Central West Goldfields People v State of Western Australia

introduction 1 The Court has before it a motion, on notice, whereby Ms Dorothy Dimer ("Ms Dimer"), who is one of the eight named applicants in this matter (their collective description was changed to the above at their request by an order made on 13 December 2001), seeks the following orders: "1. To exclude herself as a registered applicant on the Central West Goldfields Native Title Determination Application. 2. To exclude herself and her descendants as registered claimants on the Central West Goldfields Native Title Determination Application. 3. To exclude her ancestor, Alice Wilson Donaldson, from the Central West Goldfields Native Title Determination Application. 4. That the other claimants be made aware of Orders 1, 2 and 3 and be requested to provide arguments. 5. Orders 1, 2 and 3 be effected by the uplifting and substitution of Attachment "A" of the Native Title Determination Application by a new Attachment "A" which stipulates the exclusion of the said persons. 6. Service of the Notice of Motion together with supporting documentation on the respondents (apart from the State of Western Australia) be dispensed with." 2 Ms Dimer's affidavit in support relevantly read as follows: "1. I have been a registered native title applicant for the Central West Goldfields native title determination claimant application. 2. At the time of registration of the claim I did not full understand whether I wanted to be included into the claimant group (sic). 3. I do not agree with the inclusion of certain family groups within the Central West Goldfields native title claim group. 4. I no longer have faith that the applicants of the Central West Goldfields Native Title Claim group are representing the interests of myself and my immediate descendants." 3 On 25 February 2003 directions were made within the motion in the following terms: "1. The notice of motion filed on 30 January 2003 and the affidavit of Dorothy Dimer sworn on 29 January 2003 together with any written submission which Mrs Dimer may wish to make in support of the motion (such submission to be filed within 28 days) be served within 7 weeks of today's date on any person or party entitled to receive notice of any directions hearing in this matter pursuant to interlocutory orders previously made in that regard. The Registry will arrange such service. 2. Any party may file and serve any written submissions or affidavit in relation to the above mentioned motion within 14 days of service of the documents referred to in paragraph one. Service on other parties entitled to receive notice of any directions hearing will be arranged by the Registry. 3. The motion will be decided on the papers so filed." 4 Those directions have been substantially and, in my view, sufficiently complied with. Ms Dimer, the Goldfields Lands and Sea Council [as an indigenous respondent ("the Council")], and the State of Western Australia have each filed written submissions. The Council has also filed an affidavit which has provided some useful factual background. Ms Dimer has not taken issue in respect of any matter in that affidavit. The State suggests that Ms Dimer's motion should be dismissed in its entirety. The Council's position is that it does not oppose Ms Dimer's application to exclude herself as applicant, but otherwise opposes the motion. I record my appreciation for the assistance on matters of law which I have devised from the written submissions of the Council and the State. 5 Ms Dimer's written submissions which set out her reasons for "… exclusion from the above named native title group …" were as follows: "1. Lack of information to myself by the GLSC legal aid administrative arm at any time of amalgamation from my own native title Mingarwee File No. WWC 96/10. (See attached map). 2. Lack of expert consultation prior to agreement. Agreement made without proper family acknowledgement. Negligence by GLSC staff to recognize my illiteracy skills, which led to confusion and disagreements at every meeting myself, and family attended. 3. My genealogical history affecting families and myself should have only remained within my original Mingarwee/Coolgardie claim area. According to my knowledge of aboriginal law and customs, which prohibit such activities outside of my area as proclaimed by my biological ancestors. 4. My research on family history in support of my claim is available upon request by the federal court at any time (sic)." 6 The originating application in which Ms Dimer was then one of several applicants was lodged with the National Native Title Tribunal on 2 February 1996 and referred to this Court on 4 June 1998. That application was known as the "Mingarwee (Madawongga) People" application. The reference to "amalgamation" in paragraph 1 of Ms Dimer's submissions would appear to be to the consent orders made on 24 September 1999 whereby the Mingarwee (Madawongga) People application was combined with three other applications in the Kalgoorlie/Southern Cross area and amended accordingly. The combined applications were accepted for registration pursuant to s 190 of the Native Title Act 1903 (Cth) ("the Act") on 4 October 1999. 7 The combined applications, thereafter treated as one application, were the subject of extensive directions orders and had been listed for a hearing to start on 1 April 2002. However, for various reasons (principally concerned with a shortage of funds for the preparation of the matter) that hearing date was vacated. The matter has been the subject of mediation before the National Native Title Tribunal since 19 October 2001. This application, together with various other geographically-related native title applications, is listed for a regional case management conference on 28 July 2003. I return to Ms Dimer's motion. 8 Although there are provisions in the Act for amending an application "so as to replace the applicant with a new applicant" [s 64(5)] and to replace an applicant in particular circumstances relating to authorisation [s 66B], there does not appear to be any provision for the present circumstances where one of a group of applicants seeks to have herself removed from the proceedings. 9 There were differences in the submissions of the State and the Council about whether the Federal Court Rules, and if so which of them, provided for the various orders which Ms Dimer seeks. I do not need to refer to the details. 10 The first order Ms Dimer seeks is "to exclude herself as a registered applicant on the Central West Goldfields Native Title Determination Application". I shall treat that as an application to have her removed as one of the eight named joint applicants. I accept the Council's submission (and reject the State's submission to the contrary) that I have a discretion to do this under Order 6 rule 9(b) of the Federal Court Rules. That sub-paragraph relevantly provides that the Court may of its own motion, or on the application of a party, order that a person cease to be a party where the person has ceased to be a proper or necessary party. The State submitted that Ms Dimner was not a party to the application. It submitted that she is one of the persons who are jointly the applicant within the meaning of s 61(2)(c) of the Act. That is so, but in my view, she is also a party within the meaning of Order 6 rule 3 because she is named as one of the eight joint applicants who seek the relief (albeit in a representative capacity) described in the principal application. 11 I do not have to decide the factual issues which Ms Dimer raises as the reasons why she seeks to be removed. Some of those asserted facts are disputed by the Council. It is sufficient that Ms Dimer no longer wishes to be one of the named applicants. I will make an order to that effect. It is no longer necessary for her to be a party and I do not think it would be proper to force her to be one. 12 The second order sought by Ms Dimer is that she and her descendants be excluded as "registered claimants". The term "registered claimants" is not defined in the Act. It is possible, as the State suggested, that Ms Dimer intended to refer to "registered native title claimant", an expression relevantly defined in s 61 of the Act as a person or persons whose name or names appear in the Register of Native Title Claims as the applicant in relation to a claim. In view of the first order which Ms Dimer seeks (and which I propose to grant), there would be no point in her seeking to have herself excluded as a "registered native title claimant". Accordingly, I take Ms Dimer's reference, in paragraph 2 of her motion, to "registered claimants" as being to membership of the native title claim group. That is, that Ms Dimer wishes to exclude herself and her descendants from the native title claim group. Ordinarily I would be prepared to make such an order in respect of Ms Dimer, again simply because (so it seems) that is what she wants. But I am not prepared to do so at this stage because it is not sufficiently clear that this is what Ms Dimer wants. There is another reason. I am concerned that even the mere removal of Ms Dimer as a member of the native title claim group might have the potential to affect the interests of other persons in that group. That part of the second order sought which would remove Ms Dimer's descendants and the third order more clearly have the potential to affect the interests of other people, in particular Ms Dimer's descendants, who are members of the native title claim group. There is no evidence that they have consented to the proposed orders or have authorised Ms Dimer and, perhaps more importantly, the named applicants jointly to make applications for such orders. The order sought in relation to Alice Wilson Donaldson, also referred to as Alice Wilson or Alice Minjin Wilson (now deceased) is relevant to the membership of part of the native title claim group. Ms Wilson is an apical ancestor for some of the members. Her name appears in the application as what has been described as a "descriptor". It should not, in my view, be removed without either the consent of all those persons who might be affected by that step, or possibly on the motion of the "applicant" (that is, the joint applicants) duly authorised by those who might thus be removed as members of the native title claim group.