Federal Court of Australia

Farrer on behalf of the Ngarrawanji Native Title Claim Group v State of Western Australia (No 4) [2021] FCA 1497

ORDERS

THE COURT ORDERS THAT:

1.    The parties are to confer on the proposed orders circulated to the parties at the time of delivery of the Court’s reasons for judgment.

2.    On or before 4pm AWST on 6 December 2021, the parties are to file any joint proposed amendments to those orders, or alternatively indicate their position in relation to those orders.

3.    If the parties cannot agree on proposed amendments, leave is granted to file proposed amendments on behalf of the party concerned, together with short submissions supporting the proposal of no more than two pages.

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

REASONS FOR JUDGMENT

MORTIMER J:

Background

Introduction

1    On 21 May 2019, in Farrer on behalf of the Ngarrawanji Native Title Claim Group v State of Western Australia [2019] FCA 655; 369 ALR 324 (the Ngarrawanji #1 determination), the Court made a consent determination that native title exists over an area of 4,065 square kilometres north and north-west of the town of Halls Creek, Western Australia. The holders of the native title were defined in Schedule 6 to the determination by reference to descent from certain apical ancestors. On 8 July 2020, in Farrer on behalf of the Ngarrawanji Native Title Claim Group v State of Western Australia [2020] FCA 929 (the Ngarrawanji #2 determination), the Court made a consent determination that native title exists over another, much smaller area near Halls Creek, which had been left out of the Ngarrawanji #1 determination for technical reasons to do with provisions under the Native Title Act 1993 (Cth) about vacant Crown land. The common law holders in the Ngarrawanji #2 determination are the same as the common law holders in the Ngarrawanji #1 determination. I shall refer to the Ngarrawanji common law holders in these reasons as encompassing both determinations.

2    In native title determinations in other parts of Australia, the usual orders made by the Court at the time of the determination of native title include orders consequent upon the nomination of a prescribed body corporate (known as a PBC) under s 56 or s 57 of the Native Title Act. In other words, in the vast majority of consent determinations made by this Court around Australia, a PBC has been established under the relevant federal legislation, and has already been nominated by the claim group. Usually this nomination is approved at the same meeting as the consent determination is authorised.

3    In Western Australia, at least for a period of time, a different practice developed: especially, it seems, in the East Kimberley. These proceedings show why it is a practice that the Court should, as far as possible, not permit to continue without compelling justification.

4    The Ngarrawanji common law holders were initially given 12 months from the date of the Ngarrawanji #1 determination to nominate a PBC to be the trustee of their native title in that determination: that is, they were given until 21 May 2020. This deadline was extended more than once. The deadline in the subsequent Ngarrawanji #2 determination was also extended.

5    Without nominations and the Court’s orders consequent upon them, the native title determinations were not effective. The Court must now decide what to do because none of the extended deadlines have been met.

6    The Court has before it a series of affidavit evidence from lawyers within the Kimberley Land Council (KLC) (Mr Mumford and Mr D’Antoine), a KLC anthropologist (Ms Barritt) and Mr Edmond from the Indigenous Land and Sea Corporation (ILSC). The Court also has mediation reports from Judicial Registrar McGregor, and party reports to the Court, as well as transcripts of various case management hearings. What I set out in these reasons is based on that material.

7    Mr D’Antoine’s evidence shows that, from around mid-2019, members of the Ngarrawanji applicant, Dr Mark Bin Bakar and Mr Gregory Tait, tried to secure funding from the KLC to pay for an external consultant, Mr Jerome Frewen, to create and establish the proposed Ngarrawanji PBC. A letter to the KLC requesting this funding was written by Mr Tait and Dr Bin Bakar, using the term “we”. It is unclear who else from the Ngarrawanji common law holders was involved in this decision. The KLC responded that an application for funding assistance would need to be made.

8    According to Mr D’Antoine, the KLC then organised a meeting of the members of the Ngarrawanji applicant to obtain “guidance from the Applicant on the development of a PBC” and to plan the process of nominating a PBC. This meeting was organised for 9 December 2019, in Kununurra.

9    I pause here to say that the people who are members of the Ngarrawanji applicant have not changed since before the first consent determination. They are Ms Josephine Farrer, Mr Matt Dawson, Mrs Phyllis Wallaby, Mr Marty Stevens, Dr Mark Bin Bakar and Mr Gregory Tait.

10    Mr Tait and Dr Bin Bakar wrote to the KLC on 26 November 2019 and told the KLC the members of the Ngarrawanji applicant had agreed amongst themselves that they would not participate in the 9 December meeting and instead that they wanted to work with Wayne Bergmann (then the Chief Executive Officer of KRED Enterprises Pty Ltd) to draft the PBC rule book, together with KRED Legal Pty Ltd, trading as Arma Legal. The evidence is that KRED Enterprises was engaged in January 2020. A workshop, which appears to have been only for the members of the Ngarrawanji applicant and not all the common law holders, was held in Broome in January 2020. Mr D’Antoine attended that meeting with another KLC officer to explain the PBC nomination and authorisation process. The KLC provided funds to KRED Enterprises of several thousand dollars.

11    This arrangement came to an end in March 2020. Mr D’Antoine was informed there were difficulties from the Ngarrawanji applicant’s perspective in working with KRED Enterprises. The evidence is that there was a draft rule book in existence and that members of the applicant, particularly Mr Tait and Dr Bin Bakar, had a copy of this rule book.

12    From about February 2020, the anthropologist Dr Tony Redmond became involved, initially at the instigation of some members of the Ngarrawanji common law holders directly (it is unclear which members). Dr Redmond was asked to provide further maps and information about which apical ancestors and “Taams” were located in which areas of the Ngarrawanji determination. Eventually, in April 2020, Dr Redmond was retained by the KLC to develop what is called in the evidence a “Taam map” for the Ngarrawanji determination area. In my opinion, this evidence illustrates that the objective of at least some members of the applicant was to strictly delineate which families, and descendants of apical ancestors, not only might speak for particular areas, but might be seen as inside, or outside, the group of Ngarrawanji common law holders.

13    In April 2020, anticipating that the 21 May 2020 PBC nomination deadline would not be met, lawyers from the KLC, acting for the Ngarrawanji applicant, asked the Court for an extension of the deadline until December 2020. The Court granted an extension until 7 December 2020. That was the date proposed by the Ngarrawanji applicant. It was proposed on the basis there would be an authorisation meeting of the Ngarrawanji common law holders before this date.

14    Meanwhile, after April 2020, the evidence shows that yet further inquiries and arrangements were undertaken by some members of the Ngarrawanji applicant with other private lawyers about the creation of the PBC. Members of the applicant were reminded by the KLC in correspondence that their authority did not extend to changing the legal representation of the applicant without the authority of the whole native title claim group.

15    On Mr D’Antoine’s evidence, the arrangements made with a private lawyer during this period again fell apart. Mr Tait asked the KLC to destroy copies of the draft rule book provided by the second private lawyer.

16    Mr D’Antoine’s affidavit demonstrates the extraordinary number of calls, communications, meetings and attempts at assistance from the KLC to various members of the applicant, in particular in the second half of 2020, in further attempts to produce a draft rule book to be taken to the Ngarrawanji common law holders. The affidavit also demonstrates that certain members of the applicant continued to question the connection of particular families to apical ancestors on the Ngarrawanji consent determinations.

17    It appears to me that much has been done on this PBC issue without the authority of the whole of the native title claim group, and at the instigation of a few members of the Ngarrawanji applicant. While members of the Ngarrawanji applicant may have considered they were attempting to act in the best interests of the Ngarrawanji common law holders as a whole, the evidence suggests the common law holders have not been given opportunities to engage with decisions made on their behalf, or the various proposals which have been explored.

18    In September 2020, KLC staff, including anthropologists, travelled to Halls Creek to meet with Ngarrawanji common law holders about the establishment of the PBC. This was the meeting which, properly, would bring a focus back on the common law holders as an entire group. An authorisation meeting was notified and convened at a hall in Halls Creek for 15 and 16 September 2020. These meetings cost a lot of money, which is sourced from public funds, and involve a lot of human resources for the KLC. As the evidence shows, the KLC has many competing priorities in terms of various native title claims, and limited funds. It prioritised the Ngarrawanji native title group, but its funds and expenditure of resources have been wasted.

19    I am satisfied that the September authorisation meeting was widely and properly notified. At that meeting, the KLC registered 69 individuals as descendants of at least one Ngarrawanji apical ancestor. On Mr D’Antoine’s evidence, it was Mr Tait who told him that the meeting should not go ahead and that, in Mr Tait’s view, people who were not connected to the Ngarrawanji application areas were being admitted to the meeting. Mr D’Antoine’s evidence is that, upon inquiry, this opinion appeared to be shared by other members of the applicant. Mr Tait, the other members of the applicant and their supporters walked out. The next day, at a separate meeting with members of the applicant, Mr D’Antoine explained the potential consequences of not complying with the Court’s orders. The members of the applicant told Mr D’Antoine they did not want the authorisation meeting to proceed.

20    However, as Ms Barritt’s evidence shows, on 15 September 2020, members of eight sets of family groups had remained in the hall and expressed the wish that the meeting should go ahead. It was the families of the members of the applicant who walked out; Ms Barritt’s evidence makes this clear. Therefore, without any apparent reverting to all of the other common law holders, the KLC did not arrange for the meeting to proceed, but abided the wishes of the members of the Ngarrawanji applicant and abandoned the authorisation meeting.

21    In my opinion, this evidence makes it plain that the individual members of the applicant are pursuing interests which do not even purport to represent the views of the whole of the common law holders. They have an agenda of their own. It is not relevant to the present issue what that agenda is. What is relevant is that they are not acting in a way which represents the interests of the entirety of the common law holders, which is their function as members of the applicant.

22    For these reasons, even the Court’s extended deadline to 7 December 2020 was not met. This was also the deadline for the Ngarrawanji #2 PBC to be nominated. In July 2020, when that determination was made, the Court expressed concern (at [39]) with the appointment of a PBC.

23    The Ngarrawanji applicant, and the wider group of common law holders, have been on notice for a long time about the level of discomfort the Court has about the default in nominating a PBC.

24    Given the ongoing dysfunction within the Ngarrawanji group, and the apparent ongoing dispute about the proper common law holders, the Court held case management hearings on 16 February 2021 and again on 3 March 2021. These had to be held remotely because of COVID-19 border restrictions, although the Court would have preferred they be held in person in Halls Creek.

25    At the first case management hearing, the Court made it clear to everyone that it had contacted the ILSC to ask it to file an affidavit explaining whether it thought that it should be appointed as the PBC for the Ngarrawanji determinations, since the common law holders could not agree on a PBC themselves. At this hearing, and at the further case management hearing on 3 March 2021, members of the Ngarrawanji applicant elaborated on their concerns with the process for nominating a PBC. Having heard from the parties, and from the ILSC about what it thought of being appointed as a PBC, the Court decided that a mediation should be held to help settle the disagreement about the common law holders.

26    This mediation was held in Halls Creek in June 2021. At the mediation, there were 29 members of the Ngarrawanji claim group, as well as lawyers from the KLC, and staff and lawyers from the ILSC.

27    Everyone agreed that Dr Tony Redmond would do some more research into the Ngarrawanji claim group members’ genealogies in order to help the claim group sort out any disagreements about who were the descendants of the apical ancestors for the Ngarrawanji native title. This was going to involve Dr Redmond sitting down with and speaking to claim group members. Everyone agreed that Dr Redmond would do that in June and July 2021, in the hope he could travel to Western Australia by then.

28    Because of the COVID-19 pandemic, Dr Redmond could not come from New South Wales to Western Australia in the middle of 2021; the Western Australian government had closed its border to New South Wales. So, in September 2021, the Court directed that work be done either online by Dr Redmond, or in person by another qualified anthropologist, who was based in Western Australia and not subject to border restrictions. The orders contemplated that, in November 2021, the applicant and the group members and the ILSC would come back to the Court for another mediation.

29    The Court said that it hoped the Ngarrawanji claim groups would agree on a PBC because, if they did not, the Court would probably appoint the ILSC to be the PBC for the Ngarrawanji native title: see Farrer on behalf of the Ngarrawanji Native Title Claim Group v State of Western Australia (No 3) [2021] FCA 1131. By this time, the option of appointing the ILSC had been known to all concerned for seven months, and it was now well over two years since the Ngarrawanji #1 determination, yet the recognition of native title had still not taken effect.

Dr Redmond’s research and the mediation in November 2021

30    From Monday 18 October to Friday 22 October 2021, the KLC held consultations with Ngarrawanji people in Broome, Halls Creek and Kununurra. Dr Redmond was at those consultations on video, being still unable to travel to Western Australia because of the Western Australian government’s restrictions. People from lots of different families came to those consultations, and new information came out about who might be connected to the Ngarrawanji apical ancestors and who might not. What is remarkable is that no members of the Ngarrawanji applicant came to these consultations.

31    The KLC says that it tried to get in touch with the people in the Ngarrawanji applicant during October 2021. It says that KLC staff sent letters, emails and text messages, and tried to call those people on many different occasions. Sometimes the staff got through to individuals, and on some of these occasions it looked like at least some members of the applicant would be able to come to a meeting with Dr Redmond on 22 October 2021. But on 17 October, Mr Tait and Dr Bin Bakar told the KLC that they and their family could not come to the meeting because of a recent death in that family. On 29 October, Mr Tait told the KLC that no members of the applicant would be able to attend the mediation in November.

32    Because of this, the Court decided that the mediation would not go ahead, and the lawyers would come back for a hearing about the appointment of a PBC instead. The Court decided that two and a half years of unsuccessful attempts even just to have meetings involving all members of the native title holding group was long enough, and enough opportunities had been given, including for meetings and mediation. There comes a point where enough public funds and human resources have been spent, for no progress. The Court was not persuaded that members of the applicant in particular were committed to allowing the whole of the native title group, as the Court declared it to be, to participate in an authorisation meeting to approve the design of a PBC and nominate a PBC.

33    As the Court said at the last case management hearing in this matter, the Court now has to decide whether the ILSC should be appointed as the PBC for Ngarrawanji in relation to the two recent determinations. Having reflected on the parties’ submissions and examined the law more closely, the Court’s view is that the preconditions to the appointment of the ILSC for which the Native Title Act prescribes have not yet been met.

The law

34    The identification of an entity to hold the native title of the common law holders is a critical final step in the legislative scheme about recognition of native title. While the Act also recognises the possibility that the common law holders might end up holding the native title collectively and communally without a corporate entity, it is clear that this option is seen as no more than a temporary option under the legislative scheme. It is likely to be highly impractical for the ongoing exercise of rights which are rights exercisable against all the world. It would make interaction by other parties, including the State, with the common law holders practically unworkable.

35    The scheme of the Native Title Act evinces a clear legislative intention for the appointment of a corporate entity to act on behalf of the common law holders – to contract, to negotiate, to hold proprietary interests. The scheme contemplates one function being as trustee, and an alternative function as agent. In the latter situation – as will be the case here – the agency arises because there has been a determination by the Court that the common law holders hold the native title, because no PBC to hold the native title as trustee has been nominated and appointed, so that then an entity is able to be appointed as the agent of those common law holders.

36    Consistently with the preamble of the Native Title Act in particular, the terms of Division 6 of Part 2 contemplate that the common law holders, collectively, will be the people who should take responsibility for deciding the nature of the body to act on their behalf. This requires of the common law holders that there be co-operation, respectful discussion, compromise and the putting aside of one’s own interests in favour of ensuring that interests and aspirations of the common law holders collectively can be achieved. That has not occurred to this point.

How Division 6 of Part 2 applies in these proceedings

37    By s 55, decisions by the Court under s 56 or s 57 must be made either at the time of the determination of native title, or “as soon as practicable” after the determination. That provision is important. The Parliament requires the Court to resolve the issue of a PBC contemporaneously with, or alternatively “as soon as practicable” after, a determination of native title. While a phrase such as “as soon as practicable” involves a level of evaluative judgment, and does accommodate for a range of contingencies, I doubt that it could be said that Parliament intended it to encompass a situation where, after two and a half years, the common law holders still had not nominated a PBC.

38    Division 6 contemplates two different kinds of arrangements – a “trustee” arrangement (s 56) or an “agent” arrangement (s 57). In either case, and subject to one circumstance, the entity performing the functions of trustee or agent must be a corporation registered under the Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth): see Native Title Act s 59, read with rr 3 and 4 of the Native Title (Prescribed Bodies Corporate) Regulations 1999 (Cth). The one exception arises from s 57(2)(c) and s 59(2), read with r 11 of the Regulations, which empowers this Court to determine that the ILSC be an agent body corporate for the purposes (relevantly) of s 57(2)(c).

39    In other words, where the common law holders cannot, and do not, nominate a PBC, Parliament has given two other options. One (apparently interim) option is that the common law holders hold the native title collectively. How any decision making could practically occur under that option, even if an interim one, is unclear.

The original orders in these proceedings

40    In the present proceedings, the Court originally made orders in both the Ngarrawanji #1 determination and the Ngarrawanji #2 determination, in the following form:

There be a determination of native title in the terms of the Minute of Consent Determination of Native Title attached. The determination is to take effect immediately upon the making of a determination under s 56(1) or s 57(2) of the Native Title Act 1993 (Cth), as the case may be.

(Emphasis added.)

41    Two points should be emphasised.

42    First, the intention of the orders was that if there was no PBC nomination to trigger either s 56(1) or s 57(2), then the determination of native title did not take effect. That was the form of order proposed by the parties as part of the consent determination process, and the Court accepted the parties’ proposal.

43    Second, the order contemplated the Court could exercise power under either s 56(1), or s 57(2). Both were included.

44    Order 3 of the Court’s orders on 21 May 2019 was, in effect, the “request” for the purposes of s 56(2)(a), but in my opinion only for s 56(2)(a). It provided (with my emphasis):

Within twelve months of the date upon which these orders are made, a representative of the common law holders of the native title rights and interests shall indicate whether they intend to have the native title rights and interests held in trust and, if so, by whom. They are to do so by:

(a)    nominating in writing to the Federal Court a prescribed body corporate to be trustee of the native title rights and interests; and

(b)    including within the nomination the written consent of the body corporate.

45    By order 4 of the Court’s orders of 21 May 2019, if a nomination was made in accordance with order 3, then that PBC would:

hold the native title rights and interests described in order 1 in trust for the common law holders of the native title rights and interests.

(Emphasis added.)

46    By order 5 of the Court’s orders of 21 May 2019, the Court was able to extend time for nomination, but if there was no nomination within time, or within any extended time, the proceeding was to be listed for directions.

47    I consider, taken as a whole, the Court’s orders involved a request for a nomination under s 56(2)(a), and the prescription of a time period for that request, together with provisions for extension to that time period. The process set out was a process under s 56: a trustee process.

48    There was no process under s 57(2) contemplated or provided for by the Court’s orders on 21 May 2019.

49    What the order extracted at [40] above was intended to mean, in my opinion, is that the determination of native title will not come into effect until after the completion of any process under s 57(2), the agent process, assuming the failure of the trustee process under s 56.

50    In substance, this is the way that Colvin J and I expressed our understanding of the operation of the scheme in Drury on behalf of the Nanda People v State of Western Australia [2020] FCAFC 69; 276 FCR 203 at [59]. White J expressed a similar understanding in Drury at [136] and [147].

51    The Court made a number of orders extending time for the nomination of a PBC, the last order being intended to extend the date until 17 September 2021. There was no PBC nomination by that date. So the time for a PBC nomination under the Court’s original orders made on 21 May 2019 expired with no further extension. Another order made on 11 March 2021 directing the Ngarrawanji applicant and the KLC to take steps to convene a meeting of Ngarrawanji native title holders on a date prior to 27 August 2021 was also vacated.

52    Thus, the outcome of the process contemplated by the 21 May 2019 orders to that point – that is, to 17 September 2021 – was that there was no PBC trustee nomination within the time specified in the orders, including the extension granted. That brought the potential application of s 56(2)(b) to an end, and triggered the application of s 56(2)(c) – that is, an obligation on the Court to determine the native title rights and interests are held by the common law holders.

53    The Court has not yet made that determination. No party has submitted it is obliged to do so, although on the text of s 56(2)(c) that is precisely what is required in the present circumstances.

54    In Drury at [57], the reasons of Colvin J and myself suggest there may be no discretion for the Court to take a different course, and that a determination in favour of the common law holders might need to be made. The reasons of White J at [136] and [147] are to similar effect. It is true that observations were made in the context of suggesting it was unlikely Parliament intended the Court could impose a “different body as the PBC contrary to the choice of the common law holders”, and did not purport to deal with the situation now facing the Court. However, they clearly state that the step for which s 56(2)(c) provides is not discretionary.

55    Further, the explanation then given by Colvin J and myself in Drury at [59] is applicable:

Where the Court orders that the common law holders are to hold the native title then there is a further process to be followed for the nomination of a PBC to act as agent or representative of the common law holders in respect of matters relating to native title: s 57(2). The process is similar. There is a request for a representative of the common law holders to nominate a PBC to act as agent or representative: s 57(2)(a). If there is a nomination then the Court must determine that the nominated prescribed body is to perform the functions as agent or representative: s 57(2)(b). However, if there is no nomination, then the Court must determine in accordance with the regulations which body is to perform the functions of agent or representative: s 57(2)(c). In either case, the functions of the PBC may be specified by regulations: s 58.

56    While [57] and [59] might not be, strictly, part of the ratio of Drury, they explain critical aspects of the legislative scheme relevant to the issues now before the Court. Drury was a joint judgment of Colvin J and myself, and White J’s dissenting reasons contained expressions to similar effect on this point at [136] and [147]. I consider it is appropriate to follow and apply the description of the scheme in Drury, and therefore to take the course that Drury suggests should be taken.

57    This approach is also consistent with the opening words of s 57(2) – “If the determination under section 56 is not as mentioned in subsection (1)” – which refers to a trustee PBC determination.

What is the next step in these proceedings, according to the legislative scheme?

58    The discussion above means there should be a determination under s 56(2)(c): namely, that the native title rights and interests set out in the two Ngarrawanji determinations, in respect of the areas covered by those determinations, are to be held by the common law holders.

59    Second, the Court must then follow the process set out in s 57(2)(a). Where that leads is to the conclusion that any determination of the ILSC as the PBC for the Ngarrawanji #1 and Ngarrawanji #2 determinations would be premature. The process under s 57(2)(a) has not taken place, and the power in s 57(2)(c) to appoint the ILSC has not yet arisen, the preconditions to that power (namely the failure of an agent nomination by the common law holders) not having yet occurred.

60    However, this analysis also introduces a disconformity with order 2 of the Court’s orders of 21 May 2019, because s 56(2)(c) contemplates a determination of native title coming into effect, and contemplates the native title will be held (collectively) by all the common law holders and not by any entity, pending the process in s 57(2) occurring.

61    The perceived disconformity does not involve a criticism of any party, as the parties and the Court are in unchartered territory with the present circumstances.

62    After the September 2021 orders, a process of mediation occurred, and I do not consider there is anything incompatible with the scheme of the Act about this. There is no particular timing imposed by s 56(2)(c), aside from the “as soon as practicable” condition in s 55. As I have noted, that phrase allows for some flexibility in when steps are taken, so long as there is not unreasonable and justifiable delay.

63    The mediation referral orders recognised that the nomination of a PBC was being affected by the attitude of members of the applicant to the present group description for the Ngarrawanji determinations, and who should be included and who should not. The Court noted in the mediation referral orders:

The purpose of the orders for further mediation is to discuss and review the genealogies of Ngarrawanji common law native title holders with all those Ngarrawanji native title holders who wish to attend, and to give the Indigenous Land and Sea Corporation an opportunity to engage with the common law holders, to understand their concerns about the operation of a prescribed body corporate and to provide any assistance within the Court’s mediation process as the Judicial Registrar considers appropriate.

64    Importantly for some of the submissions made at this hearing, those orders also stated (with my emphasis):

The participants in the mediation shall include any individual member of the Ngarrawanji native title holding group who wishes to attend, the legal representatives and instructors (if required) for the applicant, the first respondent, the Indigenous Land and Sea Corporation and the Kimberley Land Council, and the anthropologist or anthropologists who conduct the anthropological fieldwork or family consultation for the applicant

65    Ms Barritt’s evidence is, and Judicial Registrar McGregor’s report states, that the KLC posted a notice for the mediation to all members of the native title group that the KLC had on its contact list. However, yet again, the mediation process appears to have been dominated by members of the applicant, and it was because of the position of members of the applicant that the mediation did not proceed as scheduled, despite the dates being moved once to accommodate those people. The members of the applicant suggested no further alternative dates. The Court formed the view the mediation process, in its current form, was unable to achieve its intended outcome.

66    I pause here to note that the Court and the KLC, and more lately the ILSC, have tried every possible avenue to assist the common law holders to progress their decision making about a PBC nomination.

What the Court must do now

67    The explanation I have set out above about how the provisions of the Native Title Act relate to each other means, the mediation process having been unsuccessful, the time has come for a determination to be made under s 56(2)(c), as the Act contemplates. It is now reasonably practicable for that to occur. Any further delay would be unjustifiable and unreasonable. That is especially so where, on the authority of Drury, a determination under s 56(2)(c) is the next step. On this point, the authority of Drury includes White J, who was in dissent on the outcome, but on this point took a similar view of the legislative scheme to the majority.

68    Therefore, there will be a determination pursuant to s 56(2)(c).

69    In my opinion, the correct analysis is that this determination remains a determination “under” s 56(1), even though it is not a determination appointing a PBC as trustee. There is no other way for sub-section (2)(c) to operate and have work to do. On that analysis, the determination of native title will take effect from the date of the Court’s orders. The native title rights and interests will be held by the common law holders, collectively and communally. There is no particular authority or role for the Ngarrawanji applicant in dealing with the native title after this determination is made. The authority rests with the common law holders. Holding the native title collectively will mean collective decision making by the whole group. While I accept this is unwieldy, it is a state of affairs which should not last for a long period of time, because of the next steps under s 57. That, in my opinion, is the intended effect of the sequence as between s 56 and s 57.

70    Therefore, after the determination under s 56(2)(c), there also needs to be orders designed to engage the terms of s 57(2) of the Native Title Act.

71    The orders are designed to constitute a “request” for the purposes of s 57(2)(a). Aspects will follow the form proposed jointly on behalf of the applicant, the ILSC, and the State, being orders with which the KLC did not disagree. The position of the KLC, as a party and as the representative body, is important because it is the body which must provide funding for these steps to occur. As Ms Saffery made clear, this funding is far from guaranteed. I accept Mr Edmond’s evidence that the ILSC will also explore other funding options to ensure this process, now identified as one under s 57, can occur as proposed.

72    Ms Saffery also proposed a variation to the orders, which substantively has the appointment of the ILSC occurring as a self-executing order if the agent PBC nomination process does not produce a nomination.

73    The other parties were content with this proposal. I consider it has merit. That approach is consistent with s 37M of the Federal Court of Australia Act 1976 (Cth), in circumstances where there have already been far too many public funds consumed over the last two and a half years trying to achieve what should have been a straightforward step necessary for the common law holders to enjoy, and exercise, their native title. It is also consistent with the intention of s 55 of the Native Title Act and the “as soon as practicable” requirement. No further delays should be tolerated. The expenditure of public funds on this proceeding, and the priority given to it by the KLC, means funds have been diverted from other proceedings, as Mr Mumford deposed.

74    The ILSC properly accepted it has had reasonable notice of the likelihood the Court may appoint it as the PBC. There will now be a gap of some months before any self-executing order will take effect and the ILSC has plenty of time to gather the necessary information from the KLC and prepare to perform the task the legislative scheme contemplates it can and should perform if the Court so orders. The Court expects the ILSC to be ready. The Ngarrawanji common law holders, as a group, deserve to have their native title held in a way it can be exercised and enjoyed as the Native Title Act contemplates.

75    The Court’s views and conclusions mean that I do not consider it is appropriate to make these steps conditional on the obtaining of funding, whether from the KLC itself, the National Indigenous Australians Agency or the ILSC. Those are matters for the parties. The suggested reporting order dealing with this matter will not be made.

76    If there is no funding and the agent nomination cannot proceed in the time ordered, then the self-executing order appointing the ILSC will take effect. As the affidavit material shows, the ILSC is committed to assisting the common law holders to form their own PBC as soon as practicable. In the meanwhile, the intention of the Native Title Act is given effect, and there will be a proper repository for the common law holders’ native title.

77    I consider enough time has been granted in these proceedings, and it is not in the interests of the administration of justice for any further extensions of time to be granted. Accordingly, although leave will be granted to the parties to approach the Court for variations to the proposed orders, or for additional orders, this leave will be expressed not to include any leave for an extension of time in which to nominate an agent PBC. This is the last chance for the common law holders.

78    Given the determination under s 56(2)(c), I consider that going forward it is preferable that the KLC as the representative body take over some of the notification functions in relation to the steps to nominate the PBC, and the nomination of the PBC itself. The evidence is that in substance the KLC performs those steps anyway.

79    The terms of s 57(2)(a) authorise the Court to invite a “representative” of the common law holders. In the particular circumstances of these proceedings, and given the overwhelming evidence that the members of the applicant have not sought to act in the interests of all the common law holders, I consider the appropriate course is for the Court to treat the KLC as the “representative” of the common law holders. The point made by White J in Drury at [147(4)] is not overlooked in these orders, and it is one with which I respectfully agree. The intention of the common law holders, as a group, is given primacy under the legislative scheme.

80    Of course, what that proposition masks is a number of complications about the nature and method of collective decision making. These have to be grappled with in the operation of s 251B of the Native Title Act as well, although that provision is more prescriptive. In Division 6 of Part 2, and in s 57(2) in particular, there is no legislative prescription about how the common law holders are to decide on the nomination of a PBC, or indeed how they are to decide on a “representative”.

81    Given the evidence about the level of discord and dysfunction in the Ngarrawanji common law holders, the Court’s view is that the most efficient course is for the invitation to be issued for the purposes of s 57(2) to the KLC as the representative body for the Kimberley region, and as the representative body for the common law holders. The form of order I have proposed still locates ultimate authority within the common law holders, in the sense that they must instruct the KLC to file the agent body corporate nomination. If they do not do so, the nomination period will expire and the ILSC will be appointed by default.

82    Since these matters have really been ones which have arisen after the Court reserved judgment, and the parties have not had an opportunity to consider the Court’s reasoning on them, what I propose to do is publish these reasons, and provide proposed draft orders to the parties so that they have an opportunity to make submissions about the structure, and content of them. The parties are also to nominate specific dates by which the steps prescribed are to be undertaken. Those dates must all be as soon as practicable, taking into account the wet season in the Kimberley and the time for law business.

83    If the parties or any of them see any substantive legal issue with the way the Court proposes to proceed, the Court expects them to raise such a matter in a short submission.

Associate:

Dated:    29 November 2021