Federal Court of Australia

Gilla on behalf of the Yugunga-Nya People v State of Western Australia [2021] FCA 952

ORDERS

THE COURT ORDERS THAT:

1.    The interlocutory application of 30 July 2021 be dismissed.

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

ORDERS

THE COURT ORDERS THAT:

1.    Subject to further order, the interlocutory application filed on 6 August 2021 be stayed.

2.    Once the applicant in WAD29/2019 has, pursuant to s 56(2) of the Native Title Act 1993 (Cth), nominated a prescribed body corporate to hold the native title of the Yugunga-Nya People in that part of the application area which is proposed to be the subject of a consent determination under s 87A of the Native Title Act, the interlocutory application filed on 6 August 2021 will be listed for case management hearing if the applicant so requests, for the purpose of determining whether the stay should be lifted because it needs to be decided.

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

REASONS FOR JUDGMENT

MORTIMER J:

1    These reasons concern two interlocutory applications filed on behalf of the Yugunga-Nya applicant in this proceeding.

2    Orders were made on 9 August 2021 on the interlocutory application filed on 30 July 2021, and the parties were informed reasons would follow shortly thereafter. Orders on the second interlocutory application, filed on 6 August 2021, are made together with these reasons.

3    The Yugunga-Nya People have a long standing application pursuant to s 61 of the Native Title Act 1993 (Cth), which has gone through several iterations but has remained relatively constant in terms of the land and waters which it covers. The application concerns an area of approximately 21,305 square kilometres in the mid-western region of Western Australia. It is inland from Carnarvon and Geraldton, south of Newman and north-northwest of Kalgoorlie. The claim area includes the towns of Meekatharra and Cue at its western edge, which is roughly defined by the Great Northern Highway. The eastern boundary of the claim area follows the Rabbit Proof Fence. The southern boundary is defined by a line running between a point south-west of Lake Austin to the Rabbit Proof Fence, while the northern boundary is marked by the northern extent of Ned’s Creek Station.

4    The Yugunga-Nya claim is surrounded to the west, north-west, north, north-east, east and south by the following native title determinations: Wajarri Yamatji People (Part A), Nharnuwangga, Gingirana, Wiluna, Tjiwarl and Badimia, respectively.

5    A considerable portion of this claim is scheduled to be determined by consent under s 87A of the Native Title Act. A proposed minute of consent determination has been filed, along with an affidavit and joint submissions in support of the determination. The determination is to be made on the papers, at the request of the parties. In the north of the application area, there is an overlap with a recently filed application by the Gingirana People, in Slim Williams on behalf of the Gingirana #4 Native Title Claim Group and State of Western Australia (WAD 230 of 2020). That portion of the application area, along with a number of other specified portions, is proposed to be excluded from the consent determination. By order of the Court, the overlap is presently the subject of mediation, part of which process involves an experts’ conference.

6    The first interlocutory application, filed on 30 July 2021, sought to vacate an order of the Court made on 16 March 2021 in relation to the preparation for an experts’ conference to be conducted by Judicial Registrar Daniel of the Court in mid-August 2021. Different orders were sought. The application was supported by an affidavit of Mr Frank Gaffney, sworn on 30 July 2021. There was some urgency over the 30 July 2021 application, because of the experts’ conference having being scheduled some time ago. The experts’ conference is to be conducted on 17-19 August 2021.

7    The second interlocutory application, filed on 6 August 2021, sought orders pursuant to s 66B of the Native Title Act, changing the constitution of the applicant, so as to remove one particular individual. This application applies to the whole of the proceeding, including the part subject to the overlap, the part to be determined by consent, and the parts excluded by the consent determination but not subject to the overlap. This application was supported by a second affidavit of Mr Gaffney, sworn 4 August 2021.

The 30 July 2021 application

8    The orders of the Court made on 16 March 2021, which orders were also made in Gingirana #4, are (with my emphasis):

1.    The matter is referred to mediation before Judicial Registrar Daniel for the purpose of seeking to resolve the overlap between WAD29/2019 Yugunga-Nya People and WAD230/2020 Gingirana #4 (overlap area).

2.    An experts’ conference will be convened by Judicial Registrar Daniel no later than 31 August 2021 in order to discuss the anthropological findings and prepare a joint experts’ conference report relating to the overlap area.

3.    The experts’ conference will be attended by the experts commissioned to complete anthropological research in WAD29/2019 Yugunga-Nya People and WAD230/2020 Gingirana #4.

4.    The conduct and process for the experts’ conference is to be the subject of further orders by Judicial Registrar Daniel, in consultation with the parties, at a case management hearing on a date to be fixed no later than 30 April 2021.

5.    All reports, expert work including genealogies and any other material relevant to the expert’s conference, is to be provided to each expert and Judicial Registrar Daniel on a confidential basis by no later than 31 July 2021.

6.    The joint experts’ conference report relating to the overlap area is to be made available to the relevant parties to the mediation to assist mediation.

7.    Mediation between the parties for the purposes outlined at Order 1 to these orders is to be completed by 30 September 2021.

8.    Where there is no agreement reached in mediation, the joint experts’ conference report is to be made available to the Court and all parties prior to the next case management hearing, which will be listed on a date to be fixed after 30 September 2021.

9    It was order 5 which the Yugunga-Nya applicant sought to have vacated, and replaced with the following order:

All reports, expert work including genealogies·and·any·other material relevant to the·expert’s conference, is to be provided to each expert, the legal representatives for the applicants in each of WAD29/2019 and WAD230/2020, and Registrar Daniel on a confidential basis by no later than 5 business days from the date of this order.

10    It can be seen the material change is that the experts’ material is to be provided to the applicant’s legal representatives before the experts’ conference. In his affidavit in support of the application, the solicitor for the Yugunga-Nya applicant, Mr Gaffney, deposed:

Without access to the documentation, I consider I am unable to properly discuss with my client’s expert the material on which the applicant in WAD 230/2020 relies. I also believe that without this documentation I cannot properly engage with my client’s expert about his opinions and the reasons for his opinions. I also believe that without access to the documentation I cannot properly discuss with, nor provide advice to, my client regarding the basis for the claim by the applicant in WAD 230/2020.

I consider that if any disclosed material is not made available to the parties’ legal representatives, and that material influences the experts’ conclusions, the applicants will not be able to make an informed decision without the benefit of first obtaining advice from their legal representatives. I do not consider I can provide appropriate legal advice to my client without access to the material on which the applicant in WAD 230/2020 relies. I believe that this could significantly affect the prospects of achieving a positive outcome in the mediation.

11    The Gingirana applicant opposed the orders sought, on the substantive basis that there was no “compelling case for the current orders to be vacated”, because the March 2021 orders were originally agreed to by the parties and matters so far have proceeded well under the current orders; and the current process is a confidential mediation process, not a litigation process where legal input would be essential. The Gingirana applicant added:

As the legal representative of the Gingirana # 4 Applicant, we have observed that Experts’ Conferences generally achieve more positive outcomes without the involvement of legal representatives.

12    The State did not substantively object to the orders sought, provided its legal representatives were also given copies of the material. In response, the Yugunga-Nya applicant objected to the State’s legal representatives being provided with the expert material.

13    In my opinion the orders sought were not appropriate for the following reasons.

14    The March 2021 orders were made by consent. That is, the Yugunga-Nya applicant, through its legal representatives, consented to the experts’ conference being conducted on the basis that only the experts themselves and Judicial Registrar Daniel would see the material before the experts’ conference, and for the purpose of preparing a joint report.

15    Preparations for the experts’ conference were conducted on this basis, including settling the questions to be asked of the experts. These steps were taken under the case management supervision of the Judicial Registrar.

16    In such circumstances, it is not appropriate for one party to seek, at a very late stage, to alter the basis on which the experts’ conference is to be conducted. It is generally desirable that parties be held to the positions to which they have agreed by consent, when subsequent steps involving expenditure of resources have been taken in reliance on that agreed position. Especially in the area of native title, where funding to parties is scarce, the objective of s 37M and s 37N of the Federal Court of Australia Act 1976 (Cth) is best advanced by this approach. Of course if a party can, because of a change of circumstances or something misconceived or overlooked, demonstrate prejudice, or an injustice, the position might be different. That is not this case, as I explain.

17    I accept the submissions of the Gingirana applicant that there is merit in the conduct of a conference only between experts, without the involvement of legal representatives. The role of the experts is to assist the Court in areas of specialised knowledge. Clause 2.2 of the Court’s Expert Evidence Practice Note (GPN-EXPT) states:

2.2    The purpose of the use of expert evidence in proceedings, often in relation to complex subject matter, is for the Court to receive the benefit of the objective and impartial assessment of an issue from a witness with specialised knowledge …

18    Clause 7.4 states:

7.4    The purpose of the conference of experts is for the experts to have a comprehensive discussion of issues relating to their field of expertise, with a view to identifying matters and issues in a proceeding about which the experts agree, partly agree or disagree and why. For this reason the conference is attended only by the experts and any Conference Facilitator. Unless the Court orders otherwise, the parties’ lawyers will not attend the conference but will be provided with a copy of any conference report.

19    It is true that in the context of a mediation process, the views of experts, and their expression in a conference report, have an additional function of assisting the parties to resolve the disputes between them without the need for a contested hearing. That additional function has particular importance in the context of the Native Title Act, where the legislative scheme places great emphasis on negotiated outcomes. However, as cl 7.4 indicates, the function of a conference of experts is expressly conceived of as separate to the forensic decision making and advice which is inherent in the role of lawyers in contested litigation, and in attempts to resolve that litigation. That in turn is because of the underlying function of expert evidence, and the independence of experts, and their primary duty to the Court rather than the parties.

20    In my opinion, the formation of independent conclusions, after discussion and debate informed by the experts’ specialised knowledge and experience during a conference, facilitated by an experienced Judicial Registrar of this Court, is a critical step in the Yugunga-Nya and Gingirana #4 proceedings to resolve the overlap. The experts are well capable of reaching conclusions in areas of their specialised knowledge and experience without the assistance or input of legal representatives for the parties. Indeed without the intervention of legal representatives in the process at this stage, in my opinion they are more likely to do so robustly, and more likely to remain within their areas of expertise rather than straying into legal or quasi-legal areas of discourse.

21    After the report of the experts’ conference is prepared, it will be filed, and will be made available to the parties. At this stage, legal representatives for all active parties will have ample time to consider the report and to advise their clients accordingly. There is no prejudice to any party in this sequence of events. Contrary to the opinion of Mr Gaffney, it is not for the legal representatives to supervise or seek to regulate whether the material on which the experts rely “influences” the experts’ conclusions.

22    It must be recalled this process is currently occurring within the context of a mediation. The purpose of the conference report is for it to be a resource to be used in the conduct of the mediation. Further discussion in a mediation context will be able to occur about its contents. All parties, including the Yugunga-Nya applicant, will have ample opportunity to discuss the conference report, and I infer such discussion is likely to include discussion not only with legal representatives but with the parties’ experts themselves. All such steps are properly seen as important parts of the mediation process, but to ensure the most independent and objective expert views are initially obtained, there is force in the proposition that the first steps occur only between the experts and the Judicial Registrar.

23    It is to be hoped the mediation process is successful and the overlap can be resolved. If not, and if the matter proceeds to a contested hearing about which group has native title in the overlap area, then it is to be expected that all of the source material relied upon by the experts during the experts’ conference, and the conference report itself, will need to be disclosed as part of the basis material upon which any expert opinions ultimately expressed at trial have been formed. The conference report is likely to be disclosed as representing the views of the experts at a particular point in time, for the purposes of evaluating and testing the opinion evidence ultimately given by the experts. All these processes lie in the future, but the prospect they may occur explains why there is no prejudice, at this early stage, in the legal representatives not having access to the material provided to the experts and the Judicial Registrar before this initial conference occurs.

24    For these reasons, the Court dismissed the 30 July 2021 application.

The 6 August 2021 application

25    This interlocutory application was brought without notice, well after the consent determination material for a large portion of the Yugunga-Nya application area had been filed. Nothing was raised at the March 2021 case management hearing which might have foreshadowed this application.

26    The circumstances behind the application appear on Mr Gaffney’s evidence to have arisen because of some communications in late July 2021 from another lawyer who informed Mr Gaffney he had instructions to act on behalf of (at least) one member of the Yugunga-Nya applicant. That person, the lawyer conveyed, had instructed him they did not agree to the proposed consent determination.

27    Mr Gaffney also deposes to the resolutions made at the authorisation meetings held on 8 and 10 June 2021, in a ballot administered by the Western Australian Electoral Commission. The two relevant resolutions were passed unanimously (58-0). The first relevant resolution (Resolution 7) was:

The Applicant is authorised and directed to agree to the resolution of the Yugunga-Nya claim by consent, provided that the consent determination is in substantially the same form as the minute of proposed consent determination presented today.

28    The second relevant resolution (Resolution 5) was

If any member of the Applicant fails to give effect to resolution 7, or otherwise takes any steps contrary to the proper implementation of that resolution, that person shall no longer be authorised as a member of the Applicant, and the remaining members of the Applicant shall be authorised to act as the Applicant for the purposes of giving effect to resolution 7.

29    In his affidavit in support of the application, Mr Gaffney deposes that the 6 August 2021 application is made

for the avoidance of doubt, to remove any barrier to the Court making a determination of native title pursuant to the wishes of the rest of the Applicant group and the native title claim group as a whole.

30    In other words, I infer, Mr Gaffney has taken a cautious approach by seeking a positive order removing the individual as a member of the applicant, on the basis that they have conducted themselves in a way which constitutes a “step contrary to” the resolution at the authorisation meetings supporting the proposed consent determination. That is notwithstanding that, by effect of Resolution 5 itself, the claim group has made it clear that any such member of the applicant is no longer authorised and the remaining members can give effect to the consent determination resolution as necessary.

31    The joint submission filed in relation to the proposed consent determination indicates the State has carefully examined the material concerning the two authorisation meetings and has satisfied itself that the Yugunga-Nya claim group has authorised the making of the application for consent determination. As I have explained elsewhere, the Court relies on the position taken by the State as part of its consideration whether it was appropriate to make a consent determination: see Farrer on behalf of Ngarrawanji Native Title Claim Group v State of Western Australia [2019] FCA 655 at [37]-[46] and Drury on behalf of the Nanda People v State of Western Australia [2018] FCA 1849 at [56]-[59].

32    In the Yugunga-Nya People’s application, the only step which needs to be taken before the Court can consider whether to make a consent determination as the parties have requested is the nomination of a prescribed body corporate for that portion of the Yugunga-Nya application area which is to be determined. The Court has been informed there have been some delays in securing approval of the proposed body corporate from the Office of the Registrar of Indigenous Corporations (ORIC), the entity charged under the Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth) with the function of approving prescribed bodies corporate for registration under that Act. The joint submissions state that

it is not understood that there are any major issues preventing the registration.

33    Nevertheless, registration has not yet occurred, so no prescribed body corporate can be nominated.

34    In my opinion, such a nomination is a critical condition precedent to the Court being prepared to consider the proposed consent determination. The parties have been informed of my view that because of the lengthy delays in the appointment of a number of prescribed bodies corporate, extending to years after the making of a consent determination, in this proceeding the Court is not prepared to make a determination of native title unless and until there can be a nomination of a prescribed body corporate under s 56(2) prior to the making of such orders. In several regions of Western Australia, it is of great concern that considerable additional resources are expended, delays and frustrations caused to common law holders and a functional hiatus created, where there is a determination of native title but no entity recognised to hold the native title. Subject to any overriding and greater prejudice, it is my opinion that it is imperative that a prescribed body corporate be nominated ahead of the making of any orders recognising the native title of the Yugunga-Nya People.

35    Therefore, while it cannot be said the 6 August 2021 application is interfering with, or standing in the way of, a consent determination being made, having case managed the Yugunga-Nya proceeding for several years, it is my opinion that the agitation of the 6 August 2021 application in public is likely to be divisive and somewhat inflammatory. That is in a context of a claim over an area which has been, in one shape or another, in this Court for over 24 years. As the parties describe it in the joint submissions, the application has

faced numerous inter- and intra-mural issues that have been the subject of active case management and mediation by the Court.

36    The material before the Court demonstrates unequivocally that over the two authorisation meetings, very recently in June 2021, there was unanimous support expressed for the Yugunga-Nya consent determination. That is the position so far as the Court is concerned. The making of an application for consent determination has been authorised by the wider Yugunga-Nya claim group, the applicant has acted on that authorisation and the State has accepted it. To hear and determine the 6 August 2021 application would require the individual concerned to have an opportunity to be heard. As I have noted, it would appear on the face of the claim group’s resolutions to be unnecessary to make orders removing such an individual as the wider claim group has made it clear by Resolution 5 that any member of the applicant who does not give effect to the will of the wider claim group in relation to the consent determination no longer enjoys any authority and the other members of the applicant can proceed to act on behalf of the claim group without that person.

37    At the present time, an active hearing process in relation to the 6 August 2021 application can only tend to open further schisms which are not presently capable in law of affecting the progression of this matter towards consent determination. That is not in the interests of the administration of justice in a 24-year-old claim.

38    Therefore, in my opinion the appropriate course is to stay this interlocutory application, at least until there is a nomination of a prescribed body corporate and the Court is in a position actively to consider the application for consent determination. If there are no further developments, it may be unnecessary for the 6 August 2021 application to further progress. If at that point any new step is taken to attempt to prevent the consent determination process occurring, it will be dealt with expeditiously, and the 6 August 2021 application might well need to be considered.

Associate:

Dated:    11 August 2021

SCHEDULE OF PARTIES