Champion v State of Western Australia

Federal Court of Australia|2009-10-07|Before: McKerracher J

The application for leave to amend the application by filing a Form 19 be granted. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. The text of entered orders can be located using eSearch on the Court's website.

GENERAL DIVISION WAD 6216 of 1998

BETWEEN: BRIAN CHAMPION, GEORGE A CHAMPION, JAMES CHAMPION, CLEM "KINGIE" DONALDSON and

ACACIA RESOURCES LTD, ARCHAEAN GOLD NL, LACHLAN RESOURCES LTD, LAKE JOHNSTON LTD and PLUTONIC OPERATIONS LIMITED

GLENIS DOREEN KNIGHT, PETER JOHN KNIGHT and TRAYLEN INVESTMENTS PTY LTD

AILSA ELIZABETH BAYLY, ROBERT THOMAS BAYLY, HORACE ANTHONY DELLA BOSCA, LAURENCE PAUL DELLA BOSCA, ROBERT LEO DELLA BOSCA, JOSEPH MICHAEL GUERINI, BURCHILL FRANCIS CECIL JONES, JOHN LOAD CECIL JONES, KEITH CHARLES MADER MT VETTERS PASTORAL CO (1966) PTY LTD

GOLDFIELDS LAND & SEA COUNCIL ABORIGINAL CORPORATION

REASONS FOR JUDGMENT 1 An application may at any time be amended to reduce the area of land or waters covered by an application (s 64(1A) of the Native Title Act 1993 (Cth) (NTA)). By notice of motion dated 22 May 2009, the applicant sought an order to amend the application pursuant to s 64(1A) NTA so as to substantially reduce the application area. There were no other proposed changes to the amended application which had been initially filed on 1 December 2000. 2 Section 64(1A) provides: Application may be amended to reduce land or waters covered (1A) An application may at any time be amended to reduce the area of land or waters covered by the application. (This subsection does not, by implication, limit the amendment of applications in any other way.) 3 Two questions presently arise. The first is whether the applicant needs the express authorisation of the native title claim group for the application in order to seek a proposed amendment. The second is whether any amendment should be deferred as suggested by an applicant in an overlapping application.

AUTHORITY 4 Section 62A NTA provides: 62A Power of applicants where application authorised by group In the case of: (a) a claimant application; or (b) a compensation application whose making was authorised by a compensation claim group; the applicant may deal with all matters arising under this Act in relation to the application. 5 The authority of a claimant pursuant to the provisions of s 62A NTA has been considered in Drury v Western Australia (2000) 97 FCR 169 where French J (as his Honour then was) said at [5] and at [12]: [5] The background to the proposed amendment is set out in an affidavit in support of the motion sworn by … the solicitor employed by the Yamatji Land and Sea Council, who is representing the applicants. On 13 July the applicants reached agreement with another overlapping native title claimant group, the Naaguja group, which has lodged application WAG 6194 of 1998. The substance of the agreement is that the southern boundary of the Nanda claim be withdrawn to the north and that the northern boundary of the Naaguja claim be withdrawn to the south. A new combined application will be lodged to cover the vacated area between the two claims. By orders made on 29 September 1999, the Naaguja native title application boundary was contracted to the south pursuant to the agreement. The Nanda applicants now wish to amend their application to give effect to their part of the agreement. Accordingly, they wish to substitute new Schs B and C of the application for the former Schs B and C so that its external boundaries reflect the agreement. The proposed substituted Schedules comprise the textual description of the external boundary and a map of the boundary and were exhibited to the affidavit. Schedule H to the application is also proposed for amendment as overlaps affecting the Nanda claim have changed since its previous amendment. Schedule I is also amended to make reference to notices of proposed future acts issued under s 29 since the application was previously amended. The changes to Schs B, C, H and I are the only amendments. … [12] The authorisation which satisfies the requirements of s 62 in respect of a new application is intended to cover the ability of the applicants to deal with matters arising in relation to the application. Section 62A expressly provides that in the case of a claimant application, the applicant may deal with all matters arising under the Native Title Act in relation to the application. In my opinion such matters include the amendment of the application from time to time. 6 Similar views were expressed in Grant v Minister for Land and Water Conservation for the State of New South Wales [2003] FCA 621at [32] where it was said: Section 62A of the Act empowers an applicant, in the case of a claimant application, to "deal with all matters arising under this Act in relation to the application". That must include amendment of a claim, so as to add other applicants and/or vary the claimed native title rights and interests: see s 64 of the Act. 7 The applicant also contends that there should be reliance on the application itself as evidence in the sense of authorisation that the application is accompanied by affidavits in support. Those affidavits are supplied by the individuals comprising the applicant in which they depose that they believe that all of the statements made in the application are true. (As to the evidentiary nature of these statements see Gudjala People No 2 v Native Title Registrar and Another (2008) 171 FCR 317 at [90]-[92]). The authority of the applicant group is expressed in the following terms: The applicants are authorised by the native title claimant group to make this native title application and to deal with matters arising in relation to it. The authorisation was made in accordance with the traditional laws and customs of the native title claim group, as described in Schedule R below. The affidavits which accompany this application deposes [sic] 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 group follows generally normal Aboriginal practice. The senior member of each of the families or sub-families within the group speaks on behalf of his or her family or sub-family. This custom has been followed for at least three generations. These senior members meet to discuss issues affecting the group and communicate decisions reached to each of their respective families or sub-families. The junior members have a right to input, but not to gainsay decisions reached by their elders. In the case of this native title application, a meeting of the claimant group was held on 3 November 2000 at Coolgardie Park. All adult members of the claimant group attended. At that meeting a decision was reached by the group that the five applicants listed in Part 1 above would represent the group in this amended application. The above decision was unanimous. 8 There is also the affidavit evidence in which each of the persons comprising the applicant give evidence of authorisation. That authorisation is through a process of decision-making that under the traditional laws and customs of the persons in the native title claim group which must be complied with in making decisions of this kind. The process is detailed in the Schedule to the application. The application is also supported by affidavits from five of the claim group members, each of whom deposes to his or her appointment by the group to make the application. 9 The applicant relies on the fact that the decision of 3 November 2000, as recorded in an attachment to the application authorised the applicant to make and to deal with matters arising in relation to the application without any qualification or limitation. In this regard, it stands in contrast with a qualified or limited decision such as the decision in Coyne v State of Western Australia [2009] FCA 533 (at [7]) in which resolutions were passed in these terms: Resolution # 1 In respect of each of the Wagyl Kaip and Southern Noongar claims, the Applicant to be authorised today is authorised to make and deal with the claim upon the following conditions: 1. The Applicant is not to make decisions about any area of land or waters without first obtaining informed consent from the working party that has responsibility to speak for the land or waters that will be affected by the decision. 2. The Applicant will continue to utilize the services of SWALSC. 3. The Applicant will continue to receive legal advice and legal representation from the Principal Legal Officer of SWALSC who shall remain as the solicitor on the record. 4. The Applicant will do all things reasonably necessary to progress the native title claim. Resolution # 2 That the current applicant on the Wagyl Kaip claim is no longer authorised, and instead, [AB (deceased)], Hazel Brown, Glen Colbung, Ken Colbung, Rita Dempster, [RP (deceased)] and Mingli Wunjurri Nungala, or such of them as are eligible to act as an applicant and who remain willing and able to act in respect of the application in the future, are authorized as the applicant to make and deal with the application in accordance with the conditions of our authorisation. 10 The applicant also points to the fact that there is no evidence of a convention having developed over the course of time whereby significant decisions regarding the conduct of the application are expected to be made at meetings of the native title group unlike the evidence, for example, in Daniel v Western Australia (2002) 194 ALR 278 at [39]. 11 I accept that there is no evidence before the Court to suggest any departure from the mode of decision-making originally described in Sch R to the application referred to above specifically that 'senior members meet to discuss issues affecting the group and communicate decisions reached to each of their respective families or sub-families'. In the circumstances it is reasonable to infer that the persons comprising the applicant would be receiving ongoing guidance from the elders of the claim group in their conduct of the application. 12 If all of this were wrong, which I doubt, there would still be recourse for the members of the native title claim group if they were unhappy with the applicant's conduct of the application to replace the current applicant pursuant to the provisions of s 66B NTA and to instruct a new applicant to apply to restore the proposed excised portion of the claimed land and waters to the application (see for example Turrbal People v State of Queensland (2006) 150 FCR 103). 13 I see no impediment on the authority basis to the amendment being permitted.

SHOULD THE AMENDMENT BE DEFERRED? 14 There is a further issue. This matter has previously been raised by the Ngadju applicant in submissions of 1 May 2009. In those submissions it was suggested that the Court should defer consideration of the proposed amendment for a period of six months. The purpose of that deferral was to allow for the holding of a proposed mediation of the overlap between the Ngadju application, WAD 6020 of 1998 and this application by the Kalamaia Kabu(d)n people in WAD 6216 of 1998 to occur. The suggestion was that in the event that mediation was unsuccessful, the Kalamaia Kabu(d)n application should be considered for possible dismissal pursuant to s 190F(6) NTA. Further, it has been suggested that there was nothing in the detail of the proposed amendment that would prevent the Kalamaia Kabu(d)n application ultimately from being considered for dismissal under s 190F(6) NTA in any event. In those circumstances and the likelihood that the Court would be called upon to decide the disposition of the Kalamaia Kabu(d)n application under s 190F(6) NTA within a similar timeframe, it was submitted that it would also be appropriate from a case management perspective to defer consideration of the proposed amendment. 15 Some time has elapsed since the original suggestion of the six month deferral (raised on 1 May 2009) due to the filing of ongoing supplementary submissions. Five of the six months has now occurred in any event. 16 Although the reduction in size of the application, if the amendment were allowed, would be very substantial, it is not clear to me what prejudice the Ngadju people would suffer if the Kalamaia Kabu(d)n application were reduced in the manner proposed. Submissions which have been filed twice for the Ngadju people do not point to any prejudice which they may suffer as a consequence of the applicant being given leave to amend so as to remove those areas which do not overlap the Ngadju application. Further, there is nothing to prevent mediation of the overlap with the Ngadju application continuing should the amendment be allowed. While in some circumstances prejudice does not have to be articulated because it is obvious, I cannot, for my part, discern at this stage what it would be, assuming for present purposes that both parties have good claims. 17 In any event, if the amendment is allowed, the proposed amended application would need to be registration tested by the National Native Title Tribunal. The amendment is a reduction, indeed, a considerable geographic reduction. As such it is difficult to see that any parties could be adversely affected by the reduction. 18 Viewed from the perspective of other interests, the making of the proposed amendment would reduce the number of overlapping applications in the Central West area. 19 It is neither possible nor, in the present situation, the better course for the Court to predict with any certainty what relevant circumstances would be in existence at the conclusion of the proposed deferral of the consideration of the application for the purposes of s 190F(6) NTA. 20 The reduction in area appears to have been a carefully considered decision and it is not apparent to me that the reduction in area will have any prejudicial consequence to any other party including the Ngadju applicant. It is better that the claim move forward without more delay.

CONCLUSION 21 Orders were made on 9 December 2008 requiring submissions to be filed in regard to the issue of s 190F(6). The applicant was to file submissions on 28 February 2009 and the respondents to reply by 30 March 2009. Submissions and affidavit material were received. There is, however, no evidence before the Court on whether the proposed amended application is likely to amend the application in a way which would or would not satisfy the registration test. The question of dismissal under s 190F(6) NTA falls away with the amendment of the application being allowed. 22 I am satisfied in the circumstances that the amendment sought is appropriately authorised. The application for leave to amend the application will be granted. I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice McKerracher.

Associate: Dated: 7 October 2009 Counsel for the Applicant (Kalamaia Kabu(d)n): S Blackshield

Solicitor for the Applicant (Kalamaia Kabu(d)n): South West Aboriginal Land & Sea Council

Counsel for the State of Western Australia: T Creewel

Solicitor for the State of Western Australia: State Solicitors Office

Counsel for the Commonwealth of Australia: S Oliver

Solicitor for the Commonwealth of Australia: Australian Government Solicitor

Counsel for Various Mining/Fishing Interests: M McKenna

Solicitor for Various Mining/Fishing Interests: Hunt & Humphry

Council for Various Local Government Interests: J Barras

Solicitor for Various Local Government Interests: Minter Ellison

H Esbenshade of Pastoralists and Graziers Association Western Australia appeared on behalf of the Various Pastoral Interests

Date of Last Written Submissions: 2 September 2009

Native Title Act 1993(Cth)ss 62A, 64(1A), 66B, 190F(6)

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