Federal Court of Australia

Smith on behalf of the Wati Tjilpi Ku on behalf of the Yilka Sullivan Edwards People v State of Western Australia [2022] FCA 581

ORDERS

THE COURT ORDERS THAT:

1.    The interlocutory application of Alwyn Bates and Dereck Junior Harris of 2 August 2021 is dismissed.

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

REASONS FOR JUDGMENT

BROMBERG J:

1    The originating application in this proceeding brought by Mr B Smith is an application made under s 61(1) of the Native Title Act 1993 (Cth) (Act) for the determination of a claim for compensation (compensation application).

2    Section 4 of the Act states that the Act recognises and protects native title. That is done, in part, by providing that certain acts affecting native title are compensable, including acts which have extinguished or partially extinguished native title. Compensation is payable under Divs 2, 2A, 2B, 3 and 4 of Pt 2 of the Act but only in accordance with the provisions of Div 5 of Pt 2: see s 48. The nature of the entitlement to compensation and the persons which the Act contemplates may be compensated are spelt out in broad terms by s 51 which relevantly provides that an entitlement to compensation under Divs 2, 2A, 2B, 3 or 4 is “an entitlement on just terms to compensate the native title holders for any loss, diminution, impairment or other effect of the act on their native title rights and interests” (emphasis added).

3    These reasons deal with an interlocutory application made on 2 August 2021, brought by Alwyn Bates and Dereck Junior Harris (proposed applicant) under s 66B of the Act, to replace the named applicant, Mr B Smith, who sadly passed away on 11 June 2021 (s 66B application).

4    The central issue in dispute on the s 66B application is whether the members of the proposed applicant, Mr Bates and Mr Harris, have been authorised in accordance with the requirements of s 66B. As the s 66B application was made on 2 August 2021, the amendments to the Act including the amendment to s 66B made by the Native Title Legislation Amendment Act 2021 which took effect on 25 September 2021 are inapplicable. The amendments did not in any event relevantly alter the substance of the criteria for authorisation under s 66B as existing at the time this application was made. At that time s 66B(1) relevantly provided:

66B Replacing the applicant

Application to replace applicant in claimant application

(1)    One or more members of the native title claim group (the claim group) in relation to a claimant application, or of the compensation claim group (also the claim group) in relation to a compensation application, may apply to the Federal Court for an order that the member, or the members jointly, replace the current applicant for the application on the grounds that:

(a)    one or more of the following applies to a person who is, either alone or jointly with one or more other persons, the current applicant:

  …

(ii)    the person has died or become incapacitated;

 …     and

(b)    the member or members are authorised by the claim group to make the application and to deal with matters arising in relation to it.

5    By reference to the observations made by French J in Daniel v State of Western Australia [2002] FCA 1147 at [11]-[17], the parties accept that in the circumstances of this case there are four conditions to be satisfied to meet the requirements under s 66B:

(i)    there is a claimant application;

(ii)    each applicant for an order under s 66B is a member of the claim group;

(iii)    relevantly, the person to be replaced has died; and

(iv)    the members are authorised by the claim group to make the application and to deal with matters arising in relation to it.

6    As to the four conditions, there is no dispute as to conditions (i) and (iii). There is an issue raised as to whether the condition in (ii) is in contest in so far as a claim has been made that Mr Bates is not a member of the claim group. However, it is not necessary for me to decide whether or not condition (ii) has been satisfied in respect of Mr Bates. It is sufficient that I determine the contest in relation to condition (iv). For the reasons that follow I am not satisfied that Mr Bates and Mr Harris are authorised by the claim group to make the s 66B application and to deal with matters arising in relation to it.

7    To explain why I have come to this view, it is first necessary to say more about the compensation application and provide other background, none of which is in contest. Broadly stated, the compensation application claims compensation in relation to the extinguishment or partial extinguishment of native title rights in relation to substantial parts of the lands and waters within the area covered by the Yilka Determination. The Yilka Determination is a native title determination made by McKerracher J on 27 September 2017 following a contested hearing and a judgment published as Murray on behalf of the Yilka Native Title Claimants v State of Western Australia (No 5) [2016] FCA 752.

8    The Yilka Determination determined that native title was held in the determination area by persons (Yilka native title holders) falling within the following description:

(1)    The Native Title Holders are those persons who are recognised under traditional law and custom as having rights in part or all of the Determination Area through one or more of:

(a)     their own or an ancestor's birth on the Determination Area;

(b)    their own or an ancestor's long association with the Determination Area; or

(c)    their own holding of senior ritual authority with respect to places on the Determination Area.

(2)    At the date of this determination, the following persons are recognised under traditional law and custom as having rights in the entirety of the Determination Area:

 (a)    the descendants of:

(i)    Marnupa;

(ii)    Waltila and Nanuma;

(iii)    Billy Kurlu;

(iv)    Sandy Grey;

(v)    Skipper Elliot;

(vi)    Charlie Winter;

(vii)    Danny Harris;

(viii)    Lincoln Smith;

(ix)    Paul Simms; and

(x)    Andrew Watson

(b)    Victor Fraser and his descendants.

(3)    At the date of this determination, in addition to the persons in Clause 2 above, the descendants of the following persons are recognised under traditional law and custom as having rights in the entirety of the Yilka and Sullivan Area:

(a)    Dimple Sullivan; and

(b)    Pauline Wingrove.

9    The Yilka Talintji Aboriginal Corporation (YTAC) is a registered prescribed body corporate which holds the native title rights and interests of the Yilka native title holders on trust. YTAC has been granted leave to intervene in the s 66B application. The State of Western Australia is the only respondent to the compensation application. Both the State and YTAC oppose the compensation application and the s 66B application.

10    Before turning to the proposed applicant’s submissions and the evidence it relies upon to substantiate authorisation for the purpose of s 66B, I should refer to s 251B and set out some of the applicable principles in relation to that provision and in relation to the burden faced by an applicant in an application made under s 66B.

11    As specified by its statutory note, when s 66B(1) speaks of a person or persons being authorised by the claim group, the provision refers to authorisation under s 251B. That provision is in the following terms:

For the purposes of this Act, all the persons in a native title claim group or compensation claim group authorise a person or persons to make a native title determination application or a compensation application, and to deal with matters arising in relation to it, if:

(a)    where there is a process of decision-making that, under the traditional laws and customs of the persons in the native title claim group or compensation claim group, must be complied with in relation to authorising things of that kind—the persons in the native title claim group or compensation claim group authorise the person or persons to make the application and to deal with the matters in accordance with that process; or

(b)    where there is no such process—the persons in the native title claim group or compensation claim group authorise the other person or persons to make the application and to deal with the matters in accordance with a process of decision-making agreed to and adopted, by the persons in the native title claim group or compensation claim group, in relation to authorising the making of the application and dealing with the matters, or in relation to doing things of that kind.

12    Broadly speaking s 251B of the Act requires that where a process of decision-making for the particular kind of decision in question exists under the traditional laws and customs of the persons in the native title claim group, it must be complied with. Alternatively, where no such decision-making process exists, the claim group must make their decision in accordance with a process of decision-making agreed to and adopted by them.

13    There are two principles of importance and of some relevance to the issues concerning authorisation in this application. Both are conveniently set out by Reeves J at [21] and [22] of Burragubba on behalf of the Wangan and Jagalingou People v State of Queensland [2017] FCA 373 as follows:

21    The proper authorisation of an applicant is of fundamental importance to the conduct of a native title determination application and the rights that flow from the valid registration of such an application under the NTA: Daniel v Western Australia (2002) 194 ALR 278; [2002] FCA 1147 (Daniel) at [11] per French J and Weribone on behalf of the Mandandanji People v State of Queensland [2013] FCA 255 (Weribone) at [36] per Rares J. Among other things, it establishes that the person or persons claiming before the Court to be the applicant has the authority of the native title claim group on whose behalf of the application is being brought to make the application and to deal with all matters arising in relation to it. Indeed, if the Court has any doubt about the applicant’s authority, it has, since the 2007 amendments to the NTA, had the power under s 84D(1)(a) to require a person to produce evidence that he or she is properly authorised as the applicant.

22    The process whereby a native title claim group authorises a person or persons to make an application on its behalf is set out in s 251B (see at [20] above). As has been observed on occasions in the past, the provisions of ss 251B(a) serve to recognise the communal character of the traditional laws and customs that underpin the concept of native title as defined in the NTA: see, for example, Bolton on behalf of the Southern Noongar Families v State of Western Australia [2004] FCA 760 (Bolton) at [43] per French J. I will return to the alternative procedure provided for in ss 251B(b) later in these reasons. However, whether the native title claim group proceeds under s 251B(a) or (b), the authorisation that ensues must be that of the whole of that claim group: see Daniel at [11]–[16] per French J; Landers v State of South Australia (2003) 128 FCR 495; [2003] FCA 264 at [35]–[38] per Mansfield J; Ward v Northern Territory [2002] FCA 171 at [24]–[25] per O’Loughlin J; Lawson on behalf of the ‘Pooncarie’ Barkandji (Paakantyi) People v Minister for Land and Water Conservation for the State of New South Wales [2002] FCA 1517 at [25] per Stone J; and Bolton at [45]–[46] per French J.

14    Next, I turn to the burden of proof. As Rangiah J said in Gomeroi People v Attorney General of New South Wales [2017] FCA 1464 at [45]:

The Replacement Applicant must satisfy the Court on the balance of probabilities that the requirements of s 66B are met: see Qantas Airways Ltd v Gama (2008) 167 FCR 537 at [65], [132]. The central importance of authorisation is a matter that the Court should take into account pursuant to s 140(2) of the Evidence Act 1995 (Cth). The state of satisfaction that is required should not be produced by inexact proofs, indefinite testimony, or indirect inferences: see Briginshaw v Briginshaw (1938) 60 CLR 336 at 362-363.

15    I turn then to the submissions made by the proposed applicant which sought to demonstrate that the members of the proposed applicant were authorised in accordance with the requirements of s 66B. Whether the “claim group” has authorised the proposed applicant to become the applicant draws attention to an initial question as to who is the claim group. Surprisingly, there was some confusion in the submissions made by the solicitor for the proposed applicant as to who the claim group is. At the outset of the hearing, as well as in written submissions provided prior to the hearing, it was contended that the claim group was the “Wati Tjilpi Ku” or otherwise described as the “Senior Wati”.

16    Mr Bates deposed that in the languages of the Central and Western Desert regions, “Wati” refers to a man who has been initiated in traditional law/lore and Dreaming. He stated that under traditional laws and customs, “the Senior Wati are the senior ritual authority holders over all of Central Australia, including the Central and Western Desert Areas of Western Australia” (Senior Wati). Mr Bates explained that there are various levels of Wati, with the most powerful, authoritative, knowledgeable and respected members being called Senior Wati, having been selected and appointed by other Senior Wati to become a Senior Wati. Mr Bates further explained, as I understood it, that the term Senior Wati is also used collectively to describe the group of persons each of whom is a Senior Wati in Central Australia. Each of Mr Bates and Mr Harris is a Senior Wati of the Central and Western Desert Areas of Western Australia, as was Mr B Smith. Mr Harris is a Yilka man but Mr Bates is not. Mr Bates nevertheless claims to be a Yilka native title holder by virtue of his status as a Senior Wati.

17    Contrary to the contentions made at the outset of the hearing that the claim group was the Senior Wati, Schedule A of the compensation application adopts the description of the Yilka native title holders set out in the Yilka Determination with the addition of a paragraph 2(c) as follows:

2.    The holders of the native title rights and interest are:

…

c.    The Wati: who are those people that hold senior ritual authority in the Application Area, irrespective of membership of the Yilka People or Sullivan/Edwards Family.

18    It may be that para 2(c) of Schedule A of the compensation application does not extend the group of persons beyond those specified in the Yilka Determination. That is because the native title holders listed in the Yilka Determination may overlap with the persons listed in para 2(c) because the Yilka Determination claim group already encompasses people that hold senior ritual authority in the Determination Area. Whether that is so was not made clear.

19    After the solicitor for the proposed applicant was taken to the terms of the Schedule A of the compensation application, the position of the proposed applicant was that the claim group was not confined to the Senior Wati but included what was referred to as “the Yilka Sullivan Edwards people”, being a reference to what I have described as the Yilka native title holders.

20    It was then contended by the proposed applicant that the compensation claim group was not directly entitled to the compensation claimed by the compensation application but that the Senior Wati were entitled to receive the compensation on behalf of the claim group. Furthermore, it was said that in accordance with the traditional laws and customs of the compensation claim group the claim group had authorised the Senior Wati as a group to make the compensation application and that Mr B Smith was chosen by the Senior Wati to be the applicant because the process of making a compensation claim under the Act was said to require an individual to be named as the applicant rather than a group.

21    The proposed applicant acknowledged that the compensation claim group has not directly authorised the members of the proposed applicant (Mr Bates and Mr Harris) to be the applicant. It was said that in accordance with the traditional laws and customs of the compensation claim group, once the compensation claim group had authorised the Senior Wati to make the compensation claim, it was for the Senior Wati to choose the applicant and that the Senior Wati had authorised the members of the proposed applicant to be the applicant.

22    However, there is no evidence of the compensation claim group having authorised the Senior Wati to make the compensation claim. The evidence of the proposed applicant is that Mr B Smith was authorised by the Senior Wati to be the applicant and made the compensation claim on behalf of the compensation claim group and that the Senior Wati authorised Mr Bates and Mr Harris to replace Mr B Smith as the applicant. Although never clearly articulated, the proposed applicant’s contention seems to be that although authorisation of the compensation claim group has not occurred by any act of the members of the compensation claim group (the Yilka native title holders) themselves, authorisation may flow directly from the traditional laws and customs of the Yilka native title holders.

23    The evidence of the proposed applicant is that Senior Wati “are the only people with the necessary cultural knowledge and authority to make decisions concerning our culture and country, who may speak for it, and who ha[ve] responsibility for it”. Mr Bates further deposed that people who are not Senior Wati are not authorised to make decisions “about [c]ountry because they do not have the necessary knowledge of traditional laws and customs”. He also stated that “when major decisions must be made about [c]ountry, the Senior Wati come together and meet in person and make the decision after talking to one another” .

24    It may be accepted that a decision about the making of a compensation claim under the Act including a decision as to who may make an application for compensation is a decision “about [c]ountry”. In favour of the proposed applicant, I am also prepared to accept, without finally determining, that an authorisation of the applicant “by the claim group” or “compensation claim group” as contemplated by s 66B(1)(b) and s 251B of the Act need not depend upon an authorising act of the members of the claim group but that the authorisation may instead be directly sourced in the traditional laws and customs of that group.

25    Despite that acceptance, the s 66B application must fail. The proposed applicant has not established its fundamental proposition that the traditional laws and customs of the Yilka native title holders authorise the Senior Wati to authorise Mr Bates and Mr Harris to be the proposed applicant. That is so because the proposed applicant has not established that under the traditional laws and customs of the Yilka native title holders only the Senior Wati are authorised to make decisions about country, which, as I indicated, I accept includes decisions about compensation in relation to country.

26    Evidence to that broad effect was given by Mr Bates. I do not accept the contention of the YTAC that, read at its highest, Mr Bates’ evidence should be understood as only saying that the authority of Senior Wati is limited to “impacts to country, law and sites” by which I understand the submission to say that the authority of the Senior Wati is limited to the protection of country from acts which may jeopardise a place of interest to the Senior Wati. Fairly read, the evidence of Mr Bates was not so confined. It was broad and relevantly unqualified and clearly asserted that only Senior Wati are authorised to make decisions about country.

27    Beyond asserting that broad proposition, in his affidavit in reply Mr Bates also deposed that because of their seniority, Senior Wati are the ultimate final decision-makers “about our culture”. He also said that “when it comes to decisions about things such as compensation, then under our traditional laws, customs, culture and country, only the Senior Wati have the authority to make a decision”. In support of his statement that compensation has always been under the authority of the Senior Wati, Mr Bates deposed that for thousands of years it was always the Senior Wati who would make decisions about the compensation to be provided to people who had something taken from them by others or had lost something.

28    Mr Harris agreed with the content of Mr Bates’ affidavits.

29    In oral submissions made on behalf of the proposed applicant, reliance was also sought to be placed on an affidavit made by Dr Joseph Rickson dated 20 November 2020. Dr Rickson is an anthropologist. His affidavit includes a report made by him titled “Traditional Decision-Making Authority of the Wati with respect to the Western and Central Desert People of Western Australia”. That affidavit was filed by the applicant with the originating application presumably to support the proposition that Mr B Smith had been validly authorised as the applicant.

30    An objection was taken by YTAC to the proposed applicant’s attempt to rely on Dr Rickson’s affidavit. The basis for that objection was that no prior notice was given by the proposed applicant of any intent to rely upon Dr Rickson’s affidavit in support of the s 66B application. I accept that there was no prior notice and that the absence of prior notice has denied YTAC a proper opportunity to address the content of Dr Rickson’s report including through providing its own anthropological evidence. In these circumstances, it would be prejudicial and unfair to permit the proposed applicant to rely on Dr Rickson’s report and I therefore uphold the objection made by YTAC. I should say that in any event and having considered the content of Dr Rickson’s report, even if I had taken it into account, my conclusion that the proposed applicant has not discharged its burden of demonstrating that it is authorised would not have been altered.

31    Neither Mr Bates nor Mr Harris were cross-examined. They are both Senior Wati and Mr Bates is one of the most senior of the Senior Wati. There is a basis for thinking that they are able to speak about traditional laws and customs with great authority. Nevertheless, their evidence was general, unparticularised and although affidavits in reply were made by both Mr Bates and Mr Harris, neither deponent relevantly addressed the detailed evidence relied upon by YTAC as to the traditional decision-making processes used and extensively applied by the Yilka native title holders to which I shall shortly turn.

32    It is the unchallenged evidence called by YTAC and in particular that given by Mr O’Dell, Mr Mrvelj and Mr Byfield which largely precludes the proposed applicant from discharging the burden or onus which they bear. That evidence strongly contradicts the evidence of the proposed applicant that only Senior Wati are authorised to make decisions about country. By reference to observations made by the deponents of actual decision-making processes adopted and applied at numerous meetings previously held by the Yilka native title holders, the evidence relied upon by YTAC is that in accordance with traditional laws and customs, important decisions are made by the group of persons whose rights and interests are ultimately affected by the decision in a process where the views of senior persons or those persons most affected will be respected. Mr O’Dell referred to that process as “group consensus”. The YTAC contended that as a decision to bring a compensation claim is a decision that affects the rights and interests of the Yilka native title holders as a group, traditional laws and customs require the involvement and authorisation of those persons in such a decision.

33    Mr O’Dell is the Principal Lawyer of Central Desert Native Title Services Limited. Central Desert performs the functions of a representative body under Part 11 of the Act in respect of the Central Desert region of Western Australia which includes the Yilka Determination Area. Mr O’Dell has been employed in that position since 2007 and was previously a principal legal officer in similar roles. He has over 20 years of direct experience working in the area commonly referred to as the Western Desert Cultural Block (WDCB). He was the solicitor on the record for the Yilka claimants in Murray. In total he has 17 years of experience working with the Yilka native title holders.

34    As to decision-making by the native title holders within the WDCB including the Yilka Determination Area, Mr O’Dell relevantly deposed:

[9]    I have attended many hundreds of meetings/gatherings in the central, desert region of Western Australia over the last 25 years. From my observations and experience and from speaking to many hundreds of people with traditional connection to the area, the traditional process, how important decisions are made depends on, the interplay of numerous variables such as; the subject matter and location of the decision; the age and authority of those present; whose 'country' (ngurra) it involves and indeed whether ultimately the 'correct' people are at the meeting. I have attended many meetings where the absence of a single person, usually because of their particular knowledge or particular association with a location, for example they were born there, has meant no final decision was possible.

[10]    Further, final decisions are ultimately made by 'consensus'. Getting to this endpoint often involves a process of reconciling the variables noted at [9] above. It usually involves talking about a proposed decision within and between groups and, for important decisions, may be a process that occurs often and over time. Further difficult decisions often go through several interrelated conversations and people who are identified by the meeting as senior/significant decision makers for that decision, will be listened to as having more authority on certain questions. In my experience however, it is always a group process that arrives at the final consensus decision on any matter being discussed. The composition of the relevant group in such a process, is determined as being those who are ultimately affected by the decision.

[11]    The above group decision-making process, from my observations and experience, is how important decisions regarding matters within the Yilka Determination area have been made and continue to be made. Within the Yilka Common Law Holders, the more significant 'elders' being those ladies and men whose country 'ngurra' the decision relates to, are given prominence and weight in the decision-making process. However, ultimately a group consensus outcome is sought. Importantly where a decision is made regarding a site or place of significance, men with cultural authority [wati] are given prominence.

[12]    Unless a site is of regional significance, the wati given prominence come from within the group of Yilka Common Law Holders (local wati). Where a site is of regional significance and the decision includes a matter that will impact on that site, then the local wati will consult more widely with senior wati from the broader WDCB. This will be done privately and away from the broader cohort of Yilka Common Law Holders. I am aware that there is one such site within the Yilka Determination area, being the area located around the site known as 'Pilpirr'. This area is also given special 'protected area' status under section 19 of the Aboriginal Heritage Act 1972 (WA) (Pilpirr Protected Area). Attached at "MOD3'' is a map of the Pilpirr Protected Area.

35    Mr O’Dell further deposed that the Yilka Determination was made following a contested trial and the hearing of both lay and expert evidence. He referred to the fact that the decision-making process regarding the authorisation of the Yilka applicant in bringing the Yilka claim was the subject of some challenge by the State in Murray on the basis that that decision had not involved Senior Wati. Mr O’Dell referred to and relied upon the finding of McKerracher J on that issue at [733] of Murray as follows:

The position of the Sullivan applicant will be dealt with separately, but the State raises other issues with regards to authorisation. First, it raises concerns about (lack of) authorisation by senior wati. As it is, the Yilka applicant makes the submission that the evidence in the case makes clear that the concerns and rights of relevant senior wati is focussed on maintaining the integrity of particular significant places. The people whose ngurra the country is possess the right to speak for the country generally and make decisions about it, subject only to reserving ultimate authority to the senior wati in the event that a place of interest to them may be in jeopardy. Absent any suggestion that the bringing of a native title claim is likely to create such jeopardy, there is no need under traditional law and custom (which are the basis of the authorisation process) for the senior wati to specifically authorise the claim.

36    Mr O’Dell stated that the conclusion reached by McKerracher J fully accorded with his own observations and experience of the traditional decision-making processes of the Yilka native title holders generally and the authorisation process specifically.

37    Mr Mladen Mrvelj is an anthropologist and linguist. He was previously employed by Central Desert as an in-house anthropologist during the period from 2012 to 2016 during which time he had some involvement with matters relating to the Yilka native title claim and later with YTAC. That involvement included undertaking research, conducting cultural mapping and clearances and providing heritage advice. Since 2016 he has continued working with YTAC and is currently employed as Operations Manager and Heritage Manager at YTAC. He has also worked in other areas of the WDCB. By reference to his experience including his attendance at various meetings, Mr Mrvelj relevantly deposed in relation to the decision-making processes of the Yilka native title holders that:

[22]     In my experience with the Aboriginal people of the Central Desert, including the people of the Yilka Area, decisions are made in accordance with their traditional laws and customs. This generally involves a group of relevant individuals being called together for a meeting on country to discuss the matter. The relevant people to be invited to the meeting are usually determined by the nature of the matter to be discussed.

 [23]     This may include:

(a)    senior and/or junior members of a particular family group (or someone to speak on their behalf) who may hold native rights and interests in the Yilka Area;

(b)    senior and/or junior wati from the Yilka Area (see below at paragraph 28);

(c)    senior and/or junior wati from the wider Central Desert areas (see below at paragraph 28); or

(d)     other stakeholders or observers from time to time.

[24]    In accordance with the traditional laws and customs, senior wati must be consulted about all men's business and anything which may affect or has affected sacred sites. If the matter is very significant, it will usually require consultation with senior wati (to the extent they can be contacted) who are recognised and respected by the people of the Yilka Area.

[25]    In order to come to a decision, in my experience it is not necessarily a matter of having a vote or having a certain number of people or wati in agreement about an issue but that the most important senior people have been consulted and have decided. It is done a bit differently to what we may be used to.

38    Evidence was also given on behalf of YTAC by Patrick Byfield. Mr Byfield is a Director and Member of YTAC and the Chairperson of the Yilka Talintji Law and Culture Committee. He is a Senior Wati and a Yilka man. Most relevantly he stated:

32.    In our culture, the most senior wati are the decision makers for things to do with heritage, sacred sites and secret men’s business, so it is important to have the relevant wati at meetings where big things are going to be talked about. However, senior wati can’t come in and make decisions about other people’s land which they have nothing to do with. It is the local senior wati who make decisions about the land which they are responsible for.

33.    Another thing to say is that this Application is about compensation money so its not only something for wati to talk about and decide, it also needs to be talked about with people like HM [Harvey Murray, the Chairperson of YTAC] and native title holders. It is not the case that senior wati come in from outside areas and make decisions about Yilka country and compensation money without talking to anyone at Yilka Talintji [YTAC].

39    It is apparent then that there is conflicting evidence before me as to whether or not under the traditional laws and customs of the Yilka native title holders, the Senior Wati are the only persons who may authorise the bringing of a claim for compensation. I am inclined to think that Mr Bates’ evidence that Senior Wati are authorised to deal with compensation is only evidence that under the relevant traditional laws and customs Senior Wati were authorised to adjudicate claims for compensation rather than authorised to determine whether or not a claim for compensation may be made or agitated. Furthermore, my inclination is to prefer the evidence relied upon by YTAC because of its detail and the fact that it is based on observations of traditional decision-making processes rather than simply assertions as to the traditional laws and customs in question.

40    However, I need not come to a final view. I am reluctant to do so given that the evidence in conflict has not been tested by cross-examination and a more comprehensive study of the relevant traditional laws and customs such as that which would likely occur at a trial has not been pursued on this interlocutory application. It is sufficient to say that I am not satisfied that I should accept the proposed applicant’s contention as to the applicable traditional laws and customs in question.

41    As the proposed applicant carries the burden or onus of persuasion, my non-satisfaction must result in the dismissal of the s 66B application on the basis that the proposed applicant has failed to establish that the members of the proposed applicant are authorised by the Yilka native title holders to make the application and to deal with matters arising in relation to it.

42    Having reached that view, it is not necessary for me to consider the other bases relied upon by both the State and YTAC which contested the validity of the process undertaken by the Senior Wati to authorise the proposed applicant in accordance with traditional laws and customs as asserted by the proposed applicant.

43    For those reasons, I will make an order dismissing the s 66B application.

44    Given the limitation imposed on the making of an order as to costs by s 85A of the Act, I presume that no order for costs is sought and accordingly no such order will be made.

Associate:

Dated:    19 May 2022