform a wider Yinhawangka audience of the asserted Yinhawangka links to the area, particularly through the Tommy family connections to it.

21    The reasons why, on 2 February, I made the orders in the terms that I did had significant regard to the background of the proceeding. In the end, native title proceedings under the NTA are not different from other proceedings in the Court when it comes to the obligation to advance them. The parties have to accept that there are time limits to what has to be done. Orders were made that there be a properly authorised application. 30 June was the date set. The setting of it at the time involved an exercise in judicial judgment. It meant that the GMY claimants, to put it bluntly and obviously, needed to convince the broader community of Yinhawangka people that they should support the making of this claim over land that, at that point, was, and still is, claimed as part of the Jurruru Claims.

22    Now, I have no doubt that, in one sense, the various things that Mr Cummins has today outlined that could be done if the variation orders were made would give, as I say, a wider Yinhawangka audience a longer period over which to consider the question whether they would support and authorise the GMY Claim. But in my view, there simply, at some point, has to be an end to that possible authorisation process. I have come to the view that the time that has been allowed is appropriate. The evidence shows me that there, to this point, has not been authorisation and, on the face of the materials I have been given and the reason for the interlocutory application before me, there is not going to be any such authorisation, that is to say, compliance with the orders made on 2 February by 30 June.

23    There are no particular materials before me to suggest, again having regard to the authorities, that there is some change of circumstance or some new materials, materials that were not known before, to suggest that there ought to be a variation to the orders that have been made. There is no reason to think that if all of the steps that Mr Cummins has so carefully set out in his submissions before me today were taken, it would result in anything else happening different from the position that exists today. It is suggested by Mr Cummins that if the extra time were allowed, it can hardly be said that there is any prejudice to anybody. In one sense that might be said to be the case, but delay carries with it its own prejudice.

24    Section 37M of the Federal Court of Australia Act 1976 (Cth), to put it in simple terms, requires that things be done fairly, quickly, trying to reduce costs, but always, of course, without prejudicing the interests of justice. Sometimes, in assessing what the interests of justice are, it can be a challenging question, and there will be some occasions where discretion is the better part of valour, and an adjournment or the like should be allowed, but in this case I have come to the view that the orders made on 2 February were thoughtfully made. The opportunity was there for the authorised application to be brought forward by 30 June. The timing was, again, thoughtfully proposed to enable the authorisation.

25    A meeting, inevitably, would be required to take place. The evidence before the Court shows that there was almost immediate consultation between the relevant lawyers with a view to trying to get that to happen. There seems to have been considerable diligence in that regard. Complaints, in a sense, are now made on behalf of the GMY claimants by counsel today, that events occurred which made some community meetings contentious, for example, because the lead claimant in the Jurruru Claims was allowed to attend a community meeting in March, but that complaint just goes to show how difficult it is in cases like this, for courts to start intervening in really what are practical applications of traditional law and custom.

26    I accept from the materials put in front of me that that broader group of Yinhawangka people accepted that Mr Toby Smirke could be present at a meeting. It is obvious that in certain settings tensions can be created, but it is not for the Court to try and regulate those sorts of customary matters. The Yinhawangka people are the ones who are best able to deal with their own law and custom.

27    Similarly, I would comment on the submission made that the Court should, in effect, be enforcing some suggested Yinhawangka law and custom that each family group within the broader group of Yinhawangka people ought to be consulted before any authorisation decisions are ultimately made.

28    Whether or not that is the case, it is the Yinhawangka people who know their law and custom, and know what is required. The period of time provided, 30 June, to get the authorisation was, as I have already said, in the Court’s estimation a reasonable period for all that to have happened. Something additional did happen subsequent to 2 February orders, and that was that the Court made orders for preservation evidence to be taken from Ms Tommy. On that occasion some other evidence was also given. In some ways it was a rehearsal of what a trial of an application of the sort the GMY have filed might have looked like.

29    It was an occasion which, on any view, I think, was designed to ensure that a wider Yinhawangka audience would be aware of what the GMY claimants were saying about the nature of their family’s connection with the claim area. But still it appears the authorisation meeting has not taken place, and is not going to take place. It is not necessary for me to say that, as invited by the respondents to do, that the GMY claimants never intended to go to the authorisation meeting, and test the group’s view. The simple fact is, the meeting has not taken place for the variety of reasons that have been set out in the affidavit materials and submissions.

30    I have no doubt that questions like financial support and who was going to attend the meetings or did attend meetings, all have some bearing on how matters work out in a traditional context, but they are, in the end, background. They are always going to be the sorts of issues that are going to have to be grappled with when the Court, as here, makes an order that one party bring forward an authorised application by a certain date. There are logistical and traditional law and custom challenges to getting that authorisation. That is what this order produced. It produced those challenges.

31    But, as I say, in the Court’s estimation, an appropriate period of time was set by the 2 February order, particularly having regard to the long history of this proceeding. So in the circumstances, appeals to the claimants’ view of what the merits of the case might be, what additional materials might be brought forward by a full-blown further anthropological report and consideration of other materials that are available from 1999, are really, whilst not in my view, irrelevant, not entirely to the point in a case like this, where the authorisation of the claim is critical, and acknowledged to be.

32    The application before me is designed to enable the GMY claimants to have a much better opportunity to convince the broader Yinhawangka claim group that they should support this claim and authorise it. However, as I say, and I am repeating myself at this point, there is no particular reason to think that if additional time is given the result will be any different. The evidence before me shows that the wider Yinhawangka group understand what the circumstances are. Some analysis has been provided as to what an important witness for the Yinhawangka people generally has had to say, that is Mr David Cox, but he was very clear in his evidence, when it was taken at the preservation hearing recently, that he considered this GMY claim area is not Yinhawangka country.

33    Now, it is for those reasons, generally stated, that the interlocutory application to vary the compliance date from 2 February orders to 31 March next year will be refused. It is important to note, and I appreciate that the claimants will perhaps consider this small solace, but there is no reason why most of the things that they want to do, including producing further anthropological information, organising meetings, and indeed encouraging Yinhawangka people more generally to their way of thinking, and ultimately authorising an application, cannot be done in the period ahead. There is nothing to stop that happening.

34    But presently the possibility of those factors occurring does not lead the Court to think that it should, in effect, continue to run something that looks like a native title claim, but plainly one that has not been authorised. It is up to the parties themselves, that is, the Yinhawangka people as a group to decide, if they wish to, how they are going to proceed in respect of this land which some of them – the GMY people – believe to be Yinhawangka country.

35    The result is, when I come to the orders that are sought today, I would dismiss the interlocutory application, insofar as it seeks orders in paragraphs 1, 2, 3 and 4. It seems to me that, in essence, having dismissed the application for the orders sought in paragraph 1, paragraphs 2, 3 and 4 are redundant or possibly will become entirely redundant if there is not to be compliance by the 30 June with the earlier order made. Paragraph 5 though should be the subject of an order because it seeks to limit the use that can be made of particular ethnographic materials attached to Mr Cummins’ affidavit of 1 June. There is no need for any other orders to be made, for example, in terms of paragraph 6 of the application or otherwise.

ORDERS

36    The only orders required in the circumstances therefore are:

(1)    Save in respect of paragraph 5, the interlocutory application filed 2 June 2016 be dismissed.

(2)    The extracts of the 1999 ethnographic research materials contained in annexures “AMC18" and "AMC19" to the affidavit of Ambrose Cummins affirmed 1 June 2016, are to be used by respondent parties only for the purpose of these proceedings and respondent parties are to notify the applicant if and when any copies are made for use in relation to these proceedings.

Associate:

Dated:    6 July 2016