FEDERAL COURT OF AUSTRALIA

Stock on behalf of the Nyiyaparli People v State of Western Australia (No 2) [2018] FCA 1091

ORDERS

THE COURT ORDERS THAT:

1.    The joinder application of Ms Frances Bung be dismissed.

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

REASONS FOR JUDGMENT

BARKER J:

1    On 13 June 2018, I dismissed the interlocutory application of Ms Frances Bung to be joined as a respondent to this claimant application made under the Native Title Act 1993 (Cth).

2    These are the edited ex tempore reasons I gave for dismissing the joinder application.

3    Ms Bung, who has been assisted in Court today by her sister, Ms Sue Bung, applies to be joined as a respondent in the claimant application of the Nyiyaparli people, that is, the claimants in WAD6280/1998. A related order sought is that the application be referred to mediation before a Registrar of the Court.

4    In the course of the hearing today and the submissions made, Ms Bung made it clear that her preferred approach was that, before the Court decided on the formal question of her joinder as a respondent, the matter be sent to mediation before a Registrar. In her submissions, Ms Bung explained that she had more confidence in having a Registrar help to conduct a meeting with fellow claimants than just meeting herself with claimants.

5    Her evidence to the Court in her affidavit, which has been formally read, and in her submissions, is to the effect that she considers her and her family’s entreaties of other members of the claim group as to who should compose the claim group for the purposes of an imminent consent determination that is foreshadowed for September 2018, usually fall on deaf ears. It is for that reason that she has explained she wants to be joined now as a respondent, prior to a meeting of the claim group to be held this Friday, 15 June 2018 to consider the very question of composition of the claim group. Ms Bung considers certain apical ancestors should not be added to the claim group description as appears to be proposed.

6    As I say, the application is supported by Ms Bung’s own affidavit, made 30 May 2018. There are some attachments to that affidavit. The first is a document addressed to the Karlka Nyiyaparli Aboriginal Corporation. There is an objection to the reception of this into evidence by the Nyiyaparli applicant. I rule that it might be received for the limited purpose of noting that some issues had been mentioned concerning composition of the claim group, but not as to the truth thereof. I would not rule the document to be totally irrelevant. However, it is not a matter to which I attach great weight in the decision-making that I am called on to make.

7    The second of the attachments to Ms Bung’s affidavit constitutes a letter she sent to the Karlka board directors, and “the Nyiyaparli tribe”, in which she expressed a number of concerns about who under “law and culture” should be the members of the claim group, and who are entitled to the benefits of native title. The question of who should be receiving payouts or money was mentioned in the course of that attachment.

8    The joinder application is opposed by the Nyiyaparli applicant, as well as by the State of Western Australia, which is the first respondent in the proceeding.

9    As has been noted, it is anticipated that there will be, in September, a consent determination between the parties to this claimant application. It is a claim which, as may be seen from the number of the proceeding, emanates from at least 1998.

10    A number of objections are raised in relation to the joinder application, including that there has not been an appropriate interest established on behalf of Ms Bung, and also that it is not in the interests of justice for the joinder to be made. I will come to those considerations in a moment.

11    The position of the Nyiyaparli applicant in opposing the joinder application is supported by the affidavit of Ms Katherine Anne Holloman, solicitor with the Nyiyaparli applicant’s lawyers, Yamatji Marlpa Aboriginal Corporation (YMAC), made 11 June 2018, which also has been formally read in the proceeding. It sets out some of the history to the matter, including how the claim group description has been amended four times since the original Nyiyaparli application was filed in September 1998. The most recent amendment to the claim group description was authorised by the then existing native title group on 13 November 2009, and the current native title claim group on 19 February 2010.

12    I accept, as advised in that affidavit, and indeed as mentioned in oral submissions by Ms Bung, that those recent amendments were informed by the anthropological and genealogical research conducted by the anthropologists, Dr Daniel Vachon and Ms Sandra Pannell as part of the Pilbara Connection Project. I understand and accept that the 2010 amendments had the effect of adding an additional three apical ancestors to the native title claim group description, including Ms Bung’s apical ancestor, Wirlpangunha, or Rabbity-Bung. It also removed references to the descendants of Bill Coffin who identify and are accepted as Nyiyaparli people through Nyiyaparli traditional law and custom, and removing 29 named Jigalong people who, according to traditional law and custom, were said to have rights within the Nyiyaparli native title claim group area. That Nyiyaparli application was amended in the form of a document headed Substituted Further Amended Native Title Determination Claimant Application on 10 June 2010.

13    The evidence before me goes on to show that the Nyiyaparli applicant and the respondent parties have been negotiating towards a consent determination on a confidential and without prejudice basis since September 2015; that is, coming up to three years this September. In 2015, YMAC on behalf of the Nyiyaparli applicant commissioned further anthropological research further to the research that was conducted earlier by Dr Vachon and Ms Pannell.

14    That research was undertaken by the anthropologist, who has also been referred to in Ms Bung’s affidavit, Mr Kim McCaul. That was done in the period 2015 to 2017 to address issues arising out of the consent determination negotiations. Mr McCaul’s research identified potential additional Nyiyaparli apical ancestors to be included in the description of native title holders for any consent determination. On 10 April 2017, YMAC convened a meeting of the Nyiyaparli applicant and the Nyiyaparli elders amongst other things to discuss the findings of the McCaul research regarding the potential additional Nyiyaparli apical ancestors and the operation of Nyiyaparli traditional laws and customs.

15    Ms Holloman says she was in fact present at that April 2017 meeting along with Dr Carolyn Tan, lawyer, and Ms Amy Usher, the YMAC Research Manager. The findings of Mr McCaul regarding the potential additional Nyiyaparli apical ancestors and the operation of Nyiyaparli traditional laws and customs were met with approval by the elders and members of the Nyiyaparli applicant present. I should interpolate at this point to say that under the Native Title Act, an applicant on a claimant application is that person or the group of persons who have been authorised by the claim group to make and maintain the claimant application on behalf of the claim group. Under the terms of the Native Title Act, the applicant has, to put the matter generally, the carriage and conduct of the application and to make decisions in relation to it.

16    A meeting of the Nyiyaparli native title claim group was then convened by YMAC on 11 April 2017, in Newman for the purpose of seeking instructions on the progression of the consent determination negotiations. These included, but were not limited to, the proposed description of the native title holders in any Nyiyaparli consent determination. At the April 2017 claim group meeting the Nyiyaparli native title claim group resolved, amongst other things, to refer the matter of the proposed additional Nyiyaparli apical ancestors to the Nyiyaparli working group for further discussion.

17    That working group is a subcommittee of the native title claim group, which is authorised to give instructions to YMAC on the day-to-day management of the Nyiyaparli application, and includes all the members of the Nyiyaparli applicant, who, as I have just explained, under the Native Title Act have been authorised by the claim group to perform that function.

18    On 31 May 2017, YMAC convened a Nyiyaparli working group meeting, amongst other things to seek instructions on the provision of further connection materials supporting the inclusion of the potential additional Nyiyaparli apical ancestors to the State and to the Commonwealth, who are also involved in this proceeding, on a confidential and without prejudice basis, and to that end a barrister was engaged by YMAC to facilitate the May 2017 working group meeting.

19    I understand and accept that Ms Bung was not present at that meeting and that is because she is not a member of the Nyiyaparli working group.

20    The working group then passed a resolution instructing YMAC to provide excerpts of an anthropological report authored by Mr McCaul addressing the potential additional Nyiyaparli apical ancestors to the State and the Commonwealth on a without prejudice and confidential basis for assessment. The Nyiyaparli working group noted that the response would be considered by the working group and the working group would then form a recommendation to the Nyiyaparli native title claim group as a whole.

21    On 3 May 2018, YMAC convened a Nyiyaparli working group meeting to, amongst other things, seek instructions on the progression of the consent determination negotiations and, in particular, a recommendation to the native title claim group in relation to the proposed description of native title holders to be included in any Nyiyaparli consent determination. I accept that the Nyiyaparli working group resolved to recommend a proposed description of native title holders to the Nyiyaparli native title claim group which reflected the position as described in the research conducted by Mr McCaul, including reference to the additional Nyiyaparli apical ancestors and pathways to membership other than strict biological descent. I emphasise the latter point about pathways to membership other than by strict biological descent because, as I perceive it, that is an issue of concern to Ms Bung. She considers this is not an acceptable pathway.

22    A meeting of the Nyiyaparli native title claim group was organised for 31 May 2018 in Newman, amongst other things, to seek authorisation of the proposed description. That meeting was cancelled on 28 May 2018, unfortunately, due to deaths in the community and at the request of the families directly affected. The claim group meeting was then re-notified for this Friday, 15 June.

23    The purpose of this meeting remains as previously proposed: the presentation of the terms of the proposed minute of consent determination for the Nyiyaparli application and instructions on outstanding issues including authorisation of the proposed description of native title holders.

24    As I said at the outset, it is currently proposed that there be a consent determination on country in September this year. Now, it is in those particular circumstances that the joinder application is made.

25    The affidavit of Ms Bung to which I have made reference adverts to the various matters that I have referred to, including the addition of three extra apical ancestors to the Nyiyaparli claim. In her affidavit, Ms Bung also states that other family names have been wrongly added as members of the Nyiyaparli claim, and she names many of them. At [55] to [60] of her affidavit she suggests that members of various families (who I do not presently need to name) are not Nyiyaparli families or come from outside Nyiyaparli traditional territory or otherwise do not have a traditional connection or come from another group with traditional country elsewhere.

26    Whilst those family name questions have been raised, they seem, as I apprehend the affidavit evidence and the submissions made, to be issues mentioned in passing, the principal issue being the addition of the three apical ancestors and the effect that change might have. I accept that on the materials relating to this claim there are people or family names within that group who have actually been authorised members of the claim group for many years.

27    I have given close attention to the written submissions made by Ms Bung, as well as her oral submissions today which succinctly echoed the points she has made in her written submissions.

28    She accepts that she is a member of the Nyiyaparli claim group and that she will have the benefit, with other members of the claim group, of a determination of native title if made. Her concern is that the claim group description should be modified or at least should not be allowed to advance with the inclusion of the descendants of the three apical ancestors to whom I have made general reference. She submits that the disagreement that she wishes to raise about traditional law and custom governing membership of the claim group is not what the anthropologists sometimes refer to as an “intramural matter”.

29    She submits that it is appropriate for the Court to consider this question as a basis to exercise its discretion to join her as a respondent and to refer the matter to mediation, or to refer the matter to mediation before I make a decision on this joinder question.

30    Ms Bung submits that she is justified in holding concerns as to the intentions of the people in control of the Nyiyaparli claim and whether they will be dealt with appropriately if she is confined to endeavouring to explain her concerns to those people in her fellow claim group without having the Court involved in the process.

31    The Court’s power to order joinder arises under s 84(5) of the Native Title Act. The Court has the power to join a person as a party to a proceeding at any time if the Court is satisfied that the person’s interests may be affected by a determination in the proceedings and it is in the interests of justice to do so. It is well understood, and all the authorities that the parties have referred to today emphasise this, that the first question is whether the interlocutory applicant has a relevant joinder interest and, that the second is whether the Court by reference to the interests of justice should order an applicant’s joinder.

32    While on the one hand it can be argued that the making of the consent determination will not affect Ms Bung’s interests or that she has no interests that are relevantly affected, it might be argued that she does, on the basis that the nature of the claim group can be relevant to the enjoyment of the interests that she as a member of the claim group might be recognised as holding. To me, however, the more important and governing question today is whether it is in the interests of justice for Ms Bung to be joined.

33    Many authorities, including a number of those that have been cited by counsel for the Nyiyaparli applicant and the State, such as Starkey on behalf of the Kokatha People v State of South Australia [2018] FCAFC 36 and Allen on behalf of the Nyamal People #1 v State of Western Australia [2018] FCA 320, in which I most recently had to deal with this issue, point out that there are distinctions to be drawn in the first instance between cases where a joinder applicant is already a member of the relevant claim group and they want to become a respondent to their fellow members’ claims, of which they remain a claim group member, and those cases where someone wants to be joined as a respondent in order to assert native title rights and interests in contradistinction to those being claimed on behalf of a claim group. Ms Bung falls into the first set of cases here, where the Court has taken, in most of these cases, a very stringent approach to the joinder question.

34    That is, as the cases have explained, and indeed has been argued on behalf of the Nyiyaparli applicant and the State today, because the Native Title Act does have special procedures in place whereby a claimant application cannot be made by a person or a group of persons unless they have been authorised to be the applicant which makes the claimant application on behalf of the claim group as a whole.

35    It is also well-established by legal authorities (that I do not need to recite today) that the concept of authorisation by the claim group as a whole does not mean that all, or every last member, of the claim group must approve the authorisation of the applicant.

36    The decisions of the Court recognise the usual law and custom of Aboriginal groups, whereby there can be differing views within a community about a range of matters going to law and custom. That is a very important proposition in relation to this application today.

37    I should say that I do not doubt for a minute that Ms Bung and her sister Sue Bung (who briefly spoke to the Court in reply submissions), honestly and sincerely hold their views about what they consider to be the proper composition, or questions to be asked about the proper composition, of the claim group.

38    The Native Title Act recognises that there can be dissent within a claim group. On some occasions, dissent within a claim group can be a matter of regret. However, from my experience in native title, and the various matters I have come to hear as a judge on this Court in the last nine years, it is not a matter of regret where there is dissent. Dissent so often shows that there is alive today a strong system of law and culture where important matters are debated within the relevant native title holding community. The mechanism for working out such contentious matters however has been recognised as falling to the claim group. They truly are, in the present case, intramural matters that are in contention.

39    It is the claim group who have to have the argument, if there is to be an argument, about what the right thing to do in this case is. It is well-established under the Native Title Act that if the claim group loses confidence in the people they have authorised to act as the applicant, then they can, in effect, vote them out of office under s 66(b) of the Native Title Act.

40    The result is, in this case, as difficult as I know this course of action will be for Ms Bung, that I must refuse her joinder application because I do not consider it to be in the interests of justice that she be joined on this occasion.

41    One can approach that question in other ways. One can also say it is a premature application. That is because the meeting on Friday is really set up to finally determine the questions in issue. I note that Ms Bung says – and I do not doubt she makes these assertions honestly and sincerely – that she thinks what she has to say at the meeting will fall on deaf ears. But that, nonetheless, is the process that the Native Title Act adopts and, as I suggested, has adopted in recognition of the way traditional law and culture amongst Aboriginal people, including in the Pilbara, usually decides these questions. It is not just a majority vote. It is not that everybody has to vote in favour. It has to be a decision by the group as a whole.

42    Now, the decision on group composition is yet finally to be made, and the Court should not intrude into that process of decision-making that the Native Title Act has left to the claim group, by appointing an existing member of the claim group on their own to be a respondent. That is for the very good reason that these difficult issues that come before a claim group need to be resolved at the claim group level. It is pretty plain – and I have said this in some earlier cases, including the case of Chubby on behalf of the Puutu Kunti Kurrama and Pinikura People v State of Western Australia [2015] FCA 964, that if it were always to be the case or inevitably to be the case that when a member of a claim group is unhappy with a direction an applicant is taking in relation to a consent determination, they could be joined as a respondent and undo everything that is happening, such an outcome would be contrary to the aspirations of most Indigenous claimant groups in Australia and in the Torres Strait. It would also defy the objects of the Native Title Act itself, which wishes to see the resolution of native title claims by negotiation and, where possible, by consent determinations. It would cause unacceptable delay of resolutions of native title claims, considerable additional expense and, I think, would also produce great heartache and the potential, as unfortunately too often happens, for elders not to be with us when the time for the recognition of native title under Australian law finally arrives.

43    So in the end, as I say, not doubting the honesty and sincerity of the application that Ms Bung has made to be joined, I am not satisfied that the Court should make the joinder order under s 84(5) of the Native Title Act, and for that reason the application for joinder will be refused.

44    It is apparent in the course of giving these reasons and coming to this decision that I do not believe this is a case, if the Court has got the power, to simply refer the application to mediation without deciding the substantive question of joinder. If I do have that power, I am not inclined to refer to mediation an application like this in these circumstances at this stage of the proceeding where the facts and circumstances are as I have set out here. I have decided the joinder question. It follows that there is no basis upon which to refer anything to mediation.

45    The result is that the meeting of the Nyiyaparli claim group on Friday, 15 June 2018, remains the important place for the questions that have been raised today properly to be determined amongst the Nyiyaparli people.

46    The formal order made today is that the joinder application of Ms Bung be dismissed. There is no question of costs in such circumstances.

Associate:

Dated:    20 July 2018