Anderson v State of Western Australia

REASONS FOR JUDGMENT Introduction 1 By a motion filed on 13 July 2007 in these proceedings orders are sought by members of the native title claim group for the replacement of the existing applicants by a new set of applicants. The effect of the replacement is to remove five of the named applicants, two of whom are deceased. One of the deceased, RY, died after the native title claim group agreed to his removal as an applicant. One current named applicant has expressly consented to his removal and there is evidence that the remaining two acquiesce in their removal. I am also satisfied, for the reasons that follow that the evidence indicates that the current set of applicants is no longer authorised by the native title claim group to deal with matters relating to the application and that the new set of applicants is authorised in their place. The named applicants authorised by the native title claim group included one person who has died since authorisation was given on 9 December 2006. He is referred to in these reasons as "RR". I am satisfied that the authorisation given on 9 December 2006 continues in force for the balance of the named applicants notwithstanding the death of RR. Procedural background 2 On 10 July 1997 a native title determination application was lodged with the National Native Title Tribunal (the Tribunal) on behalf of the Ballardong people. It named as applicant, Winnie McHenry on behalf of a number of families in the Quairading region. The application covers an area in excess of 114,000 square kilometres in wheat belt areas of Western Australia. It includes Dalwallinu in the north west portion, Wagin to the south, Lake King to the east and Southern Cross and Koolyanobbing in the north east. It became a proceeding in the Federal Court on 30 September 1998 following the 1998 amendments to the Native Title Act 1993 (Cth) (the NT Act). 3 The application was amended on 3 July 2000 by combination with five other applications. There were 16 named applicants. They were Cedric Anderson, Donald and Sylvia Collard, Reg Hayden, Alan Jones, Winnie McHenry, Doug and Ricky Nelson, RR (now deceased), Tim and William Riley, Dianne Taylor and Alec, RY Snr (now deceased), RY (now deceased) and Saul Yarran. The representative bodies in the areas covered at the time were: the Noongar Land Council and the Aboriginal Legal Service of Western Australia (Inc). The combined claim was referred to the Tribunal for mediation on completion of notification. Further orders were made on 21 September 2000 consolidating other claims with the Ballardong claim. 4 On 15 April 2002 a motion was filed seeking the removal of RY (now deceased) as a named applicant. The motion was purportedly brought on behalf of the applicants. It was heard on 10 December 2002 and dismissed on 13 December 2002. That dismissal was based on the inadequacy of the authorisation process in relation to the proposed replacement applicants: Anderson v State of Western Australia [2002] FCA 1558. 5 A subsequent judgment delivered on 2 October 2003 made detailed directions relating to timetabling for meeting dates and venues and negotiation protocols for the Ballardong application and other south west applications: Anderson v State of Western Australia [2003] FCA 1058. 6 On 4 December 2003, the Court decided a motion which sought amendments to the Ballardong application by contracting its boundaries so that the balance of the area covered by it would fall outside the area of the Single Noongar Claim. The contracted application was to be called the Nulla Nulla application. The motion also sought an order replacing the 16 named applicants (two of whom were then deceased) with four applicants who would be the authorised applicants for the reduced claim. There were then two dissenters within the ranks of the applicants. Serious inadequacies existed in the evidence going to the important question whether the replacement proposal had been authorised by the native title claim group. The motion to amend was dismissed: Anderson v Western Australia (2003) 134 FCR 1. Because of the ongoing stalemate a springing order was made which would have dismissed the application on or before 31 March 2004 unless one of the following events occurred: (a) a motion was filed, agreed to by all named applicants, to amend the application or to seek further programming orders in relation to it; (b) an application was filed by members of the native title claim group pursuant to s 66B of the NT Act seeking replacement of the applicants. The springing order was averted by the filing of a new motion. 7 On 15 June 2004, the new motion which sought to replace the 16 named applicants with four new applicants: Reg Hayden, Doug Nelson, Dorcus Pickett and Reg Young, was dismissed. The authority for that change was said to derive from resolutions passed at a meeting held in Quairading in February 2004: Bolton on behalf of the Southern Noongar Families v State of Western Australia [2004] FCA 760. There were authorisation difficulties associated with the motion and related motions which were designed to have the effect of combining all applications in the south west into one application covering the bulk of the south west area. The process by which it was sought to achieve that result was flawed and the orders sought under s 66B for replacement of applicants in the various applications could not be made. The motion was dismissed in relation to the orders sought under that section. Amendments were also sought which would have contracted the Ballardong application so that it did not overlap with the Single Noongar claim. However because of internal difficulties among the applicants and in the absence of evidence of a truly representative meeting, I was not prepared to allow those amendments. I did however make an order for the removal of two deceased applicants: William Riley and Alex Yarran. The motion for replacement of the applicants 8 On 13 July 2007 a motion was filed seeking orders in the following terms: 1. That Alan Jones, Winnie McHenry, Doug Nelson, Reg Hayden, Saul Yarran, Ricky Nelson, RR (now deceased), Tim Riley, Dianne Taylor, Reg Yarran Jnr, Murray Yarran, Fay Slater and Carol Holmes on behalf of the Ballardong people ("the Proposed Applicant") do jointly replace the current Applicant on the grounds that: (a) RY Snr is now deceased and therefore can no longer be authorised by the claim group to make the application or deal with matters arising in relation to it; (b) Cedric Anderson, Donald Collard, Sylvia Rachel Collard and RY [who died after the filing of the motion] are no longer authorised by the claim group to make the application and to deal with matters arising in relation to it; and (c) The Proposed Applicant is authorised by the claim group to make the application and to deal with matters arising in relation to it. 2. That the applicant as re-constituted by order 1 above be granted leave (to the extent that leave may be required) to amend the application by filing a Form 19 in the form of annexure "A" to the affidavit of Simon Charles Blackshield sworn 13 July 2007. 3. Such further or other orders as to the Court seems fit. 9 The proposed amendment referred to in [2] above involved the insertion, in the application, at the end of [3] under the heading "Internal boundaries" in Attachment B of the following: (j) all areas of land and water which did not fall within the external boundary of native title determination application WAD6006 of 2003 (SNC Area 1) as at 1 July 2007. The motion was supported by a number of affidavits filed with it. It is convenient to set out in summary form the substance of these affidavits. The affidavit evidence (i) Jo-Anne Jones, affirmed 6 July 2007 10 Ms Jones is a legal assistant with the South West Aboriginal Land and Sea Council Corporation (the SWALSC). She says that in November 2007 (presumably a reference to November 2006) she was given by Yvette Bradley, an anthropologist working for the SWALSC, a list of persons said to be descended from the apical ancestors named in the application. She cross-referenced the names on that list with the SWALSC electronic membership database for the purpose of obtaining their addresses. She also researched the database to identify members of the SWALSC who had identified themselves as Ballardong people on their applications for membership. She checked them against the SWALSC genealogical database to determine whether they were descended from the named ancestors and cross-referenced that list against a list of names and addresses for members of the Hayden/Nelson families dating from August 2006. 11 A copy of a notice of a meeting was sent to 298 people in the week commencing 13 November 2006. Those were the people for whom the SWALSC had addresses and had been able to establish as having descent from the named ancestors on the application. A second version of the meeting notice with family history forms was posted to an additional 107 people, being members of the SWALSC who had self-identified as Ballardong on their membership forms but for whom the SWALSC had not been able to establish a link to the named ancestors on the application. A total of 405 notices was sent, of which 11 were returned unopened. Ms Jones was able to obtain correct addresses for seven of the eleven and posted copies of the meeting notices to them by Wednesday, 6 December 2006. 12 Notices of the proposed meeting were also placed in The West Australian newspaper from Wednesday, 29 November 2006 through to Saturday, 2 December 2006. Advertisements were also placed in three regional newspapers, the Narrogin Observer, the Avon Valley Advocate and the Wheatbelt Mercury on 29 November 2006. These are major regional newspapers which circulate within the area covered by the application. The meeting of which notice was given was held in Northam on 9 December 2006. 13 The form of notice sent out by Ms Jones notified the date, time and place of a meeting "for the members of the native title group for the Ballardong native title claim WAD 6181 in the Federal Court of Australia". The notice indicated that all members of the native title claim group were invited to attend. It identified the members of the claim group as the biological and adopted descendants of eight named apical ancestors and their spouses. The notice indicated that the meeting was being called to consider authorising a new set of persons to be the applicant, the provision of instructions to settle distribution policies for trust funds under certain future act agreements, reviewing the authorisation of the Central Wheatbelt Indigenous Land Use Agreement and nominating representatives to a proposed National Native Title Tribunal Working Party with a view to resolving overlaps with other native title claims. 14 In the second notice which was sent out to persons who had asserted an interest in the Ballardong claim area, the notice bore the endorsement: …IF YOU ARE NOT ABLE TO ESTABLISH YOUR DESCENT FROM ONE OF THE SETS OF ANCESTORS LISTED ABOVE, YOU WILL NOT BE PERMITTED TO TAKE PART IN DECISION-MAKING AT THE MEETING. SWALSC IS NOT ABLE TO TRACE YOU TO ANY OF THOSE SETS OF ANCESTORS WITH THE INFORMATION THAT WE CURRENTLY HAVE. IF YOU ARE CONCERNED ABOUT THIS, YOU SHOULD COMPLETE THE ENCLOSED FAMILY HISTORY FORM, AND EITHER RETURN IT TO SWALSC SO THAT IT REACHES US NO LATER THAN WEDNESDAY 6 DECEMBER, OR BRING IT WITH YOU TO THE MEETING ON 9 DECEMBER A Client Family History Form was attached. It sought details of each person's family and mother's and father's family. 15 The advertisement in the newspapers replicated the substance of the notices sent out to persons on the SWALSC membership list. Importantly, it qualified its invitation to "all members of the native title claim group for the Ballardong native title claim" finding the members of the claim group by reference to the biological and adopted descendants of the named apical ancestors whose names were set out in the advertisement. 16 Ms Jones attended the authorisation meeting which was held in Northam on 9 December 2006. She supervised attendance registers. A copy of the registers was annexed to her affidavit. She said that when she was approached by a prospective attendee, either Yvette Bradley or Henry Cox, another anthropologist working with the SWALSC, would indicate to her by words or gestures whether the person should be listed as a participant or as an observer. She only gave red voting cards to those persons who Mr Cox or Ms Bradley had approved as participants. (ii) Simon Charles Blackshield, sworn 12 July 2007 17 Mr Blackshield is the Principal Legal Officer for the SWALSC and the solicitor for the applicants in these proceedings. Part of Mr Blackshield's affidavit concerned the position of Mr RY, one of the named applicants who it was sought, by the motion, to remove. Mr RY sadly died of a heart attack on 26 August 2007. The basis for his replacement as a named applicant is therefore now that he is deceased. 18 Donald and Sylvia Collard are two named applicants whom it is sought, by the motion, to replace. Mr Blackshield said that on 17 November 2006 he sent letters to them by registered mail and on 7 December 2006 had a telephone conversation with Mr Collard. In that conversation Mr Collard said (at [15]): We can't drive around Perth, I'm disappointed. I don't know what I want to do, it costs too much, we can't afford to run around. I don't feel like going to these meetings, we're getting a bit old. The blackfellas argue too much. 19 Cedric Anderson is another of the named applicants whom it is sought by the motion to remove. Mr Blackshield said in his affidavit that he perused the records maintained by his legal assistant, Ms Jones, in relation to the notification for the authorisation meeting. The records indicated that Mr Anderson was among the 405 persons referred to in Ms Jones' affidavit to whom notices were sent in the week commencing 13 November 2006. The notice was sent to his post office box in Moora. He was not one of the eleven persons referred to in the paragraph whose notices were returned unopened. 20 Mr Blackshield said that he met with Mr Anderson on 11 June 2007 at Lockridge. Mr Anderson said he had not checked his mail in Moora since before November 2006 but he had learnt through word of mouth prior to 9 December 2006 that a Ballardong authorisation meeting was to be held in Northam on that day to consider authorising new applicants. 21 Mr Blackshield attended the authorisation meeting in Northam. Documents made available to the meeting participants were an agenda, a copy of the meeting notice and two A4 colour maps. A memorandum of advice from independent counsel relating to the Central Wheatbelt Indigenous Land Use Agreement was also provided. Mr Blackshield exhibited to his affidavit a copy of the minutes of the meeting. The following resolutions were adopted at the meeting, as set out in his affidavit: Resolution 1: IT IS RESOLVED THAT THIS MEETING OF THE NATIVE TITLE CLAIM GROUP FOR APPLICATION WAD 6181 IN THE FEDERAL COURT OF AUSTRALIA ("THE APPLICATION") ADOPTS A DECISION-MAKING PROCESS WHEREBY DECISIONS FOR AUTHORISING MEMBERS OF THE NATIVE TITLE CLAIM GROUP TO MAKE AND TO DEAL WITH MATTERS ARISING IN RELATION TO THE APPLICATION, ARE TO BE MADE BY A MAJORITY OF THOSE MEMBERS OF THE NATIVE TITLE CLAIM GROUP PRESENT AND VOTING. Moved: Oral McGuire Seconded: Carol Holmes For: 53 Against: 22 Motion Carried Resolution 3: WE RESOLVE THAT [RY (since deceased)], CEDRIC ANDERSON, DON COLLARD AND RACHEL SYLVIA COLLARD ARE NO LONGER AUTHORISED TO MAKE, OR TO DEAL WITH MATTERS ARISING IN RELATION TO, NATIVE TITLE APPLICATION WAD 6181 OF 1998 IN THE FEDERAL COURT OF AUSTRALIA. Moved: Alan Jones Seconded: John Schnaars For: 71 Against: 0 Carried unanimously Resolution 4 WE RESOLVE THAT REG HAYDEN, ALAN JONES, WINNIE McHENRY, DOUG NELSON, RICKY NELSON, [RR (since deceased)], TIM RILEY, DIANNE TAYLOR, SAUL YARRAN, REG YARRAN JNR, MURRAY YARRAN, FAY SLATER AND CAROL HOLMES, OR SUCH OF THEM AS ARE WILLING AND ABLE TO ACT IN RESPECT OF THE APPLICATION IN THE FUTURE, ARE AUTHORISED TO MAKE, AND TO DEAL WITH MATTERS ARISING IN RELATION TO, THE APPLICATION. Moved: Glenys Yarran Seconded: Georgina Pickett For: 43 Against: 16 Motion passed 22 Mr Blackshield said that before the first resolution was passed he explained to the meeting that if there is a decision-making process which, under the traditional laws and customs of the native title group must be followed to authorise persons to make and to deal with matters arising in relation to applications for determinations of native title, it is necessary to use that process. It would only be if there were no such process that the members of the claim group could use a decision-making process to which they agreed and which they adopt for that purpose. Mr Blackshield said that there was considerable discussion preceding each of the resolutions. Some people left the room between resolutions which explains the slight differences in the numbers voting on them. (iii) Cedric Anderson, affirmed 20 July 2007 23 Mr Anderson said he was aware that a meeting of the native title claim group was to be held in Northam on 9 December 2006. He said he did not seek to attend the meeting and did not seek to oppose being removed as an applicant. He acknowledged that he is no longer authorised to make or deal with matters arising in relation to the application as a consequence of decisions made at a meeting of the group for the application on 9 December 2006. He said he consented to any order made by the Court to the effect that the proposed applicants jointly replace the current applicants in these proceedings. (iv) Other applicant affidavits 24 Affidavits were sworn by proposed continuing applicants about their willingness to continue and their acceptance of the decision-making process adopted for their authorisation. They were as follows: Ricky Nelson, affirmed 25 July 2007. He attended the meeting on 9 December 2006. Fay Salter, affirmed 16 June 2007. She attended the meeting on 9 December 2006 Winnifred McHenry, affirmed 5 February 2007. She attended the meeting on 9 December 2006. Timothy Riley, affirmed 9 July 2007. He did not say he had attended the meeting but said he remained willing and able to act in respect of the application. Saul Yarran, affirmed 11 June 2007. He did not say he attended the meeting on 9 December 2006. Reginald Yarran Jnr, affirmed 10 July 2007. He attended the meeting on 9 December 2006. RR (since deceased), affirmed 18 June 2007. He attended the meeting on 9 December 2006. He died recently. Reginald Hayden, affirmed 5 February 2007. He attended the meeting on 9 December 2006. Murray Yarran, affirmed 19 June 2007. He attended the meeting on 9 December 2006. Dianne Taylor, affirmed 5 February 2007. She attended the meeting on 9 December 2006. Douglas Nelson, affirmed 5 February 2007. She attended the meeting on 9 December 2006. Carol Holmes, affirmed 5 February 2007. She attended the meeting on 9 December 2006. This is despite the fact that her name did not appear in the attendance list for the meeting. Alan Robert Jones, affirmed 5 February 2007. He attended the meeting on 9 December 2006. (v) Yvette Bradley, affirmed 12 July 2007 25 Yvette Bradley is an anthropologist employed with the SWALSC. She deposed to the fact that the SWALSC maintains an electronic genealogical database containing material relating to the Noongar population of the south west of Western Australia. Her responsibilities as an anthropologist employed by the SWALSC include familiarising herself with the database and researching and utilising its information. It was established in 2002 by the SWALSC researchers by importing genealogical material from existing databases. These include genealogies prepared by an anthropology student, Helen Henderson, in the late 1970s which are held in the Battye Library, genealogies of Noongar people through the south west prepared by Dr Lois Tilbrook in the late 1970s, as well as anthropological works written by Daisy Bates and Norman Tindale. Family history cards and personal files from variously named government "native welfare" departments were also utilised to provide detailed evidence on places of births, dates, marriages, work, parentage and children. 26 In September 2003 the SWALSC devised a Family History Form on which claimants could enter details of their ancestors and descendants. These forms were widely distributed among Noongar people who attended family meetings. The information on the forms returned was entered into the database and could be connected up to the research material already present. 27 Ms Bradley described a process adopted for the identification of members of the Ballardong native title claim group to ensure that as many members of the claim group as practicable received direct notice of the proposed authorisation meeting to be convened by the SWALSC. Ms Bradley and her colleague, Henry Cox, researched the electronic genealogical database in order to identify descendants of the ancestors named in Attachment A to the application. Lists of the identifiable descendants of the apical ancestors were printed out and were given to Ms Jones to correlate with the SWALSC membership database and mailing list. Ms Bradley and Mr Cox then researched the genealogical connections with the apical ancestors and the named applicants using the databases and found that one of them, Mr Cedric Anderson, could not demonstrate a clear connection to them. 28 Ms Bradley attended the authorisation meeting in Northam on 9 December 2006. She and Mr Cox were seated at a table to the left of the entrance of the meeting hall with laptop computers on which the SWALSC's genealogical database had been installed. Ms Jones was at a table to the left of the entrance supervising attendance registers. 29 When people entered the hall they were directed to Mr Cox and Ms Bradley. If their names were already in the database they were asked to sign the attendance book. If their names were not in the database they were given a simple form, asked to fill in limited genealogical information, sign the form and bring it back to Mr Cox or Ms Bradley. The new information was cross-referenced with the database to ensure a connection with the named ancestors. About 50 people were asked to use this process. Only four of those who wanted to participate in the meeting were not able to establish a connection to the apical ancestors through this process. They joined a group of approximately one dozen observers. 30 When a person's name was entered in the attendance list for participants, they were given a red card to indicate that they were entitled to participate. After the meeting commenced, Mr Cox and Ms Bradley took over supervision of the attendance registers from Ms Jones and dealt with late comers. A copy of attendance lists was annexed to the affidavit. Ms Bradley said that the meeting participants could be traced back to one or more of the ancestral couples which she referred to in her affidavit. 31 Ms Bradley also identified a list of sixteen persons who have no descent from the named ancestors in the Ballardong application. (vi) Kevin Fitzgerald, affirmed 12 July 2007 32 Mr Fitzgerald is a senior projects officer with the SWALSC. He is also a Ballardong/Noongar man. His father and grandfather were both Ballardong/Noongar men. He said the term "Ballardong" has been commonly used throughout his lifetime to describe Noongar people who hold the right to speak for a certain part of the south west. He said that from his earliest memory family groups within the Ballardong people would get together to make decisions relating to speaking for country. To the best of his knowledge there has never been any traditional process by which the Ballardong people would make decisions as a whole with regard to speaking for country. There was therefore no process of decision-making that under the traditional laws and customs of the people have to be complied with to authorise persons to make an application for a determination of native title and to deal with matters arising in relation to it. 33 Mr Fitzgerald said that in his personal capacity as a Ballardong man he was aware through word of mouth that knowledge of the authorisation meeting to be held in Northam on 9 December 2006 was widespread among Ballardong people throughout the application area as well as among Ballardong people currently residing in Perth. He received about 30 telephone queries from Ballardong people about the meeting. About 12 of those were from people who had seen one of the published advertisements. The majority were from people who had learned of the meeting through word of mouth. Statutory framework 34 Section 66B of the NT Act provides: