Drury on behalf of the Nanda People Native Title Claim Group v State of Western Australia

BETWEEN: VIOLET DRURY & ORS ON BEHALF OF THE NANDA PEOPLE NATIVE TITLE CLAIM GROUP Applicant

AND: STATE OF WESTERN AUSTRALIA & ORS Respondents

JUDGE: BARKER J DATE OF ORDER: 5 FEBRUARY 2016

1. William Charles Mallard Jnr and William Charles Mallard Snr cease to be respondents to this proceeding. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

BARKER J: 1 William Charles Mallard Jnr and William Charles Mallard Snr (the Mallards) are currently respondents to this claimant proceeding, which has been made by the applicant on behalf of the Nanda people under the Native Title Act 1993 (Cth) (NTA). 2 The question presently raised is whether the Mallards should be removed as respondents given they are also, by their own acknowledgement, members of the Nanda claimant group and of the applicant itself. 3 The circumstances in which they came and continue to be respondents is explained by the history of the current proceeding set out below.

History 4 This proceeding is a combination of National Native Title Tribunal (NNTT) file no. WC1996/111 filed 28 November 1996 (WAD6136/1998) and NNTT file no. WC1994/007 filed 18 August 1994 (WAD6004/1998). 5 From 28 November 1996, the Mallards were not included in the registered native title claimant on the pre­combination NNTT file no. WC1996/111 and applicant in WAD6136/1998. 6 The Mallards were, however, the applicant on the pre-combination NNTT file no. WC1994/007 (WAD6004/1998) claim. 7 On 15 December 1997, the Nanda Intra-indigenous Co-operation Agreement was signed by the applicant on the pre-combination NNTT file no. WC1996/111 (WAD6136/1998) and the Mallards, the applicant on the pre-combination NNTT file no. WC1994/007 (WAD6004/1998) claim. 8 By letter from Dwyer Durack, solicitors, to the NNTT dated 3 March 1998 and an accompanying affidavit sworn 13 February 1998, William Charles Mallard Jnr was added as a registered native title claimant at paragraph A1 on native title determination application WC1996/111. 9 By letter from Dwyer Durack to the NNTT dated 6 March 1998 and an accompanying affidavit sworn 15 March 1998, William Charles Mallard Snr was added as a registered native title claimant at paragraphs A1 and A3 on native title determination application WC1996/111. The letter requested that William Charles Mallard Jnr also be added at paragraph A3 on the native title determination application. 10 The matters were combined by order dated 29 September 2000. District Registrar Stanley relevantly ordered that: 3. The form of the combined Application be amended in the form of the document headed 'Native Title Determination Application' filed on 19 June 2000 in matter WAG6136 of 1998 and that this document stand as the amended Application and further filing of the amended combined Application be dispensed with. 4. The parties to the combined Application be all parties to Application WAG 6004 of 1998 and WG 6136 of 1998. 11 The document headed "Native Title Determination Claimant Application" filed on 19 June 2000, contained the following "name of applicants": Violet Drury, Noel Kelly, Mary Tullock, Phyllis McMahon, Lorraine Whitby, Lorna Lewis, Steven Kelly, June Ruffin, Clive Mallard, Barry Randall, Bevan Drage, May Bellotti, Bill Mallard and William Mallard. 12 Since at least 10 October 2000, the Mallards have been listed as respondents with indigenous interests in respect of WAD6136/1998. 13 By orders dated 19 March 2015, made pursuant to s 66B of the NTA, the persons who are currently the applicant in relation to this native title determination application are: Violet Drury, June Ruffin, Gwen Mitchell, Janet Wilton, Gerald John Whitby, Coleen Drage, John Stephen Drage, Annette Pepper, Steven Kelly (father of Marrick Kelly), Lorraine Whitby, Mary Tullock, Steven Kelly (grandson of Cornelius Kelly), William Mallard Jr, William Mallard Sr, Helen Nutter, and Nora Mallard.

The Mallards' submissions 14 The Mallards have made submissions as to why they should remain as respondents in this proceeding "to be able to argue that they hold native title in the claim area". Their submissions are as follows: 1. William Mallard Jnr and William Charles Mallard Snr (the Mallard Respondents) should not be removed as Respondents in this proceeding for the time being and until the issues outlined below have been dealt with and disposed of. 2. The Mallard Respondents support a determination of native title being made in the name of the Applicant on behalf of the native title claim group, with one important reservation. 3. The Mallard Respondents have been Respondents to these proceedings since 1998. They have concerns about the description of the native title claim group that gave rise to their application to gain access to the Connection Report prepared by the solicitor for the Applicant which have not been able to be addressed through the Applicant. 4. The concern of the Mallard Respondents is that one of their apical ancestors, the late Sarah Feast, may not have been included in the list of apical ancestors set out in the Connection Report. 5. The Mallard Respondents argue that the late Sarah Feast must necessarily be included as one of the apical ancestors in this proceeding. 6. The Mallard Respondents should remain as Respondents until they and this Court can be satisfied that any determination of native title in this proceeding includes the name Sarah Feast as one of the apical ancestors from whom the claim group is descended. 7. If the name Sarah Feast is not included as an apical ancestor of the claim group in this proceeding, then the Mallard Respondents have a real and substantial concern about whether they will be sought to be removed from the native title claim group in the case where they assert native title within the area of the claim. In other words, in that case, there is a question about whether they may be removed as members of the Applicant if their apical ancestor the late Sarah Feast is not included among the ancestors for the native title claim group. 8. If the Mallard Respondents can be satisfied that the late Sarah Feast will be included as one of the apical ancestors in any consent determination of native title, the Mallard Respondents would then agree to promptly be removed as respondents. If the Mallard Respondents cannot be so satisfied, they should remain as respondents to be able to argue that they hold native title in the claim area.

State's submissions 15 The State of Western Australia, as first respondent in the proceeding, has also filed helpful submissions, as a model litigant, concerning the power of the Court to join and remove respondent parties. The State observes that it is not clear that the Mallards "will suffer any prejudice from being removed as respondents". The State's detailed submissions are as follows: Under s 84(8) of the NTA, the Federal Court may at any time order that a person, other than the applicant, cease to be a party to the proceeding. The power in s 84(8) is not confined to the particular circumstances in s 84(9): Butterworth and Others v Queensland (2010) 184 FCR 397 at [39]; [2010] FCA 325; Starkey and Others v South Australia and Others (2011) 193 FCR 450 at [48]; [2011] FCA 456. It does not appear that the s 84(9) criteria apply to the Mallards. Considerations relevant to joinder under s 84(3) and s 84(5) are also relevant to an order made under s 84(8) that a person cease to be a party: Starkey at [48]. Under s 84(3) of the NTA, a person who may become a party under s 84(3) must be "another person", that is, a person other than the person or persons who are jointly the applicant. A person who is an applicant may not become a party to the proceeding under s 84(3). It follows that the Mallards do not currently meet the criteria to be a party to the proceeding under s 84(3) of the NTA. It is further submitted that the persons referred to in s 84(3)(a)(ii) are persons who claim to hold native title in relation to the land or waters in competition with the claim group, rather than members of it, and that the "interest" referred to in s 84(3)(a)(iii) is an interest other than a native title right and interest: Starkey at [66]. A member of a claim group who is a respondent party cannot act in a representative capacity: Hatfield (on behalf of the Darumbal People) v State of Queensland (No 2) [2013] FCA 1151 at [35]. Section 84(5) of the NTA provides that the Court may at any time join any person as a party to the proceedings, if the Court is satisfied that the person's interests may be affected by a determination in the proceedings and it is in the interests of justice to do so. The relevant principles applicable to the application of the procedural power given by s 84(5) are well settled: Jacob v Western Australia [2014] FCA 1106 at [4]. Although there is no legal impediment to a member of a native title claim group being joined, or remaining, as a respondent party to the claim, the circumstances in which a dissentient member will be permitted to become a respondent party under s 84(5) or, having become a respondent party under s 84(3), will be permitted to remain a respondent party, will be rare: Starkey at [61]. Section 62A of the NTA requires all of those persons who comprise the applicant to act jointly and unanimously: Weribone and Others v Queensland and Others (2011) 197 FCR 397 at [20]-[22]; [2011] FCA 1169; Roe and Another v Kimberley Land Council Aboriginal Corporation (2010) 215 FCR 131 at [36]-[42]; [2010] FCA 809; Tigan and Others v Western Australia (2010) 188 FCR 533 at [28]; [2010] FCA 993: compare with Anderson and Others v Queensland and Others (2011) 197 FCR 404 at [62]; [2011] FCA 1158 cited with approval in Far West Coast Native Title Claim v South Australia and Others (No 2) (2012) 204 FCR 542 at [50]-[54]; [2012] FCA 733. Consequently, it will be the rarest of circumstances when a person who is an applicant will be permitted to be, or remain, a respondent under s 84(5). There is general authority to the effect that the same party cannot be both plaintiff and defendant even though different interests are involved: Re Bubnich [1965] WAR 138 at 141; Elphick v Westfield Shopping Centre Management Company Pty Ltd [2011] NSWCA 356 at [7]. Even if the discretion to join a person who is one of the persons comprising the applicant as a respondent does exist under s 84(5) of the NTA, the requirement of the persons who are the applicant to act jointly to do all matters arising under the NTA in relation to the application will prevent a person comprising the applicant from being an effective respondent. In submissions dated 22 April 2015, the Mallards submit that their reason for remaining respondents is to ensure that Sarah Feast remains an apical ancestor in relation to the claim group description. They submit there is a question about whether they may be removed as members of the applicant if the apical ancestor Sarah Feast is not included among the ancestors of the native title claim group. If the Mallards were no longer members of the claim group, they would be able to apply under either s 84(3) or s 84(5) to be joined as a party to the proceeding. However, while they are members of the claim group, and indeed persons who are the applicant for the claim group, the precise composition of the claim group is an intra-societal indigenous dispute. At present, there is no assertion by the applicant that either of the Mallards is not a member of the claim group. It is not clear that either of the Mallards will suffer any prejudice from being removed as respondents.

Commonwealth's submissions 16 The Commonwealth of Australia, another model litigant, has also made submissions, although they are limited to certain issues of statutory construction raised by the State's submissions. The Commonwealth does not seek to be heard in relation to factual matters and does not contend for any particular result so far as the status of the Mallards as respondent parties is concerned. The Commonwealth's submissions are as follows: There is no dispute that s 84(8) of the NTA confers a broad discretion upon the Court to order that a respondent should cease to be a party to a proceeding. Indeed, the breadth of the discretion to remove a person as a party under s 84(8) has been described by Mansfield J as mirroring the breadth of the discretion to join a person as a party under s 84(5): Starkey at [54]. His Honour's statement in Starkey (at [48]) that "the considerations relevant to joinder under s 84(5) are also relevant to an order made under s 84(8)", should be understood as referring to the discretionary considerations that inform the exercise of each of those statutory powers: Starkey at [48]. Contrary to the State's submissions, in the passage from Starkey referred to above, Mansfield J did not say that "[c]onsiderations relevant to joinder under s 84(3)" are relevant to an order made under s 84(8). No doubt that is because, in contrast to s 84(5), the power to become a respondent party conferred by s 84(3) of the NTA does not involve any exercise of discretion. There are, as a consequence, no "considerations relevant to joinder under s 84(3)". Rather, if a person comes within one of the factual scenarios prescribed by the section, they are automatically deemed to be a party to the proceeding. Putting that to one side, the thrust of the State's submissions seems to be that, if a person would not qualify for automatic joinder under s 84(3), then that is a factor that would weigh in favour of the Court exercising its discretion under s 84(8) to remove the person as a party to the proceeding: Starkey at [66]. Why that should be so, given the presence of the additional (and wider) power of joinder in s 84(5) of the NTA, is not explained. In the Commonwealth's submission, if the Court were otherwise satisfied that a respondent party had "interests that may be affected by a determination in the proceedings" within the meaning of s 84(5) of the NTA, then there is no logical reason why the inability of the person to also come within one of the qualifying circumstances prescribed by s 84(3) (assuming that to be the case, for example, s 84(3)(a)(iii) of the NTA requires the person's interest to be "in relation to land or waters". There is no such limitation on the nature of the person's interest for the purposes of s 84(5)) should render that person liable to be removed as a party to the proceedings. The terms of s 84(9)(b) of the NTA, which echo the wider language of s 84(5) (s 84(9)(b) of the NTA requires the Court to consider making an order under s 84(8) if the Court is satisfied that a person who is a party to the proceedings "never had, or no longer has, interests that may be affected by a determination in the proceedings), militate against the statutory scheme being construed in the manner contended for by the State. The State further contends that the qualifying circumstances prescribed by s 84(3)(a)(ii) of the NTA should be read down. Relying upon comments made by Mansfield J in Starkey (at [66]), the State submits that the reference in that provision to a person who "claims to hold native title in relation to land or waters in the area covered by the application" should be construed as a reference to a person who claims to hold native title "in competition with the claim group", rather than as a member of it: Starkey at [66]. As the State's submissions acknowledge, however, Mansfield J's comments in this regard were obiter: the proper construction of s 84(3)(a)(ii) was not argued before his Honour, and it was not necessary for the issue to be finally decided: Starkey at [67]. There has been no subsequent judicial consideration of either s 84(3)(a)(ii) or of Mansfield J's comments about that provision, notwithstanding that other aspects of Mansfield J's reasoning in Starkey have been met with approval. In particular, his Honour's conclusions at [61] that it will be rare for the Court to permit joinder of dissentient members of a native title claim group under s 84(3), or to permit such persons who became respondents under s 84(3) to remain as respondents, has been approved and followed in: Isaacs on behalf of the Turrbal People v Queensland [2013] FCA 1004 at [4] and [6]; Doolan on behalf of the Butchulla People Land and Sea Claim #2 v State of Queensland [2013] FCA 602 at [11]; Hatfield at [34]; Pegler on behalf of the Widi People of the Nebo Estate #1 v State of Queensland [2014] FCA 932 at [14]. Moreover, the approach in Starkey to the construction of s 84(3)(a)(ii) is contrary to that taken by Logan J in the earlier decision of Butterworth. In the latter case, his Honour had to consider the status of a person who was a recognised member of the claim group but who had purported to join the proceedings under s 84(3)(a) of the NTA. Logan J expressly held that the interest asserted by a member of the claim group fell within the terms of that provision (implicitly, within subs (ii)): Butterworth at [9], [19] and [33]. His Honour considered the representative role of the applicant under the NTA (as did Mansfield J in Starkey), and was cognisant of the potential for the joinder of members of the claim group as respondent parties to "be subversive of the very reason for the existence of an applicant": Butterworth at [13]-[17], [32]-[33]. Nonetheless, Logan J was firmly of the view that there may be circumstances where dissentient members of a claim group ought properly be joined: Butterworth at [32], [38]-[39]. His Honour's approach to reconciling these potentially competing aspects of the statutory scheme was not to read down the qualifying criteria in s 84(3)(a), but rather to highlight the protective function of the power under s 84(8) to remove respondent parties, and also the breadth of that power. In particular, Logan J held that the power given under s 84(8) is not constrained by the circumstances referred to in s 84(9), with the important consequence that s 84(8) could be invoked even if a person had, and continued to have, interests that may be affected by a determination in the proceedings: Butterworth at [33] and [39]. There are strong contextual and practical reasons why Logan J's approach to the construction of s 84(3)(a)(ii) should be preferred to that of Mansfield J in Starkey: • First, the scheme under the NTA is that there can be only one determination of native title over a particular area (s 61A(1)), and the determination once made has effect against the whole world: Western Australia v Ward and Others (2000) 99 FCR 316; [2000] FCA 191. In that statutory context, it is highly desirable that anyone who claims to be entitled to such rights should be able to become a party to the claim in which those rights may be determined, and that any person whose interests will be affected by the determination should at least have the opportunity to be heard. That outcome is achieved by the combined effect of the notice provisions in s 66(3)(a) of the NTA and the joinder provisions in ss 84(3) and 84(5). Within that trio of provisions, the evident purpose of s 84(3) is facultative: it provides a cost efficient, informal and timely mechanism for interested persons to become respondent parties to the proceedings by filing a Form 5 in the Court. There is no compelling reason why persons who come within the plain words of s 84(3)(a)(ii) should be denied access to the procedural benefits of that provision. • Second, a construction of s 84(3)(a)(ii) that requires the provision to be read as "the person claims to hold native title in relation to land or waters in competition with the claim group", is ambiguous. For example, both Logan and Mansfield JJ accepted that a person who asserts that they have wrongly been excluded from membership of a claim group is not a dissentient member of the claim group, and would readily be joined: Butterworth at [29]; Starkey at [68]. Arguably, however, a person in that position does not assert native title in competition with the claim group: rather, the person wishes to pursue a claim to native title in unison with the claim group. In a similar vein, the description of a claim group may itself be ambiguous, such that some persons are unsure whether they are included in a claim group or not: Edwards (on behalf of the Wongkumara People) v Queensland [2014] FCA 282 at [48]. Those difficulties are avoided if s 84(3)(a)(ii) is given effect according to its terms, subject always to the power of the Court under s 84(8). • Third, whilst in theory, as Logan J noted in Butterworth (at [33]), each of the persons who comprise the native title claim group could lodge a Form 5 and become parties in their own right, the same could be said of members of a different and competing group. That is, if a competing group asserts that its members hold native title rights and interests in all or part of the claim area, there is no procedural barrier to each and every member of that competing group becoming a respondent party to the proceedings - at least initially - via the mechanism in s 84(3)(a)(ii) of the NTA. Consequently, a construction of the statutory provision that would see members of the claim group excluded, but members of a competing group included, is not justified by any "floodgate" type argument. In either case, s 84(8) provides the Court with power to ensure that the conduct of the proceedings does not become unwieldy. For the reasons set out above, if it becomes necessary for the Court to determine the proper construction of s 84(3)(a)(ii), the Commonwealth submits that the approach of Logan J in Butterworth should be followed. The State's submissions seem to assume, rather than argue, that s 62A of the NTA would prohibit a claim group from expressly authorising the persons who are to constitute the applicant from acting on the basis of a majority vote. However, as the State appears to acknowledge, the authorities on that point are not settled and the two decisions that specifically address this issue are against the position apparently contended for by the State: Anderson at [62]; Far West Coast Native Title Claim at [50]-[55]. In any event, the Commonwealth submits that it would not be appropriate for the Court to determine the issue of construction in circumstances where there is no evidence before the Court as to the specific terms of the authorisation conferred upon the current applicant for the claim.

Applicant's submissions 17 The applicant, by its solicitors engaged by the Yamatji Marlpa Aboriginal Corporation, submits that it is inappropriate for the Mallards to remain as respondents, on the basis that they have no other interest in the land the subject of the claim. The applicant's submissions are as follows. 1. These submissions are made pursuant to paragraph 2 of the Orders made 10 April 2015 and in response to the submissions of William Mallard Jnr and William Charles Mallard Snr (the Mallard Respondents). 2. The Mallard Respondents are members of the Nanda native title claim and are descended from apical ancestors on the Nanda Form 1, which was last amended on 5 April 2001. The Mallard Respondents are descended from 2 different Nanda Form 1 ancestors, including Sara[h] Feast. 3. The Mallard Respondents draw a number of conclusions and their key submission is a concern about the removal of one of the 2 ancestors they are descended from and their possible removal as members of the Applicant. 4. As the apical ancestor issue is part of the process described at paragraph 5 a. below it is not possible to further respond to that aspect of the Mallard Respondents' submission. 5. On 22 September 2014, in the chronological order in which they were passed, the Nanda claim group passed resolutions that: a. approved that the Nanda Connection Report be provided to the State of Western Australia. (The contents of the Nanda Connection Report are confidential and provided to the State on a without prejudice basis) ; b. authorised the Nanda applicant be replaced pursuant to s66B of the Native Title Act 1993. The persons who were authorised to comprise the replacement included the Mallard Respondents; c. appointed the Mallard Respondents to be part of the Nanda Working Group (which is authorised to make decisions on the day to day running of the Nanda native title claim) . 6. The Mallard Respondents main submission appearing to be unfounded, it is inappropriate for them, with no other interests in the land, to be respondents to the native title claim: Woosup on behalf of the Northern Cape York Group #1 v State of Queensland [2014] FCA 910, 28.

Consideration 18 There is no dispute that the Court has the power to remove the Mallards as respondents in this proceeding. 19 Section 84(8) of the NTA expressly provides that the Federal Court may, at any time, order that a person, other than the applicant, cease to be a party to the proceedings. 20 There can be little doubt, on general principles of statutory construction, including the context in which this power appears in s 84 of the NTA, that the Court has a general discretion to make the type of order referred to. To the extent that authority is required to confirm this construction, see Starkey at [54] (Mansfield J). 21 The submissions of the State and the Commonwealth, as set out above, debate the question of whether the s 84(8) power is to be construed by reference to other provisions within s 84, such as s 84(3)(a)(ii), which provides that another person is a party to the proceedings if the person claims to hold native title in relation to land and waters in the area covered by the application, or by reference to the power of the Court under s 84(5) to join any person as a party to the proceedings if the Court is satisfied that the person's interests may be affected by a determination in the proceedings and it is in the interests of justice to join the affected person. 22 Suffice it to say, as I did in Chubby on behalf of the Puutu Kunti Kurrama and Pinikura People v State of Western Australia [2015] FCA 964, that I consider a dissentient group of persons who are currently members of a claimant group (or even members of an applicant) in a native title determination application, may, in rare circumstances, be joined under s 84(5) as a respondent. It is not necessary in the circumstances of this matter to determine whether a dissentient person of that nature can automatically become a party to such a proceeding under s 84(3)(a)(ii). It is difficult to imagine, however, that that provision is intended to provide a vehicle for any dissentient member of a relevant claim group to assert they are already a respondent party to a proceeding. Indeed, the submissions made concerning s 84(3)(a)(ii) may be considered a little arid in the circumstances of the present issue. 23 In the particular circumstances of this case, including the effectively accidental manner in which the Mallards were joined as respondents to this proceeding, there is no proper basis for the Mallards to remain both as members of the claim group of the Nanda people, indeed as members of the applicant, and also to remain as respondents. Their apparent desire to remain as respondents in order to safeguard their interest in ensuring that their apical ancestor, Sarah Feast, remains in the category of apical ancestors in the claim, is an insufficient reason for a person to be both a claimant and a respondent. 24 Should the Mallards at some point wish to cease to be members of the claimant group because of their apical ancestor concerns and then to be joined as respondents, it would be open to them to take appropriate steps in this regard. In the meantime, they cannot reasonably expect to have one foot in the claimant camp and the other foot outside it, in order to cover all possible eventualities. 25 In these circumstances, there should be an order made that the Mallards cease to be respondents to this proceeding.

Order 26 The Court orders that: (1) William Charles Mallard Jnr and William Charles Mallard Snr cease to be respondents to this proceeding. I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Barker.