Coyne v State of Western Australia

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. 8 The first resolution was carried by a vote of 65 in favour and two against. The second resolution was carried by a vote of 43 in favour and 29 against. 9 AB and RP, who are referred to in the second resolution as being two of the persons comprising the applicant, both died after the claim group meeting was held, but before the notice of motion was filed. 10 The applicant movers contended that it was open to the claim group to adopt the decision‑making process adopted at the meeting, as there is no traditional decision‑making process in respect of decisions of the kind that were made at the meeting which apply to the whole claim group. Further, the applicant movers contended that the second resolution comprised a withdrawal of the authorisation of the current Wagyl Kaip applicant which satisfied s 66B(1)(a)(iii) of the Act. The second resolution also, so they contended, amounted to an authorisation of the persons named therein to be the replacement applicant pursuant to s 66B(1)(b) of the Act. 11 Each of the applicant movers has read an affidavit deposing that each remains willing and able to act as the applicant in respect of the Wagyl Kaip claim. Affidavits from the following persons were also read: Mr Simon Blackshield, a legal representative employed by SWALSC, deposing to the steps taken to give notice of the 1 December 2007 meeting and the proceedings at the meeting; Ms Jo‑Anne Jones, a legal assistant employed by SWALSC, also deposing to steps taken to give notice of the meeting; and Ms Yvette Bradley, an anthropologist, deposing to the steps taken to identify those persons who qualified as a member of the Wagyl Kaip native title claim group before, and at the 1 December 2007 meeting. Each of Mr Samuel Miller and Mr Mark Smith has sworn an affidavit in opposition to the applicant movers' motion. 12 The matters raised in the affidavits and the respective parties' contentions give rise to the following issues: (a) Whether there is a decision‑making process under the traditional laws and customs of the Wagyl Kaip native title claim group for the making of the decisions of the kind made by the second resolution. (b) Whether the fact that the respondents were elders of their respective families precluded their removal as members of the applicant. (c) Whether the resolution passed at the 1 December 2007 meeting was an effective process for the revocation of the authority of the current applicant and authorisation of a proposed replacement applicant, by the Wagyl Kaip native title claim group. (d) Whether, if the 1 December 2007 meeting was effective to revoke the authority of the current applicant and to authorise the substitution of the current applicant with the proposed replacement applicant, that authorisation is affected by the subsequent death of two persons comprising the proposed replacement applicant.

THE DECISION‑MAKING PROCESS 13 The first question is whether there is a decision‑making process under the traditional laws and customs of the persons comprising the Wagyl Kaip claim group which had to be complied with in relation to the authorisation of an applicant to bring and deal with a native title determination claim on behalf of the claim group. 14 This question arises by reason of the following statutory provisions. 15 Section 66B(1) of the Act provides: One or more members of the native title claim group (the claim group) in relation to a claimant application, or of the compensation claim group (also the claim group) in relation to a compensation application, may apply to the Federal Court for an order that the member, or the members jointly, replace the current applicant for the application on the grounds that:

(a) one or more of the following applies to a person who is, either alone or jointly with one or more other persons, the current applicant: (i) the person consents to his or her replacement or removal; (ii) the person has died or become incapacitated; (iii) the person is no longer authorised by the claim group to make the application and to deal with matters arising in relation to it; (iv) the person has exceeded the authority given to him or her by the claim group to make the application and to deal with matters arising in relation to it; and (b) the member or members are authorised by the claim group to make the application and to deal with matters arising in relation to it. (Original emphasis.) 16 Section 251B of the Act deals with what it means to be authorised by the native title claim group: For the purposes of this Act, all the persons in a native title claim group or compensation claim group authorise a person or persons to make a native title determination application or a compensation application, and to deal with matters arising in relation to it, if: (a) where there is a process of decision‑making that, under the traditional laws and customs of the persons in the native title claim group or compensation claim group, must be complied with in relation to authorising things of that kind - the persons in the native title claim group or compensation 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 or compensation 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 and adopted, by the persons in the native title claim group or compensation claim group, in relation to authorising the making of the application and dealing with the matters, or in relation to doing things of that kind. (Original emphasis.) 17 It follows from s 251B that if there is no decision‑making process for authorising the making and dealing with a native title determination claim under the traditional laws and customs of the people in the Wagyl Kaip claim group, then it was open to the claim group to agree to and adopt a decision‑making process for the purpose of granting such authorisation. The adoption of such a decision‑making process, said the applicant movers, is what occurred at the 1 December 2007 meeting, when it was agreed to make the decisions on a vote by a show of hands. 18 One of the applicant movers, Mr Ken Colbung, deposed that "there is no process of decision‑making that, under the traditional laws and customs of the native title claim group, must be complied with to authorise persons to make an application for a determination of native title and to deal with matters arising in relation to it". Mr Colbung agreed with a statement made by Mr Eric Krakouer in an affidavit previously filed in the consolidated proceeding, that family groups within the Wagyl Kaip/Southern Noongar claim area meet to make decisions about parts of the application area regarding which they have particular rights to speak, but there has never been a traditional process by which the whole claim group would get together and make decisions about speaking for the country. 19 One of the respondents to the motion, Mr Samuel Miller, deposed that he did "not entirely disagree" with the statements of Mr Colbung. However, he went on to depose that, whilst the family groups making up the Noongars do meet to discuss matters, no family group is bound by the decision of any other family group. Mr Miller referred to each family group as being akin to a "sovereign state". Mr Smith also deposed to the same effect. 20 I find that there is no decision‑making process under the traditional laws and customs of the persons comprising the Wagyl Kaip native title claim group, for the authorisation of persons to make and deal with a native title determination claim. In my view, there is no material difference between the evidence of Mr Colbung and that of Mr Miller and Mr Smith. This is because, in my view, the qualification referred to by Mr Miller and Mr Smith in their respective affidavits, did not reveal a traditional decision‑making process. The process referred to by Mr Miller and Mr Smith as to the meeting of family groups, is not inconsistent with that referred to by Mr Colbung. 21 It follows, therefore, that, subject to the question of whether the meeting of 1 December 2007 was representative of the claim group to be discussed below, it was open to the Wagyl Kaip claim group to agree on and adopt the decision‑making process agreed to and adopted at the meeting of the claim group held on 1 December 2007.

THE POSITION OF THE RESPONDENTS AS ELDERS OF A FAMILY GROUP WITHIN THE CLAIM GROUP 22 Each of Mr Samuel Miller and Mr Smith deposed that he was an elder of his family. Each went on to say that if he was to be removed as a member of the applicant, no elder from his family group would comprise part of the applicant. They each said that this would "make void the status of the applicants as authorised applicants". 23 I have treated this statement in the affidavit of each of Mr Miller and Mr Smith as a contention that each of the family groups comprising the claim group was entitled to be represented by a person among the persons comprising the applicant, and that each could not, therefore, lawfully be removed as a person comprising the applicant, by the claim group, without the consent of his family group. 24 In my view, the respondents' contention cannot be accepted. There is no provision in the Act which provides that the applicant must be comprised of representatives from each of the family groups within the claim group. 25 In the case of Combined Mandingalbay Yidinji‑Gunggandji Claim v State of Queensland [2004] FCA 1703, Spender J emphatically rejected a contention along the lines of the contention now advanced by the respondents. At [16]‑[17] of the reasons, Spender J observed: That section [s 251B] speaks of all the persons in the native title claim group. "All the persons in the native title claim group" are not simply all the Gunggandji People or all the Yidinji People or all the Mandingalbay People. Mr Noble misunderstands the provision of the Act when he claims, "I was put on as an applicant by the elders of the Gunggandji People. Only the elders of the Gunggandji People can take me off". This view is wrong. The requirements of authorisation speak of an authorisation by all the members of the native title claim group. 26 The Full Court in Noble v Mundraby [2005] FCAFC 212 cited those observations of Spender J with approval.

THE NUMBER OF PEOPLE AT THE 1 DECEMBER 2007 MEETING 27 The next question was whether the resolution passed at the meeting on 1 December 2007 was an effective means of revoking the authority of the current applicant and authorising the persons referred to in the second resolution to act as the replacement applicant within the meaning of s 66B and s 251B of the Act. 28 Mr Miller deposed that there were approximately 20,000 members of the Wagyl Kaip claim group. Of these, said Mr Miller, only 72 were listed on the attendance list of the 1 December 2007 meeting. Of the 72 who attended, 29 opposed the resolution to revoke the authorisation of the current Wagyl Kaip applicant, and to appoint the proposed replacement applicant. 29 The respondents contended that the resolution passed at the 1 December 2007 meeting was not effective to revoke the authorisation of the current Wagyl Kaip applicant and to authorise the proposed replacement applicant. This was because an insufficient number of people attended the meeting for the meeting to be representative of the Wagyl Kaip claim group. In the circumstances, said the respondents, the meeting could not properly be described as a claim group meeting for the purposes of s 66B of the Act. 30 Further, said the respondents, none of them had ever exceeded their authority and they did not consent to be removed as members of the Wagyl Kaip applicant. It followed, therefore, said the respondents, that none of the other grounds in s 66B(1)(a) applied and the applicant movers' application must fail. 31 In support of the contention that the meeting was unrepresentative, counsel for the respondents relied upon the case of Risk v National Native Title Tribunal [2000] FCA 1589 and a number of cases that followed that decision. Those cases emphasise the communal nature of a claim for a native title determination. They do not deal with the issue in contention in this case - namely, the means whereby a native title claim group may give an effective authorisation under s 66B and s 251B of the Act. 32 Counsel for the respondents also referred specifically to the following observations of O'Loughlin J in De Rose v State of South Australia [2002] FCA 1342 at [928]: Notwithstanding the terms of the Table in subs 61(1) of the NTA - which requires authorisation by all persons - I do not think that the word "all" is [to] be taken to include literally every single person. For example, infants and people with mental disabilities might be Nguraritja, but, because of their incapacity, they would be unable to give approval. Then again, the whereabouts of other persons might not be known. The word "all" should be taken to mean "all" those who are reasonably available and who are competent to express an opinion. (Original emphasis.) 33 Those observations are also not directed to the question at issue in this case. O'Loughlin J is not to be taken as saying that there can be no valid authorisation unless it is forthcoming from literally "all" of the persons he defines as comprising the claim group. The Act would be unworkable if this was to be the case. The Explanatory Memorandum in respect of the 1997 amendments which introduced s 251B makes it clear that this is not intended to be the case. At para 25.16 of the Explanatory Memorandum it is stated: An application for a determination of native title that involves a claim for native title cannot be made unless it is made with the authority of the claim group. Section 251B explains what it means for an application to be authorised…(It does not necessarily require each member of such a group to have given authority.) (Original emphasis.) 34 Further, Cooper J observed in Dingaal Tribe v State of Queensland [2003] FCA 999 at [8] (Dingaal Tribe) as follows: It is not necessary, in order to prove that the decision‑making processes required to be satisfied have been followed, to prove the making of individual decisions by all or most of the members of the claim group. Rather, it is sufficient to prove that the body making the decision was authorised to make decisions binding on the members of the claim group and that that body authorised the application under section 66B. 35 The more specific question of whether a meeting of members of a claim group was sufficiently representative to constitute the effective medium for an authorisation, or revocation of authorisation, by a claim group, under s 66B of the Act, was considered by French J (as he then was) in the case of Bolton on behalf of the Southern Noongar Families v State of Western Australia [2004] FCA 760 (Bolton). In that case, French J considered whether a meeting of members of a number of different claim groups, including the Wagyl Kaip claim group, had properly authorised the revocation of authority of the then current applicant in the respective native title determination claims. 36 There was an advertisement published by SWALSC giving notice of the meetings of the respective claim groups. The advertisement was referred to by French J as a "generic advertisement" and was in the following form: Meetings for Native Title claimant groups in the south west of WA … A recent decision in the Federal Court has clarified the technical process for combining native title claims. To continue the combination process, the existing claimant groups need to make decisions at claimant group meetings to: 1. Remove the current named applicants; 2. Authorise the named applicants nominated at the community meetings in February 2003; and 3. Authorise claimants to bring applications to amend the existing claims. If you are part of any of the following native title claims and want to be involved in making decisions, come along to your claimant group meeting. WHEN WHERE Yued Native Title Claim Tuesday Moora Bowling Club 10 February 2004 Gardiner Street, at 10 am MOORA _____________________ ______________ _________________ … Wagyl Kaip & Southern Wednesday Albany Regional Noongar Native Title 18 February 2004 Corporation Claims at 10 am Cnr Serpentine & Hanrahan Roads ALBANY As decisions will be made that affect your claim, it is important that you stay until the voting on resolutions is finished. Please pass on this information to other south west native title claimants. (Original emphasis.) 37 The evidence filed in support of the motion in Bolton revealed that no steps were taken at the respective meetings to verify that those who attended the meeting were in fact members of the claim group in question by reason of descent or adoption. 38 French J found that the evidence did not support the fact that each of the meetings held were representative of each of the separate claim groups. At [45] of the reasons, French J observed: In relation to the present motions I regret to say that the evidence and the processes adopted were not adequate to meet the conditions necessary for an order under s 66B. For each of the applications there is a defined native title claim group which is set out earlier in these reasons. The connection between those who attended the various meetings referred to and the respective native title claim groups was not established either in respect of notification nor, more importantly, in respect of attendance. The native title claim groups are defined in each case by reference to apical ancestors and biological descendants of those persons and persons adopted by them. The advertisements and notices did not refer to the relevant native title claim groups except by use of the generic title of the applications in question. The membership of the native title claim group by those who attended each meeting was not demonstrated. Rather it was reported as an asserted self‑identification. 39 French J went on to observe at [46] of the reasons: In my opinion, each of the motions for amendment under s 66B suffers from the same fatal deficiency. The evidence is insufficient to demonstrate that there has been a notification to members of the native title group as defined or that those who attended belonged to it. A fortiori, there is no evidence that the meetings were, in any sense, fairly representative of the native title claim groups concerned. 40 French J had cause again to consider the question of whether a meeting of a claim group was sufficiently representative to comprise the source of the revocation of the authority of the existing applicant and the authorisation of a replacement applicant, in the case of Anderson v State of Western Australia [2007] FCA 1733 (Anderson). That case related to an application to replace the applicant in a native title determination application by the Ballardong people. In that case, notices of the meeting were sent to 298 people who were identified by SWALSC, with the assistance of an anthropologist, as being descendants of the apical ancestors named in the Ballardong native title application. In addition, SWALSC had sent notices of the meeting to 107 persons who had self‑identified as Ballardong people on their SWALSC membership forms, but for whom SWALSC had not been able to establish a link to the named ancestors on the application form. These persons were invited to complete a family history form for the purpose of demonstrating a link with the named ancestors. 41 Further, notices of the meeting were placed in The West Australian newspaper and three regional newspapers. 42 The notices described the meeting as a meeting "for members of the native title group for the Ballardong native title claim WAD 6181 in the Federal Court of Australia" and were not in the "generic" form of the notices which were issued in the Bolton case. Rather, the notices identified eight apical ancestors and their spouses and referred to the claim group as the biological and adopted descendants of the eight named apical ancestors and their spouses. The notice invited all members of the native title claim group to attend the meeting. The notice also stated that only persons who were able to establish that they were members of the claim group would be entitled to vote. 43 There was also evidence that steps were taken at the meeting to verify that the persons who attended the meeting were members of the claim group. Only members of the claim group were given the voting cards. The meeting determined that the authorisation issues should be determined on a vote by a show of hands. 44 The meeting considered two relevant resolutions. The resolution revoking authority from the current applicant was passed with 71 votes in favour and none against. The resolution authorising a number of persons to constitute the replacement applicant was passed with 43 votes in favour and 16 votes against. The resolution was in the following terms: We resolve that [names set out] or such of them as are willing and able to act in respect of the application in the future, are authorised to make, and to deal with matters arising in relation to the application. 45 French J was satisfied that the process of decision‑making that was followed was agreed to and adopted by a sufficiently representative section of the claim group for the purpose of dealing with matters arising in relation to the application. French J held that the passing of the motion was sufficient to establish that there had been a valid authorisation by the claim group. At [36] of the reasons, French J observed: I am satisfied that there is no process of decision‑making that, under the traditional laws and customs of the persons in the native title claim group, must be complied with in relation to authorising persons to make a native title determination application and to deal with matters arising in relation to it. I am satisfied that the process of decision‑making which was followed in this case was agreed and adopted to by a sufficiently representative section of the native title claim group for the purpose of dealing with matters arising in relation to the application. In coming to that conclusion, I have regard to the wide ranging notification, both targeted and general, of the proposed meeting and what it was being asked to decide. 46 As I have previously mentioned, there was evidence before me as to the steps taken by SWALSC to give notice of the 1 December 2007 meeting, and the manner of verification of those entitled to vote at the meeting. The evidence showed that SWALSC adopted the same notification process and verification process in this case, mutatis mutandis, as it had in the Ballardong case which is the subject of the decision in Anderson. It appears that a similar number of claim group members participated in the Ballardong meeting as participated in the 1 December 2007 Wagyl Kaip claim group meeting. 47 There is some divergence in the evidence as to the number of potential members of the Wagyl Kaip native title claim group. Mr Miller said in his affidavit that there were about 20,000 members of the claim group. Mr Miller did not disclose how he derived that figure and the estimate does not appear to distinguish between the adult and child population of the claim group. In an affidavit affirmed on 31 October 2008, Mr Glen Colbung estimated that the current adult population of the claim group is 5,000‑6,000 people. Further, Mr Kevin Fitzgerald, who is a Senior Cultural Adviser at SWALSC, deposed that generally Noongar people do not take an active interest in native title until they are in their 30s or 40s. 48 The reasons in Anderson do not record the number of potential members of the Ballardong native title claim group. However, in determining whether the Ballardong meeting was sufficiently representative of the claim group, French J did not have regard to the proportion of those attending the meeting compared to the number of the potential members of the claim group. What was significant to French J was the extent of the distribution of the notice of the meeting and its terms. 49 Further, in the case of Dingaal Tribe, Cooper J found that a resolution which had passed at a claim group meeting which had been widely advertised but was not attended by all the members of the claim group, was effective to revoke the authority of the current applicant and to authorise a replacement applicant, under s 66B of the Act. Cooper J observed at [32]: I am satisfied that those who did not attend, for whatever reason, knew and accepted that the question of the authority and replacement of Gordon Charlie and Jonathon Charlie, as the current applicants in respect of the native title claim, would be decided by those attending the meeting in a way which would bind the claim group as a whole, and accepted that process. 50 I find that notice of the 1 December 2007 meeting was widely distributed and advertised. As mentioned above, SWALSC directly sent 582 notices of the meeting to people for whom it had contact details. Further, it advertised the meeting in two local newspapers and one newspaper with a State‑wide distribution. The newspaper advertisements each included the following statement: Decisions may be made to authorise a new set of persons to be the "applicant" for the Wagyl Kaip claim…This could involve removing some or all of the existing applicants and/or adding new applicants. If current applicants were to be removed, it would need to be determined by the meeting that those persons were no longer authorised by the claim group, or that they had exceeded the authority previously given to them by the claim group. (Original emphasis.) 51 Accordingly, I am satisfied that there was sufficient notice of the intention to hold the meeting and of the business to be transacted at the meeting to infer those who decided not to attend the meeting were content to abide by any decision made by those who did attend the meeting, and that, accordingly, the decisions made at the meeting were the legitimate binding expression of the view of the Wagyl Kaip claim group as a whole. 52 I, accordingly, reject the respondents' contention. I find that the resolutions passed at the 1 December 2007 meeting were effective to revoke the authority of the current applicant and to authorise its replacement with the applicant comprised of the applicant movers.

WHETHER THE APPLICANT MOVERS REMAIN AUTHORISED TO MAKE AND DEAL WITH THE APPLICATION 53 The next question is whether the applicant movers remain authorised to make and deal with the native title application, notwithstanding that two of the persons who were authorised by the 1 December 2007 meeting to comprise part of the applicant, have since passed away. 54 In this regard, it is significant that the resolution passed at the 1 December 2007 meeting authorised the named persons "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" to make and deal with matters arising in relation to the application. 55 In Anderson, similar wording was used for the authorisation of the applicant at the claim group authorisation meeting. French J made orders to replace the applicant notwithstanding that a person who was authorised to be a member of the applicant at the authorisation meeting had since passed away. French J was satisfied that "the authorisation was subject, in the case of each individual member of the named applicant to his or her continuing willingness and capacity to act". 56 Counsel for the applicant movers referred me to my decision in Sambo v State of Western Australia (2008) 172 FCR 271 (Sambo), where I held that s 66B of the Act was the only process by which an applicant in a native title determination may be replaced. In that case, the question now under consideration did not arise and, therefore, the Sambo case has no application to this issue. In my view, there is no reason why I should not follow the decision of French J in Anderson. Accordingly, I find that the applicant movers are, and remain, authorised to make the Wagyl Kaip native title application and to deal with the matters arising thereunder, as the replacement applicant for the current applicant.

DISCRETION 57 The final question is whether I should, in the exercise of my discretion, refuse relief. In my view, there are no circumstances in this case which warrant the refusal to make the order for discretionary reasons. 58 The Court expresses its appreciation for the assistance of pro bono counsel. I certify that the preceding fifty-eight (58) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Siopis.

Associate: Dated: 22 May 2009 Counsel for the Applicant Movers: Mr S Blackshield

Solicitor for the Applicant Movers: Mr R Hickson, Principal Legal Officer of South West Aboriginal Land & Sea Council

Counsel for Mr K Miller, Mr S Miller and Mr M Smith: Mr G Solomon (Pro Bono)