Anderson v State of Western Australia

REASONS FOR JUDGMENT ON MOTION TO REMOVE APPLICANT 1 On 10 July 1997, an application for a native title determination was lodged with the Registrar of the National Native Title Tribunal ("the Tribunal"). The application named Cedric Anderson and others as applicants on behalf of the Ballardong People. The application covers an area in excess of 114,000 square kilometres in the wheatbelt areas of Western Australia. It includes Dalwallinu in the north west portion of the claim area, Wagin in the south, Lake King in the east and Southern Cross and Koolyanobbing in the north eastern section. The application became a proceeding in the Federal Court on 30 September 1998 following the 1998 amendments to the Native Title Act 1993 (Cth). 2 On 5 July 2000, the application was amended by combining it with five other applications. The named applicants were originally some sixteen persons, one of whom was Robin Yarran. It included also Cedric Anderson and Donald Collard. The representative bodies for the area covered by the application were the Noongar Land Council and the Aboriginal Legal Service of Western Australia (Inc). The Noongar Land Council was instructing the solicitor on the record for the applicants. The combined claim in Ballardong was referred to the Tribunal for mediation on the completion of notification. Although notification on the pre-combination claims had been completed, notification pursuant to s 66A was required in respect of the combined application. At this stage however the applications are still not currently in mediation. Two of the pre-combination applications had been referred to mediation pursuant to s 72 of the Act as it stood prior to the 1998 amendments. 3 On 21 September 2000, orders were made consolidating the Bullenbuk-Noongar claim, WAG6097 of 1998 with the Ballardong claim, the Wom-ber claim, WAG6130 of 98 and the Ngadjunngarra claim, No WAG6221 of 98 to the extent of their geographic overlaps with the Bullenbuk-Noongar claim. 4 On 15 April 2002, a motion was filed, purportedly on behalf of the applicants, to remove Robin Yarran as a named applicant for the Ballardong native title determination application. It was proposed that Justin Reece John Kickett be included as a named applicant in lieu thereof. Leave was also sought to amend the application. The motion was supported by an affidavit of Allan Robert Jones, another of the named applicants. It was also supported by an affidavit of Lynette Pauline Lund, the Native Title Manager with the South West Aboriginal Land & Sea Council Aboriginal Corporation (SWAL&SC) which was recognised under the Act as the native title representative body for the south west, in place of the Noongar Land Council, with effect from 1 February 2002. Affidavits of Mr Kickett and a number of the other named applicants were also filed. Rather oddly, all the affidavits were exhibited to Mr Jones' affidavit. 5 On 15 April 2002, the motion was made returnable for mention and directions on 23 April. The directions hearing was otherwise adjourned to 15 July. The SWAL&SC was joined as a respondent. On 23 April, the motion was set down for hearing on 17 May and the applicants were required to give notice of the hearing date and of associated directions to Robin Yarran on or before 24 April. On 17 May, the motion was further adjourned to 9 October 2002. The SWAL&SC was directed to file and serve on or before 9 September any affidavit it sought to rely on on the question whether it has authority to be appointed as agent for the claim group. Applicants or claim group members asserting that the Council did not have authority to represent them and/or that some other body did were to file and serve affidavits on or before 23 September. The question of representation of the group and of Mr Yarran's authority was referred to mediation. This was supplemented by an order made on 4 July 2002 that the referral to mediation so made was made pursuant to s 53A of the Federal Court Act 1976 (Cth). A direction was also made that the mediator was to be nominated by the District Registrar on the recommendation of the Tribunal. 6 On 9 October 2002, the hearing of the motion was further adjourned to 10 December at 10.15am. The applicants were to file and serve any further affidavits they relied upon in support of the application by 10 November 2002. Mr Yarran was to file and serve any affidavits in reply by 29 November. 7 The applicants had filed and served the affidavits already referred to in support of the motion on 15 April 2002. No further affidavits were filed pursuant to the direction of 9 October. Mr Rynne, appearing on behalf of the applicants, instructed by the SWAL&SC, has accepted that on the present state of the evidence, the application to remove Mr Yarran could not succeed. Mr Rynne informed the Court that the SWAL&SC has laid out a process which will attempt to resolve the problem between Mr Yarran and other applicants consensually. If at the end of that time the process does not produce a result, then nothing more would be able to be done. Indeed, the applicants might have some difficulty in prosecuting their application any further. He moved for a further adjournment of the motion on the basis that ultimately if proceedings were to be conducted in this Court they would be done with the least possible disruption. Mr Yarran asked that the motion be dismissed recognising as he did so that this would not prevent a further motion being brought. 8 It is not necessary for present purposes to revisit the general discussion of s 66B of the Act and the evidentiary requirements for applications under that section which were considered in Daniel v State of Western Australia [2002] FCA 1147. What must be shown before an order can be made removing an applicant under the section is: