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[2013] FCA 773
Federal Court of Australia
2013-08-05
McKerracher J
Original judgment source is linked above.
INTRODUCTION 1 On 23 July 2013 I granted leave for an application for determination of native title to be amended. I also made ancillary orders discharging the Gingirana applicant's requirement to serve the respondents other than the State of Western Australia (the State) and requiring the Gingirana applicant to provide a copy of the amended application to any respondent upon request. The most significant amendments sought in the Minute of Proposed Amended Native Title Determination Application (amendment application) filed on 7 June 2013 were to vary the description of the native title claim group. 2 Most respondent parties consented to the Gingirana applicant's amendment application, including the State, Telstra Corporation Ltd, Yamataji Marlpa Aboriginal Corporation, pastoralists and graziers, Plutonic Gold Pty Ltd and Plutonic Operations Ltd. 3 Three unrepresented respondents did not respond to the consent minute circulated by the Gingirana applicant's legal representatives, namely, Alinta Dewap Pty Ltd, Southern Cross Pipelines (NPL) Australia Pty Ltd and Southern Cross Pipelines Australia Pty Ltd. Various efforts were made by the Gingirana applicant's legal representatives to contact these respondents in order to clarify their position with respect to the amendment application. A Registrar of the Court also contacted the respondents by email on 15 July 2013 and 23 July 2013 requesting the respondents to provide a response to the circulated consent minutes. The Court received no response.
THE EVIDENCE 4 The Gingirana applicant's amendment application was supported by an affidavit of Mr Malcolm O'Dell affirmed on 31 May 2013, the solicitor on the record for the Gingirana applicant. Mr O'Dell deposes that the amendment application sought to: (a) change the description of the Gingirana claim group; (b) make various technical changes to the determination application in order to bring the application up to date with evolving drafting principles; and (c) update other information to ensure that this information was current. 5 Mr O'Dell also confirms that on 10 May 2011, he advertised a meeting of the Gingirana claim group to be held in Newman on 24 May 2011 in Parrngurr, Jigalong, Newman and Wiluna. In the notice was an agenda item entitled 'Presentation of claim research by Bill Kruse'. Dr Kruse is the consultant anthropologist engaged to research the composition of the Gingirana claim group. 6 At the meeting on 24 May 2011, Dr Kruse presented his research into the Gingirana claim group including the apical ancestors he had identified. He also identified issues which required further research. Dr Kruse was subsequently briefed to carry out that additional research. 7 On 21 May 2012, a further meeting of the Gingirana claim group was held in Wiluna. Notice of that meeting was advertised on 2 May 2012 in Parrngurr, Jigalong, Newman and Wiluna. The notice included the agenda item 'Results of claim research' and stated that Dr Kruse would be attending the meeting. 8 At the May 2012 meeting, Dr Kruse explained that his research showed that the traditional laws and customs of the Western Desert Cultural Bloc formed the basis of the Gingirana claim. He recommended the inclusion of three additional apical ancestors, namely Jiriji Wallaby Wallace, Midjibunku Sandy Clause and Lucy Gibbs, in the claim group description. He recommended various other amendments to the names of other apical ancestors in order to better identify them. Dr Kruse also recommended that the list of people described as custodians for the country be amended from 'descendants of Kunamin' to five specific individuals: Timmy Patterson; Miparrl (Frankie Wongawol); Mara Kuji (Normal Thompson); Pikarti (Tom Watson); and Stan Hill. He also found that there was not sufficient evidence for 'Tjukur' or 'Tjurnkul Nellie' to be described as an apical ancestor of the claim group; rather, her descendants could be connected to country by another 'pathway' such as custodianship or the possession of knowledge about the tjukurrpa [dreamings] for the country. 9 Mr O'Dell deposes that the broad consensus at the May 2012 meeting was that 'Tjukur' or 'Tjurnkul Nellie' should not be included as an apical ancestor in the Gingirana claim group. At that meeting, those people identified as the Gingirana claim group were asked if any of the individual descendants of Tjurnkul Nellie could make a claim for native title on the basis of a non-descendant based pathway under traditional law and custom. The consensus was, at this time, they could not. Those members of the Gingirana claim group present at the meeting also agreed to the inclusion of the additional apical ancestors. Some of the descendants of those additional apical ancestors were present and the meeting and did not object to their inclusion in the Gingirana claim group. 10 On 3 July 2012, Mr O'Dell advertised a meeting for the Gingirana claim group to be held in Wiluna on 17 June 2012. Notices were sent to Parrngurr, Jigalong, Newman and Wiluna. Included in the notices were offers of assistance to attend the meeting. 11 Following discussion at the Gingirana claim group meeting on 17 June 2012, a consensus decision was reached and a resolution was authorised that the Gingirana claim group instruct its legal representatives to prepare and file amendments to the claim group description so that the application for native title now be made on behalf of: (a) Those people who are descended from the following people, and, who, in terms of traditional law and custom are associated with the area covered by the application: (i) Jiriji Wallaby Wallace; (ii) Parnapuru Bluey Atkins; (iii) Parnapuru Bill Atkins; (iv) Minmi Clancy; (v) Yanangara Maude Stumpy Atkins; (vi) Midjinunku Sandy Clause; (vii) Yawi (also known as Yalwi); and (viii) Polly Wongi Telfer; and (ix) Lucy Gibbs; and (b) Custodians for the country, including: (i) Timmy Patterson; (ii) Mirparrl (Frankie Wongawol); (iii) Mara Kuju (Norman Thompson); (iv) Pikarti (Tom Watson); and (v) Stan Hill 12 The evidence showed that Pikarti passed away in early August 2012. Consequently his name was not included as a custodian in the proposed amended application.
CONSIDERATION 13 Section 251B of the Native Title Act 1993 (Cth) provides that all the persons in a native title claim group authorise a person or persons to make a native title determination application, and to deal with matters arising in relation to it, if: (a) where there is a process of decision-making that, under traditional laws and customs of the claim group, must be complied with in relation to authorising things of that kind - the persons in the native title 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 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 or adopted by persons in the native title claim group. 14 In Lovett on behalf of the Gunditjmara People v State of Victoria (No 3) [2011] FCA 867, in considering an uncontested application to amend an application for a determination of native title and specifically an amendment of the claim group description, North J said (at [9]): It is not entirely clear whether the provisions of s 251B apply in these circumstances. However, the better view is that they do. In any event, as a matter of caution, the full procedure as required by s 251B was followed by the Gunditjmara people and the Eastern Maar people. I respectfully agree with his Honour's reasoning. 15 Section 251B(a) applies in the present case. Mr O'Dell deposes that based on his knowledge and experience as the legal representative for the Gingirana applicant for a number of years, the resolution to amend the claim group description was carried in accordance with the traditional laws and customs of the Gingirana claim group. In particular the proposed amendments were discussed, all views were canvassed, and ultimately consensus was reached amongst all of those members of the claim group present at the meeting to amend the Gingirana application and, in particular, the claim group description. Mr O'Dell deposes that same process was also followed at the meeting held in Wiluna on 21 May 2012.
CONCLUSION 16 The respondents either consented to, or did not actively oppose, the amendment application. Based on the evidence and reasons outlined above, leave was granted to amend the application in the terms sought by the Gingirana applicant. I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice McKerracher.
Atkins
State of Western Australia