Federal Court of Australia

Forrest on behalf of the Tjalkadjara Native Title Claim Group v State of Western Australia [2021] FCA 399

ORDERS

THE COURT ORDERS THAT:

1.    The interlocutory application to strike out the application pursuant to s 84C(1) of the Native Title Act 1993 (Cth) be dismissed.

2.    Pursuant to s 86B of the Native Title Act 1993 (Cth) the mediation of these proceedings ordered on 5 October 2020 shall be conducted jointly with the mediation of the proceedings in WAD 297 of 2018 Kalman Michael Murphy & Others v State of Western Australia & Others.

3.    The Registrar may make such directions as the Registrar considers appropriate for the exchange of information and the convening of meetings to identify the composition of the claim group in order to facilitate the progress of the joint mediation.

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

REASONS FOR JUDGMENT

COLVIN J:

1    An applicant who brings proceedings seeking a determination of native title must be authorised by all those who according to their traditional laws and customs hold the common or group rights and interests that comprise the particular native title claimed and the applicant must also be a member of the group bringing the claim: s 61(1) of the Native Title Act 1993 (Cth). If there is a traditional decision-making process that applies to things 'of that kind' then the applicant must be authorised by that process to bring the application: s 251B(a).

2    The authorisation requirement for applicants is an important part of the procedure by which a determination of native title may be sought because authorised applicants may deal with all matters arising under the Native Title Act in relation to an application: s 62A. Further, the determination to be made on an application for the determination of native title is as to whether or not native title exists in relation to a particular area: s 225. It deals with rights of a communal nature based on occupation and a physical and spiritual connection between land and people with consequences not only for the living but for their ancestors and for generations to come: State of Western Australia v Fazeldean on behalf of the Thalanyji People (No 2) [2013] FCAFC 58; (2013) 211 FCR 150 at [34].

3    Therefore, authorised applicants have considerable responsibility because their decisions affect the progress of the application and the conduct of the proceedings on behalf of the claim group. The authorisation requirement is also of considerable importance to the progression and determination of claims because it reduces the prospect of conflicting and overlapping claims: Daniel v State of Western Australia [2002] FCA 1147 at [11] (French J).

4    Before this Court, there are two overlapping claims for the determination of native title in respect of land in the area of Lake Wells, a salt lake at the southern edge of the Little Sandy Desert in Western Australia. The land is located to the east of Wiluna and is within the Shire of Laverton. The town of Leonora lies a considerable distance to the south-west of Lake Wells.

5    As to the overlapping applications, the application brought first in time concerns a claim by Mr Kalman Murphy and others on behalf of the Waturta Native Title Claim Group (Waturta Claim). The second claim, which overlaps all of the area the subject of the Waturta Claim and extends beyond that area, was brought some six months later by Mr Ivan Forrest and others on behalf of the Tjalkadjara Native Title Claim Group (Tjalkadjara Claim).

6    The application in respect of the Waturta Claim has been registered, but registration of the application concerning the Tjalkadjara Claim has been refused. However, it may be noted that in the registration decision concerning the Tjalkadjara Claim it was found that the native title claim group was described sufficiently clearly. Otherwise, as to the description of the native title rights and interests claimed it was found that they were not sufficiently stated to allow them to be readily identified. It was also found that the factual basis upon which it was asserted that native title rights exist was not sufficient to support the assertion. These matters mean that the Tjalkadjara Claim applicants do not have the right to negotiate in relation to future acts on the land the subject of the application: s 29. In effect, as matters presently stand, the facts advanced in support of the application do not demonstrate the basis for a sufficient entitlement to support the preservation of the status quo pending the determination of the application: North Ganalanja Aboriginal Corporation & The Waanyi People v State of Queensland (1996) 185 CLR 595 at 616. However, the fact that the application has not been registered does not otherwise affect the application.

7    Both applications have been on foot for some time. Usually, by this point, the two applications would have been the subject of ongoing mediation. However, there have been difficulties with mediation because of issues with the legal representation of the applicants in the Tjalkadjara Claim. Those applicants are now legally represented.

8    The applicants in the Tjalkadjara Claim say that both applications should be referred for joint mediation. The applicants in the Waturta Claim say that course is not appropriate because the bringing of the Tjalkadjara Claim has not been properly authorised. Their concerns focus upon a meeting that was held at the Laverton Racecourse on 27 November 2018 (Meeting). The Meeting was convened to authorise the bringing of the Tjalkadjara Claim. The Waturta Claim applicants say that the Meeting did not comply with s 61(1) of the Native Title Act.

9    The Waturta Claim applicants have brought an application to strike out the application in respect of the Tjalkadjara Claim under s 84C. The strike-out application is brought on the basis that the main application does not comply with s 61 of the Native Title Act. When such an application is brought, the Court must consider the application before any further proceedings take place in the main application.

10    The State of Western Australia appeared on the strike-out application and made submissions that supported the position of the Tjalkadjara Claim applicants. Other interested parties either made no submissions or were given leave not to appear on the strike-out application.

Summary of outcome

11    For the following reasons, the strike-out application should be dismissed and the application concerning the Tjalkadjara Claim should be referred to joint mediation with the application concerning the Waturta Claim.

The nature of a strike-out application under s 84C

12    Section 84C(1) is in the following terms:

If an application (the main application) does not comply with section 61 (which deals with the basic requirements for applications), 61A (which provides that certain applications must not be made) or 62 (which requires applications to be accompanied by affidavits and to contain certain details), a party to the proceedings may at any time apply to the Federal Court to strike out the application.

13    As was observed by Stone J in Bodney v Bropho [2004] FCAFC 226; (2004) 140 FCR 77 at [46], neither the explanatory memorandum nor the second reading speech at the time of introducing s 84C give any insight as to the reasons for including such an express power 'and why it was not regarded as sufficient to rely on the general rules and practices of the Court concerning summary dismissal'. However, as her Honour did identify, there was a concern at the time about frivolous, unsubstantiated claims in the system denying justice to those with genuine, serious claims: at [48]. Section 84C was introduced at the same time as amendments were made to require applications to be brought by approved applicants and for the specification of what was required for such approval in s 251B. Those amendments also introduced many provisions which manifest an intention to reduce the occurrence of overlapping claims: Explanatory Memorandum for the Native Title Amendment Bill 1997: see, for example, the descriptions at paras 25.63, 29.25, 33.25, 33.26, 34.68 and 35.38.

14    Considered in the above context, it appears that s 84C (and related provisions) was introduced to make clear that it was open to challenge whether there was a proper foundation for an application for determination of native title by way of approval of the applicants (and other related requirements that could affect standing of the applicants). Subsequently, the Court was also given authority to require the production of documents concerning the process by which the applicants were approved: s 84D. Therefore, it has a power to enable the authorisation process to be investigated. Without such provisions it may have been unclear as to whether the Court may be able to entertain a strike-out application and require documents to be produced based upon concerns as to whether the applicants had the authority that they claimed to hold and to require information to be provided for that purpose. The claim of authority that was made bona fide may have been sufficient to establish standing.

15    In short, the provisions made clear that the Court could entertain a strike-out application based upon claims that the applicants lacked the requisite authority to bring the application for determination of native title. Further, the provision was introduced to reduce the extent of overlapping claims by scrutinising whether the applicants had authority to bring the application on behalf of all the persons who were included in the claim group.

16    It is to be noted that the power conferred was a power to strike out the proceedings being language which is usually applied to the dismissal of proceedings on the basis that that they are frivolous, unsubstantiated, lacking any real merit or an abuse of the Court's process. Accordingly, it is well established that it is necessary to treat an application under s 84C(1) 'in the same cautious manner' as applications for summary judgment brought on the basis that the claim has no reasonable prospect of success. The Court's power should only be exercised where the claim is 'untenable' or 'fatally flawed' and the strike-out application should be considered on the version of the evidence most favourable to the respondent to the strike-out application. It must be 'clearly established that [the claim] is not made by a native title claim group': see Bodney v Bropho at [11] (Spender J), [51] (Stone J); McKenzie v State Government of South Australia [2005] FCA 22 at [26] (Finn J); Reid v State of South Australia [2007] FCA 1479 at [60] (Finn J); Brown v State of South Australia [2009] FCA 206 at [11], [19]-[20] (Besanko J); and Velickovic v State of Western Australia [2012] FCA 782 at [31]-[34] (McKerracher J).

17    In an appropriate case and at an appropriate point in proceedings in which a determination of native title is sought, the Court may require the question whether applicants are representative to be determined as a separate question before the adjudication of other issues. Separate considerations bear upon whether such a course may be appropriate.

The discretion conferred by s 84D

18    Even if an application does not comply with s 61 then the Federal Court may 'after balancing the need for due prosecution of the application and the interests of justice' proceed to 'hear and determine the application, despite the defect in authorisation': s 84D(3) and (4) and Ashwin on behalf of the Wutha People v State of Western Australia (No 2) [2010] FCA 1472; (2010) 191 FCR 549 at [12].

19    In Miller v State of South Australia (Far West Coast Sea Claim) (No 2) [2018] FCA 599, White J considered the scope of the discretion conferred by s 84D: at [90]-[94]. His Honour concluded that the discretion may be exercised where the failure to comply was substantive and not merely technical. Also, it was to be exercised to secure due prosecution of an application to serve the interests of justice. The following matters were identified as matters that may be relevant:

the expense and inconvenience likely to be suffered by the party if the application is struck out and the applicant required to commence the process of bringing the application afresh; the public interest in litigation in the Court being conducted justly and as quickly, inexpensively and efficiently as possible; and the potential for delay in the determination of the existence or otherwise of the claimed native title rights. It may accepted that the desirability of the Court being seen to encourage proper compliance by prospective claimants with the requirements of the NT Act is also a relevant consideration.

20    To these matters might be added a need to recognise in exercising the discretion that it is of central importance to the conduct of native title determination applications and the exercise of the right to negotiate that will flow from their registration that those who bring the applications have the authority to do so: Daniel at [11] (French J).

21    In Miller the discretion was exercised in favour of allowing the proceedings to continue despite a substantive failure to comply with s 251B.

The requirements of s 251B in relation to authorisation

22    As stated by Mansfield J in Dieri People v State of South Australia [2003] FCA 187; (2003) 127 FCR 364 at [57]:

Section 251B provides for two mutually exclusive forms of authorisation. First, where there is a process of decision-making under traditional laws and customs of the native title claim group for authorising such things, the persons in that group must have authorised the applicants to bring the claim in accordance with that process. The alternative, available only where there is no such process, is authorisation by an agreed and adopted process of decision-making by persons in the native title claim group.

23    In order for the requisite authority to be conferred by all claim group members it was necessary for the claim group to be specified with sufficient clarity and for members of the claim group to be given 'every reasonable opportunity to participate in the decision-making process' such that any meetings by which authority was said to be conferred were 'fairly representative of the native title claim groups' to be the subject of the application: Lawson on behalf of 'Pooncarie' Barkandji (Paakantyi) People v Minister for Land and Water Conservation (NSW) [2002] FCA 1517 at [25] (Stone J); and Bolton on behalf of the Southern Noongar Families v State of Western Australia [2004] FCA 760 at [45]-[46] (French J), applied in TJ (on behalf of the Yindjibarndi People) v State of Western Australia [2015] FCA 818; (2015) 242 FCR 283 at [78].

24    If the above requirements are met then it may be concluded that a decision conferring authority on applicants to bring a claim for a determination of native title on behalf of the members of a claim group made at a meeting according to an appropriate decision-making process was made by all the claim group members: McGlade v South West Aboriginal Land & Sea Aboriginal Corporation (No 2) [2019] FCAFC 238 at [36] (Allsop CJ, McKerracher and Mortimer JJ).

The deficiencies alleged by the Waturta Claim applicants

25    In support of their strike-out application, the Waturta Claim applicants advanced the following contentions about the process by which approval had been obtained by the Tjalkadjara Claim applicants to bring their application:

(1)    the notification of the Meeting was inadequate because there was confusion as to where the meeting was to be held;

(2)    there was insufficient notification, especially to members of the claim group described in the Waturta Claim and of the availability of the bus service;

(3)    the description of the persons invited to the Meeting did not include certain apical ancestors who were added to the description of the claim group at the Meeting and therefore those persons did not have a reasonable opportunity to attend and participate in the Meeting;

(4)    the decision-making process adopted at the Meeting to authorise the bringing of the Tjalkadjara Claim was a show of hands when there was a traditional form of decision-making process that should have been followed;

(5)    to the extent that a traditional decision-making process was followed, on the evidence it was a bifurcated process in which those with traditional authority did not participate in the decision reached at the Meeting;

(6)    the claim group description for the Tjalkadjara Claim was not finalised until after the meeting when it was confirmed by Dr Murphy; and

(7)    in any event, the evidence available from the minutes of the Meeting and descriptions of what occurred is so defective that it is not possible to conclude with any confidence that a decision was made at the meeting by those persons who were claim group members.

26    In dealing with these contentions, matters of background relating to all the contentions are addressed first. Then each contention is addressed. In doing so, the evidence is addressed by taking the evidence at its highest from the perspective of the Tjalkadjara Claim applicants.

Factual background

27    Prior to 2017, the Goldfields Land and Sea Council Aboriginal Corporation (GLSC) in its capacity as a representative body in the north eastern Goldfields (which included the land the subject of the Tjalkadjara Claim) had been actively researching and negotiating with family groups in relation to a native title claim over the land that came to be the subject of the Tjalkadjara Claim for over 25 years. During that time a number of overlapping claims were commenced. Some have been determined.

28    In May 2017, after unsuccessful efforts to obtain the support of the GLSC to bring an application for determination of native title for the land the subject of the Waturta Claim, Mr Kado Muir engaged Cross Country Native Title Services (Cross Country) to prepare a claim. Cross Country engaged Dr Pamela McGrath, an anthropologist, to work on the claim.

29    An authorisation meeting to be held on 28 March 2018 for the Waturta Claim was notified in the Kalgoorlie Miner (which Mr Muir describes as 'our local newspaper').

30    On 1 July 2018, GLSC ceased to be the representative body for the area and the Minister did not invite it to apply for recognition in that capacity for a further period. However, for a time thereafter, the GLSC was given funding for a determined period to avoid disruption in service delivery. The history of these events is set out in the reasons of Banks-Smith J in Goldfields Land and Sea Council Aboriginal Corporation v Minister for Indigenous Affairs [2019] FCA 2010.

31    An application for a determination of native title in respect of the Waturta Claim was commenced on 2 July 2018. The claim group for the Waturta Claim comprises persons who are alleged to hold native title through (a) birth on the claim area; (b) birth of an ancestor on the claim area; (c) their own or an ancestor's long association with the claim area; and (d) having religious, sacred or ritual authority for land in the claim area. Four apical ancestors whose descendants are said to be in the claim group where they have a connection with the claim area in accordance with traditional laws and customs are identified in the claim group description.

32    Mr Muir is one of the applicants for the Waturta Claim application. The affidavit of Mr Muir as an applicant for the Waturta Claim describes a traditional decision-making process by which the applicants were authorised to bring the claim. In particular, he said:

At the meeting on 28 March 2018, consensus was met after members of the native title claim group, including wati, had their say. All of the families were present, and took part. The wati then said what should happen and everyone agreed with that decision. All the claimants present agreed to make this claim and agreed on who should be the applicant.

33    In August 2018, an application was brought by GLSC to be joined as a party to the application for a determination in respect of the Waturta Claim. The affidavit in support of the application referred to the engagement by the GLSC of an anthropologist, Dr Kevin Murphy, who had been engaged to prepare a detailed report in relation to Aboriginal people who may hold rights under traditional laws and customs in respect of an area that completely overlaps with the area the subject of the Waturta Claim. Further, it was said that Dr Murphy had spent in the order of 106 days in the field between 2014 and 2018 in relation to his research. The affidavit deposed to an expectation that written anthropological advice would be received by the middle of September 2018 to inform decisions and enable the filing of a native title claim or claims.

34    The application for joinder was dismissed on the basis that a form could simply be filed seeking to be joined. No such form has been filed by the Tjalkadjara Claim applicants or others in relation to the Waturta Claim.

35    On or around 29 October 2018, Mr Muir (by then one of the Waturta Claim applicants) received a copy of a notice indicating that GLSC was calling a meeting to consider authorising a native title claim that would overlap the land the subject of the Waturta Claim. Lawyers acting for the Waturta Claim applicants then wrote to the Chief Executive Officer of GLSC on 31 October 2018. They raised a number of concerns from a 'preliminary review' of the notice. Those concerns were directed to the claim group description in the notice and included a concern as to 'the omission of a number of Waturta claimants' who had been represented by the GLSC whose claims extended across Lake Wells. The letter proposed a conference of expert anthropologists be convened between Dr Murphy and Dr McGrath (the expert anthropologist engaged by the Waturta Claim applicants) with a view to reaching agreement on what changes (if any) to the definition of the Waturta claim group should be made in the interests of practicality and efficiency.

36    A solicitor of the GLSC responded on 21 November 2018 by email indicating that the description of the proposed claim group in the notice was based on Dr Murphy's advice. The email made reference to the long history of the GLSC in pursuing the claim which history commenced 'well prior to the GLSC being aware of the proposed, and now filed and registered, Waturta claim'. The response indicated that the meeting would be open to all persons who fall within the description contained in the notice 'and anyone else who considers they hold or may hold native title in the proposed claim area'. It also indicated that the proposed claim group may be amended at the meeting and then stated:

Accordingly your clients, being the Waturta applicant, and all members of the Waturta claim group, are invited to attend the meeting.

37    The response went on to indicate that Dr Murphy would attend the meeting which would provide an opportunity to provide further information to Dr Murphy. The response concluded:

The GLSC would welcome discussions as to ways of achieving a consent determination of native title in the area of the proposed new claim, including in the area covered by the Waturta claim. Those discussions may include the possibility of a conference of experts. However we consider it would be more beneficial to commence those discussions after the authorisation meeting next week, and having regard to the outcome of that meeting and to any further information gathered at that meeting.

38    The following day a further email response was sent by the solicitor at GLSC. Relevantly for present purposes, it said:

Further to my previous email, I note the concern expressed in your letter regarding 'the omission of a number of Waturta claimants' from the meeting notice. Like the Waturta claim group description, the meeting notice sets out a proposed claim group description which contains generic criteria and lists some ancestors who are included within those criteria. In light of your letter we have reviewed the list of ancestors in the Waturta claim group description and in the GLSC meeting notice. We confirm that on that the siblings [named in the email] are ancestors who acquired rights in the Claim Area under traditional law and custom as a result of post­sovereignty migration into, and long association with, the Claim Area and were omitted by mistake from the notice. We will propose at the meeting that they be included in the non-exhaustive list of named ancestors in any Form 1. The only other ancestor named in the Waturta Form 1 but not referred to in the meeting notice is [person named in the email]. We do not have sufficient information in relation to this ancestor at this stage to specifically list her in any claim group description, although her descendants may still fall within the claim group description given the list of ancestors is not exhaustive.

39    On 26 November 2018, the solicitor acting for the Waturta Claim applicants asked for urgent clarification as to the venue for the proposed meeting because her clients had provided three different meeting notices each with a different venue. It was also said that the Waturta claimants were opposed to and did not authorise the proposed claim. Reference was again made to conferral between the expert anthropologists but the following clarification was provided:

The Waturta claimants have provided information to Dr Pamela McGrath. There is no need for them to provide information to the GLSC or Dr Murphy. They have instructed me to seek the conferral referred to in my letter of 31 October 2018 so as to enable the experts to consider what changes (if any) ought to be made to the Waturta claimants. This proposed conferral is not premised on any assumption that changes ought to be made, but rather, acknowledges that Dr Murphy and Dr McGrath have been engaged in anthropological field work with respect to the Waturta claim area and it is now apparent that they have different views about the ways in which people hold rights and interests in country in accordance with the traditional laws and customs of the Waturta claim area.

40    I interpose to observe that by this point it appeared that there may be difficulty in reaching any agreement between the expert anthropologists as to the proper description of the members of the class of people claiming native title rights over the land the subject of the Waturta Claim.

41    Thereafter, the Meeting was held on 27 November 2018 at Laverton Racecourse. It was concluded on that day and did not continue on to 28 November 2018.

42    On 13 December 2018, Dr Murphy (who was in attendance at the Meeting) was asked to provide his opinion as to whether the proposed Tjalkadjara Claim was authorised in accordance with his opinion as to the traditional decision-making process by which decisions to engage in collective action of the type involved in making a native title claim would be made by claim group members. He summarised the key aspects of that process as follows:

•    a decision should be arrived at by consensus at a meeting among those with rights in the claim area;

•    the meeting should be notified in advance, but it is not necessary that every individual with rights in the claim area must attend the authorisation meeting, so long as there are representatives from the relevant family groups;

•    some people have more authority in the process of arriving at a decision than others, relating to gender, age, ritual seniority and knowledge of country and its associated tjukurrpa.

43    Dr Murphy expressed the following views in response to that question.

44    First, as the extent of those involved in the decisions made at the Meeting:

From my discussions with the people who attended the meeting both at the meeting and beforehand, I gained the impression that the notice of the meeting was widely disseminated, and it was known well in advance that the GLSC was planning to convene the meeting. There was some confusion over the proposed location, and there was one family group that was inadvertently omitted from the proposed claim group description, however the final notice as posted some weeks before the meeting had the correct meeting location, and representatives of the family that had been omitted from the claim group description were notified that the meeting was planned and were invited to attend, and they did attend.

45    Second, he noted that the claim group for the Waturta Claim is a small sub-set of the claim group for the Tjalkadjara Claim and at the meeting objections were raised by members of that claim and another sub-set who are members of a claim known as the Darlot Claim.

46    Third, Dr Murphy observed that arrangements had been made for attendance by some senior men from Warburton with religious and ritual authority but, in the event, they did not attend. However, there were some with religious and ritual authority at the meeting including three people who Dr Murphy identified by name. Further, all those with senior religious and ritual status who were at the meeting supported the decision to authorise the claim. Dr Murphy referred to the fact that some of those who attended the Meeting had raised issues as to whether attempts to exclude people from claims defied traditional laws and customs.

47    Dr Murphy expressed his conclusion as follows:

Given the context from which the objections that were raised derived, and the clear understanding among the people present at the meeting of the 'ulterior motives' of those who raised them in their interpretation of the way the meeting unfolded, in my opinion it is reasonable to consider the outcome of the decision making process that occurred at the meeting to be a consensus of the kind contemplated by the traditional decision making process.

48    An application in respect of the Tjalkadjara Claim was commenced in December 2018.

49    The claim group for the Tjalkadjara Claim as described in the application comprises (a) persons who are the descendants of certain named apical ancestors at the time of British sovereignty; (b) persons who are the descendants of certain named apical ancestors who acquired rights in the claim area under traditional law and custom as a result of post-sovereignty migration into the area; and (c) persons with rights in the claim area under traditional law and custom on the basis of their own birth in the area or descent from an ancestor born in the claim area. The named apical ancestors referred to in the claim include those referred to in the Waturta Claim together with a considerable number of other named ancestors.

50    Therefore, speaking broadly, the Tjalkadjara Claim is made on the basis that those with native title rights and interests in the area are considerably broader than those described in the Waturta Claim but include those the subject of the Waturta Claim.

51    The application for determination of native title in respect of the Tjalkadjara Claim was certified by the GLSC. The certification stated the things that had been done to meet the requirements of s 203BE of the Native Title Act. It noted that the claim overlapped with the Waturta Claim and another claim known as the Darlot Claim. It included the following statement (para 4(c)):

Over a period of approximately two years prior to the Tjalkadjara authorization meeting on 27 November 2018, and prior to the filing of the Darlot and Waturta claims, an anthropologist engaged by the GLSC sought to talk with persons who are now members of the Waturta and Darlot claim groups with a view to properly describing all persons who might hold native title in the area of the proposed Tjalkadjara claim so that all such persons could be included in a single claim. Members of the Waturta and Darlot claims have in many but not all instances declined to engage with the anthropologist referred to above.

Contention (1): Alleged confusion as to where the meeting was to be held

52    Prior to the Meeting, GLSC was the representative body assisting with the proposed claim (not yet described as the Tjalkadjara Claim). Ms Maria Meredith was the Vice Chairperson of the GLSC and a member of the then proposed claim group for a native title claim over land that included the area the subject of the Waturta Claim.

53    A draft notice for an authorisation meeting to be held at the Leonora Recreation Centre on 27 and 28 November 2018 was shown to Ms Meredith. After Ms Meredith consulted with families who were part of the proposed claim group, the venue for the meeting was not approved. A further draft notice was prepared for an authorisation meeting at Tjukayirla Roadhouse, but that was also not approved after consultation with other families. Nevertheless, as part of the process of consulting as to the draft notices, members of the community became aware of the proposal to hold an authorisation meeting and the proposed venues for the meeting. The information as to the proposed locations and the draft notices 'leaked out'.

54    Mr Muir says that he received a letter from the GLSC post marked 31 October 2018 with a notice for a meeting to be held at the Tjukayirla Roadhouse. He has produced a photo of the first page of the notice. There is no other evidence that a notice in that form was mailed out by GLSC (as distinct from 'leaked' in the course of planning the arrangements for the meeting). Taking the evidence at its most favourable for the Tjalkadjara Claim, as I must, the only notice that came to be distributed in a formal way was a notice for the Meeting which was held at the Laverton Racecourse. It was prepared after the earlier draft notices and was published in the Kalgoorlie Miner newspaper (Third Notice). Copies of the Third Notice were 'faxed out'.

55    Mr Muir attended the Meeting. On his way he drove by the Leonora Recreation Centre and confirmed that the meeting was not happening in Leonora. There is no suggestion at all that anyone attended at the Tjukayirla Roadhouse in the mistaken belief that the Meeting was to be held at that location.

56    As has already been recounted, lawyers acting for the applicants in the Waturta Claim sought clarification as to where the Meeting was held and were given that clarification.

57    I do not accept that there is evidence of any real confusion by the time of the Meeting as to where it was to be held and there is no evidence that any person did not attend the Meeting because they went to the wrong location. Therefore, the issue with the earlier draft notices is not a basis upon which to conclude that there was a failure to afford every reasonable opportunity to participate in the decision-making process.

Contention (2): Alleged insufficient notification of arrangements for the Meeting

58    Ms Meredith says that the GLSC made all the necessary arrangements to inform as many people as possible that may have made up the claim group about the then proposed Meeting, including sending out staff to personally inform families identified as having rights and interests in the claim area.

59    Ms Hogarth says that she was made aware by the GLSC that it was communicating with community organisations to inform as many people as possible that the Meeting was taking place. Ms Hogarth was visited by GLSC staff and told about the Meeting then being proposed for Laverton. She says that people were made aware of the Meeting and used their common sense to ring around others about the Meeting. It was not until after the Meeting that she became aware of any notice other than the notice for the Meeting.

60    Mr Muir says that it seemed to him that everyone not associated with the Waturta Claim received the correct meeting notice. His concern was about the lack of notice to those who were Waturta Claim applicants. Nevertheless, he identified three others in addition to himself who were Waturta claimants present at the Meeting. These observations must be considered in the context of those who participated in the decision-making to authorise the Waturta Claim application. It is to be noted that there were less than 20 people at the meeting which authorised the application and claim group description for the Waturta Claim. Of those, only 14 were claim group members.

61    Ms Vera Anderson is a resident of Wiluna and a Waturta claimant. She did not know about the Meeting. She says that if she had known about the Meeting and that travel assistance was available she would have gone to the meeting. She does not depose to any concern about the Meeting proceeding or any view she may have expressed at the Meeting.

62    Ms Jennifer Narrier is also a member of the Waturta Claim group who lives in Leonora. She also did not know about the Meeting. She says that the GLSC used to invite her and other members of her family to meetings by sending notices to her post office box. She says that if she had known about the Meeting and that travel assistance was available she would have attended. She does not depose to any concern about the Meeting proceeding or any view she may have expressed at the Meeting.

63    Mr Handley is an anthropologist employed by NTS Goldfields (NTSG), a native title representative body. He has examined the attendance list for the Meeting. He deposes that according to material available to NTSG and his own knowledge 16 people who attended the Meeting 'do not appear to be captured' by the claim group description in the notice for the Meeting (and of those, 11 do not appear to be included in the description in of the Tjalkadjara Claim group in the application). However, from the terms of his affidavit it appears that he admits of the possibility that those persons may be in the claim group description. Even so, his evidence indicates that the knowledge of the Meeting and its location were not confined to those persons who were within the description of the claim group in the notice.

64    On the evidence it appears that the notice of the Meeting was not actually communicated in a direct way to a number of the members of the Waturta Claim group even though there had been communications in the past by GLSC to those persons. This may well be because of the way in which the claim group was described in the notice which did not include apical ancestors stated in the Waturta Claim. This aspect is addressed as part of the next contention.

65    However, on the evidence as a whole, I could not conclude that inadequate steps were taken by way of notification of the Meeting to persons other than Waturta Claim group members.

Contention (3): Alleged consequence of claim group description in Third Notice

66    The claim group as described in the notice of the Meeting did not include three of the four apical ancestors referred to in the Waturta Claim. Questions were raised about this at the Meeting and it was said that there had been an administrative error. In the result, there were changes made at the Meeting to include those apical ancestors in the claim group description that was then considered at the Meeting. This was done by adding names to descriptions on a board for all those at the Meeting to see.

67    Nevertheless, the form of the description in the notice of the Meeting was said to lead to claim group members from the Waturta Claim not being aware that the Meeting was to take place because there was no individual notification of those persons who were not included in the claim group description in the notice. In particular, Ms Anderson deposed to being a descendant of one of the apical ancestors who was added at the Meeting. As has been noted, she deposed to not being informed of the Meeting.

68    In response to these contentions, reliance was placed on certain aspects of the notice of the Meeting as published in the Kalgoorlie Miner. First, it stated that people were also invited to attend the meeting 'if you consider you (or your family) hold or may hold native title to the Claim Area but you or your family are not part of the proposed claim group, or if you are unsure whether you or your family are part of the proposed claim group'. Second, the notice described the matters to be discussed at the meeting and included the following:

3.    Authorisation to bring the new native title claim

•    Claim group description - the Authorisation Meeting will be asked to consider and make decisions about whether the claim group (who will be included on the new claim) should be described in accordance with the proposed claim group above. The proposed claim group may be amended at the Authorisation Meeting as a result of discussion at the meeting.

69    Third, there was a note included as follows:

Please note: the meeting has been scheduled for two days, but it is possible all of the meeting business will be discussed and concluded on the first day. If you hold or may hold native title rights in the area of the proposed new claim, you should make sure that you attend the meeting on both days.

70    It is to be noted that the issues raised are confined to the claimants in the Waturta Claim. Those claimants are encompassed by part of the claim group description for the Tjalkadjara Claim.

71    The Waturta Claim applicants were represented by solicitors who were aware of the planned meeting to authorise the Tjalkadjara Claim. It is to be expected that those solicitors, in accordance with their obligations, would communicate those matters to the Waturta Claim applicants. Even so, if the claim group had been described differently in the notice it is to be expected that known descendants of the additional apical ancestors would have been given direct notice of the Meeting.

Contention (4): Alleged adoption of 'show of hands' (majority) decision-making process

72    All of the evidence on the application is to the effect that the persons who are the senior cultural, spiritual and traditional decision-making lawmen are the senior watis. They hold the tjukurrpa or knowledge of those matters. They know the boundaries of Country or parna and the people who are the traditional owners. They decide who can speak for parna.

73    Also, all of the evidence is to the effect that there is a traditional form of decision-making that applies to decisions of the kind made at the Meeting concerning the conferring of authority to bring an application in respect of the Tjalkadjara Claim. It is a consensual process in which there is discussion in which respect is afforded to those who are more senior and then a submission by way of consensus to views taken by or supported by senior watis.

74    The evidence of Ms Meredith and Ms Hogarth, both senior elders, is that they have been given authority to speak for Country by the senior watis. Objection was taken to the form of this evidence, but it was not contradicted. Rather, the complaint that was made was to the effect that the traditional form of decision-making was not followed at the Meeting (and that there was a bifurcation of decision-making to the extent that the senior watis indicated support outside the Meeting).

75    As to the events at the Meeting, there is a document headed 'Minutes of NEC1 Authorisation (Tjalkadjara) Meeting' which describes the attendees and events at a meeting on 27 November 2018 at Laverton Racecourse. The document refers to a resolution identifying the applicants who can bring the claim group as 'Carried: by … people with no against' (ellipsis in original). It then refers to a unanimous resolution being passed 'to endorse MOU of the Watis'. However, neither a description of the contents of the MOU nor the MOU is before the Court. Then the document refers to a decision-making process being moved and 'Carried: 26 people with ??? against - passed' (erotemes in original). There is a reference to the claim name as Tjalkadjara, with blank spaces indicating a resolution, but no record of a resolution.

76    Thereafter, the minutes record various matters under the heading 'Issues/Disputes'. Those matters, as recorded, indicate discussion of a number of issues concerning the appropriate description of the claim group and responses being provided by Dr Murphy who was in attendance and then the nomination of a list of applicants for the claim. There is also a record that a vote to adjourn the meeting to the following day was carried out by 'simple majority' and resulting in 17 people wanting to adjourn and 26 people wanting to stay.

77    The form of the minutes suggests that the document may not record events in a chronological way and that it has not been settled and finalised. No signed form of the document was produced. The document has many blanks within it, including blanks as to the extent of support for certain resolutions. These aspects are all unsatisfactory given the significance of the Meeting. Given its form, care must be taken in treating it is a complete and accurate record of what occurred at the Meeting.

78    As to the decision-making process adopted at the Meeting, affidavits were provided by a number of those in attendance. As a whole, the evidence was to the effect that before the resolutions as to the claim group description and the applicant members were considered and voted on at the meeting, it was proposed that the claim group should adopt a show of hands process and that was agreed.

79    Ms Hogarth said that she agreed to the show of hands process at the Meeting 'because that way all attendees would be able to understand and engage with the process, because not everyone in our claim group has practiced [sic] the traditional methods of decision-making'. The evidence of Ms Meredith as to the show of hands decision-making is as follows:

I suggested this method of decision-making so that the people would be able to understand and engage with the process, because not everyone in our claim group has practiced the traditional methods of decision-making.

80    Reference was made to a statement in the minutes document which is as follows:

One of the Wati expressed his concern for speaking for the Wati and for their country without their presence at the meeting.

However, it is to be observed that this note follows on from the record of a number of concerns being raised by Mr Muir, an applicant in proceedings concerning the Waturta Claim. He raised a number of objections at the meeting about the then proposed description of the claim group for the Tjalkadjara Claim. The minutes document records that he stated to the meeting that he was prepared to go through mediation with the GLSC after the Tjalkadjara Claim was filed. It may be that the statement by the wati at that point was to raise a concern that watis should be present at any such mediation. It may be that there was a concern that some views were being attributed to watis who were not at the meeting.

81    Mr Muir deposed to one of the local wati in attendance speaking of the role of wati in traditional decision-making processes and that he spoke in support of those comments but there was no response given. However, Mr Muir does not depose to what was said by the wati.

82    Importantly, there is no evidence indicating that any of the wati present opposed the process that was followed at the meeting. On the contrary there is evidence in the form of the report from Dr Murphy that the senior watis who were present supported the decision.

83    The evidence of Ms Hogarth on the present application may be compared to her statements in the affidavit filed as an applicant in support of the application for a determination of native title in respect of the Tjalkadjara Claim. It stated:

At a meeting of the native title claim group held at the Laverton Racecourse in Laverton on 27 November 2018 the members of the native title claim group confirmed that there is a traditional decision making process which must be complied with in relation to authorising the applicant to make the application and to deal with matters arising in relation to it. That process involves holding a meeting at which:

(a)    all persons who have been identified as holding, or who themselves assert that they hold, rights and interests in the proposed claim area are invited to attend; and

(b)    the proposal for a claim, the membership of the claim group, and the respective rights of the people within the claim group are discussed, with a view to achieving a consensus decision by the end of the meeting.

At the meeting of the native title claim group held in Laverton on 27 November 2018 I was authorised by the native title claim group to be the applicant to make the application and to deal with matters arising in relation to it in accordance with the decision-making process set out … above.

84    In my view, the emergence of a consensus supporting the views of senior watis present at the Meeting is not inherently inconsistent with the taking of a vote by way of show of hands. The vote may be a means by which such a consensus is manifest. Further, on the evidence, the significant aspect of the traditional decision-making is the view of the senior watis because they have authority. Issues arise as to whether departure from the views of the senior watis by a small group with an interest in the Waturta Claim in fact mean that there is not the requisite consensus. On the evidence of Dr Murphy, it appears that there is only a lack of the requisite consensus if after discussion in which respect is afforded according to traditional decision-making those with authority are not agreed and that was not the case at the Meeting. The explanation for the vote on a show of hands was to enable all to be involved. It was not undertaken to defy traditional decision-making or to justify the bringing of the Tjalkadjara Claim without consensus support of those with traditional authority.

85    The only record in the minutes of a decision made according to a majority of those voting was the decision not to adjourn the Meeting to the following day before making a decision.

86    Taking the evidence at its highest from the perspective of the respondents to the strike-out application, I do not accept for the purposes of the strike-out application that it has been shown that the relevant decisions at the Meeting were not made in accordance with the applicable traditional decision-making process.

Contention (5): Alleged bifurcation of decision-making

87    It was contended that there was a bifurcation in the decision-making process because of the evidence from Ms Hogarth and Ms Meredith to the effect that they were authorised well before the Meeting to speak for country by the senior wati. This submission was misconceived. The decisions at the Meeting were not sought to be supported by any such authority. Rather, that evidence was advanced to explain why Ms Hogarth and Ms Meredith had sufficient authority to take the steps to convene the Meeting.

88    For reasons already given, it cannot be said that it has been demonstrated with the requisite certainty that the decisions taken at the Meeting were not made in accordance with the applicable traditional decision-making process.

Contention (6): Alleged subsequent steps concerning the claim group definition

89    On the evidence, steps were taken at the Meeting to consider an expanded claim group compared to the Notice. Dr Murphy has expressed the view that there was no dissent from anybody at the Meeting to amend the claim group description to reflect the terms in which it came to be expressed in the application for determination of native title. There is no evidence to the contrary. Indeed, on the evidence, the changes appear to have been made after matters were raised by Mr Muir at the Meeting.

Contention (7): Allegation that the Meeting procedures were defective

90    It is the case that, on the evidence, the Meeting was conducted without the formality that might be expected, especially for a large claim group. In the present case, there was no formal registration process. There was no identification of claim group members.

91    On the evidence, a small number of those in attendance may not have been claim group members. It also appears that there were some who were at the Meeting who were not listed on the attendance list. However, it must also be noted that the Meeting did not involve a large group.

92    I accept that it is preferable that the suggested procedures as outlined in the cases are followed because they afford confidence that the requisite authority has been conferred. However, it is not the case that where they have not been followed that the required traditional decision-making process has not been followed and the decisions made are not for practical purposes the decisions of all claim group members. It must be remembered that the purpose of the procedures described in the cases is to ensure that it is members of the claim group who have participated in the requisite decision-making process. They are not themselves requirements imposed by the Native Title Act. The real question is whether the manner in which the Meeting was conducted, attendance was recorded and the claims of those participating was evaluated meant that there is real uncertainty as to whether the requisite authority was conferred by the Meeting taking account of the practicalities of arranging a claim group meeting. It is for that reason that it has been observed that the scrutiny over the circumstances in which authority was conferred to bring a claim should not be overly technical or pedantic: Lawson at [28] and Gomeroi People v Attorney General of New South Wales [2017] FCA 1464 at [48]-[53].

93    In this case the attendance at the Meeting was not large. Present at the Meeting was Dr Murphy who had spent a considerable amount of time undertaking field work relevant to the claim. It may be expected that many of those present at a small meeting may be known to each other and their claims known to senior watis at the meeting as well as Dr Murphy. For reasons already given, it has not been shown that the decisions at the Meeting were not made according to the traditional decision-making process. In particular, it has not been shown that there was participation in that decision-making process by persons who are not claim group members in a manner that casts real doubt on that conclusion.

94    In many instances where applications have been struck out it has been because the description of the claim group is defective, often because it identifies a sub-group claim. In such cases, the authority conferred on the applicants is not of the requisite character because those who would be involved in the claim group as properly described have had no opportunity to participate in the process by which the applicants who will have the conduct of the claim are identified. To allow a claim of that kind to proceed will undermine in a fundamental way the requirement for claim applicants to be authorised thereby reducing the multiplicity of claims as to the same area of land. That is not this case.

95    There was some suggestion in the evidence (but not in the submissions in support of the strike-out application) that there should have been more conferral by way of meetings before the authorisation meeting in order to gather information about the claim. There are many instances where such an approach may be necessary before convening an authorisation meeting in order to identify those persons who should receive notification of an authorisation meeting to make sure that members of the claim group are given every reasonable opportunity to participate in the decision-making process. However, the long history of consideration of claims in the overlapping and surrounding areas puts the present case in a different context. Mr Tucker described his perspective on the history of investigation in the following way:

For over 20 years, and with the culmination of all careful details and vigilant work by the GLSC navigating family arguments and division, being careful not to get the claim wrong. And all the effort and energy by the family groups, many have now passed away lead us to the authorisation meeting in Laverton in November 2018 to discuss again, verify and validate the lodgement of a new claim, the Tjalkadjara native title claim for all the rightful people. Not just a selective few involved with the Waturta claim.

96    There is also the evidence of the substantial anthropological work undertaken by Dr Murphy that informed the formulation of the claim group description for the purposes of the notice of the Meeting.

97    Mr Muir agrees that there is a long history. However, he has a different perspective about disputes between representative bodies which led to the engagement of private lawyers to bring the Waturta Claim. It is said to be supported by the research conducted by Dr McGrath.

98    In the particular circumstances of the present case it has not been demonstrated that the lack of formality in the process by which the Meeting was conducted calls into question whether the requisite authority was conferred by the Meeting.

Conclusion as to compliance with s 61 as to authorisation of applicants

99    The only deficiency with the Meeting that has been demonstrated by the Waturta Claim applicants concerns the failure to notify the members of the Waturta Claim. It has been accepted that they should have been included in the claim description at the time of the Meeting. It is said that the failure to do so was an administrative oversight. Even so, that explanation does not redress the fact that persons who should have been identified as being within the claim description were not specifically notified of the Meeting.

100    The notice of the Meeting invited persons who were not members of the claim group as described in the notice to attend, but that is not the same as taking steps to identify those persons and notifying them directly. Those steps should have been taken, especially given what must have been known to the GLSC about those persons given the long history of investigation of claimants in the area.

101    To some extent this failure was ameliorated by the notification to solicitors acting for the Waturta Claim applicants. Mr Muir and others did attend as a result. Their views were made known to the Meeting. Decisions were made after those views were presented. No other matters have been identified that would have been put before the Meeting but were not due to the procedures adopted as to notification.

102    Nevertheless, for that reason only there was a material failure to comply with s 61 in relation to the Meeting. Not every member of the Tjalkadjara Claim group was given a reasonable opportunity to participate in the Meeting.

Exercise of the discretion conferred by s 84D

103    It is apparent from the evidence on the strike-out application that, because of the way in which events have unfolded, a degree of agitation and distrust has developed between certain of the members of the Waturta Claim on the one hand and members of the Tjalkadjara Claim on the other hand. However, beneath these concerns is a disagreement as to the proper claim group description for an application for determination of native title for the overlapping area. In that regard, it is significant that the Waturta Claim applicants appear to be part of the group comprising the Tjalkadjara Claim applicants (not the other way round). Further, the only complaints that have been raised concerning the authorisation process for the Tjalkadjara Claim come from those persons who are members of the Waturta Claim.

104    The position of the State of Western Australia is that the claims made in the Tjalkadjara Claim having been raised will need to be considered in the exercise of its responsibilities. That is undoubtedly so: see, for example, Widjabul Wia-Bal v Attorney-General of New South Wales [2020] FCAFC 34; (2020) 274 FCR 577 at [71]-[72] (Reeves, Jagot and Mortimer JJ). Therefore, any mediation of the Waturta Claim will require consideration of the evidence of the members of the wider Tjalkadjara Claim and the research conducted by Dr Murphy alongside that of Dr McGrath relied upon to support the Waturta Claim and other evidence that may become available.

105    What is clear is that there has been a complicated history in relation to the identification of claims which has brought forth two different perspectives. As matters presently stand, it is necessary for both those perspectives to be brought to account in any mediation process and in any determination even if the strike-out application were to be upheld.

106    In those circumstances, in my view, the two claims do not overlap by reason of a failure to follow a proper authorisation process through notifying the known members of the Waturta Claim of the Meeting. This is not an instance where the authorisation process has been fragmented by the process followed before the commencement of the Tjalkadjara Claim. Rather, the overlap arises because of a fundamental and informed disagreement about the proper description of the claim group.

107    Mr Muir is concerned that the bringing of the Tjalkadjara Claim has meant that the State Government has stopped talking to the applicants about the Waturta Claim. It was submitted that if the discretion under s 84D is exercised it will deprive the Waturta from prosecuting their claim quickly, inexpensively and efficiently. Both this concern and the submission fail to bring to account the need in the particular circumstances of this case to address the claims that have been raised by the Tjalkadjara Claim even if the application in respect of that claim was struck out.

108    Further, if the Tjalkadjara Claim proceeding was to be struck out then, given the history, the likely consequence is that steps would be taken to authorise a claim that reflects the underlying disagreement. In the meantime there would need to be investigation of the claims maintained by those who advance the Tjalkadjara Claim in any event but without those persons being identified as members of the claim. All of which will likely result in delay with difficulty in progressing to resolution whether there is native title in the area and if so the nature of the rights and interests comprising that native title.

109    As was the case in Sandy on behalf of the Yugara/Yugarapul People v State of Queensland [2012] FCA 978, it is significant that the members of the claim group who are concerned about the authorisation process for the Tjalkadjara Claim are those who are members of the Waturta Claim group. Their interest lies in excluding claims rather than requiring an authority that has been made in accordance with the Native Title Act. There is no evidence that any senior wati has raised concerns about the advancement of the Tjalkadjara Claim. Senior watis were present when the decision was made and it is their views that are significant in the traditional decision-making process when it comes to reaching consensus. Other claim group members may be taken to accept that there has been a consensus decision taken to confer authority on the Tjalkadjara Claim applicants to bring the claim.

110    In all the circumstances, I am satisfied that it is in the interests of justice in the particular circumstances of the present case to exercise the discretion conferred by s 84D against striking out the application in respect of the Tjalkadjara Claim.

Orders

111    For the reasons given, the strike-out application will be dismissed and there should be orders reinstating the mediation process in respect of the two applications so that there is a joint mediation to be conducted of the claims in both proceedings. I will delegate to the Registrar the decisions to be made as to the conduct of the joint mediation.

Associate:

Dated:    22 April 2021

SCHEDULE OF PARTIES