Britten v State of Western Australia

WESTERN AUSTRALIA DISTRICT REGISTRY WAG 6007 of 1998

WESTERN AUSTRALIA DISTRICT REGISTRY WAG 6199 of 1998

REASONS FOR JUDGMENT 1 The Court has before it two applications for determination of native title, made pursuant to s 61 of the Native Title Act 1993 (Cth) ("the Act"). The first is no WAG 6007 of 1998, in which there are five named applicants, who claim to be authorised by a group described in the amended application to make the application. The five named applicants are Jack Britten, Shirley Drill, Phyllis Gallagher, Bernard Stretch and Hector Chunda. This application has been designated by the applicants as the Purnululu native title application. The second application is no WAG 6199 of 1998. The sole applicant named in that application is Tanba Banks. It is convenient to call this application the Jiddngarri native title application. 2 There is a substantial area of land that is common to the two applications, but they do not coincide completely. It is convenient to refer to the area of land common to the two applications as "the overlapping area". 3 Section 67 of the Act requires that, if two or more proceedings before the Court relate to native title determination applications that cover (in whole or in part) the same area, the Court must make orders to ensure that, to the extent that the applications cover the same area, they are dealt with in the same proceeding. The order of the Court may provide that different parts of the area covered by an application are to be dealt with in separate proceedings. Section 68 of the Act provides that, if a determination of native title is made in relation to a particular area, the Court must not conduct any proceeding relating to an application for another determination of native title or make any other determination of native title in relation to that area or to an area wholly within that area, except for an application to revoke or vary the first determination or a review or appeal of the first determination. These provisions make it necessary that the Court deal with the overlapping area in a single proceeding. 4 With this requirement in mind, on 5 September 2001, for reasons that I expressed in Britten v State of Western Australia [2001] FCA 1256, I made orders in the following terms: "1. Dr Fiona Powell, an expert anthropologist, be appointed as Court expert to inquire into and report upon the question of the identification, name or description of the persons claimed by Tanba Banks to be the holders of native title with respect to the land to which the application relates. 2. If any such persons are claimed by Tanba Banks to be the holders of native title with respect to land which is not also part of the land the subject of the application in matter number WAG 6007 of 1998, Dr Powell is to report who those persons are. 3. Dr Powell make such inquiry by seeking to interview Tanba Banks and such other persons as Dr Powell may see fit to interview. 4. Dr Powell report to the Court on or before Friday, 9 November 2001. 5. The report be distributed to the parties in this matter or their representatives, and to the parties in matter WAG 6007 of 1998 or their representatives, on or before Friday, 16 November 2001. 6. Without further order of the Court, the report not be used for any purpose other than to consider the joinder of the persons named or described in it, or some of them, as applicants in matter WAG 6007 of 1998." The first five paragraphs of that order have been carried out. Dr Powell reported to the Court on 9 November 2001 and her report was distributed to the parties in both applications or their representatives. 5 In her report, Dr Powell expressed the following finding: "The group claimed by Tanba Banks to be the holders of native title with respect to the land which overlaps the application WAG 6007/1998 known as Purnululu comprises the following persons listed below (including the applicant) and the descendants of the persons named or described herein. Tanba Banks, Lily Banks, Bonnie Edwards, David Turner, John Turner, Mona Phillips, Mary Turner, Rosie Turner, Ivan Turner, Donna Turner, Justin Turner, Billy Turner, Dorothy Churchill, James Churchill, Rhonda Churchill, Marianne Churchill, Felicity Smith, Claudette Smith, Martin Baker, Nicholas Baker, Leslie Smith, Raymond Smith, Josie Farrer, Ralph Malgil (dec.), Nicolas Malgil (dec.), Preston Malgil, Zorran Malgil, Rasheed Malgil, Chrisanthius Malgil, Pamela Malgil (dec.), Donna Malgil, Frieda Malgil-Rowley, Robert Stretch, Bernard Stretch, Rosie Stretch, Janet Stretch, Desmond Stretch, James Stretch (dec.), Sophia Stretch, Lorraine Stretch Queenie Malgil, Kaye Malgil, Bonny Malgil (dec.), Dulcie Malgil, Evelyn Malgil, Manick Manly, Angelina Penchinelli, Nora Nocketta, Phyliss Thomas, Kitty Nocketta, Corrie Rosewood, Stella Albert, Shirley Ebaye, Douglas Lannigan, Leslie Lannigan, Cyril Lannigan, Daniel Lannigan, Tony Lannigan Les Tobacco, Raymond Wallaby (dec.), Bruno Coatchilli, Biddy Brown (Coatchilli), Johnny Gumilru, Tony Coatchilli, Molly Gore (nee Jenny) Archie Singpoo." 6 Following the receipt and distribution of the report, a deputy district registrar of the Court forwarded to each party, or representative of a party, in both applications a letter dated 5 December 2001 in the following terms: "This letter is written to every party, or representative of a party, to the above native title applications. It concerns three issues: 1. the proposed addition of parties to the application in matter WAG 6007 of 1998 (the Purnululu application); 2. the future conduct of the Purnululu application; and

3. the future conduct of the application in matter WAG 6199 of 1998 (the Jiddngarri application). Joining of new parties in the Purnululu application By order of the Court on 5 September 2001, Justice Gray appointed Dr Fiona Powell as a Court expert to report upon the identification, name or description of the persons claimed by Tanba Banks to be the holders of native title with respect to the land to which the Jiddngarri application relates. Between 21 October 2001 and 2 November 2001, Dr Powell consulted with Tanba Banks and other members of her family. On 9 November 2001, Dr Powell provided her report to the Court. Dr Powell's report identifies the group claimed by Tanba Banks to be the holders of native title in the Jiddngarri application. Justice Gray has formed the preliminary view that the resolution of both applications would be assisted if all of those now identified as the persons claimed to hold native title in the Jiddngarri application were joined as parties to the application in Purnululu. Accordingly, his Honour proposes to make an order joining all those persons by name as respondents to the Purnululu application. Section 67 of the Native Title Act 1993 (Cth) requires the Court to make such order as it considers appropriate to ensure that, to the extent that applications cover the same area, they are dealt with in the same proceeding. The Jiddngarri application overlaps with two other applications - the Purnululu application and the Malarngowem application WAG 6182 of 1998. The joinder of additional parties to the Purnululu application would ensure that the Court complies with s 67 in relation to the area of land covered by both the Jiddngarri and Purnululu applications. This will enable the Court to resolve all questions of native title relating to the land the subject of the Purnululu application in one proceeding. The proposed order is set out below as paragraph 1 of the draft order in the Purnululu application. The order relates only to people not already parties to the Purnululu application. Future conduct of the Purnululu application Justice Gray notes that Justice French has previously referred the Purnululu application to mediation. There has not been much activity in relation to mediation, apparently because of the uncertainty as to who were the putative native title holders of the land the subject of the Jiddngarri application. This uncertainty should be resolved, if the proposed order in the Purnululu application in paragraph 1 below is made. Accordingly, mediation should now proceed. Justice Gray proposes to extend the time within which the National Native Title Tribunal is to report to the Court on the mediation to Friday, 16 August 2002. This should allow for some progress to be made in mediation after the wet season is over.

Future conduct of the Jiddngarri application On 2 February 2001, an application was filed, seeking to strike out the Jiddngarri application on the basis of the uncertainty about the identity of the applicants in the Jiddngarri application. As a result of Dr Powell's report, this uncertainty should have been resolved. Accordingly, Justice Gray proposes to dismiss the application for strike out, as set out below in the draft order relating to the Jiddngarri application. If the land covered by the Jiddngarri application that is also covered by the Purnululu application is to be dealt with in the Purnululu application, there is no immediate need to progress the Jiddngarri application. The remainder of the land the subject of the Jiddngarri application can be dealt with at another time, perhaps in conjunction with the Malarngowem application. Accordingly, Justice Gray proposes to adjourn the Jiddngarri application to a date to be fixed. Proposed orders His Honour proposes, of the Court's own motion, in the Purnululu matter number WAG 6007 of 1998to make the following order: 1. Tanba Banks, David Turner, John Turner, Mona Phillips, Mary Turner, Rosie Turner, Ivan Turner, Donna Turner, Justin Turner, Billy Turner, Dorothy Churchill, James Churchill, Rhonda Churchill, Marianne Churchill, Frieda Malgil-Rowley, Robert Stretch, Rosie Stretch, Janet Stretch, Desmond Stretch, Sophia Stretch, Lorraine Stretch, Queenie Malgil, Kaye Malgil, Dulcie Malgil, Evelyn Malgil, Angelina Penchinelli, Nora Nocketta, Phyliss Thomas, Kitty Nocketta, Felicity Smith, Claudette Smith, Martin Baker, Nicholas Baker, Leslie Smith, Raymond Smith, Josie Farrer, Preston Malgil, Zorran Malgil, Rasheed Malgil, Chrisanthius Malgil, Donna Malgil, Corrie Rosewood, Stella Albert, Shirley Ebaye, Douglas Lannigan, Leslie Lannigan, Cyril Lannigan, Daniel Lannigan, Tony Lannigan, Bruno Coatchilli, Biddy Brown (Coatchilli), Johnny Gumilru, Tony Coatchilli, Molly Gore (nee Jenny) be joined as respondents in the matter number WAG 6007 of 1998. 2. The National Native Title Tribunal be requested to provide a report to the Court on the progress of the mediation of the application on or before Friday 16 August 2002. His Honour proposes, of the Court's own motion, in the Jiddngarri application matter number WAG 6199 of 1998to make the following order: 1. The notice of motion filed on 2 February 2001 to strike out the application in matter number 6199 of 1998 under s 84C of the Native Title Act 1993 (Cth) be dismissed. 2. The proceeding be adjourned to a date to be fixed. Submissions invited If any party in either proceeding wishes to make submissions about these proposed orders, Justice Gray has directed that they be made in writing to Deputy District Registrar Claire Kaylock on or before Wednesday, 19 December 2001. After that date, his Honour will consider whether to proceed to make the proposed order, or some other similar order, or to make no order at all." 7 In response to the letter dated 5 December 2201, the Court received a submission in the form of a letter from Vincent Edwards, Secretary Mindi Mindi Aboriginal Corporation of Halls Creek, dated 15 December 2001. The submission was in the following terms: "We do not truly understand the letter and our main concern is the implications. We need assistance to be able to reach this. We will also need help in making any submissions. We have never been truly represented and believe that unless this is addressed then the court may go down the wrong path through a total misunderstanding of the issues. We believe that from here on every step of the way is very important. The letter states that there is no immediate need to progress the Jiddngarri application. Does this mean leaving the overlap to be sorted out later? This will only prolong the problems we have faced over the last ten years. The letter states, 'If the land covered by the Jiddngarri application that is also covered by the Purnululu application is to be dealt with in the Purnululu application.'Therefore I ask the following. The reason for this dispute is the main claimants of the Purnululu application are not traditional owners of Bungle Bungle. Therefore we find it hard to understand why the true traditional owners, 'Members of the Jiddngarri applications', are to be dealt with in the Purnululu application? Also there are four names missing from the list of respondents. These are the following:- Lilly Banks,Bonnie Edwards,Manick Manly,Archie Singpoo,Bernard Stretch and Les Tobacco. These names were supplied to the court by Dr Fiona Powell. Why have these names been omitted."

8 The purpose of the orders made on 5 September 2001, and of those proposed in the letter dated 5 December 2001, is to ensure that all parties with possible interests in the overlapping area are before the Court in a single proceeding in which the question of a determination of native title in relation to the overlapping area can be determined. The addition of those who are claimed to be native title holders of the overlapping area in the Jiddngarri application as parties to the Purnululu application cannot and will not pre-empt the determination of any issue. In particular, it will not amount to the expression of any opinion as to who are the native title holders, if any, in respect of the overlapping area. It will enable a proper determination to be made, because all competing interests will be represented in the one proceeding in relation to the overlapping area. 9 The purpose of adjourning the Jiddngarri application to a date to be fixed is simply to allow the issue of any determination of native title in the overlapping area to be dealt with in a single proceeding, in accordance with ss 67 and 68 of the Act. Because the Jiddngarri application also overlaps with another application for determination of native title, part of it will have to be dealt with in conjunction with that other application. It is therefore more convenient to adjourn the Jiddngarri application than it would be to adjourn the Purnululu application. 10 To the extent to which Mr Edwards suggests that the main applicants in the Purnululu application are not traditional owners of the overlapping area, his submission raises an issue that cannot be determined at this stage. The joinder of all interested parties in the one proceeding will facilitate the determination of that issue. In this context, it has come to my attention that Tanba Banks herself is already named as the thirteenth respondent in the Purnululu application. I have therefore not included her name in the order joining additional parties to that application. 11 To the extent to which there are names referred to in the finding of Dr Powell but missing from the proposed orders, they are persons whose names already appear on the Court record as parties in the Purnululu application. Because they are already parties to the Purnululu application, there is no need to join them again. 12 Also in response to the letter of 5 December 2001, the Court received a submission by letter dated 19 December 2001 from the Kimberley Land Council, on behalf of the applicants in the Purnululu application. In part, the letter raised several issues in relation to Dr Powell's report. Those issues cannot be resolved at the present time. All that I can do is to rely upon Dr Powell's finding with respect to the procedural issues with which I must now deal. 13 In part, the Kimberley Land Council's submission in the letter of 19 December 2001 was as follows: "In relation to Order 1, the proposed addition of parties in matter WAG6007/98, it is noted in your letter of 5 December 2001 that 'The Order relates only to people not already parties to the Purnululu application.' The effect of the order as stated will, however, encompass those who are already parties to the application. A significant number of those named in Order 1 are members of the Purnululu claimant group who have authorised that claim and therefore should be excluded. In addition some of those named in Order 1 are already respondents to the application and should also be excluded. I submit that the order should limit the joinder of additional parties [to] those who are already parties to those named and described in Dr Powell's report who are not already members of the native title claimant group and who are not already named as respondents. I submit that the distinction between the two claims must also be considered. In the case of the Purnululu claim, this was amended post 98 and the applicants assert that all of the group authorised them to the point that those who weren't specifically included were excluded. The Jidngarri [sic] application remains a claim by Tanba Banks. Dr Powell's report identified those claimed by Tamba [sic] to hold native title but the report is silent on the question of authorisation. The position in relation to these Jidngarri [sic] claimants must be reserved." 14 I accept that there might be a number of the persons named in the proposed orders who regard themselves, and are regarded, as being members of the group represented by the five named applicants in the Purnululu application. The problem is that those persons do not already appear on the record as parties. I recognise that there may be overlap in various respects, including alternative spellings of names. It is also possible that a person might be known by more than one name. I am not presently in a position to sort out those who claim to be members of the group represented by the five named applicants in the Purnululu application from those who do not. For this reason, it is simpler to join all of the persons named in Dr Powell's finding who are not already named as parties to the Purnululu application. If there are any persons who do not wish to be named as respondents, they can apply to the Court to have their names removed or removed and added as applicants. 15 The question of authorisation in relation to the Jiddngarri application is not in issue. My only concern at the present stage is that all those who might have interests in the determination of native title in relation to the overlapping area should be parties to a single proceeding, so that the issue of such a determination can be dealt with in a way that will bind all necessary parties. In my view, the proposed orders will tend towards accomplishing this object. 16 By letter dated 16 January 2002, the Crown Solicitor for the State of Western Australia indicated that the State consented to the making of the orders proposed in the letter dated 5 December 2001. 17 For the reasons outlined above, I am of the view that the orders proposed in the letter dated 5 December 2001 should be made. I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gray.

WAG 6007 of 1998 Solicitor for the Applicants: Kimberley Land Council

Solicitor for the first to fifth Respondents: Crown Solicitor's Office

Solicitor for the sixth to twentieth Respondent: No solicitor or agent on the record

Solicitor for the twenty-first Respondent: Jackson McDonald

Solicitor for the twenty-second Respondent: No solicitor or agent on the record

Solicitor for the twenty-third to twenty-fifth Respondent: Jackson McDonald

Solicitor for the twenty-sixth to thirty-first Respondent: No solicitor or agent on the record

Solicitor for the thirty-second Respondent: Blake Dawson Waldron

WAG 6199 of 1998 Solicitor for the applicant: In person

Solicitor for the first Respondent: Crown Solicitor's Office

Solicitor for the second Respondent: No solicitor or agent on the record

Solicitor for the third to fifth Respondents: Kimberley Land Council

Solicitor for the sixth to ninth Respondents: Jackson McDonald

Solicitor for the tenth Respondent: No solicitor or agent on the record

Solicitor for the eleventh Respondent: Blake Dawson Waldron

Date of Hearing: Written submissions were received

Date of Judgment: 1 March 2002