FEDERAL COURT OF AUSTRALIA
TR (Deceased) on behalf of the Kariyarra – Pipingarra People v State of Western Australia [2016] FCA 1158
ORDERS
TR (DECEASED) and others named in Schedule A Applicants | ||
AND: | STATE OF WESTERN AUSTRALIA and others named in Schedule B Respondents | |
DATE OF ORDER: |
THE COURT ORDERS THAT:
1. The application filed by the applicant on 19 February 2016, seeking orders that Mary Attwood, George Dann, Robert Dann, Shirley Lockyer, Patricia Mason and Eugenia Smith cease to be respondents, is dismissed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
NORTH ACJ:
1 Before the Court is an interlocutory application filed on 19 February 2016 by the applicant seeking orders that Mary Attwood, George Dann, Robert Dann, Shirley Lockyer, Patricia Mason and Eugenia Smith (the Indigenous respondents) cease to be respondents to this proceeding.
2 The proceeding is an application under the Native Title Act 1993 (Cth) (the Act) for a determination of native title in an area east and south of Port Hedland in Western Australia, referred to as the Kariyarra-Pipingarra application. The Kariyarra-Pipingarra application area is on the east side of a much larger area which is the subject of another application for a determination of native title brought by the same applicants and referred to as the Kariyarra application (WAD6169 of 1998). In 2014, three of the five applicants in the Kariyarra application brought a further application for a determination of native title on the east side of the Kariyarra application, referred to as the Kariyarra-Abydos application (WAD47 of 2014).
3 On 18 December 2009, the Kariyarra-Pipingarra application was filed in this Court. The native title claim group was described in the application as follows:
The descendants of the following Kariyarra apical ancestors:
(i) Jinapi;
(ii) Wirtinpangu (Jimmy);
(iii) Dougal Robinson;
(iv) Puyukapu (Toby); and
(v) Jalyingarli (Johnny).
The following individuals incorporated into the Kariyarra community in accordance with traditional law and custom:
(i) Nelly Walley;
(ii) Archie Captain;
(iii) Sharon Captain;
(iv) Stanley Captain;
(v) Alfred Barker
4 The Indigenous respondents were not included in the original native title claim group.
5 On 15 September 2010, the Indigenous respondents filed a notice of intention to become a party to the application under s 84(3)(b) of the Act.
6 On 20 September 2010, Michael Robinson, an anthropologist, provided a report to the Indigenous respondents. The report supported the claim of the Indigenous respondents that their ancestor, Tommy Anderson, was a Kariyarra person.
7 On 21 September 2010, District Registrar Jan ordered that the Indigenous respondents be joined as parties to the application.
8 The proceeding was then referred to mediation by a Registrar of the Court. The question of the membership of the native title group was an issue in the mediation. On the recommendation of the Registrar, unusually, the Court agreed to obtain an expert report from an anthropologist to assist the parties to resolve the issues including the question of group membership.
9 In February 2012, Dr John Morton, an expert anthropologist, provided that report (the Morton Report).
10 Between and including 27 – 30 May 2013, the Court heard preservation evidence on country, particularly at Yandeyarra, from two members of the claim group, namely, Elsie Williams and Irene Roberts. They were elderly and not in the best of health.
11 The Yamatji Marlpa Aboriginal Corporation, which represents the applicant, commissioned further research concerning the application including about the traditional laws and customs relating to group membership. In December 2013, Dr Kingsley Palmer, another expert anthropologist, provided that report (the Palmer Report).
12 On 19 December 2013, the applicant filed an interlocutory application seeking orders amending the description of the native title claim group to address the further research conducted by Dr Palmer.
13 The Indigenous respondents opposed the amendment on grounds including that the proposed amended native title claim group included apical ancestors who were not Kariyarra and, consequently, the amendment was not authorised by the people entitled to native title over the country in question.
14 On 9 July 2014, the Court allowed the amendment: TR (Deceased) on behalf of the Kariyarra People v State of Western Australia [2014] FCA 734.
15 The amended description of the native title claim group was 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.
16 As a result of the amendment to the description of the native title claim group, Tommy Anderson was included as an apical ancestor. The Indigenous respondents are descendants of Tommy Anderson. Therefore, they became part of the native title claim group following the amendment. At the same time they remained respondents as a result of the order of District Registrar Jan which joined them as respondents originally.
17 On 1 October 2015, the Indigenous respondents obtained an expert anthropologist report from Dr Philip Clarke (the Clarke Report).
18 The present application was filed on 19 February 2016, seeking orders that the Indigenous respondents cease to be respondents because they are now included within the native title claim group.
19 It is convenient to first explain the basis on which the Indigenous respondents oppose the application.
20 They contend that under the traditional law and custom of the Kariyarra people only people with biological descent from a Kariyarra person present on the country pre-sovereignty is entitled to native title rights and interests. They say that of the listed apical ancestors, Jinapi, Wirtinpangu, Dougal Robinson, Yanki Williams, Nyitji, Fanny and Fauntleroy (Pontroy) were not Kariyarra but belonged to various neighbouring groups. The Indigenous respondents further contend that there is insufficient evidence of Kariyarra identity for Puyubungu and Topsy McKenna. They say that Maggie was Kariyarra but her descendants could only claim through her in respect of her children with her European partner.
21 The Indigenous respondents filed an Amended Statement of Facts Issues and Contentions on 8 May 2016, between the first and final date of hearing of the interlocutory application, in order to identify clearly the claim they make. In that Statement it became clear that the Indigenous respondents also contend that traditional law and custom required descent to be patrilineal. That requirement, so it was said, had one exception, namely, where a Kariyarra woman had children with a non-Aboriginal man, matrilineal descent applied.
22 The interest which the Indigenous respondents claim which justified them remaining respondents is an interest in preventing the making of a determination in favour of some people who are not entitled under traditional law and custom to hold rights and interests in the land.
23 The Indigenous respondents acknowledge that they are not able to obtain a determination of native title in their favour in this proceeding. Section 213 of the Act provides that a determination of native title must follow the procedures provided by the Act. An application must be made under s 13(1) of the Act by a person or persons authorised in the manner required by s 61 of the Act, namely, the authorisation process provided for in s 251B of the Act: Commonwealth of Australia v Clifton [2007] FCAFC 190; 164 FCR 355 at [48], [52], [53], [57], [58] and [61]. Furthermore, the Indigenous respondents are some but not all of the descendants of Tommy Anderson. They cannot act on behalf of the others without authorisation in accordance with the Act: Munn v Queensland [2002] FCA 486 at [9] (Munn); Moses v Western Australia [2007] FCAFC 78; 160 FCR 148 at [18] (Moses).
24 The Indigenous respondents have not made a competing claim for a determination of native title over the land, and have not indicated that they intend to do so.
25 Mr Clifford, who appeared as counsel for the Indigenous respondents, said that “my clients’ interest … is finding out who it is that are the true Kariyarra people”. At various times during the hearing Mr Clifford explained what might flow from the judgment of the Court on the group membership issue if the Indigenous respondents remain as respondents. He said that one result might be that the application is dismissed. Another is that there might be argument that the Court should exercise power under s 84D(4) of the Act so that any defect in the authorisation arising from the participation of people found not to be Kariyarra people not prevent the Court from making a determination. And, finally, an outcome might be that the parties enter into further negotiations to try to resolve the application in light of the judgment of the Court.
26 In support of the removal of the Indigenous respondents as respondents, the applicant submitted that the Indigenous respondents’ interests as holders of communal rights with others are protected by the Indigenous respondents being included as members of the native title claim group.
27 Then, the applicant relied on authorities such as Starkey v State of South Australia [2011] FCA 456; (2011) 193 FCR 450 (Starkey) which holds that a member of the claim group who challenges matters internal to the operation of the group will rarely be permitted to do so as a respondent to the proceeding. The applicant is given a statutory function to conduct the litigation and act on behalf of the group for that purpose. Matters internal to the group must be resolved internally, in part because, under s 225 of the Act, the Court does not rule on internal arrangements when making a determination.
28 Alternatively, if the Indigenous respondents are regarded as advancing a competing native title, the Court cannot make a determination in their favour in this proceeding. That would require the Indigenous respondents to bring a separate application and obtain authorisation for that purpose.
29 The applicant contends that, in any event, the Indigenous respondents have not raised a prima facie case in support of a competing native title. Mr Wright, who appeared as counsel for the applicant, said that the native title advanced by the Indigenous respondents “just doesn’t have sufficient merit to warrant it being presented to the Court. So, in effect, we say your Honour should summarily reject it”.
30 Further, the applicant submitted that to allow the Indigenous respondents to contest the group membership issue would cause delay and expense. The proceeding has been on foot since December 2009. The applicant and the State are relatively close to resolving the matter by consent. On the other hand, a draft minute submitted by the applicant setting out a timetable in the event that the removal application was unsuccessful and a hearing on the question of group membership was required proposed a process taking about six months.
31 Mr Ransom, who appeared as counsel for the first respondent, the State of Western Australia, adopted the arguments advanced by Mr Wright. He added in relation to the suggestion made by Mr Clifford that one outcome from a judgment on the group membership issue would be a resumption of negotiations:
[I]t’s not the case that we will just continue on with a new group with a differently configured native title.
We fundamentally disagree with their account of what the tradition, law and custom is so we don’t agree that they are a group that holds native title. So there’s no prospect, on my present instructions, that anything will just pick up and continue if your Honour were to find in a group composition hearing that they’re the right people and everybody else isn’t. So I just thought it was important to again make that clear.
CONSIDERATION
32 Section 84(8) of the Act provides that:
(8) The Federal Court may at any time order that a person, other than the applicant, cease to be a party to the proceedings.
33 The power to order that a person cease to be a party to the proceedings is a broad discretionary power. It must, however, be exercised judicially. In the end, the touchstone for the exercise of the power is a decision about the interests of justice.
34 In the exercise of the power a significant factor is the nature of the interest claimed by the party to be removed.
35 The interest must be capable of clear definition, not be indirect or lacking in substance. It must be of such a nature that it may be affected in a demonstrable way by determination of native title: Byron Environment Centre Incorporated v The Arakwal People [1997] FCA 797; 78 FCR 1 per Black CJ at 7G, Lockhart J at 19C and Merkel J at 42D-E.
36 Concerns about intramural matters do not ground an interest of the type that justifies a member of the claim group remaining a respondent to the application. In relation to the way the application for a determination is conducted the statutory scheme provides for the applicant to control litigation and, in the course of that function, to resolve issues arising among the native title group members concerning the conduct of the litigation. In relation to the way the traditional laws apply to the manner in which the native title claim group operates internally, the group itself controls those issues through the decision making processes of the group. Thus, for instance, in Starkey Mansfield J made orders under s 84(8) of the Act that a member of the native title claim group be removed as a respondent. His Honour described the interest of that person, Mr Reid, as follows at [47]:
Secondly, the material shows that Mr Reid’s concern is what is sometimes described as intra-mural. That is, his concern is not so much about whether native title rights and interests over the KU claim area are in fact held by the KU claim group, but that the internal process of the KU claim group have not been properly followed according to its traditional laws and customs. In essence, he says that the proper decision making process by which the KU claim group should have authorised the applicant to make the claim under s 251B of the NT Act was not followed, because (at least so far as the Kokatha community as part of the KU claim group are concerned) only Mr Reid under the traditional laws and customs could authorise the making of the claim. He further says he has not authorised the present application.
[Emphasis added.]
37 The reliance placed by the applicant on cases of this type is misplaced because the Indigenous respondents in the present case contest the membership of the group itself. That is not an intramural matter.
38 On the other hand, it is well accepted that a person claiming a competing native title interest which may be affected by the making of a determination in the application has an interest which justifies that person becoming or remaining a respondent to that application: Munn at [8]; Davis-Hurst (On behalf of the Traditional Owners of Saltwater) v Minister for Land and Water Conservation (NSW) [2003] FCA 541, 198 ALR 315 at [27] (Davis-Hurst); Kokatha Native Title Claim v South Australia [2005] FCA 836, 143 FCR 544 at [24]; Worimi Local Aboriginal Land Council v Minister for Lands (NSW) [2007] FCA 1357, 164 FCR 181 at [16]-[17] (Worimi); Isaacs on behalf of the Turrbal People v State of Queensland (No 2) [2011] FCA 942 at [18]-[19]; and Bonner on behalf of the Jagera People #2 v State of Queensland [2011] FCA 321 at [18]. Such a person is entitled to seek to protect their interest from erosion, dilution, or discount. The applicant and the State accept that principle but argue that the Indigenous respondents have not made out an arguable case of a competing native title claim.
39 The parties agree that the traditional law and custom relating to group membership requires biological descent from a Kariyarra ancestor. The parties, however, have two broad areas of disagreement.
40 First, they disagree about whether all of the listed apical ancestors were Kariyarra. The Morton Report and the Palmer Report, which together with the Clarke Report were in evidence in this application, refer to information that some of the apical ancestors identified as Njamal, Ngarluma or Yindjibarndi – peoples who lived in country bordering Kariyarra country. Those reports then assess other information, including views expressed to Dr Morton or Dr Palmer by members of the native title claim group, which on an evaluation of all the material leads them to the conclusion that the apical ancestors were, or probably were, Kariyarra. The reports also take into account that some of the listed apical ancestors lived on border lands where group identity could be mixed. In some instances these reports acknowledge that the conclusion is contestable because of the quality of the material available.
41 The Indigenous respondents rely on the evidence produced in the Morton Report and the Palmer Report which identify the apical ancestors as Njamal, Ngarluma or Yindjibarndi. They also rely on the Clarke Report which contests the evaluations made in the Morton Report and the Palmer Report that, accepting some of these apical ancestors had linkages to other peoples, they identified as Kariyarra as well. The Clarke Report also relies on the views expressed to Dr Clarke by the Indigenous respondents that the apical ancestors identified with the neighbouring peoples and not as Kariyarra.
42 Second, the Indigenous respondents disagree with the applicant and the State about the nature of descent required under traditional law and custom. The Indigenous respondents rely on the view expressed in the Clarke Report that patrilineal descent was the traditional rule. The Morton Report and the Palmer Report advanced the view that cognatic descent governs group membership. If patrilineal descent applied the native title claim group would be fundamentally different to the native title claim group as proposed in the present application.
43 In both areas of disagreement about the traditional law and custom governing group membership expert anthropological opinion is marshalled on each side of the debate. It cannot be said that the Indigenous respondents’ position is unarguable. It would be a bold step to hold that a position at least on its face supported by the view of an expert anthropologist is untenable at this stage of the proceeding. In none of the authorities on the issue has this feature been present. Having arrived at that view it is not appropriate on this interlocutory application to analyse the expert reports and seek to determine which is more persuasive. That assessment calls for detailed examination and argument at trial, including cross examination of the experts.
44 However, the interest of the Indigenous respondents in protecting their native title rights and interests as respondents to the application must be balanced against several discretionary considerations.
45 The Indigenous respondents, whilst claiming to have native title rights and interests, cannot seek a determination of native title in their favour in this proceeding and do not attempt to do so. They have indicated no intention to institute a competing application. As s 67(1) of the Act, along with the principles of finality and the avoidance of multiplicity of proceedings implicit in s 22 of the Federal Court of Australia Act 1976 (Cth), contemplate that all claims relating to the land will be heard at one time and once and for all, the failure of the Indigenous respondents to bring an application at this time probably precludes them from ever bringing such an application. The Indigenous respondents’ position is entirely negative. They wish to prevent the native title claim group achieving a determination of native title but do not seek one themselves. The intent of the Indigenous respondents not to claim their interests by seeking a determination effectively limits the scope of their practical interest and weakens the claim to participate in the present application as respondents. Whilst that is a factor to be weighed in the exercise of discretion it is not a bar to the Indigenous respondents remaining a party. In Worimi Bennett J permitted Worimi to become a party even though he did not intend to bring an application for a determination of native title. Indeed, he had instituted two previous applications that were struck out for failure to comply with s 61 of the Act. And in Davis-Hurst Branson J at [14] permitted Mr Kemp to become a party even though he did not intend to file an application himself. However, in that case Mr Kemp explained his reason for not filing an application, namely, that he did not have the financial resources to do so (at [14]). In the present case the Indigenous respondents have given no reason for not pursuing their own competing application. That is a further consideration militating against them remaining respondents to the application.
46 Neither in Worimi nor in Davis-Hurst was the respondent a member of the native title claim group. In Davis-Hurst Mr Kemp was probably entitled to be included in the group (at [13]). In this proceeding the Indigenous respondents are included as members of the native title claim group. That distinction is of no significance because as respondents the Indigenous respondents seek to assert a different native title than that claimed in the present application. They were made members of the native title claim group against their will. It is also of no significance that the application in those cases was to join a person as a respondent under s 84(5) of the Act rather than an application for a person to cease to be a party. The relevant considerations under discussion are the same in both instances.
47 Another significant consideration which militates in favour of the orders sought is that the State accepts the views expressed in the Morton Report and the Palmer Report. The State undertakes the role in such applications as protector of the land asset of the people of the State. Experience demonstrates that the State scrutinises native title applications very thoroughly. The view of the State is a view independent of the parties. Absent any allegation of collusion, and no such allegation is made in this case, the acceptance by the State of the application for native title is a solid assurance to the Court that the necessary elements of native title have been made out.
48 A further factor in favour of the orders sought is that if the Indigenous respondents remain as respondents and a trial at least on the issue of group membership is undertaken, the finalisation of the proceeding will be delayed and the parties will incur further expense. That consequence is particularly regrettable in view of the fact that the applicant and the State are otherwise relatively close to an agreement on a consent determination.
49 It is particularly troubling and puzzling that the Indigenous respondents have not made their own competing application and have mounted an exclusively negative case whithout giving any reason for taking this course. One would imagine that if members of a group were committed to asserting their interests, they would bring an application to vindicate those interests, or at least explain why they have not done so. Nonetheless, the interest claimed by the Indigenous respondents is one that would be “affected in a demonstrable way” by a determination of native title in the form applied for by the applicants.
50 In the end, however, there are several factors which outweigh those reservations and which militate in favour of permitting the Indigenous respondents to remain as respondents. A determination of native title is an order in rem. It binds the whole world in relation to the rights and interests in the country concerned. The Indigenous respondents have raised an arguable case in support of a competing native title. There is apparent divergence in the views of the expert anthropologists on the issues. The defensive assertion of native title rights and interests by individuals to combat an application for native title can “lead to a more informed decision…as to whether the native title rights and interests should be granted as expressed in that application”: Kokatha at [24] per Mansfield J; see also Worimi at [30]. The only route to an authoritative resolution is by judicial determination. The Indigenous respondents have asserted their claimed rights and interests from the inception of the proceeding and have maintained the position in opposing the amendment application and in opposing the present application. They have not been responsible for any delay.
51 On balance the application for orders that the Indigenous respondents cease to be respondents is dismissed.
I certify that the preceding fifty-one (51) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice North. |
SCHEDULE A
Schedule of Parties
No: (P)WAD232/2009
Federal Court of Australia
District Registry: Western Australia
Division: General
Applicant: TR (Deceased)
Applicant: CYRIL GORDON
Applicant: DONNY WILSON
Applicant KERRY ROBINSON
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
