FEDERAL COURT OF AUSTRALIA

Lawson on behalf of the Badimaya Barna Guda People v State of Western Australia [2020] FCA 104

ORDERS

THE COURT ORDERS THAT:

1.    Paragraph 2 of the interlocutory application filed by the Yamatji Nation applicant on 24 January 2020 be upheld.

2.    Pursuant to r 26.01(1)(d) of the Federal Court Rules 2011 (Cth), Part A of the Badimaya Barna Guda proceeding (WAD 7 of 2020) is dismissed on the ground that it is an abuse of the process of the Court.

3.    There be no order as to costs.

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

ORDERS

THE COURT ORDERS THAT:

1.    The interlocutory application filed by the applicant on 24 January 2020, seeking to remove Adrian Lawson as a respondent to the proceeding, be upheld.

2.    Pursuant to s 84(8) of the Native Title Act 1993 (Cth) Adrian Lawson cease to be a respondent to this proceeding.

3.    There be no order as to costs.

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

REASONS FOR JUDGMENT

(Delivered Ex Tempore and Revised)

MORTIMER J:

Introduction

1    There are two interlocutory applications which are to be determined by the Court today:

(a)    first, an interlocutory application filed by the applicant in the Yamatji Nation proceeding (WAD345/2019) on 24 January 2020 seeking dismissal of Part A of the Badimaya Barna Guda native title determination application (WAD7/2020) as an abuse of process on the grounds of lateness and unreasonable delay in the bringing of the application; and

(b)    second, an interlocutory application filed by the applicant in the Widi Mob proceeding (WAD31/2019) on 24 January 2020, seeking to remove Mr Adrian Lawson as a respondent to the proceeding.

2    I will refer to those two applications as the “Yamatji Nation interlocutory application” and the “Widi Mob interlocutory application” respectively.

3    Both of these interlocutory applications are being heard and determined today in circumstances of considerable urgency. They arise because tomorrow, 7 February 2020, a consent determination hearing is listed in Geraldton in relation to the application under s 61 of the Native Title Act 1993 (Cth) for a determination of native title by the Yamatji Nation People. The Badimaya Barna Guda native title application overlaps with a considerable part of the Yamatji Nation claim.

4    Each of the three members of the Badimaya Barna Guda applicant is an accepted member of the Yamatji Nation claim group on the basis of descent from an acknowledged apical ancestor or ancestors: whether or not each of them ultimately choose to identify as a member of the Yamatji Nation claim group is a matter for them as individuals.

5    As I understand it, it is also common ground that the same position for the members of the Badimaya Barna Guda claim group – as described in the Badimaya Barna Guda application – exists. That is, they will be accepted as members of the Yamatji Nation claim group and potentially the Yamatji Nation native title holding group if they choose to identify in that way.

6    If the Badimaya Barna Guda native title determination application remains on foot as to the overlapping country with the Yamatji Nation claim, the proceeding scheduled for tomorrow cannot occur. Thus, both interlocutory applications have been brought for the purpose of enabling the proposed consent determination to proceed on 7 February, a date which has been publicly identified as the likely consent determination date since 10 September 2019 when that date was discussed at the first case management hearing in the Yamatji Nation proceeding.

7    I will set out the background which brings all the parties to this point, and then I will turn to my reasons.

A summary of the background to the filing of the two interlocutory applications

8    It is necessary to set out briefly the background to the Yamatji Nation claim and also to the filing of these two applications. Some important features of the relevant chronology will become “Attachment A” to these reasons when they are published. The chronology is based on the evidence that has been adduced on the two applications and it should be treated as forming part of my findings of fact in both applications.

9    Firstly, it is necessary to explain the background to the Yamatji Nation claim, which is listed for consent determination tomorrow. I will do so as briefly as I can. The Yamatji Nation claim is of fairly recent origin, but the claims of connection to the country it covers by those who now comprise the Yamatji Nation claim group are not recent, with some of what I might call the “underlying claims” having been filed in this Court in the late 1990s: the Mullewa Wadjari claim was filed in 1996, the Widi Mob claim was filed in 1997, and the Naaguja Peoples’ claim was filed in 1998. The Hutt River claim was filed in 2000 and the Amangu People claim in 2004. In April 2017, the Amangu People and the Naaguja Peoples’ claims were combined and were renamed the “Southern Yamatji” claim.

10    For present purposes, the key fact to bear in mind is that Aboriginal people in this area have had claims for recognition of their native title rights on foot in this Court since 1996. That is more than 20 years ago. They have already waited too long for finality. No litigant should have to wait more than 20 years for an outcome. Some finality, arising from a long and complex negotiation, is scheduled for tomorrow. It is a very large matter, very large, for Mr Lawson to ask the Court to deprive the people of all those claim groups of that finality, and to make them wait for a further undefined period of time and to continue to be uncertain about the outcome of their claims. As I explain later, it is also a very large matter for Mr Lawson to ask all those with other proprietary interests in the Yamatji Nation claim areas to also wait.

11    The key and more recent turning point in the progress of these claims occurred in November 2015, with some orders made by Justice Barker. At that stage there were five proceedings on foot, with significant overlaps in the country which was the subject of those claims. In his reasons, Barker J spoke of the “difficult relationship” to that point between the State and the claimants: see Leedham Papertalk on behalf of the Mullewa Wadjari People v State of Western Australia [2015] FCA 1342 at [4]. Orders were made for mediation to allow the claimants to attempt to resolve their overlapping claims to an area referred to as the “separate proceeding area”, and then for the claimants to put forward a proposal to the State to resolve the proceedings in the separate proceeding area by agreement. Otherwise, Barker J made it clear that there would need to be a trial: in part, because the State had applied for a trial to obtain some certainty for all the proprietary interest holders over what on any view is a very large area.

12    His Honour also emphasised how much of the country covered by the claims that any native title existed was likely to have been extinguished. In other words, even if the claim groups could prove connection as the Native Title Act requires, his Honour observed that there will have been grants of other proprietary interests which could, under Australian law, likely extinguish native title, and the claimants may not get native title to any of those areas recognised.

13    His Honour said (at [9]):

… there will be relatively little land available for claim under the NTA. This is recognised by most, if not all, of the claimants, and at least their advisors.

14    This all occurred, I emphasise, in November 2015. More than four years ago, and more than 15 years after four of those claims had been filed. The reality facing the claim groups in the then five proceedings, which Barker J made clear in 2015, is that most of their native title was likely to have been extinguished.

15    That is why, as Barker J also acknowledged, most, if not all, of the claimants appreciated – in 2015 – that:

… it could be to their combined advantage to complete an early identification of just what land is actually available for claim under the NTA and then to consider approaching the State with a view to exploring constructive negotiations with the State as to settlements that might be made alternative to a determination that native title exists or does not exist.

16    After the November 2015 orders, there were lengthy negotiations between the five native title claim groups, and mediation conducted by Judicial Registrar Daniel on behalf of the Court to resolve the overlapping claims. That occurred between February 2016 and March 2017. By March 2017, all outstanding overlaps were resolved with considerable efforts and a great deal of time, resources and dedication. As I have noted, in April 2017, claims by the Amangu People and the Naaguja Peoples were combined and renamed “Southern Yamatji”.

17    About six months before this, a set of proposals for resolution of the claims was formulated by the authorised representatives of the claim groups and mediation with the State around those proposals commenced in January 2017. The mediation continued for the first half of 2017, until 31 August 2017 when the State made a formal offer to enter into negotiations towards a non-litigated resolution of the (then) four claimant applications over the separate proceeding area: Mullewa Wadjari, Widi Mob, Hutt River and Southern Yamatji. The offer to enter into negotiations was accepted by the four native title claim groups on 19 October 2017 and the first mediation meeting with the State took place in Geraldton on 14 and 15 November 2017.

18    It was around this time – that is, in November 2017 – that Mr Lawson began expressing his opinions to the Yamatji Marlpa Aboriginal Corporation (YMAC) and to the lawyers representing the claim groups, about who he said were the right people for some of the country which was the subject of these claims. Most of Mr Lawson’s concerns centred on the country being claimed under the Widi Mob claim.

19    Let me emphasise that again: the evidence shows that Mr Trees from YMAC asked Mr Pagsanjan, the lawyer for the Widi Mob claim, to speak to Mr Lawson about his concerns in November 2017. The evidence shows Mr Pagsanjan did that. That is more than two years ago.

20    It was around this time – in late 2017 – that a 12 member Traditional Owner Negotiation Team was established as a cornerstone of the negotiation process with the State. A great deal of anthropological research was commissioned, undertaken and completed. Many reports have been prepared, primarily by Dr John Morton. It was as a result of that research that in mid-2019 the claimants determined it was appropriate to lodge an overarching claim covering the whole of the separate proceeding area, which the State did not oppose. The Yamatji Nation claim was authorised on 24 June 2019 and was filed on 28 June 2019, and that is the application which is the subject of the Court’s proposed native title determination hearing tomorrow. The evidence established that Mr Lawson and other members of the applicant in the Badimaya Barna Guda native title application were involved in this authorisation process and I return to this matter later in these reasons.

21    It is also not disputed that the term “Yamatji”, as used in the Yamatji Nation application, covers a range of people and groups who continue to identify as Amangu, Badimaya, Wilinyu, Naanhagardi, Naaguja, Nanda, Mullewa Wadjari, Wajarri, Wattandee, Widi and Wilinyu.

22    Again, in the negotiations with the State a tremendous amount of time and resources have been applied. As Mr Taylor’s evidence makes clear, negotiations have not been easy, especially for the Traditional Owner Negotiation Team and the claim group members. In such circumstances it is almost never the case that every single person in a claim group may agree with an outcome which is negotiated. It is clear Mr Lawson does not agree. As far as the law is concerned, however, disagreement with an outcome, however genuine and heartfelt, would not be enough to put off the culmination of negotiations which is scheduled to occur tomorrow.

23    At meetings held on 8 and 9 December 2019 in Geraldton, concurrently with the authorisation of the Yamatji Nation ILUA, the Yamatji Nation native title claim group considered and confirmed the authorisation of the Yamatji Nation applicant to enter into the Yamatji Nation consent determination. The evidence shows that Mr Lawson did not attend that meeting, but two other members of the Badimaya Barna Guda applicant, Ms Yvonne Lawson and Mr Godfrey Simpson, did attend. Mr Lawson’s evidence is that Godfrey Simpson and his nephew William Little “tried to speak about Badimaya people and our claim but they were shut down at the meeting”.

24    In the circumstances of this hearing, even if that evidence is accepted, it is not possible to make a finding about precisely what that means and whether, for example, public statements were made or whether there were discussions in smaller groups at the authorisation meeting, which went no further. There is no direct evidence from Mr Godfrey Simpson about this. Obviously, since he chose not to attend, Mr Lawson also did not speak up at that meeting against the resolutions proposed about the ILUA and the consent determination.

25    What is clear, I find, is that neither the Yamatji Nation claim group members nor their lawyers were told at this meeting that preparations for the filing of an inconsistent and rival native title claim over part of the land covered by the Yamatji Nation claim and proposed to be covered by the ILUA and the consent determination were underway, and had been in the process of preparation since October 2019.

26    If Mr Lawson and those who supported him genuinely wished to do no more than negotiate modifications to the ILUA and the consent determination which might give greater or different recognition to the Badimaya People, then – even at that late stage in December 2019 – attending the authorisation meeting, informing everyone about their proposed claim and confronting their extended families and fellow claimants would have been a reasonable and appropriate thing to do.

27    However, I am not persuaded that that was all they wanted.

28    After 9 December 2019, planning began in earnest for the consent determination and the signing of the ILUA, which is scheduled to occur tomorrow. Although, as I have noted, the date had been set since around September 2019.

29    I turn now to describe how Mr Lawson came to lodge the Badimaya Barna Guda application. It has been clear in case management and in the evidence that Mr Lawson is the driving force behind this new claim, and Ms Lawson and Mr Simpson are supporting him. I accept their support is genuine.

30    The Badimaya Barna Guda native title application was filed on 20 January 2020. The persons jointly comprising the applicant are Adrian Lawson, Yvonne Lawson and Godfrey Simpson. The Badimaya Barna Guda claim comprises two separate parcels of land. In between them is the area of land over which Barker J made, after a long trial, a determination that no native title exists, contrary to the claims of the Badimia People. That decision was given in 2015: CG (Deceased) on behalf of the Badimia People v State of Western Australia [2015] FCA 204 (Badimia #1); CG (Deceased) on behalf of the Badimia People v State of Western Australia (No 2) [2015] FCA 507 (Badimia #2). An appeal from Barker J’s decision was dismissed in 2016: see CG (Deceased) on behalf of the Badimia People v State of Western Australia [2016] FCAFC 67; 240 FCR 466.

31    Pausing there, whether the Badimaya Barna Guda claim is an abuse of process because it seeks to re-litigate issues determined conclusively by Barker J is not an argument I am dealing with today. However, it is relevant to note that this litigation concluded in 2016. It would appear from his affidavit that Mr Lawson at least attended some of the on country evidence in around 2013 and some of his family gave evidence and were involved in that proceeding. In particular, his brother Percy appears from Mr Lawson’s evidence to have been involved, and was also involved in establishing a Badimaya corporation in around 2017, in which Mr Lawson also became involved.

32    However, the country now being claimed by the Badimaya Barna Guda claim as Badimaya country was first, not claimed in the 2015 proceeding and second, was not the subject of any follow-up claim by the Badimia People in or after 2016 after the Badimia appeal was dismissed.

33    That is despite some observations by Barker J in his reasons about connections between Badimia and Widi People and despite some evidence to which Barker J referred in his reasons suggesting Badimia country extended further west. Again, no legal action was taken by Mr Lawson or any of those who support him at that time, nor in 2017 when he deposes in his affidavit he first became aware of the Widi Mob proceeding.

34    Returning then to the two parcels of land covered by the 2020 claim, only one of those parcels of land is relevant to the Yamatji Nation claim and to the interlocutory applications, namely, part of the parcel to the west of the Badimia 2015 determined land. That part of the Badimaya Barna Guda application partially but substantially overlaps with the Yamatji Nation claim area and also the claim areas in the Mullewa Wadjari (WAD21/2019), Southern Yamatji (WAD19/2019) and Widi Mob (WAD31/2019) proceedings.

35    At this point it should also be noted that a comparison of the list of apical ancestors in the Yamatji Nation claim on the one hand and the Badimaya Barna Guda claim on the other reveals that there are at least two common apical ancestors on the claim, Biddy/Biddie (the mother of Fred Carnamah) and Timothy Benjamin. There are 29 named sets of apical ancestors in the Yamatji Nation proposed determination and 14 named apical ancestors in the Badimaya Barna Guda claim. The overlap of two apicals is not, in my opinion, especially significant, but what it does indicate is that there is little common ground about who are the right ancestors at the time of effective sovereignty for the country covered by the 2020 claim.

36    The evident impact of the filing of the Badimaya Barna Guda application on the feasibility of maintaining the 7 February 2020 date meant that a case management hearing needed to be convened. On 28 January 2020, the Court convened an urgent case management hearing by teleconference. On that day orders were made listing these two interlocutory applications for hearing today. Given my Full Court commitments on Monday, Tuesday and Wednesday of this week, today was the only available day.

37    The Court also made an order on 28 January joining the Yamatji Nation applicant as a respondent to the Badimaya Barna Guda proceeding. The Yamatji Nation applicant would, in any event, have eventually become a party to this proceeding after the notification period had ended, so the joinder merely brought that joinder forward, as plainly it needed to occur, given the 7 February 2020 determination listing.

38    Other orders that were made reflected the fact, which I have mentioned, that only part of the 2020 Badimaya Barna Guda claim overlaps with the Yamatji Nation claim. There was no basis for the Court to consider as a matter of urgency what should happen to that part of the 2020 Badimaya Barna Guda claim which did not overlap with the Yamatji Nation claim. Accordingly, the Court made orders on 28 January 2020 splitting the Badimaya Barna Guda application into two proceedings: Part A, concerning the overlapping land with the Yamatji Nation claim, and Part B, being the remainder of the Badimaya Barna Guda claim.

39    Therefore, it is only the continuation of the Badimaya Barna Guda Part A proceeding which is in issue today. And the only issue is whether that Part A proceeding should be dismissed as an abuse of process on the ground that it has been brought too late, or with unreasonable delay. Thus, only paragraph 2 of the Yamatji Nation interlocutory application is being heard and determined today.

40    The other argument of the Yamatji Nation applicant – that the proceeding is an abuse of process because it seeks to re-litigate what was decided in the Badimia decisions, or because it is doomed to fail because of the Badimia decisions – has been adjourned. If Mr Lawson successfully persuades the Court Part A is not an abuse of process, then the 7 February hearing will need to be adjourned and the Yamatji Nation applicant’s argument about the Badimia decisions will have to be dealt with on another date. That issue is complex, and I considered it was not a matter the Court would be able to deal with in the extremely short time available.

41    It was made very clear to Mr Lawson, and to Ms Lawson and Mr Simpson, at the 28 January teleconference (which lasted more than two hours) that the Court needed to be persuaded as to why the Badimaya Barna Guda Part A application was not an abuse of process, because, on its face it came so late and sought to dislodge the 7 February hearing and the four years of work which had led to it. That is why, as I explained to Mr Lawson, he would have to “show cause” today why the Badimaya Barna Guda claim Part A should not be dismissed.

42    I turn now to the Widi Mob interlocutory application.

43    Mr Lawson, the lead applicant in the Badimaya Barna Guda application, was joined as a respondent to the Widi Mob proceeding on 16 October 2019 following his filing of an interlocutory application in which he asserted that the area claimed in the Widi Mob application is, in fact, Badimaya country. The notes to the Court’s joinder order relevantly stated:

(1)    Adrian Lawson contends he should be joined as a respondent party to the proceeding as he wishes to protect his interest as a Badimia person in what he asserts is Badimia country.

(2)    The parties do not object to Adrian Lawson being joined as a respondent party on the basis that Mr Lawson is a descendant of an ancestor in WAD345/2019, Yamatji Nation, which wholly overlaps the proceeding.

44    As the chronology shows, this was not the first time Mr Lawson had sought to be joined to the Widi Mob proceeding. He first filed an interlocutory application seeking to join as a respondent to the Widi Mob proceeding on 5 June 2019. That is more than six months ago. Mr Lawson’s interlocutory application and a similar application made by Lionel O’Brien on 27 February 2019 were referred to mediation in orders made in the Widi Mob proceeding on 7 June 2019.

45    Now, this joinder application by Mr Lawson happened just a couple of weeks before the Yamatji Nation authorisation meeting to authorise the Yamatji Nation claim. Mr Lawson and Ms Yvonne Lawson attended that meeting. The evidence indicates the resolution authorising the Yamatji Nation claim was passed by “consensus”. That resolution, or one of the resolutions included, as Mr Yarrow submitted, authorisation of the claim group description, which ultimately appears in the Form 1 Yamatji Nation application.

46    To say that a resolution is passed by “consensus” is usually taken to mean that it is passed without any opposition or disagreement from the people present. Again, there is no evidence Mr Lawson spoke up at that meeting against the Yamatji Nation claim, or spoke to the meeting about his opinion that a large part of the country claimed in the Yamatji Nation claim was, in fact, Badimaya country. There is some evidence that all those in the group where Mr Lawson sat voted in favour of the resolutions.

47    The Yamatji Nation claim was filed on 28 June 2019.

48    On 4 July 2019, HWL Ebsworth, a law firm of significant size and reputation, who were acting as independent legal advisors to Mr Lionel O’Brien in relation to his Widi Mob joinder application, wrote to the Widi Mob parties by email. What was said by HWL Ebsworth was also said on behalf of Mr Lawson. There is evidence he had several conversations with the lawyers at HWL Ebsworth that is recorded in some of the exhibits submitted in this proceeding.

49    It appears that the funding for HWL Ebsworth’s involvement may well have come from a grant of assistance nominated to be to Mr O’Brien but I have no doubt on the evidence, and I find, that Mr Lawson also received legal advice from HWL Ebsworth. Indeed, in the email written by HWL Ebsworth this is what is said:

We understand that the claim area of the Yamatji Nation Claim overlaps part of the claim area of the Widi Mob Claim. We further understand that as part of any settlement of matters as they concern the SPA there may be an application to amend the claim area of the Widi Mob Claim to remove the overlap with the Yamatji Nation Claim, an application for leave to discontinue the Widi Mob Claim or an order dismissing the Widi Mob Claim. In any case, it is our understanding that the Widi Mob Claim is not likely to be meaningfully progressed now that the Yamatji Nation Claim has been authorised and filed.

As such, please be advised that Mr Lawson is agreeable to having his Application dismissed. This position is prefaced on the fact that Mr Lawson specifically reserves his rights to continue to pursue, including if necessary to re-file his interlocutory application for joinder should the Widi Mob Claim continue to progress in any meaningful way including, if it continues in respect of a reduced claim area, after the settlement of matters as they concern the SPA. Mr Lawson’s position is also prefaced on the fact that there be no order as to costs.

50    In other words, and I find, so far as the Widi Mob parties (especially the applicant and the State) and the Yamatji Nation parties (especially the applicant and the State) were concerned, Mr Lawson had accepted the outcome of the authorisation meeting in June. That message was consistent with what the evidence shows was Mr Lawson’s attitude at that authorisation meeting.

51    The Court, accordingly, made orders dismissing Mr Lawson’s joinder application on 16 July 2019. He did not file a native title application at that point. Nor did he tell any party, or the Court, that he intended to do so.

52    However, he did make an identical joinder application on 20 August 2019. In September, after a case management hearing, he was directed to attend a conference with Judicial Registrar Daniel. Part of the purpose of this was to ensure that Mr Lawson understood what he was now seeking to do was to renew an application he had previously agreed to having dismissed. By this stage, the Court was also making orders for the parties to agree a timetable towards consent determination.

53    Indeed, in September 2019 at the case management hearing, the Court made orders vacating the trial orders made by Barker J. That, as Mr Yarrow submitted, should have been a clear indication to everyone that these proceedings were on a single track, and they were on a track only to a negotiated outcome. I find Mr Lawson was well aware that this was occurring. I find he was well aware of that in September 2019. Still, he did not file his own native title claim. He knew, or should have known, that by that stage the date of 7 February 2020 had been identified as the consent determination date.

54    In mid-October 2019, the parties in Widi Mob agreed to Mr Lawson being joined as a respondent. That agreement was on a specific basis, recalling that at this point, preparations were well underway for the final authorisation of the Yamatji Nation settlement package which included an ILUA and both a positive and negative determination of native title. I find that two members of the Badimaya Barna Guda applicant knew this directly – Ms Lawson and Mr Simpson – because they attended a Yamatji Nation claim group meeting on 7 October 2019, at which majority resolutions were passed endorsing the “in principle” agreement with the State of Western Australia and “Notification, consultation, and decision-making process on 9 December 2019 for the authorisation of an Area ILUA and Minute of Consent Orders for a determination of native title in the Federal Court of Australia”. I infer and find, from the close family relationship between Mr Lawson and the other two individuals, and from the fact that Ms Lawson and Mr Simpson are supporting Mr Lawson as the driving force in the Badimaya Barna Guda claim, that Mr Lawson also well knew in early October 2019 that these preparations were well underway.

55    The Widi Mob parties agreed to Mr Lawson’s joinder on the specific basis that he wished to protect his interests as a Badimaya person in what he asserts is Badimaya country, while noting that Mr Lawson is a descendant of an ancestor in the Yamatji Nation claim group which wholly overlaps the Widi Mob proceeding. In other words, at a time which was challenging and fast moving in terms of the overall settlement negotiations, the Widi Mob parties agreed to a joinder to protect an interest which I find they saw was already protected because Mr Lawson would, in their eyes, derive the benefit of the Yamatji Nation settlement as a claim group member and would be bound by the decision-making of the Yamatji Nation claim group.

56    The evidence is, and I find, that there are other Yamatji Nation claim group members who identify as Badimaya, not just Mr Lawson, Ms Lawson and Mr Simpson. However, they have not come forward to support the Badimaya Barna Guda claim.

57    Mr Lawson continued to be kept informed of what was happening in the progress of the Yamatji Nation claim and the overall settlement. He was in contact a great deal with Mr Pagsanjan, as the evidence shows. He attended a case management hearing before me on 21 November 2019. He did not say anything. He did not inform the Court or the parties that he was planning to file a separate claim for native title that would affect the finalisation of the Yamatji Nation claim. He sat in Court, saying nothing to alert the Court or the parties while the Court and the parties continued to try to finalise arrangements for a consent determination in early 2020.

58    On the evidence, this was at least a month after he had actively commenced preparation of a native title application with Mr Bassell and Dr Cosgrove. Contact continued between Mr Lawson and Mr Nichole at YMAC and also between Mr Lawson and Mr Pagsanjan. Significantly, the evidence shows that on around 13 December 2019 Mr Nichole from YMAC phoned Mr Lawson to provide an update on the outcome of the authorisation meetings held on 8 and 9 December at Geraldton. Mr Nichole’s evidence is that he informed Mr Lawson that the Yamatji Nation claimants authorised the ILUA and the proposed minute of consent determination at that meeting. Mr Nichole’s evidence is that Mr Lawson said words to the effect of – and I quote – “Fair enough. That’s good for the mob” and indicated that he would attend the consent determination on 7 February 2020.

59    In his affidavit, Mr Lawson denies he said such a thing and deposes that he:

… would not attend the consent determination in Geraldton on 7 February 2020 I do not wish to attend, and I have never planned to attend, as me and my family do not agree with the determination.

60    I accept Mr Nichole’s evidence. I find it is more probable than not that Mr Lawson did say something to the effect Mr Nichole deposes, and that he did indicate around 13 December 2019 that he would attend the consent determination. He and his family members had been attending the Yamatji Nation meetings by and large. It is not unusual, and a fact of which I am satisfied the Court can take judicial notice, that claim group members who may not entirely agree with a consent determination may still attend a consent determination hearing and may accept the will of the majority of their family and claim group. That is not improbable.

61    However, I do accept that yesterday, when he swore his affidavit, Mr Lawson may now feel differently. As I find below, in my opinion, Mr Lawson’s position has become increasingly oppositional to the Yamatji Nation settlement in fact occurring, but this has occurred only relatively recently, and probably only in December 2019 and January 2020 as he was preparing to file his own claim. While he has, on the evidence, held and expressed opinions about the connection of Badimaya People (or Barimaia or Badimia – it is spelt differently in various places) to land included in the Yamatji Nation claim for some time, I find that until very recently he was not prepared to take what I find he well knew, and knows, now to be a much more significant step of actively affirming a very different and rival claim for native title on behalf of a very different and narrower group of people, which would have the effect of cutting out a large number of people and families who might otherwise derive benefit from the Yamatji Nation claim. This is a divisive move and I find that he well knows that, which at least is part of the reason that it has taken him a long time to take that very significant step of filing a claim.

62    I accept Mr Lawson may now not intend to attend any consent determination hearing. However, Mr Nichole is an officer of this Court and he has sworn to the effect of that conversation. It is an extremely serious matter for an officer of this Court to give false evidence. I find Mr Nichole would not lightly depose to the content of a conversation if he were not sure about it. In my opinion, Mr Nichole’s recollection of that conversation is likely to be more reliable than Mr Lawson’s, and I find Mr Lawson is probably reasoning backwards from his current very firm opposition to what is proposed to occur tomorrow.

63    Consistently with the impression I have formed of when Mr Lawson’s opposition really crystallised, he did not inform the relevant parties that he would not sign the minute of consent determination until two weeks ago. The evidence shows Mr Lawson was told by Mr Pagsanjan on around 12 December 2019 that all respondents to each of the claims and the Yamatji Nation claim would need to sign the minute of consent determination. Mr Lawson does not at this time appear to have formally or informally told any of the lawyers, or any of the Yamatji Nation applicant members, or the Widi Mob applicant members, that he would not sign the minute of consent determination.

64    Around 15 January 2020, Ms Song from the State Solicitor’s Office sent Mr Lawson and all other respondents an email attaching the final version of the minute of consent determination and requesting that they sign and return it by 17 January 2020. It may only be a few days difference, but the silence from Mr Lawson again indicates how he was prepared to disrupt the considerable resources being applied by the parties, which he well knew were being applied, to preparations for the consent determination. He did not comply with that deadline.

65    Instead, he waited until 20 January when Ms Song sent a follow-up email inquiring whether he would sign the minute of consent determination or if not, why not. Mr Lawson then replied at 2.12 pm on 20 January 2020, and I quote:

Im not signing has I have lodged a form 1 native title claim over the area where the Yamatji Nation Claim has been filed, cheersAdrian.

66    On the same day the Badimaya Barna Guda application was filed.

67    Just to complete the summary of what has happened up until today, prior to the hearing on 6 February 2020 the Court granted leave to the Widi Mob applicant to appear in the Badimaya Barna Guda proceeding to make submissions to assist the Court in relation to the Yamatji Nation interlocutory application on the basis that consideration of the Badimaya Barna Guda claim is relevant and, as it was eventually conceded in argument, decisive in relation to the outcome of the Widi Mob interlocutory application today.

68    Although the members of the Badimaya Barna Guda applicant were unrepresented at the time of the case management hearing on 28 January, they obtained legal representation for the hearing today, and I have already extended my gratitude to Mr Sheiner and those lawyers assisting him for their representation of Mr Lawson, and I repeat my expression of gratitude.

The material before the Court

The Yamatji Nation interlocutory application

69    The Yamatji Nation applicant relied upon the following material in support of the Yamatji Nation interlocutory application:

(a)    interlocutory application filed on 24 January 2020;

(b)    written submissions filed on 24 January 2020;

(c)    affidavit of Frederick Taylor, a member of the Yamatji Nation applicant, affirmed on 24 January 2020;

(d)    affidavit of Joshue Santa Maria, an anthropologist employed by YMAC, affirmed on 24 January 2020;

(e)    affidavit of Rodney Francis Nichole, a senior lawyer at YMAC with carriage of the Yamatji Nation claim, affirmed on 24 January 2020;

(f)    supplementary affidavit of Rodney Francis Nichole affirmed on 31 January 2020;

(g)    second supplementary affidavit of Rodney Francis Nichole affirmed on 4 February 2020;

(h)    affidavit of Brooke Creemers, a lawyer at YMAC, affirmed on 4 February 2020; and

(i)    affidavit of Cameron Peter Trees, Principal Legal Officer of YMAC, affirmed on 5 February 2020.

70    The Badimaya Barna Guda applicant relied on the following material in support of the “show cause” application and in response to the Yamatji Nation interlocutory application:

(a)    written submissions filed on 5 February 2020;

(b)    affidavit of Adrian Dulla Lawson affirmed on 5 February 2020; and

(c)    affidavit of Graham Gordon Bassell sworn on 4 February 2020.

71    The State filed written submissions on 5 February 2020. In those submissions, the State indicated it supports the Yamatji Nation applicant’s application for a dismissal of Part A of the Badimaya Barna Guda proceeding.

The Widi Mob interlocutory application

72    The Widi Mob applicant relied upon the following material in support of the Widi Mob interlocutory application:

(a)    interlocutory application filed on 24 January 2020;

(b)    written submissions filed on 29 January 2020;

(c)    the Yamatji Nation interlocutory application filed on 24 January 2020;

(d)    the proposed orders and minute of consent determination for the Yamatji Nation proceeding filed on 15 January 2020;

(e)    the amended proposed orders and minute of consent determination for the Yamatji Nation proceeding filed on 23 January 2020;

(f)    a minute of proposed consent orders filed on 23 January 2020 in support of the proposed Yamatji Nation consent determination;

(g)    the Form 1 native title determination application filed by the Badimaya Barna Guda applicant on 20 January 2020;

(h)    affidavit of Wanjie Song affirmed on 23 January 2020 in relation to the proposed consent determination in the Yamatji Nation proceeding;

(i)    affidavit of Joshue Santa Maria affirmed on 24 January 2020;

(j)    affidavit of Michael Pagsanjan, solicitor for the Widi Mob applicant, affirmed on 24 January 2020; and

(k)    second affidavit of Michael Pagsanjan affirmed on 28 January 2020.

73    The Widi Mob applicant also relied on, and read, the affidavit of Mr Lawson affirmed on 17 January 2020 in support of the Badimaya Barna Guda native title application.

74    Orders were made on 31 January 2020 providing that the documents identified at (c), (e) and (g) in the list above, and Mr Lawson’s affidavit filed in support of the Badimaya Barna Guda application, stand as evidence in the Widi Mob proceeding (as those documents had been filed in either WAD345/2019 Yamatji Nation or WAD7/2020 Badimaya Barna Guda).

75    At the hearing Mr Sheiner indicated that Mr Lawson sought to read the same material filed in the Badimaya Barna Guda application in support of his response to the Widi Mob interlocutory application, being a set of written submissions filed on 5 February, an affidavit affirmed by Mr Lawson on 5 February and Mr Bassell’s affidavit.

Findings on Mr Lawson’s evidence

76    I turn now to some general findings about Mr Lawson’s evidence and its importance. The chronology of events tells significantly in favour of the Badimaya Barna Guda claim being so unreasonably late and having such profound effects on the finalisation of the Yamatji Nation claim and the other four underlying claims as to be an abuse of the processes of this Court.

77    Therefore, at an evidentiary level, and putting the legal argument to one side, it is really through Mr Lawson’s evidence that the Court will be persuaded or will not be persuaded about whether the filing of a new claim for a different native title over part of the Yamatji Nation claim area less than three weeks before the scheduled consent determination and after four years of negotiation is an abuse of process. It is not inconceivable that there could be persuasive explanations for it being so late, and that there could be persuasive explanations as to why the new claim is not so oppressive or unjust to those who will be caught up in answering it, and prevented from finalising the Yamatji Nation claim, such that it should be dismissed. However, the persuasive burden borne by Mr Lawson and the Badimaya Barna Guda applicant should not be underestimated, as I explained to him on 28 January 2020 in the case management hearing.

78    An affidavit by Mr Bassell, the lay person who has been assisting Mr Lawson since approximately October 2019 was also read on behalf of the Badimaya Barna Guda applicant and on behalf of Mr Lawson in the Widi Mob proceeding. I do not consider Mr Bassell’s affidavit takes the matter much further. He can only speak from his direct knowledge about the steps he and his wife, Dr Cosgrove, have taken since October 2019. The delay and lack of appropriate action by Mr Lawson, in my opinion, began far before that date. However, as to that period, while Mr Bassell’s evidence discloses the unfortunate death of Dr Cosgrove’s father as one event which occasioned some delays in finalising the Badimaya Barna Guda application, as I have found elsewhere, the fact is that Mr Bassell and Dr Cosgrove can be taken to have known, just as Mr Lawson did, about the preparations which were underway in the Yamatji Nation claim. No person came forward in October or November 2019, or indeed at or before the December authorisation meeting, to the Yamatji Nation parties, or parties in the other proceedings, or the Court to indicate those preparations were all likely to be placed in jeopardy by the filing of a new overlapping claim.

79    It seems to me that it is really Mr Lawson’s evidence which can put a different complexion on the narrative which appears from the chronology and from all the evidence about the conversations he has had with various people over the last several years.

80    In assessing his evidence I have taken into account that this is an interlocutory application and no witness has been cross-examined and therefore, aside from specific evidence where there is a conflict that must be resolved, such as the one about the conversation to which I have referred, I have sought to rely mostly on evidence that is objectively supported through contemporaneous documents or is otherwise not contradicted.

81    I have also taken into account the fact that Mr Lawson has had some access to legal advice over the last couple of years, but generally has not had consistent legal representation throughout this time.

82    On the basis of his affidavit evidence, which I accept, I have also given weight to the fact that Mr Lawson did not have the opportunity for a full high school education, and his childhood experiences of being moved around between families and missions have plainly been very difficult for him. The Court’s findings are not intended to reflect on Mr Lawson as a proud Aboriginal man, a person who identifies as Badimaya Yamatji, who values his culture and takes his responsibilities to his elders and his country seriously.

83    The Court’s findings about what Mr Lawson did, or did not do, or should have done, are made solely for the purpose of assessing whether the Badimaya Barna Guda Part A claim was an abuse of process, and second, whether Mr Lawson should be removed as a respondent in the Widi Mob proceeding. In that sense, the phrase “abuse of process” should not be understood as a derogatory term aimed at an individual. It is a well-established legal concept and the Court must use that phrase.

Resolution of the interlocutory applications

84    I turn now to the resolution of the two interlocutory applications.

85    My reasoning as expressed will not be as polished and as fulsome as it might have been if there had been more time to consider and deliver these reasons. Nevertheless, I am firmly persuaded that the Badimaya Barna Guda Part A proceeding is an abuse of process and should be dismissed.

86    I am also firmly of the view that Mr Lawson must be removed as a party from the Widi Mob proceeding, essentially because his continued defensive or protective role as an assertive native title holder is based on an application under s 61 of the Native Title Act, which I have found to be an abuse of process.

87    I begin by making some specific findings of fact before turning to the law and to its application.

Specific findings

Mr Lawson has initiative

88    On the basis of his own affidavit evidence, Mr Lawson is not without initiative and is capable of taking steps, which include working within a legal framework. At [56] of his affidavit he deposes that:

In the second half of 2018 I established a new corporation called Badimia Nyingarn Tjuba Indigenous Corporation (BNTIC) to represent the Badimaya people and try and progress the Badimaya claim.

89    Establishing a corporation takes some persistence and requires a person to work within a legal framework. Mr Lawson also in fact lodged the Badimaya Barna Guda claim without having legal representation. It appears from the evidence he has had some assistance from Mr Bassell, a lay person. It appears he has also had some anthropological assistance and some assistance with the mapping of the claim from an archaeologist. However, I see nothing in the evidence to explain why he was not able to use people of this kind, if not precisely the same people, to assist him in 2018 or earlier in 2019.

Why no earlier claim

90    Mr Lawson deposes that in the second half of 2018 he was having discussions with his nephew, Lionel, about who would make an application over the West Badimaya claim area. He deposes he was also continuing to talk to Dr Craig Muller and other people about this matter, but did not receive any formal response from YMAC to his request for funding assistance in May 2018.

91    I emphasise: this is in the second half of 2018. By this time, the Yamatji Nation negotiation is still underway. Indeed, there is no formal Yamatji Nation claim, there are only the four separate claims. Mr Lawson at this time was receiving updates from Mr Pagsanjan as the lawyer for the Widi Mob. He knew what was happening. He knew he was not receiving any positive response from YMAC to his funding application. He had the assistance of family. He had the support of family. He had the assistance of Dr Muller, an anthropologist, who Mr Lawson deposes he met in 2017, and who assisted him for some time, including by doing some research for him on making a native title claim in the area covered by the current Badimaya Barna Guda claim, as well as assisting Mr Lawson with his joinder application in the Widi Mob claim.

92    Instead, Mr Lawson waited. He waited and he watched the progress of the other claims. He may have been unhappy with what was happening in them, but he did not take the step that his own evidence shows he knew he had to take and that his own evidence shows he was capable of taking at a later stage.

93    The same can be said of Mr Lawson’s conduct on his own evidence in 2019. He deposes that in June 2019 he attended a mediation organised by the Federal Court with Judicial Registrar Daniel, Aimee Lamatoa, Cameron Trees and members of the Yamatji Nation Traditional Owner Negotiation Team. He was not represented by a lawyer at this mediation, but he deposes that he did not go alone. He had Lionel O’Brien, Godfrey Simpson, Jeanette Kersting and Percy Lawson with him at that meeting. He deposes they were all there “on behalf of Badimaya”.

94    Mr Lawson deposes he was “not satisfied with the outcomes from this meeting”.

95    Yet, no claim was filed. This, it will be recalled, is about the time of the Yamatji Nation claim authorisation meeting.

96    To this should be added the events in mid-September 2019, when the evidence shows Mr Lawson sent a handwritten letter to Mr Rodney Nichole at YMAC. In this letter he denies membership to the Yamatji Nation claim, states that he opposes the claim and requests that he be removed as a member of the Yamatji Nation claim. That is another point at which, if Mr Lawson considered the Badimaya People he claims to represent should be recognised as the correct holders of native title for the land in the Yamatji Nation overlap and that Widi Mob should not be recognised, he needed to step forward to the Court and make a claim. Once again, it is patently clear on the evidence that Mr Lawson knew the Yamatji Nation negotiation was reaching a final stage – there was a claim group meeting in early October to endorse the “in principle” agreement. A claim made at this point may still have been exposed to an allegation of unreasonable delay and abuse of process, but it would at the least have been consistent with Mr Lawson’s apparent denial of Yamatji Nation identity a few weeks earlier.

97    I do not consider Mr Lawson has satisfactorily explained why he did not file a rival inconsistent native title claim at an earlier point. In the end, he filed a claim without being represented by a lawyer. Therefore, the fact that he spent a lot time (which I accept) trying to find a lawyer without success was not the matter which prevented him from filing a native title claim.

98    I find that what is more probable is that Mr Lawson held out hope that in some other way he could secure a more prominent outcome for the Badimaya People. However, he did not even actively seek to involve himself in the four years of negotiation. He did not take the step I find he was well aware he needed to take if he were to have any chance of altering, modifying or stopping the Yamatji Nation settlement.

99    The circumstances of proceedings such as this require action by those who oppose. Mr Lawson, I find, held back on taking action. He sought advice, and support, which was not forthcoming – but all the while he was doing this, he well knew the Yamatji Nation claim was proceeding to a negotiated outcome and I find he let that occur. Indeed, he participated in parts of it.

Why Mr Lawson did not speak up at the Yamatji Nation meetings

100    Mr Lawson gives an explanation in his affidavit about the 24 June authorisation meeting and why he did not attend the December meeting. He says at [65]:

I attended to see what was going on and to see what they had to say. At the start of the meeting they said that any troublemakers who speak wrongly would get kicked out, so I didn’t speak at the meeting. I just sat and listened. I felt like I couldn’t speak at this meeting because I would be seen as a troublemaker. I didn’t agree with what happened at the meeting and so I didn’t attend any more of the meetings after that. I felt Badimaya people weren’t included and that they wanted us to come under Widi.

101    I accept Mr Lawson may have felt reluctant to speak up at the June 2019 meeting and that he may have felt worried about being perceived as a troublemaker. However, the fact is, by the second half of 2019 and not long after this meeting, he was formally asserting in this Court as a respondent to the Widi Mob claim that the Widi Mob claim involved the wrong people for that country. He had decided to introduce a division into the Widi Mob claim in a formal way. I find he well understood what he was doing at this point.

102    Now, I accept it may be one thing to come to Court and to speak against the composition of a claim group and to say to the Court that they are the wrong people for country. And I accept that it is another thing to say that in front of your extended family, and your group, and other groups. I accept that. However, as I find Mr Lawson well understands, authorisation meetings are important meetings: they are the places for decision-making about native title claims. I find he understands this because he must have had to organise an authorisation meeting for the Badimaya Barna Guda claim, or otherwise organise an authorisation process for that claim, and I find he is aware, in any event, from his own affidavit evidence about the Yamatji Nation claim authorisation processes about the importance of those processes and the role they play. As I have found in other decisions (see Sturt on behalf of the Jaru Native Title Claim v State of Western Australia [2018] FCA 1923 at [86]-[92]), the purpose of these authorisation meetings is to enable discussion and to reach a decision.

103    Minority views may not be popular, but if people choose to say nothing, they must accept that there may be consequences of choosing to say nothing, including that the points of view they wish to advance cannot be debated amongst the claim group at the appropriate time.

When Mr Lawson started working with those who assisted him on the Badimaya Barna Guda 2020 claim

104    There is some evidence in Mr Lawson’s affidavit that he began seeking assistance for the making of a native title claim on behalf of the Badimaya People in around April 2017 when he was in touch with Sophie Kilpatrick from Cross Country Native Title Services. However, on the evidence overall I find Mr Lawson started in earnest preparing this particular native title claim only in around October 2019.

105    That is when, as he deposes, he contacted Dr Cosgrove and Mr Bassell of Social Innovations Pty Ltd to request their assistance with a Form 1.

106    At that stage, the Yamatji Nation authorisation meeting was still two months away.

107    A new native title claim made at that point could have been dealt with in a number of ways. I do not rule out that further mediation may, in that time frame, have been possible. Mr Lawson knew about the mediation processes in these proceedings: he participated in them.

108    Yet, it took another three months for that claim to be filed. In saying that, I accept a native title claim is a complex document. I accept that Mr Lawson, and probably those who assisted him, wished to make the document as complete and compliant as possible.

109    I have no doubt that Mr Lawson and those assisting him spent a lot of time on the application. Nevertheless, Mr Lawson and I infer those insisting him were well aware that the Yamatji Nation claim was marching onwards. They were aware of the size and complexity of the settlement. They were aware of how long it had taken to negotiate, but they adopted their own timing towards the filing of the Badimaya Barna Guda claim.

110    At this point I should also note – as I expressed during oral argument – that I do not consider Mr Lawson and the Badimaya Barna Guda applicant are, in their s 61 application, making any confined point about whether the term “Widi Mob” is appropriate, whether “Yamatji” is an all-encompassing label or the like.

111    Rather, the Badimaya Barna Guda claim is an application for a determination of native title identifying land and apical ancestors on behalf of a group of people who identify as Badimaya. It is a rival and inconsistent claim to the Yamatji Nation claim. It is a significant step.

Mr Lawson’s complaints about the exclusion or lack of consideration of Badimaya People

112    In his affidavit, Mr Lawson makes a number of allegations about the neglect of the interests of the Badiyama People in both the Yamatji Nation settlement, and more generally, the neglect of the interests of the Badimaya People by YMAC, the native title representative body responsible for the region in which these claims arise.

113    I reject the proposition which is inherent in this evidence that the Court should examine Mr Lawson’s complaints about how the Badimaya People have been treated over the years, whether by YMAC or others, as one of the groups involved in the Yamatji Nation settlement. Those matters are not capable of addressing the question of whether the filing and maintenance of the Badimaya Barna Guda claim on 20 January 2020 is an abuse of process. In the context of the Badimaya Barna Guda application being filed without legal representation or representative body assistance, none of those matters are probative of any explanation about why it took until 20 January 2020 for that claim to be filed.

114    In case I am wrong, however, I make the following findings. They are mostly based on the latest affidavit from Mr Cameron Trees and the affidavit of Mr Pagsanjan of 24 January 2020. Mr Trees deposed that in his (then) role as the Deputy Principal Legal Officer of YMAC he “periodically spoke with Badimia people wishing to discuss matters relating to the geographic area of the Widi Mob claim” and stated that he would encourage individuals claiming a connection to the Widi Mob claim to engage with Mr Pagsanjan and MPS Law.

115    Mr Pagsanjan’s evidence is that on 12 October 2018, he presented to the board of Badimia Bandi Aboriginal Corporation to provide background to the Widi Mob claim and to provide a general update on progress of the claims in the separate proceeding area. He also gave evidence about a conversation he had with Mr Lawson more recently in October 2019:

On 15 October 2019, I discussed with Mr Lawson by phone the progress of the Yamatji Nation claim. My note records that I explained to Mr Lawson that the Yamatji Nation claim includes people who identify as Badimia, and that it is the decision of all native title claim groups under the Yamatji Nation Claim as to whether they agree to the Settlement Offer. I further explained to Mr Lawson that the parties and the Court would need to agree to any further mediation.

116    This advice was clear, and it illustrates, in my opinion, that Mr Lawson well knew and understood – at least in October 2019 – that there was not likely to be any room within the Yamatji Nation claim to renegotiate an outcome that gave Badimaya interests particular prominence over the interests of other groups, which is one outcome which he appears to be seeking from the lodging of this claim. Mr Lawson’s own evidence is that it was, at this time, that he started working with Mr Bassell and Dr Cosgrove on a claim illustrates he understood a Badimaya only claim needed to be made separately. Yet it was not filed until three months later.

117    I do not accept the submission, put on behalf of Mr Lawson, that YMAC’s conduct in not providing funding support to him as an individual, so that he could make a native title claim, in circumstances where he was an accepted member of the Yamatji Nation claim group, provides any explanation, let alone a reasonable one, for the filing of a late native title claim on 20 January 2020.

Mr Lawson’s complaints about the proposed settlement

118    Mr Lawson’s affidavit contains quite a lot of evidence about his dissatisfaction about the Yamatji Nation settlement, what it means for people who identify as Badimaya, and what it means for the country involved. He also makes statements such as:

I don’t know what’s in that ILUA, to me I don’t really know. A few Badimaya people went to those meetings and a few of them wanted to withdraw because the ILUA was setting a goal for Yamatji nation not Badimaya people. They say we part of it but we not because we not Widi people we are Badimaya people.

I don’t know what the ILUA is going to do for native title. Nobody has ever explained to me, what I know is that the ILUA is going to stuff it up for the Badimaya people. Stuffed it up for noongar people as well. They all got this money but can’t use it, it doesn’t go to people.

119    If Mr Lawson had attended the 8 and 9 December meeting, I find it is likely that he would now know a lot more about the proposed settlement, including the ILUA. He chose not to go. That explains why he is able to say he knows little about it. That does not provide any persuasive basis to allow the Badimaya Barna Guda 2020 claim to continue, and to inflict the oppression and unfairness, which I find it will, on the Yamatji Nation claim group and the four underlying claim groups.

120    Further, as a member of the Yamatji Nation claim group, there has at all times been nothing preventing Mr Lawson, or any individual who shares his view, from constructively and proactively involving themselves in the settlement negotiations through discussions, for example, with members of the Traditional Owner Negotiation Team, to talk about different outcomes or what individuals might consider to be better outcomes. Mr Frederick Taylor, a member of the Yamatji Nation applicant, and also a member of the Traditional Owner Negotiation Team, has made an affidavit in this application. He deposes that:

I know Adrian Lawson and Yvonne Lawson very well. They are my cousins through Mary Gingina, our great grandmother who was connected to the Southern Yamatji area under our law.

I know Godfrey Simpson who is Yvonne Lawson’s son. Godfrey is my nephew and is a descendant of Mary Gingina.

121    In his evidence, Mr Taylor states:

The Yamatji Nation claim brings together different groups of Yamatji in the region such as Amangu, Nanda, Naaguja, Badimia, Widi, and Mullewa Wadjari.

122    If Mr Lawson thought or thinks the Yamatji Nation settlement could have been improved he could have had substantive discussions with Mr Taylor. There is no evidence he has, or sought to. There are more ways to get outcomes for one’s people then waiting until the eleventh or twelfth hour to lodge a rival claim.

123    I accept it is likely there are individuals within the Yamatji Nation claim group who are unhappy with the content of the settlement, or perhaps even the fact of it. In any significant negotiated settlement, that is likely to be the case. However, the evidence is that a majority of Yamatji Nation people have authorised the settlement. The fact also is that Mr Lawson chose not to attend the very meeting at which he could have articulated and invited discussion about different options and different outcomes. Ms Lawson and Mr Simpson chose to attend the meeting but remained silent.

Legal principles

124    I turn now to outline legal principles applicable. The legal principles applicable to the dismissal of a native title application for abuse of process were explained recently by a Full Court of this Court in Fortescue Metals Group v Warrie on behalf of the Yindjibarndi People [2019] FCAFC 177 at [64], [113]-[114] and [125] (Jagot and Mortimer JJ), [374]-[380] (Robertson and Griffiths JJ) and [560]-[561] (White J). The context there was rather different, but nevertheless, the applicable principles are set out and reaffirmed.

125    In Jeffery & Katauskas Pty Limited v SST Consulting Pty Ltd [2009] HCA 43; 239 CLR 75 at [28], in a passage cited by Robertson and Griffiths JJ in Fortescue at [378], the plurality (French CJ, Gummow, Hayne and Crennan JJ) described what was encompassed in the concept of abuse of process in this way:

The term “abuse of process”, as used in Australia today, is not limited by the categories mentioned above or those which constitute the tort. It has been said repeatedly in the judgments of this Court that the categories of abuse of process are not closed. In Waltman v Gardner the majority adopted the observation in Hunter v Chief Constable of West Midlands Police that the courts have an inherent power to prevent misuse of their procedures in a way which, although not inconsistent with the literal application of the procedural rules of court, would nevertheless be “manifestly unfair to a party to litigation … or would otherwise bring the administration of justice into disrepute among right-thinking people”. This does not mean that abuse of process is a term at large or without meaning. Nor does it mean that any conduct of a party or non-party in relation to judicial proceedings is an abuse of process if it could be characterised, as in some sense, unfair to a party. It is clear, however, that abuse of process extends to proceedings that are “seriously and unfairly burdensome, prejudicial or damaging” or “productive of serious and unjustified trouble and harassment”.

126    In Fortescue Jagot J and I said:

…the two touchstones for abuse of process to which the High Court in Tomlinson referred were that the use of the Court’s procedures:

(a)    would be unjustifiably oppressive to a party; or

(b)    would bring the administration of justice into disrepute.

That formulation was repeated and endorsed by the plurality in UBS AG v Tyne [2018] HCA 45; 360 ALR 184 at [1].

127    We also emphasised the connection with s 37M of the Federal Court of Australia Act 1976 (Cth). The timing of the Badimaya Barna Guda application acutely brings those matters in focus, in favour of not allowing the Part A application to interfere with the finalisation of proceedings which had their genesis in this Court more than 20 years ago, as the State has submitted.

128    Many of those authorities were also discussed by Rares J in TJ (on behalf of the Yindjibarndi People) v State of Western Australia [2016] FCA 553. That case also involved a late native title application: “late” in the sense that an application was lodged by the Eastern Guruma People which overlapped the Yindjibarndi claim, being a claim that Rares J was actively hearing, having taken evidence on country only a few months before the Eastern Guruma application was filed, and the evidence not having closed. Justice Rares considered the applicable principles at [131]-[167] of his reasons, and I respectfully agree with those passages.

129    There is one authority to which Rares J referred at [129] that I should highlight. That is the observation of then Dixon J in a case called Cox v Journeaux [1935] HCA 48; 52 CLR 713 at 720 where his Honour said:

A litigant is entitled to submit for determination according to the due course of procedure a claim which he believes he can establish, although its foundation may in fact be slender. It is only when to permit it to proceed would amount to an abuse of jurisdiction, or would clearly inflict unnecessary injustice upon the opposite party that a suit should be stopped.

130    As Rares J said at [133] in the Yindjibarndi case, determining whether a proceeding should be dismissed for abuse of process requires the Court to balance a variety of factors. One such factor is the entitlement of a person to bring a claim to which Dixon J referred in Cox. Others are the fairness to both the moving party on the new application and to other parties in the proceeding or affected proceedings. Another is the need to maintain public confidence in the administration of justice, and here, the need to maintain public confidence in the operation of the Native Title Act, and in particular to maintain public confidence in the negotiation and mediation processes which are essential features of the legislative scheme.

131    One particular consideration important in the context of the Native Title Act, is that litigation under that Act engages public interest as well as private interests: see Fortescue at [549]. The public interest is especially prominent here because of the length of time and the resources devoted by all parties, including the State of Western Australia on behalf of the entire community of Western Australia, to a negotiated outcome and to bringing finality to native title claims in this region. That is an important consideration to be weighed in the balance.

132    However, it must also be recognised that the power to dismiss a proceeding as an abuse of process should be exercised sparingly: see Spalla v St George Motor Finance Ltd (ACN 007 656 555) (No 6) [2004] FCA 1699 at [68]-[69] (French J). That is at least in part for the very reason outlined by Dixon J in Cox: such a dismissal deprives a party of what is otherwise an entitlement to commence and maintain a proceeding, and to have that party’s allegations considered and determined.

133    Unreasonable delay in bringing a claim (or applying to be joined to a native title claim) is capable of constituting an abuse of process: see, for example, Stock (on behalf of the Nyiyaparli People) v Western Australia (No 4) [2018] FCA 1370 at [45]. However, the delay must mean that the proceeding has the characteristics to which Jagot J and I referred in Fortescue and that I have set out above.

The Yamatji Nation interlocutory application

134    I find that the use of this Court’s procedures by the Badimaya Barna Guda applicant to bring and maintain the Part A proceeding is unjustifiably oppressive to other parties who would necessarily be involved in the proceeding, especially the State, the Yamatji Nation applicant and the other four underlying native title applicants in the claim groups they each represent.

135    I also find that the use of this Court’s procedures by the Badimaya Barna Guda applicant to bring and maintain the Part A proceeding would bring the administration of justice into disrepute.

136    As to unjustifiable oppression, the evidence demonstrates the length of time many of the underlying claims have been on foot (more than 20 years); the enormous human and financial efforts and resources invested over the last four years to resolve the claims; and the fact that, contrary to the Badimaya Barna Guda submissions, allowing the Part A proceeding to continue would inevitably involve a lengthy and complex trial about the existence or non-existence of native title in the overlapping areas and in whom any such native title resides. Realistically, such a process will take many more years and involve hundreds of thousands of dollars in legal costs, and that is before one addresses the human costs, to which I refer below.

137    There is evidence before the Court about the costs incurred as part of the negotiation process, and in preparation for the proposed consent determination tomorrow. The Yamatji Nation applicant’s written submissions and the affidavit of Mr Nichole dated 24 January 2020 state the negotiation has cost in the order of $9.7 million. In a supplementary affidavit dated 31 January 2020, Mr Nichole deposes that YMAC will spend approximately and in excess of $61,000 for the arrangements for the proposed consent determination in Geraldton tomorrow, and that most of those costs will not be refundable.

138    Mr Sheiner, on behalf of Mr Lawson, properly and frankly acknowledged that Mr Lawson was not in a position to offer to pay any costs thrown away.

139    Further on unjustifiable oppression, the Badimaya Barna Guda claim is untested and on its face its authorisation might appear insufficient, but set against this the Yamatji Nation claim has been considered and authorised, as has the overall settlement package. Contrary to the submissions on behalf of the Badimaya Barna Guda applicant, to find as much does not involve the Court in any prejudgment about the legal validity of the ILUA authorisation process. Rather, the Court relies on the evidence before it about the steps taken to inform the Yamatji Nation claimants about the settlement and the terms of the consent determination as well as the evidence about the authorisation meetings and the voting at them. That is not to insulate those processes from challenge but, rather, to recognise that they have in fact occurred and on their face the result was an overwhelming endorsement of the consent determination which is listed to occur tomorrow. It is unjustifiably oppressive to the Yamatji Nation applicant and to the claim group to essentially place its claim right back at the start of a contested application process in this Court, bearing in mind the Badimaya Barna Guda claim is inconsistent with the Yamatji Nation claim, and, in my opinion, a litigated process is almost inevitable. That is, of course, the very thing Barker J’s orders in November 2015 were designed to avoid.

140    The filing and maintenance of the Badimaya Barna Guda claim is also unjustifiably oppressive to the State. The State must represent and consider the interests of the entire Western Australian community, including the very large number of persons and entities with proprietary interests affected by the native title claims in this region. It must consider the objects of the Native Title Act, and its emphasis on securing outcomes for Aboriginal and Torres Strait Islander People which are capable of delivering to them some redress for the disposition and suffering they have endured in the past. It must consider what is the most effective and efficient use of public resources in this jurisdiction which might achieve those kinds of objectives.

141    It must also satisfy itself that there is a basis for any positive determination of native title, and indeed for any negative determination. It has, at great expense and expending much time and resources, undertaken that process. There have been lengthy connection, research and assessment processes involving several anthropologists, including Dr John Morton. The Court should give considerable weight to the State’s position, given that it has examined the connection material carefully and, the Court can assume, independently.

142    As the State correctly submits, it is a party to all the proceedings – the four underlying proceedings, the Yamatji Nation proceeding, and now the Badimaya Barna Guda Part A proceeding. The oppression and unfairness to it, and to the public resources it expends as a party, are of a broad and serious nature. All the more so because of its significant investment in the settlement negotiations.

143    The State does not submit today that the Badimaya Barna Guda Part A claim has sufficient merit that it should be allowed to dislodge the consent determination tomorrow. It supports the Yamatji Nation applicant’s application. It submits that if the Badimaya Barna Guda Part A proceeding is permitted to continue then the State will either be denied, through no fault of its own, the agreement it has negotiated or will only be able to secure the benefit of that agreement after expending further significant time and money in having a trial of issues (assuming all such parties are willing, able and required to continue with that agreement). That submission should be accepted, and the doubt that that submission reveals about whether any further negotiation would even be likely to be undertaken, let alone successful, is in my opinion well-founded on the evidence. Even the recent passing of a key member of the Traditional Owner Negotiation Team did not sway the Yamatji Nation claim group, or the State, from their determination to see the Yamatji Nation settlement through: rather, they saw it as a mark of respect to that elder. I see no basis for any confidence that people, and I include the dedicated members of the State’s negotiating team as well as the Traditional Owner Negotiation Team, will have the energy and the will to embark on a further, inevitably lengthy and inevitably challenging and inconsistent round of negotiations at Mr Lawson’s behest.

144    In reaching my decision I have given considerable weight to the State’s submissions about the unjustifiable oppression and unfairness to it as a party to all the proceedings.

145    As to bringing the administration of justice into disrepute:

    First, on the evidence there is an overwhelming likelihood of the extinguishment of native title in most of the overlapping area. Contrary to the submissions of the Badimaya Barna Guda applicant, this would make any trial a wholly inefficient and ineffective use of the resources of the Court and the parties, and would cause the public to lose confidence in the judicial process, and in the Native Title Act.

    Second, on the evidence there is no reasonable prospect, in my opinion, of any negotiated outcome that involves the Badimaya Barna Guda Part A claim as it stands because it is wholly inconsistent with the Yamatji Nation claim, which itself has taken four years to negotiate. Postponing the negotiated outcome would reflect very poorly on the Court’s processes, especially the prominence given by the Court to case management, to the objectives under s 37M of the Federal Court Act, and to the resolution of proceedings in a way where costs and resources are intended to be proportionate to the issues in the proceeding. It would also reflect very poorly on the priority that should be given to the mediation processes undertaken by the Court and pursuant to the Native Title Act.

    Third, there has been a lengthy, exhaustive, and expensive authorisation process for both the Yamatji Nation claim itself and for the settlement, which has the twin and inseparable components of an ILUA and a determination of native title involving both a positive and a negative determination. ILUAs are a key feature of the Native Title Act. It would bring the administration of the Native Title Act by this Court into disrepute if, having case managed a proceeding which for the last few years has publicly been acknowledged to involve an ILUA and a consent determination so as to achieve the settlement of native title claims over a huge area with a complex claim history, the Court were, at the last moment, to allow a rival and inconsistent claim, whose basis has been talked about since at least 2017, to derail such a carefully managed set of proceedings. The Court’s careful, rigorous processes and timetabling approach are likely to become a laughing stock, and would be set at nought. Having encouraged and facilitated inclusive, extensive negotiation, the Court would be seen to be throwing all that effort back in the faces of the parties, in particular the Yamatji Nation claim group and the Traditional Owner Negotiation Team. How, one asks rhetorically, is it likely that another set of traditional owners would ever be prepared to devote so much of their lives to participating in a Court-managed process of this kind if, at the last moment, all their efforts were for nothing? Confidence in the Court amongst Indigenous groups and leaders, in my opinion, would be lost.

146    The effect at a human level of the Badimaya Barna Guda 2020 claim is well expressed by Mr Taylor at [20] of his affidavit:

I am very upset by them doing that. I was part of the Traditional Owner Negotiating Team (TONT) which negotiated the consent determination and the indigenous land use agreement (ILUA) with the State government. That negotiation took 2 years. I attend a lot of meetings in that time. I also spent a lot of time reading the papers and talking to community members. It was very hard to get the 4 claims to come together and agree. It was also a hard negotiation with the State. In that process we lost some of our community members, including a member of the TONT, but we kept going because we knew how important this whole process is for our community. I am now very happy with the ILUA and the consent determination. I believe it will provide the Yamatji Nation community with a real hope for the future, to be able to look after our land and to build economic self-sufficiency. The thought of now having to go back to negotiating with the Badamaya Barna Guda native title claimants, and maybe having to end up going to trial, makes me upset and angry; particularly when they are part of my family and they have been included in the Yamatji Nation Claim and ILUA authorisation processes. If that happens, and especially if we have to then go to a trial, I believe it will cause a lot of grief and a lot of disputes in the Yamatji community.

147    That human effect is a powerful consideration. I began these reasons by emphasising how long the Yamatji People have waited to have an outcome under the Native Title Act. Tomorrow is scheduled to be the major step in ending that waiting, and announcing a negotiated outcome which will bring some finality to their native title claims. As Mr Taylor’s evidence explains, significant elders have already been lost and will not see that finality, which they worked so hard to achieve. One should never forget that native title is held by people. Those who have passed, those who are alive now and those who are yet to be born. Without attempting to speak for them, the Court has recognised time and time again that for Aboriginal people, their country is part of them. Great weight should be given to the evidence of oppression of a large number of claimants on whose behalf Mr Taylor speaks, and who have agreed to the outcome listed for tomorrow.

148    I do not accept the submissions on behalf of the Badimaya Barna Guda applicant that the staged nature of the proposed orders scheduled to be made tomorrow means there is no prejudice in the consent determination being put off. That ignores the realities of this being an overall settlement package with much more than a native title outcome. After four years, the parties have agreed to it being on the table tomorrow in a carefully structured form. It is obvious that form might be said to incorporate the experiences from the Noongar settlement. It is a whole package. It may not stay on the table if tomorrow does not proceed, and the Badimaya Barna Guda Part A claim has to be confronted.

149    There is real and substantial prejudice.

The Widi Mob interlocutory application

150    I turn now to the Widi Mob interlocutory application. In substance, as I explained at the start of these reasons, my reasons for removing Mr Lawson as a respondent hinge on the fact that the defence or protection of his asserted native title interests would no longer be viable once the Badimaya Barna Guda Part A proceeding is dismissed as an abuse of process, as I found it should be.

151    To avoid this, Mr Lawson raised in his submissions the argument that he wishes to remain as a respondent for a “limited purpose” of making submissions as a respondent on the form of the proposed orders and the consent determination.

152    That argument must be rejected. First, there can be no consent determination unless all parties consent and Mr Lawson, as a party, has refused to consent. Section 87 operates on a situation where there is consent by all parties. It is commonplace and appropriate that where respondents – for whatever reason – will not provide consent, they are exposed to being removed as parties, subject to being heard about their proposed removal if they seek to be heard. Mr Lawson does not, in truth, seek to remain as a party to the Widi Mob proceeding only to make submissions about the form of orders. He wishes to oppose the consent determination in its entirety. The arguments now sought to be made about the “conditional” nature of the proposed orders are, in my opinion, in reality an attempt to frustrate the consent determination by another route other than Mr Lawson’s refusal of consent.

153    The Widi Mob applicant submits that the Badimaya Barna Guda Part A claim crystallises Mr Lawson’s rights that he has sought to protect as a respondent in the Widi Mob proceeding and that if that Part A claim is dismissed Mr Lawson no longer has an interest capable of being affected, or in need of protection.

154    I accept the Widi Mob applicant’s submissions that this is the appropriate test and I accept the appropriateness of the reference to Rangiah J’s decision in Clancy on behalf of the Wulli Wulli People #2 v State of Queensland [2019] FCA 351 at [12] that Mr Lawson would no longer have any tenable claim to protect. The Widi Mob applicant made wider submissions relating to Mr Lawson’s removal, including submissions based on the Badimia decisions, however Mr Yarrow properly accepted that they were not matters for determination today. It is sufficient, as I have found, that there is a clear abuse of process in the maintenance of the Badimaya Barna Guda Part A proceeding, which in turn has an inevitable consequence for Mr Lawson’s ongoing status as a respondent to the Widi Mob proceeding.

155    Accordingly, both the Yamatji Nation interlocutory application and the Widi Mob interlocutory application will be upheld.

Associate:

Dated:    11 February 2020

ATTACHMENT A

Chronology

Pre-1998            

WAD21/2019 (formerly WAD6119/1998) Mullewa Wadjari filed on 19 August 1996

WAD31/2019 (formerly WAD6193/1998) Widi Mob filed on 26 August 1997

WAD6194/1998 Naaguja Peoples filed in 1998 (subsequently combined with the Southern Yamatji proceeding)

2000                

WAD27/2019 (formerly WAD6001/2000) Hutt River filed on 7 February 2000

2004    

WAD19/2019 Southern Yamatji (previously WAD6002/2004 Amangu People) filed on 19 April 2004

27 November 2015     

Orders made by Barker J in Leedham Papertalk on behalf of the Mullewa Wadjari People v State of Western Australia [2015] FCA 1342 programming overlapping native title claims in the “separate proceeding area” (SPA) (which were, at the time, proceedings WAD6119/1998, WAD6193/1998, WAD6194/1998, WAD6001/2000 and WAD6002/2004 listed above) for a trial commencing in August 2018 and referring the proceedings to mediation seeking to resolve the overlaps prior to trial

November 2017

Adrian Lawson makes contact with the Yamatji Marlpa Aboriginal Corporation (YMAC) to raise concerns about the Widi Mob claim and the Badimaya claim (Affidavit of Adrian Dulla Lawson affirmed on 5 February 2020 at [41] (Lawson Affidavit))

12 November 2017     

Cameron Trees, then Deputy Principal Legal Officer of YMAC, sends an email to Michael Pagsanjan, solicitor for the Widi Mob applicant, requesting Mr Pagsanjan to speak with Mr Lawson to discuss the Widi Mob claim area within the SPA (Affidavit of Michael Pagsanjan affirmed on 24 January 2020 at [34] (Pagsanjan Affidavit))

28 November 2017     

Michael Pagsanjan speaks with Mr Lawson by phone. Mr Pagsanjan’s note of the conversation records that Mr Lawson asserts connections to places in the Widi Mob claim area. Mr Pagsanjan explains to Mr Lawson that the native title claims in the SPA are in settlement negotiations with the State of Western Australia and that any proposed outcome from those claims would need to be agreed in an indigenous land use agreement (ILUA) to be authorised by all people who hold or may hold native title (Pagsanjan Affidavit at [35])

7, 12 & 13 December 2017

Michael Pagsanjan engages in further communications with Mr Lawson: Mr Pagsanjan, on behalf of the Widi Mob claim, requests Mr Lawson to provide information on his assertions, discusses the Widi Mob claim with Mr Lawson by phone, and provides a copy of the Widi Mob Form 1 native title determination application to Mr Lawson by email (Pagsanjan Affidavit at [36]-[38])

10 January 2018

Adrian Lawson provides the Widi Mob claim information relating to his assertions by letter. In that letter Mr Lawson states that part of the Widi Mob claim area is Barimaia country and indicates he is aware of “negotiation timeframes” indicated by Mr Pagsanjan (Pagsanjan Affidavit at [39], Annexure MDP-22)

19 January 2018

Michael Pagsanjan sends a letter to Mr Lawson stating, on instructions, that the Widi Mob applicant rejects Mr Lawson’s assertions. The letter refers Mr Lawson to YMAC and South West Aboriginal Land and Sea Council as the relevant native title representative bodies for the areas referred to by Mr Lawson in his letter. Mr Pagsanjan’s letter states that the delay in Mr Lawson raising these assertions with the Widi Mob claim group is “profound” (Pagsanjan Affidavit at [40], Annexure MDP-23)

5-23 March 2018

Michael Pagsanjan discusses with Mr Lawson by phone options to arrange a meeting between Mr Lawson and the Widi Mob applicant, continues to update Mr Lawson by phone on the progress of the Widi Mob claim and includes Mr Lawson’s assertions in an anthropologist’s brief to Catherine Wohlan requesting that those assertions be assessed and considered in her research (Pagsanjan Affidavit at [41]-[43])

Second half of 2018

Adrian Lawson establishes the Badimia Nyingarn Tjuba Indigenous Corporation to represent Badimaya People and try to progress a Badimaya native title claim (Lawson Affidavit at [56])

25 January 2019

Michael Pagsanjan discusses with Mr Lawson by phone the progress of the Widi Mob claim. Mr Pagsanjan’s note of the conversation records that he raises with Mr Lawson the prospect of a single claim that includes descendants of all apical ancestors connected to the SPA, to which Mr Lawson responds that it sounds like a good idea and everyone would need to get together and agree (Pagsanjan Affidavit at [44])

6 or 7, 19 & 28 February 2019

Michael Pagsanjan discusses with Mr Lawson by phone the progress of the claims in the SPA, the relevant research process, and the progress of the Widi Mob claim. Mr Pagsanjan informs Mr Lawson about the progress of the anthropological research and about a native title meeting on 28 March 2019 to provide an update on the ILUA negotiations. Mr Pagsanjan suggests to Mr Lawson that he confirm with YMAC whether he is a member of the Southern Yamatji native title application so as to be entitled to attend the 28 March 2019 meeting. Mr Pagsanjan contacts the YMAC anthropologist to request that she contact Mr Lawson to discuss his ancestry as it relates to the Southern Yamatji claim (Pagsanjan Affidavit at [45]-[47])

1 March 2019

Michael Pagsanjan discusses with Mr Lawson by phone the interlocutory application filed by Lionel O’Brien in the Widi Mob proceeding. Mr Pagsanjan’s note of the conversation records that he tells Mr Lawson his views about the previous negative determination in Badimia, the delay in bringing an application, and whether individuals are already members of existing claims such as the Southern Yamatji claim would be relevant considerations if disputes were to proceed to a hearing (Pagsanjan Affidavit at [48])

6 March 2019

Brooke Creemers, the YMAC lawyer assigned to work on the Southern Yamatji claim, speaks to Mr Lawson by phone. Her note of the conversation records that Mr Lawson asserts his connection to the Southern Yamatji claim through the apical ancestor Mary Gingina, and that he indicates Fred Taylor had invited him to come and see what is happening. Ms Creemers speaks to Mr Lawson about the community information sessions where Mr Lawson could get more information and the proposed date and location for an upcoming Southern Yamatji claim group meeting (Affidavit of Brooke Creemers affirmed on 4 February 2020 at [10] (Creemers Affidavit))

6, 14, 19 & 28 March 2019

Michael Pagsanjan discusses with Mr Lawson by phone the progress of the Widi Mob claim and the native title meeting scheduled on 28 March 2019. In Mr Pagsanjan’s notes of his conversations with Mr Lawson on 19 and 28 March 2019, he records stating to Mr Lawson his view that any claims by Mr Lawson seeking to assert a Badimia native title claim would have “no prospect of success” (Pagsanjan Affidavit at [49]-[52])

30 May 2019

Adrian Lawson is added to the Southern Yamatji claim database (Creemers Affidavit at [11])

5 June 2019

Mr Lawson files an interlocutory application seeking to join as a respondent to the Widi Mob proceeding. Mr Lawson’s interlocutory application and a similar application made by Lionel O’Brien on 27 February 2019 are referred to mediation in orders made in the Widi Mob proceeding on 7 June 2019

June 2019

Adrian Lawson, Lionel O’Brien, Godfrey Simpson, Jeanette Kersting and Percy Lawson attend a mediation at the Federal Court convened by Judicial Registrar Daniel. Aimee Lamatoa, Cameron Trees and members of the Traditional Owner Negotiation Team also attend. Mr Lawson is not represented by a lawyer. He is not satisfied with the outcomes of the meeting (Lawson Affidavit at [62])

24 June 2019

The Yamatji Nation claim authorisation meeting is held. Mr Lawson and Yvonne Lawson attend the meeting and resolutions authorising the Yamatji Nation claim and applicant are passed by “consensus” by those present (Affidavit of Frederick Taylor affirmed on 24 January 2020 at [13]-[14])

521 members of the Yamatji Nation claim group attend the meeting including Mr Lawson and Yvonne Lawson. The Yamatji Nation claim and applicant are authorised “unanimously” (Affidavit of Rodney Francis Nichole affirmed on 24 January 2020 at [39]-[42] (Nichole Affidavit))

The group of people with whom Adrian Lawson and Percy Lawson are seated are observed to all vote in favour of the authorisation of the Yamatji Nation claim. The resolutions authorising the Yamatji Nation claim are all passed by consensus with no objections raised to the authorisation of the claim (Creemers Affidavit at [12])

Mr Lawson and Yvonne Lawson sign out at the end of the meeting (Supplementary affidavit of Rodney Francis Nichole affirmed on 31 January 2020 at [12] (Supplementary Nichole Affidavit))

28 June 2019

The Form 1 native title determination application in the Yamatji Nation proceeding (WAD345/2019) is filed

4 July 2019

HWL Ebsworth, acting as independent legal advisors to Mr Lawson in relation to his interlocutory application filed in the Widi Mob proceeding on 5 June 2019, advise the Widi Mob parties by email that with an understanding that the Widi Mob claim is not likely to be meaningfully progressed given the Yamatji Nation claim had been authorised and filed, Mr Lawson agrees to the dismissal of his interlocutory application (Pagsanjan Affidavit at [58])

16 July 2019

Mr Lawson’s interlocutory application is dismissed by consent. Identical orders are made in relation to Mr O’Brien’s interlocutory application (Pagsanjan Affidavit at [59])

20 August 2019

Mr Lawson seeks to file an interlocutory application for joinder as a respondent to the Widi Mob claim in the same terms as the interlocutory application dismissed by consent on 16 July 2019

10 September 2019

Orders are made in the Widi Mob proceeding requiring Mr Lawson to attend a conference with Judicial Registrar Daniel and for the parties to substantially comply with an annexed timetable for resolution of the Yamatji Nation claim and related proceedings (WAD19/2019 Southern Yamatji, WAD21/2019 Mullewa Wadjari (Part A), WAD27/2019 Hutt River and WAD31/2019 Widi Mob) by a consent determination proposed to take place on 7 February 2020

16 September 2019

Adrian Lawson sends a handwritten letter to Mr Rodney Nichole of YMAC in which he denies membership to the Yamatji Nation claim, states that he opposes the claim and requests that he be removed as a member to the Yamatji Nation claim (Supplementary affidavit of Michael Pagsanjan affirmed on 28 January 2020 at [3], MDP-29)

October 2019

Adrian Lawson contacts Dr Karen Cosgrove and Graham Bassell of Social Innovations to request assistance to prepare a Form 1 and native title claim for Badimaya country (Lawson Affidavit at [71])

7 October 2019

The claimants present at a Yamatji Nation claim group meeting pass by majority resolutions endorsing the “in principle” agreement with the State of Australia and the “Notification, consultation and decision making process on 9 December 2019 for the authorisation for an Area ILUA and Minute of Consent Orders for a determination of native title in the Federal Court of Australia”. Godfrey Simpson and Yvonne Lawson both sign in to the meeting on 7 October 2019. Ms Lawson signs out of the meeting, but Mr Simpson does not sign out (Second supplementary affidavit of Rodney Francis Nichole affirmed on 4 February 2020 at [7]-[10] (Second Supplementary Nichole Affidavit))

15 October 2019

Michael Pagsanjan discusses with Mr Lawson by phone the progress of the Yamatji Nation claim. Mr Pagsanjan’s note of the conversation records that he explains to Mr Lawson that the Yamatji Nation claim includes people who identify as Badimia, and that it is the decision of all native title claim groups under the Yamatji Nation claim as to whether they agree to the settlement offer (Pagsanjan Affidavit at [63])

16 October 2019

Orders are made in the Widi Mob proceeding accepting Mr Lawson’s interlocutory application lodged on 20 August 2019 for filing and joining Mr Lawson as a respondent to Widi Mob on the basis that Mr Lawson contends he should be joined as a respondent as he wishes to protect his interest as a Badimia person in what he asserts is Badimia country, and that the parties don’t object to Mr Lawson being joined on the basis that Mr Lawson is a descendant of an ancestor in the Yamatji Nation claim which wholly overlaps the Widi Mob proceeding

Rodney Nichole, solicitor at YMAC with carriage of the Yamatji Nation application, sends an undated letter to Mr Pagsanjan which was sent by Mr Nichole to Mr Lawson, regarding Mr Lawson’s connection to the Yamatji Nation claim (Pagsanjan Affidavit at [65], Annexure MDP-27)

30 October 2019

Joshue Santa Maria (an anthropologist employed by YMAC to assist on the Southern Yamatji and Yamatji Nation claims) and Robert Bitmead (a lawyer representing Southern Yamatji) meet with Yvonne Lawson, Godfrey Simpson, Richard Carnamah, Joan Carnamah and Brenda Anne Gibson, all of whom are descendants of apical ancestors in the Yamatji Nation claim. They discuss the individuals’ connection to the claim areas, listed apical ancestors and the proposed YNSRA agreement and settlement. No one at the meeting mentions lodging an overlapping claim (Affidavit of Joshue Santa Maria affirmed on 24 January 2020 at [24])

13 November 2019

Adrian Lawson is posted a notice of the 8 and 9 December 2019 Southern Yamatji claim group meeting (Creemers Affidavit at [23])

21 November 2019

Case management hearing before Mortimer J in the Yamatji Nation (WAD345/2019), Southern Yamatji (WAD19/2019), Mullewa Wadjari (Part A) (WAD21/2019), Hutt River (WAD27/2019) and Widi Mob (WAD31/2019) proceedings. Mr Lawson appears and does not make submissions to the Court

27 November 2019

Notification period ends for the Yamatji Nation claim (Nichole Affidavit at [45])

2 December 2019

Orders are made in the Widi Mob proceeding granting the applicant leave to file a second further amended Form 1 native title determination application, for the purpose of reducing the boundary of the claim area so that the entire Widi Mob claim is within the SPA (Pagsanjan Affidavit at [30])

4 December 2019

Michael Pagsanjan discusses with Mr Lawson by phone details of the amendment made to the Widi Mob claim pursuant to the leave granted by the Court on 2 December 2019 (Pagsanjan Affidavit at [66])

7 December 2019

Rodney Nichole speaks to Adrian Lawson by phone. Mr Lawson advises Mr Nichole that he cannot attend the Yamatji Nation authorisation meetings scheduled on 8 and 9 December 2019 because he is unable to afford the costs of travel to and accommodation in Geraldton. Mr Nichole tells Mr Lawson that travel allowance will be paid after the meeting for those who attend (Nichole Affidavit at [56])

8 & 9 December 2019

Yvonne Lawson and Godfrey Simpson attend the Yamatji Nation authorisation meetings in Geraldton. Yvonne Lawson signs out at the end of the meeting on 9 December 2019. Godfrey Simpson does not sign out of the meeting (Supplementary Nichole Affidavit at [13]-[14])

12 December 2019

Michael Pagsanjan provides Mr Lawson with an update on the authorisation meetings and indicates that respondents to each of the claims in the SPA would need to sign the native title consent determination (Pagsanjan Affidavit at [67])

On or about 13 December 2019

Rodney Nichole phones Mr Lawson to provide an update on the outcome of the authorisation meetings held on 8 and 9 December in Geraldton. Mr Nichole informs Mr Lawson that the Yamatji Nation claimants authorised the ILUA and the proposed minute of consent determination at the meeting on 9 December 2019. Mr Lawson says “fair enough that’s good for the mob”, and indicates he will attend the consent determination on 7 February 2020 (Second Supplementary Nichole Affidavit at [13])

20 January 2020

WAD7/2020 Badimaya Barna Guda application filed by Adrian Lawson, Yvonne Lawson and Godfrey Simpson