Adnyamathanha People v State of South Australia

• establishment costs: a one off payment of $20,000 to Ms Anderson upon registration of the agreement in accordance with the provisions of Part 9B of the Mining Act (SA) 1971, reflecting her costs and those of Aboriginal persons of a legal, travel and administrative nature relating to formation of the agreement (Clause 9);
  • royalty payments (Clause 8). 7 Clause 8.1 of the Agreement provides for a royalty payment to be made, on a six monthly interval, based on 0.5% of the dollar value of minerals produced and sold following the commencement of commercial mining production. Clause 8.2 and 8.3 of the Agreement then provide: "8.2 Heathgate Adnyamathanha SC97/1 Beverley Fund 8.2.1 A Heathgate Adnyamathanha SC97/1 Beverley Fund ('the Fund') is to be established and the Royalty Payment under Clause 8.1 is to be paid into the Fund. 8.2.2 The Fund will be administered by a Board of Trustees ('the Trustees') to be appointed by the Native Title Claimant for and on behalf of the Adnyamathanha people. The Fund will be established in a bank account nominated by the Trustees. 8.2.3 The Trustees will record transactions, keep proper financial and accounting records and be audited according to Australian accounting standards. 8.2.4 Where appropriate the services of an accountant or financial adviser to assist in the prudent management of the Fund may be required. 8.2.5 Copies of audits and reports shall be submitted to the Native Title Claimant and to the Advisory Committee on a regular basis. 8.2 Fund Distribution It is the intention of the parties that the Fund will be used for the following purposes: 8.3.1 to cover Fund administration costs; 8.3.2 to provide for the long term training of Aboriginal people by way of scholarships, bursaries, traineeships, apprenticeships or other training; 8.3.3 retained in the Fund to accrue interest; 8.3.4 used for the benefit of Aboriginal people in community projects and social welfare programs benefiting Aboriginal people; 8.3.5 such other matters as the Trustees determine."

8 The Agreement recognises that there are other native title claims which affect that part of the claim area in respect of which Heathgate then proposed to mine. Clause 12 deals with that issue. It includes an acknowledgment by Ms Anderson that Heathgate intends to enter into agreements with each of the other registered claimants upon terms and conditions substantially similar to those in the Agreement, and to consolidate some or all of the individual agreements into an omnibus agreement. Clause 12.3 provides that Heathgate's obligations to make the payments, inter alia, in cl 7, 8 and 9 stand provided no further native title claimants register claims which affect the proposed mining site, and cl 12.4 provides for the consequences of any additional claim or claims becoming registered in respect of that part of the claim area over which Heathgate proposed to mine. It provides: "12.4 In the event of an additional claim or additional claims becoming registered in respect of the Site, Heathgate shall be entitled to adjust the amount of payments set out in Clauses 7, 8, 9 and 10 such that the total of all payments to be paid under Native Title Agreements in respect of the Site do not exceed: 12.4.1 in the case of Administration Payments -$80,000; 12.4.2 in the case of Royalty Payments - 2.0%; 12.4.3 in the case of Establishment Payments - $80,000.00; and 12.4.4 in the case of Community Payments - $20,000.00; The Native Title Claimant shall in this event be entitled to pro rata proportion of the total amount of these payments. 9 Clauses 13 and 14 of the Agreement provide for the eventualities of the claim for native title determination by Ms Anderson succeeding or failing. If a native title claimant is determined by the Court to be the native title holder of the claim area to the exclusion of Ms Anderson, then Ms Anderson ceases prospectively to be entitled to any payments under the Agreement, and moneys payable under the Agreement then become payable to the native title claimant. In that event, by reason of the 1998 amendments to the NT Act, such payments in my view would become payable to the named applicants for the native title claim group as determined. On the other hand, clause 14 of the Agreement provides that, if it is determined that native title does not exist over the claimed area, or at least over that part of it which relates to the area to be mined by Heathgate, or has been extinguished in respect of that area, Heathgate agrees to maintain its payment obligations under the Agreement notwithstanding such extinguishment. 10 The Heathgate Adnyamathanha SC97/1 Beverley Fund to be established under cl 8.2.1 of the Agreement is provided for in a deed dated 24 March 2000 called the Adnyamathanha Community Trust (the Trust). The trustees were, and are, Flinders Trustees Ltd (Flinders Trustees), Ms Anderson and her son Mr Anderson. Flinders Trustees is an independent corporate trustee. The Trust was established for the purposes of relieving poverty and such other charitable purposes as the trustees may from time to time confirm concerning Aboriginals (defined to mean the Adnyamathanha People). Its purposes included: "4.3 To assist Aboriginals to have full traditional use and traditional enjoyment of the Adnyamathanha lands. … 4.6 To facilitate and assist in any native title claim concerning the Adnyamathanha lands which the Trustees determine will facilitate any of the purposes set out in this Deed. …" The trust fund is defined to include any moneys accepted by the trustees upon the terms of the trust and includes the Heathgate Adnyamathanha SC 97/1 Beverley Fund, that is royalty payments made from time to time under the Agreement. 11 Clause 7 of the Trust provides for the fund and its administration to be vested in the trustees subject to certain specified terms. Clause 7.1 gives the trustees an absolute and uncontrolled discretion in the exercise of the authorities and powers vested in them. Clause 7.7.2 provides: "Except in relation to a breach of trust knowingly or willfully [sic] committed by a Trustee, a Trustee is entitled to be indemnified out of the Fund against all liabilities incurred by a Trustee as trustee of the Trust." Clause 8 provides for the removal and appointment of a trustee in accordance with the law for the time being in force in South Australia. The trustees' powers are specified in cl 10 of the Trust. They include the power to establish arrangements for all or part of the fund to be preserved for future use by the Adnyamathanha community, and relevantly for present purposes: "10.1.15 to provide for and pay the legal and other costs (whether direct or indirect) associated with any Aboriginal person conducting a native title claim; 10.1.16 to act on the opinion or advice of or information obtained from a financial adviser, accountant, barrister, solicitor, valuer, surveyor, broker, auctioneer or other expert but the Trustees are not responsible for any loss, depreciation or damage occasioned by acting or not acting in accordance with that opinion, advice or information. … 10.1.20 to institute and defend proceedings at law and to pursue them to their final determination or compromise as the Trustees think advisable." 12 The trustees through Ms Anderson and Mr Anderson believe that it is appropriate to expend moneys in the Trust Fund to pay the costs and expenses incurred in prosecuting the native title claim, because it is in the interests of the Adnyamathanha People to establish the native title claim. 13 I note that a similar agreement was entered into between Gordon Coulthard and Heathgate arising from his status as a registered native title claimant in matter SC 94/1, including the establishment of the Flinders Ranges Adnyamathanha Community Purposes Charitable Trust, with trustees including an independent corporate trustee Sturt Street Accountants Pty Ltd as well as Gordon Coulthard and others. 14 Despite the present nine applicants having joined as authorised persons to maintain the principal application, there is obviously some discord amongst them. Ms Anderson, one of the applicants is now separately represented, as is Mr Anderson in matter SG 6002/98. The applicants Gordon Coulthard, Angelina Stewart, May Buzzacott, Gertie Johnson, Stuart Patterson and Beverley Patterson are also separately represented. On the present issue, to which I refer below, they generally support the position of Ms Anderson. 15 Vincent Coulthard (Mr V Coulthard) andMark McKenzieare also separately represented. Mr V Coulthard is chairperson of the Adnyamathanha Traditional Land Association (Aboriginal Corporation) (ATLA), a body incorporated on 12 February 2001 under the Aboriginal Councils and Associations Act 1976 (Cth). The purpose of ATLA is to benefit the community of Adnyamathanha People. 16 The objects of ATLA include being a registered native title body to manage such of the native title rights and interests of the native title claim group called the Adnyamathanha People may be claimed, or may be held by it following any determination of native title in its favour, including holding money (including money received by way of compensation) or otherwise considered payable in relation to the native title rights and interests of the native

title claim group) on trust in accordance with a trust deed to be approved under cl 7(5) of its Constitution, and pending determination of native title claims to act as trustee under any such Trust. 17 On 16 March 2001, ATLA resolved to direct its chairperson to instruct its legal representatives to take all reasonable steps to restrain mining companies from distributing funds to individual members of the Adnyamathanha People, as it claimed it wished to secure those payments for the benefit of the Adnyamathanha People as a communal group. The chairperson was directed to take all reasonable steps to ensure that such moneys to which the Adnyamathanha People should be entitled are paid into, and held in, the Adnyamathanha Trust (then in the process of being established). On 11 August 2001, at a special general meeting of ATLA, it voted to remove Ms Anderson and Mr Anderson as applicants in the two principal proceedings. 18 The decision of ATLA was duly implemented. By notice of motion in this proceeding made on 21 August 2001 and amended on 19 June 2002 orders were sought in effect to remove Ms Anderson as an applicant under s 66B of the NT Act and to have her removed as a trustee of the Trust. The notice of motion is in the names of Vincent Coulthard and Mark McKenzie and others, none of whom are the named applicants in this application, for orders pursuant to s 66B to replace the named applicants with eight different applicants but including Vincent Coulthard and Mark McKenzie. One of the applicants on the motion is Janet Mary Coulthard. She seeks orders, inter alia, removing Flinders Trustees and Mr Anderson as trustees of the Trust (but not Ms Anderson) and that they be replaced by ATLA. The motion also seeks orders that Flinders Trustees and Mr Anderson be restrained from dealing with or participating in the affairs, property business or administration of the Trust including dealing with its moneys, and that Heathgate pay to ATLA as trustee for the Adnyamathanha People the royalty payments agreed to be paid by it pursuant to the Agreement (and two other like agreements) It claimed interlocutory relief, restraining the trustees of the Trust (and one other trust, the Flinders Ranges Adnyamathanha Community Purposes Charitable Trust) from dealing with moneys the subject of the respective trusts. Those notices of motion, including the applications for interlocutory relief, have not yet been heard.

19 On 15 January 2002 ATLA wrote to Heathgate informing it of the resolution of ATLA of 16 March 2001 to remove Ms Anderson as an applicant in the proceeding, and threatened to call it to account if it paid any further royalty payments or other payments under the Agreement to Ms Anderson, notwithstanding its terms. In the circumstances, it is hardly surprising that Heathgate applied by interpleader summons on 13 February 2002 in the District Court of South Australia for directions as to how it should continue to make payments under the Agreement. An interim order was made that the payments payable under the Agreement be paid to the District Court. Subsequently that order was vacated on the basis that the payments so made would be made to this Court, and on 19 June 2002 I made an order that the royalty payments due by Heathgate under the Agreement be paid into this Court. That order was not made as a result of my consideration of the motion of 21 August 2001 on an interlocutory basis, but as a matter of temporary practicality. 20 There are now substantial funds paid into the Court. At present, neither Ms Anderson nor Mr Anderson have access to those funds for the purposes of resisting the application to have them removed as trustees or in any other respects. The information suggests that Vincent Coulthard and those with whom he is associated, and ATLA, is funded in its motion by the relevant native title body, namely the Aboriginal Legal Rights Movement. They oppose the funds held being used by Ms Anderson and by Mr Anderson for the purposes of resisting their motion for orders under s 66B of the NT Act or in any other respects. 21 Ms Anderson and Mr Anderson believe the most effective use of the funds held by the Trust (now held in Court) is to meet the costs associated with the taking of such action as may be necessary to resolve the general discord amongst the Adnyamathanha People. They believe that includes having access to the funds in the Trust to secure legal advice and representation to resist the application under s 66B of the NT Act and the other orders sought in the motion. 22 By resolution of the trustees of the Trust, including the authorised officer of Flinders Trustees, it was resolved on 19 July 2002 that: "1. Resolutions 1.1 The trustees determine that it is a proper use of the fund (as defined in section 1.1 of the Adnyamathanha Community Trust Deed dated 24 March 2000 ('the deed')), to apply the fund to meet the legal costs and expenses incurred by Flinders Trustees Limited ACN 081 567 204 ('Flinders Trustees') as trustees of the Adnyamathanha Community Trust and by Thathy (Geraldine) Anderson ('Mrs Anderson') and Michael Anderson ('Mr Anderson') as trustees of the Adnyamathanha Community Trust and as applicants for native title in Federal Court actions numbered 6001 and 6002 of 1998. 1.2 The trustees resolve to apply the fund to meet the legal costs and expenses incurred by Flinders Trustees as trustees of the Adnyamathanha Community Trust and by Mrs Anderson and Mr Anderson as trustees of the Adnyamathanha Community Trust and as applicants for native title in Federal Court actions numbered 6001 and 6002 of 1998. 1.3 The trustees authorise two of the trustees, one of whom shall be Flinders Trustees, to approve any payment of the fund in accordance with paragraph 1.2." 23 Mr V Coulthard asserts, including on behalf of ATLA, that it would be against the wishes of the Adnyamathanha People to allow the trust money to be used for the purpose of legal representation by Ms Anderson or Mr Anderson to oppose the decision of the community as reflected in the ATLA resolutions, as it would not be a proper purpose for the use of the money under either the Agreement or under the Trust. 24 It is plain that the applicants in the principal proceeding are no longer a cohesive group. There are at least three separate groups. The evidence before me indicates that the Adnyamathanha People as a community may also be divided. That remains to be seen. Ms Anderson and Mr Anderson claim that the existing applicants are the proper and authorised applicants to maintain the principal applications and that ATLA is not authorised to represent, nor is it properly representing, the interests of the Adnyamathanha People. They claim that the decision-making processes in ATLA are flawed, both procedurally by virtue of the way in which meetings have been conducted, and substantively because they do not represent decisions made as to who should be the authorised persons to maintain the current application for a determination of native title in accordance with s 251B of the Act. Those allegations are of course disputed by Mr V Coulthard on behalf of ATLA and the putative substituted applicants. Mr V Coulthard for his part makes significant allegations about the way in which Ms Anderson and the other trustees of the Trust have conducted the Trust and have applied the moneys received under it. 25 However one views the respective rights and wrongs of the claims, and there is direct conflicting evidence as to those matters, in my view in the exercise of my discretion I decline from interfering with the trustees of the Trust fulfilling their functions, apparently in accordance with their bona fide intentions of doing so. Those decisions include a decision made by trustees of the Trust including the corporate trustee as an independent trustee in the terms referred to above. Although it may be arguable, and it is clearly a contentious issue, as to whether Ms Anderson should be removed as an authorised person for the purposes of maintaining the principal application, that is not directly relevant to the present issue. It is whether the Court should permit the trustees to make decisions about the application of the monies held in the Trust, at least in so far as those monies represent monies paid to the Trust by Heathgate pursuant to the Agreement. 26 I do not propose to go into a detailed analysis of the affidavit evidence relied upon by the parties. As I have noted, there is significant evidence from one side suggesting that ATLA has resolved to remove Ms Anderson as a claimant in application SG 6001/98 and Mr Anderson as a claimant in application SG 6002/98. If it were necessary to do so, I would conclude that there is a serious question to be tried as to whether their status as claimants will be maintained when the motions in each action under s 66B of the NT Act are heard and determined. There is on the other hand significant evidence from Ms Anderson's side that the ATLA resolutions are themselves flawed, and additionally that its resolutions may not represent the views of the Adnyamathanha People expressed in accordance with s 251B of the NT Act. I cannot resolve those issues on this application. I note further that the solicitor for Ms Anderson and Mr Anderson has deposed to having the view that their opposition to the motions under s 66B is not irresponsible, and that they have a reasonable basis for resisting those motions. Consequently, this is not a case where it is clear that the application of resources in resisting those motions would clearly be inappropriate. 27 The question of whether Flinders Trustees and Mr Anderson should be removed as trustees of the Trust has also not yet been determined. Again, there is conflicting evidence as to whether the trustees of the Trust have properly conducted the affairs of the Trust to date, including whether they have maintained proper records on its behalf. The inspection carried out by independent accountants on 7 March 2002 raised some issues as to the trustees' compliance with all statutory and regulatory requirements. On the other hand, Ms Anderson

has deposed at some length to the source and application of the funds held in the Trust. The written submissions made by the solicitors for Mr V Coulthard and others in response indicate some trenchant criticisms of Ms Anderson's (and the trustees) administration of the funds by the Trust in the light of her affidavit. I am in the circumstances prepared to assume that Mr V Coulthard has made out a serious question to be tried that some grounds exist for the removal of the trustees of the Trust. I am not to be taken as finding that any such grounds have been made out on the balance of probabilities. I do not do so. It would not be appropriate to do so in the light of the conflicting evidence. Moreover, I do not find that the trustees to the present time have applied the funds held in the Trust in any way inconsistent with what they believed in good faith was an appropriate application of those funds. Whether any such facts are ultimately made out will be determined only after a full hearing of the evidence. 28 In my judgment, notwithstanding the views I have expressed as to the existence of serious questions to be tried on the issues discussed above, there is not at present any sufficient reason shown to exercise my discretion so as to prevent the trustees of the Trust from continuing to act as trustees of the Trust for the time being. That includes permitting the trustees to give effect to the resolution of 19 July 2002 referred to above. Their duties as trustees are clear. If they abuse them, they may be called to account. At present, ATLA by letter of 15 January 2002 has forced Heathgate effectively to withdraw the direct payment of funds to the Trust as contemplated by the Agreement. If the trustees are found to have acted in breach of the duties as trustees, they can be called to account. There is nothing to show that Flinders Trustees at least would be unable to meet any liability which might then arise. I do not by that observation intend to convey one way or another that it might be vulnerable to such a claim. The parties represented by Mr V Coulthard should not, however, gain the benefit of effectively freezing out the trustees from their role, by the letter to Heathgate of 15 January 2002, where it is not clear that the trustees have acted, or are likely to act, in breach of the Trust and where it is not clear that the assets of the Trust might be placed beyond reach or improperly dissipated without the beneficiaries having any meaningful recourse to the trustees. 29 I am also not sufficiently persuaded that the proposed expenditure of the funds to resist a disputed application to alter the native title claimants is so outside the scope of the Trust as to be unauthorised. That may be a matter for the trustees. If they resist the

Applications under s 66B of the NT Act successfully, their views as to who is properly representing the Adnyamathanha People may prove warranted and the use of the funds in the Trust for that purpose justified. Ultimately, they may be called to account if their judgments as to how funds are expended are wrong and actionable. If they act beyond their powers, or exercise their powers in bad faith, then they may be called to account. I am not prepared to accept, in the absence of cross-examination and without the benefit of seeing and hearing those witnesses, that their judgments are being made in bad faith, particularly as the trustees include an independent corporate trustee. 30 In my discretion, therefore, I propose to allow the trustees of the Trust to give effect to the trustees' resolution to be implemented to the extent to which there are funds in Court held by the Court or in accordance with its directions in terms of the proposed minutes. I accordingly propose to order that, so long as the trustees of the Trust maintain their resolution of 19 July 2002 the funds held by the Trust may be applied:

• to meet the proper legal costs and expenses incurred by Ms Anderson as a named applicant for native title of and incidental to the notice of motion dated 21 August 2001 as amended on 19 June 2002 seeking, inter alia, her replacement as a named applicant in matter 6001 of 1998; and · to meet the proper legal costs and expenses incurred by Mr Anderson as a named applicant for native title of and incidental to the notices of motion dated 21 August 2001 as amended and filed in action 6001 and 6002 of 1998 seeking, inter alia, his replacement as a named applicant in action number 6002 of 1998; and · to meet the proper legal costs and expenses incurred by Ms Anderson and Mr Anderson of and incidental to this application. I require the resolution to be confirmed by affidavit of the trustees of the Trust in view of the time elapsed since the resolution of 19 July 2002. Upon the filing of a further affidavit to that effect, I direct that the moneys paid into Court in the circumstances set out above may be paid out within five business days of the lodgment with the Registrar of a request to pay the proper legal costs and expenses pursuant to this order, provided it is accompanied by the written authorisation of at least two of the trustees, one of whom shall be Flinders Trustees, together with a copy of the invoice or other document which is the subject of the request for

that payment, to the extent of the moneys presently paid into Court by Heathgate under the Agreement. I consider such the requests should not be made more often than once per month. Needless to say, proper accounts of the recept and application of any such funds should be made and preserved.

I certify that the preceding thirty (30) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mansfield.

Counsel for Michael Anderson & Geraldine (Thathy) Anderson: Mr JM Cudmore with Mr JA Cosoff

Solicitor for Michael Anderson & Geraldine (Thathy) Anderson:: Cosoff Cudmore Knox

Counsel for Gordon Coulthard, Angelina Stewart, May Buzzacott, Gertie Johnson, Stuart Patterson & Beverley Patterson: Mr J Bolton

Solicitor for Gordon Coulthard, Angelina Stewart, May Buzzacott, Gertie Johnson, Stuart Patterson & Beverley Patterson: Boltons Lawyers

Counsel for Vincent Coulthard & Janet Coulthard & Ors: Mr M Steele

Solicitor for Vincent Coulthard & Janet Coulthard & Ors: Hunt & Hunt

Counsel for Flinders Trustees Ltd: Mr N Page

Solicitor for Flinders Trustees: Neil Whitehall Page

Counsel for the State of South Australia: Mr B Grigg

Solicitor for the State of South Australia: Crown Solicitor of South Australia

Date of Hearing: 22 July 2002

Date of Judgment: 18 March 2003