Bodney v State of Western Australia

(ii) Hartfield Park 23 The Hartfield Park application is made by Mr Bodney alone. In the part of the prescribed application form (Form 1) that deals with authorisation, Mr Bodney states: 'The applicant is a member of the native title claim group and is authorised by the claim group to make this application. The affidavit which accompanies this application deposes to the necessary authorisation of the applicants to make this application and deal with matters arising in relation to it. The traditional custom of decision making amongst the Ballaruk and Didjarruk People's [sic] is that the elders are always consulted and have a significant influence over any decision made. When the matter under consideration is one pertaining to tribal matters, then the decision of the elders is final and above question. When a decision is to made [sic] over other matters then the older male and female members of the Ballaruk and Didjarruk families will meet with the elders to discuss the issue. There may be a number of meetings before a decision is finally made. The aim is always for concensus [sic], but a majority will succeed if it is large enough. This process of decision making has been used from time immemorial.' 24 In Schedule A, the portion of the form in which applicants are expected to set out either the names of the persons on whose behalf the application is made or a 'sufficiently clear description' of those persons, Mr Bodney states: 'The applicant claims on behalf of the native title claim group known as Ballaruk and Didjarruk. The claim group consists of the biological descendants of Melba Armitage (Bluffie) and William Bodney (of their union). I "Corrie" Christopher Robert Bodney make this claim on behalf of the Bodney family group and myself, our children, their children and their children's children to their traditional lands in accordance with Aboriginal lore and its code of ethics. The changes being: The inclusion of the word Didjarruk, which is part of the biological relationship of the Ballaruk clan group a connection of the two bloods of the Aboriginal society's [sic] the prior owners of the Whadjuk territorial boundary's [sic] before British sovereignty.' 25 The evidence indicates that Melba Armitage and William Bodney were Mr Bodney's parents. The evidence also shows that this couple had five children. In order of birth they were: Cyril Bodney (who is said to be mentally incapacitated and childless); William Lucas Bodney (who has been specifically excluded from the applicant group on the basis that he has broken Aboriginal customary law); Corrie Christopher Bodney (the native title applicant, who has 12 children); Isobel Dawson (who is now deceased but left surviving children) and Louise Bodney (who has children). 26 There is also evidence as to Mr Bodney's wider family. His first cousin, Margaret Gentle, has deposed to the fact that her father, David Gentle, was the brother of Melba Armitage (born Melba Gentle). Ms Gentle has borne eight children, of whom two are deceased. She has grandchildren and great-grandchildren. Ms Gentle asserts a belief that she holds 'native title rights and interests at least similar to the native title rights and interests claimed by Corrie Bodney on the basis of biological descent'. She says she never authorised Mr Bodney to bring this application on her behalf. 27 A further affidavit, of William Warrell, reveals that Melba Armitage had three children to Jack Coomer, apparently before her marriage to William Bodney, the applicant's father. There are living descendants of Melba Armitage and Jack Coomer. 28 The meaning of native title, under the new Act, is explained by s 223(1) of that Act: 'The expression native title or native title rights and interests means the communal, group or individual rights and interests of Aboriginal peoples or Torres Strait Islanders in relation to land or waters, where: (a) the rights and interests are possessed under the traditional laws acknowledged, and the traditional customs observed, by the Aboriginal peoples or Torres Strait Islanders; and (b) the Aboriginal peoples or Torres Strait Islanders, by those laws and customs, have a connection with the land or waters; and (c) the rights and interests are recognised by the common law of Australia.' (Original highlighting) 29 The terms 'traditional laws' and 'traditional customs' have not been defined by statute, either in the old Act or the new Act. However, in Members of the Yorta Yorta Aboriginal Community v Victoria [2002] HCA 58; 194 ALR 538, Gleeson CJ, Gummow and Hayne JJ explained (at para 38) what was meant. They said: 'When it is recognised that the subject matter of the inquiry is rights and interests (in fact rights and interests in relation to land or waters) it is clear that the laws or customs in which those rights or interests find their origins must be laws or customs having a normative content and deriving, therefore, from a body of norms or normative system - the body of norms or normative system that existed before sovereignty.' 30 Although their Honours were speaking of the effect of the statute, the position seems not to be significantly different from the common law situation explained by Brennan J in Mabo v Queensland (No 2) (1992) 175 CLR 1 at 61: 'But so long as the people remain as an identifiable community, the members of whom are identified by one another as members of that community living under its laws and customs, the communal native title survives to be enjoyed by the members according to the rights and interests to which they are respectively entitled under the traditionally based laws and customs, as currently acknowledged and observed.' 31 In Tilmouth v Northern Territory of Australia ('Tilmouth') [2001] FCA 820; 109 FCR 240, O'Loughlin J quoted this statement and continued (at para 4): 'I emphasise his Honour's use of the words "community" and "communal". I take his Honour's remarks as indicating the community is [sic - as?] a composite whole as distinct from subgroups of subsets or clans or divisions within that larger community but forming part of that community.' 32 In Edward Landers v South Australia ('Edward Landers') [2003] FCA 264 at para 33, Mansfield J said: '… s 61(4) requires the application to be on behalf of the people who have authorised it. It does not permit the making of a claim by a native title determination application by a subgroup of the native title claim group, or the grant of native title to a subgroup of the real native title claim group.' 33 It is clear, from the application itself, that Mr Bodney's claim is that the Aboriginal people who, at sovereignty, possessed native title rights and interests over the subject land were the group known as Ballaruk and Didjarruk. It is apparent from his own evidence that there are people, other than his siblings and their children, whom he regards as Ballaruk and Didjarruk. In the course of cross-examination by Mr Hershowitz, Mr Bodney was asked about a meeting held in April 1999 at which, he said, there was confirmation of his authority to make a native title claim. He said the meeting was of members of the Ballaruk Aboriginal Corporation, of which he was President. Mr Bodney said that 'thirty senior members' took part in the meeting. He was asked who was present. Mr Bodney mentioned the names of several families and finished: 'they're all family'. His evidence went on: 'MR HERSHOWITZ: You don't remember specifically who was there? CORRIE BODNEY: No, they were the --- MR HERSHOWITZ: These were all senior members though? CORRIE BODNEY: Senior members, yes. MR HERSHOWITZ: Are they both Ballarruk and Didjarruk people? CORRIE BODNEY: Well, they're all the same bloodline, yes.' 34 Later in his evidence, Mr Bodney said that notices about the meeting were sent to 'all Ballarruk and Didjarruk people'. His evidence went on: 'MR HERSHOWITZ: Can you be certain that all the necessary persons attended the meeting? CORRIE BODNEY: Well it doesn't mean to say it has to be all the main people; as long as the majority of the people were there, because as I say there's only a small majority of the Ballarruk and Didjarruk people now left. We are the last living descendants. MR HERSHOWITZ: I think you said in your evidence there are approximately 150, is that correct. CORRIE BODNEY: About 150. And, as I say, that's counting children, small children and all. MR HERSHOWITZ: So how many senior members would there be out of that 150; do you have any idea? CORRIE BODNEY: Well, I'd say 35 of them, or 40. MR HERSHOWITZ: 35 or 40? CORRIE BODNEY: Yes. MR HERSHOWITZ: And there were 30 who attended the meeting? CORRIE BODNEY: Yes. MR HERSHOWITZ: So some weren't present obviously? CORRIE BODNEY: Some weren't present, as I said, William Lucas Bodney was not present because he wasn't informed.' 35 Mr Hershowitz asked Mr Bodney about the exclusion from the clan group of his brother, William Lucas Bodney. Mr Bodney said his brother 'committed an act of violation of the law'. The evidence went on: 'MR HERSHOWITZ: Now, by virtue of what authority did you, could you unilaterally exclude him? CORRIE BODNEY: As the leader and by the other people involved of the clan group. MR HERSHOWITZ: Which other people are those, Mr Bodney? CORRIE BODNEY: The Ballarruk and Didjarruk people. MR HERSHOWITZ: Was a meeting held to discuss that? CORRIE BODNEY: We spoke about it; we didn't call a meeting, but we spoke about it.' 36 These passages demonstrate that Mr Bodney recognises that there is a body of people who are properly described as 'Ballarruk and Didjarruk people' and who are not descendants of his own parents, Melba Armitage and William Bodney. On his own case, it was the Ballarruk and Didjarruk people who held native title rights and interests at sovereignty. Mr Bodney claims those rights and interests passed by biological descent; he says to himself and his immediate family (other than his brother William Lucas Bodney). However, on Mr Bodney's own logic, any native title rights and interests held at sovereignty by the Ballarruk and/or Didjarruk people must equally have passed to their other descendants. So it is apparent that this is a case, like Edward Landers, of 'the making of a claim by a subgroup of the native title claim group'. According to the view expressed by Mansfield J, this is not permitted by the Act; there must be a strict correspondence between the identity of the group that is claimed to hold the native title and the group on whose behalf the claim is made. 37 Although Mr Bodney concedes, in his amended Hartfield Park claim, that the proper identification of the native title claim group is the 'group known as Ballarruk and Didjarruk', his claim is made only on behalf of a subgroup, the biological descendants of his parents. 38 The situation in this case is not unlike that considered by O'Loughlin J in Risk v National Native Title Tribunal [2000] FCA 1589. A delegate of the Registrar of the Tribunal had accepted for registration a claim lodged by Kevin Lance Quall on behalf of himself and seven other family members. It was apparent from the application itself that Mr Quall regarded the claim group as being members of a wider native title group, the Danggalaba clan. At paras 60-61, O'Loughlin J said: 'A native title claim group is not established or recognised merely because a group of people (of whatever number) call themselves a native title claim group. It is incumbent on the delegate to satisfy herself that the claimants truly constitute such a group. I cannot, with respect, accept these passages in the delegate's reasons. In the first place, it seems to assume that a family, which is known to be part only of a community, is entitled to claim native title, even though other members of the community (who in the case before the delegate have not been identified) have, for one reason or another, not been included in the application. In the second place, the acceptance of a small family group (when it is known that it forms part of a larger community) is inconsistent with the philosophy that is to be found in the table to s 61; that section talks of the persons who, as a group, hold "the common or group rights and interests". The eight members of the Quall family may be part of the group but they are not the group. The applicant (in this case, Mr Quall) should be seen to be authorised by all persons who relevantly hold the common or group rights and interests. There is no mandate for proceeding upon the undertaking or arrangement that the family of eight will not exclude other members of the Danggalaba Clan: nor is it permissible to proceed upon the undertaking or arrangement that the family of eight will hold the entitlements that they achieve on some form of trust for the other members of the Danggalaba Clan ... In my opinion there were two discernible errors in the delegate's reasons. First she assumed, without inquiring, that the family of eight was a native title claim group. Secondly, she accepted a claim for registration by a group of people who were, self evidently, part only a [sic] larger group (the Danggalaba Clan) when there was no evidence of authorisation by, or identification of, the other members of the Danggalaba Clan.' 39 If the view taken in Tilmouth and Edward Landers is correct, it is extremely difficult to see how a native title claim can succeed where the claimant group is limited to the descendants of a couple who are removed only a generation or two from the present. Even where the relevant date of sovereignty is comparatively late, as in Western Australia and South Australia, there must have been several generations of people between those alive at the date of sovereignty (and constituting the people who acknowledged the traditional laws, and observed the fundamental customs, that existed at that time) and those who now claim to acknowledge those laws and observe those customs. Ordinarily, the pool of descendants from particular ancestors expands with each generation. I realise that white settlement has had a devastating effect upon many Aboriginal populations. Nonetheless, it would be remarkable indeed if all but one of the lines of descent from the various couples alive at sovereignty had terminated between that time and the present day. 40 One difficulty about the Tilmouth/Edward Landers view is that it effectively gives a veto right to any significant body of members of the group that allegedly holds the relevant native title rights and interests and does not wish to support the claim of a particular putative applicant. It is fundamental that the applicant for determination must be authorised by the group as a whole, at least on a consensus basis. Therefore, by denying their consent to the claim, the dissidents could present a claim on behalf of the wider group; yet on the Tilmouth/Edward Lander approach, no narrower claimant group could be selected. It is difficult to reconcile this result with the reference in s 223 of the new Act to 'individual' native title rights and interests. 41 I do not think it necessary, in the context of these motions, to express a concluded view on the question whether it is possible for a person to make a native title determination claim on behalf of himself or herself alone, or a small group, in respect of rights and interests that are held by a wider group of people. One thing is certain; any claim must be authorised by the group on behalf of whom the claim is made. There is a problem about authorisation of the Hartfield Park claim. At para 13 above, I set out the terms of s 251B of the new Act. Mr Bodney relies on both the alternatives set out in that section. However, the application does not assert the existence of any 'process of decision-making' amongst the descendants of Melba Armitage and William Bodney. Even now, there is no evidence of such a process. In relation to the second alternative, as indicated, Mr Bodney claimed the April 1999 meeting confirmed his authority in relation to making a native title claim or claims. However, this was not a meeting of the descendants of Melba Armitage and William Bodney, as such. It seems that Mr Bodney was the only one of the five children who attended. There is evidence that some of his children were present but no information is provided about Mr Bodney's nieces and nephews; indeed, he is uncertain about the extent of their existence. Even if the April 1999 meeting was to be relied upon, there is no evidence as to the terms of the authority allegedly conferred on Mr Bodney or even the identity of the relevant claims. There is no satisfactory evidence as to the persons who were given notice of the meeting or who attended. Apparently no minutes were kept and Mr Bodney has given no detailed evidence about the decisions that were made. It must be concluded that Mr Bodney has failed to establish authorisation under either para (a) or para (b) of s 251B. (iii) The main claim 42 No doubt the reason why WAG 149 of 1998 is referred to by the parties as 'the main claim' is that it relates to a large area of land and waters north, south, east and west of the city of Perth. This claim, also, was made by Mr Bodney alone. Once again the claim is said to be made on behalf of the 'Native Title Claim Group known as the Ballaruk and Didjarruk People', but the group is then expressly confined to the biological descendants of Melba Armitage and William Bodney, excluding William Lucas Bodney. In Schedule R, Mr Bodney stated that '(a)s the eldest living descendant of the claim group' he 'is authorised to speak for and act on behalf of the Ballaruks and Didjarruk People'. But there is no evidence of authorisation in either of the ways permitted by s 251B of the new Act. 43 This claim suffers from the same authorisation problem as Hartfield Park. Timing of the motions 44 The State of Western Australia, which is a respondent to all the native title applications, opposes the strike out motions; amongst other reasons because the native title applications are 'already part heard and the Bodney applicants have given most if not all of their evidence'. Counsel point out that an earlier strike out motion was filed by South West Aboriginal Land and Sea Council, but was discontinued before hearing. They say these factors 'strongly favour the refusal of the strike out application and allowing the matters to be resolved at trial'. 45 I do not agree. Section 84C(2) of the new Act says that, upon an application being made under s 84C(1), the 'Court must, before any further proceedings take place in relation to the main application, consider the application under subsection (1)'. It may be, as submitted by Mr Wright on behalf of the State, that the requirement to 'consider' the application does not include a requirement to determine the application. It may be open to the Court, having considered the merits of an application, to decide to defer a ruling on it until the trial of the principal application. Whether or not that is so, it is clearly the policy of the Act that the Court should give immediate attention to a strike out motion. The reason, no doubt, is that it is undesirable to allow parties to be put to trouble and expense in relation to an application that fails to comply with the fundamental requirements stated in ss 61, 61A and 62. 46 In the present case, I have reached a clear conclusion that each of the Bodney applications fails to comply with the requirements of the relevant form of s 61. The situation cannot be cured by further evidence; the deficiencies are contained in the applications themselves. No good purpose would be served by allowing the Bodney applications to remain on foot. The only result of so doing would be further to complicate and prolong an already lengthy hearing. Disposition 47 I propose to order that each of the Bodney applications be dismissed. There will be no order for costs, either in relation to the motions or the Bodney applications themselves. 48 I have previously foreshadowed resumption of the hearing of the substantive native title proceedings on 8 October 2003. The resumed hearing will now relate only to the Combined Metro applications. 49 I propose to conduct a directions hearing in Perth at 9.15am on Wednesday, 1 October 2003 at which I will determine the program for the resumed hearing, including the course to be taken in relation to the strike out applications recently filed by Mr Bodney in relation to matters WAG 141 of 1998 and WAG 142 of 1998; and, if the actions proceed, the sites to be inspected and the places at which evidence is to be taken. If any party wishes to disturb the proposal to resume the hearing on 8 October 2003, application may be made at that time. I certify that the preceding forty-nine (49) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Wilcox.

Counsel for the Applicants on the motion: Ms H Ketley

Solicitor for the Applicants on the motion: Dwyer Durack

Date of Hearing: 19 August 2003