Introduction
1 On 21 May 2019, in Farrer on behalf of the Ngarrawanji Native Title Claim Group v State of Western Australia [2019] FCA 655; 369 ALR 324 (the Ngarrawanji #1 determination), the Court made a consent determination that native title exists over an area of 4,065 square kilometres north and north-west of the town of Halls Creek, Western Australia. The holders of the native title were defined in Schedule 6 to the determination by reference to descent from certain apical ancestors. On 8 July 2020, in Farrer on behalf of the Ngarrawanji Native Title Claim Group v State of Western Australia [2020] FCA 929 (the Ngarrawanji #2 determination), the Court made a consent determination that native title exists over another, much smaller area near Halls Creek, which had been left out of the Ngarrawanji #1 determination for technical reasons to do with provisions under the Native Title Act 1993 (Cth) about vacant Crown land. The common law holders in the Ngarrawanji #2 determination are the same as the common law holders in the Ngarrawanji #1 determination. I shall refer to the Ngarrawanji common law holders in these reasons as encompassing both determinations.
2 In native title determinations in other parts of Australia, the usual orders made by the Court at the time of the determination of native title include orders consequent upon the nomination of a prescribed body corporate (known as a PBC) under s 56 or s 57 of the Native Title Act. In other words, in the vast majority of consent determinations made by this Court around Australia, a PBC has been established under the relevant federal legislation, and has already been nominated by the claim group. Usually this nomination is approved at the same meeting as the consent determination is authorised.
3 In Western Australia, at least for a period of time, a different practice developed: especially, it seems, in the East Kimberley. These proceedings show why it is a practice that the Court should, as far as possible, not permit to continue without compelling justification.
4 The Ngarrawanji common law holders were initially given 12 months from the date of the Ngarrawanji #1 determination to nominate a PBC to be the trustee of their native title in that determination: that is, they were given until 21 May 2020. This deadline was extended more than once. The deadline in the subsequent Ngarrawanji #2 determination was also extended.
5 Without nominations and the Court's orders consequent upon them, the native title determinations were not effective. The Court must now decide what to do because none of the extended deadlines have been met.
6 The Court has before it a series of affidavit evidence from lawyers within the Kimberley Land Council (KLC) (Mr Mumford and Mr D'Antoine), a KLC anthropologist (Ms Barritt) and Mr Edmond from the Indigenous Land and Sea Corporation (ILSC). The Court also has mediation reports from Judicial Registrar McGregor, and party reports to the Court, as well as transcripts of various case management hearings. What I set out in these reasons is based on that material.
7 Mr D'Antoine's evidence shows that, from around mid-2019, members of the Ngarrawanji applicant, Dr Mark Bin Bakar and Mr Gregory Tait, tried to secure funding from the KLC to pay for an external consultant, Mr Jerome Frewen, to create and establish the proposed Ngarrawanji PBC. A letter to the KLC requesting this funding was written by Mr Tait and Dr Bin Bakar, using the term "we". It is unclear who else from the Ngarrawanji common law holders was involved in this decision. The KLC responded that an application for funding assistance would need to be made.
8 According to Mr D'Antoine, the KLC then organised a meeting of the members of the Ngarrawanji applicant to obtain "guidance from the Applicant on the development of a PBC" and to plan the process of nominating a PBC. This meeting was organised for 9 December 2019, in Kununurra.
9 I pause here to say that the people who are members of the Ngarrawanji applicant have not changed since before the first consent determination. They are Ms Josephine Farrer, Mr Matt Dawson, Mrs Phyllis Wallaby, Mr Marty Stevens, Dr Mark Bin Bakar and Mr Gregory Tait.
10 Mr Tait and Dr Bin Bakar wrote to the KLC on 26 November 2019 and told the KLC the members of the Ngarrawanji applicant had agreed amongst themselves that they would not participate in the 9 December meeting and instead that they wanted to work with Wayne Bergmann (then the Chief Executive Officer of KRED Enterprises Pty Ltd) to draft the PBC rule book, together with KRED Legal Pty Ltd, trading as Arma Legal. The evidence is that KRED Enterprises was engaged in January 2020. A workshop, which appears to have been only for the members of the Ngarrawanji applicant and not all the common law holders, was held in Broome in January 2020. Mr D'Antoine attended that meeting with another KLC officer to explain the PBC nomination and authorisation process. The KLC provided funds to KRED Enterprises of several thousand dollars.
11 This arrangement came to an end in March 2020. Mr D'Antoine was informed there were difficulties from the Ngarrawanji applicant's perspective in working with KRED Enterprises. The evidence is that there was a draft rule book in existence and that members of the applicant, particularly Mr Tait and Dr Bin Bakar, had a copy of this rule book.
12 From about February 2020, the anthropologist Dr Tony Redmond became involved, initially at the instigation of some members of the Ngarrawanji common law holders directly (it is unclear which members). Dr Redmond was asked to provide further maps and information about which apical ancestors and "Taams" were located in which areas of the Ngarrawanji determination. Eventually, in April 2020, Dr Redmond was retained by the KLC to develop what is called in the evidence a "Taam map" for the Ngarrawanji determination area. In my opinion, this evidence illustrates that the objective of at least some members of the applicant was to strictly delineate which families, and descendants of apical ancestors, not only might speak for particular areas, but might be seen as inside, or outside, the group of Ngarrawanji common law holders.
13 In April 2020, anticipating that the 21 May 2020 PBC nomination deadline would not be met, lawyers from the KLC, acting for the Ngarrawanji applicant, asked the Court for an extension of the deadline until December 2020. The Court granted an extension until 7 December 2020. That was the date proposed by the Ngarrawanji applicant. It was proposed on the basis there would be an authorisation meeting of the Ngarrawanji common law holders before this date.
14 Meanwhile, after April 2020, the evidence shows that yet further inquiries and arrangements were undertaken by some members of the Ngarrawanji applicant with other private lawyers about the creation of the PBC. Members of the applicant were reminded by the KLC in correspondence that their authority did not extend to changing the legal representation of the applicant without the authority of the whole native title claim group.
15 On Mr D'Antoine's evidence, the arrangements made with a private lawyer during this period again fell apart. Mr Tait asked the KLC to destroy copies of the draft rule book provided by the second private lawyer.
16 Mr D'Antoine's affidavit demonstrates the extraordinary number of calls, communications, meetings and attempts at assistance from the KLC to various members of the applicant, in particular in the second half of 2020, in further attempts to produce a draft rule book to be taken to the Ngarrawanji common law holders. The affidavit also demonstrates that certain members of the applicant continued to question the connection of particular families to apical ancestors on the Ngarrawanji consent determinations.
17 It appears to me that much has been done on this PBC issue without the authority of the whole of the native title claim group, and at the instigation of a few members of the Ngarrawanji applicant. While members of the Ngarrawanji applicant may have considered they were attempting to act in the best interests of the Ngarrawanji common law holders as a whole, the evidence suggests the common law holders have not been given opportunities to engage with decisions made on their behalf, or the various proposals which have been explored.
18 In September 2020, KLC staff, including anthropologists, travelled to Halls Creek to meet with Ngarrawanji common law holders about the establishment of the PBC. This was the meeting which, properly, would bring a focus back on the common law holders as an entire group. An authorisation meeting was notified and convened at a hall in Halls Creek for 15 and 16 September 2020. These meetings cost a lot of money, which is sourced from public funds, and involve a lot of human resources for the KLC. As the evidence shows, the KLC has many competing priorities in terms of various native title claims, and limited funds. It prioritised the Ngarrawanji native title group, but its funds and expenditure of resources have been wasted.
19 I am satisfied that the September authorisation meeting was widely and properly notified. At that meeting, the KLC registered 69 individuals as descendants of at least one Ngarrawanji apical ancestor. On Mr D'Antoine's evidence, it was Mr Tait who told him that the meeting should not go ahead and that, in Mr Tait's view, people who were not connected to the Ngarrawanji application areas were being admitted to the meeting. Mr D'Antoine's evidence is that, upon inquiry, this opinion appeared to be shared by other members of the applicant. Mr Tait, the other members of the applicant and their supporters walked out. The next day, at a separate meeting with members of the applicant, Mr D'Antoine explained the potential consequences of not complying with the Court's orders. The members of the applicant told Mr D'Antoine they did not want the authorisation meeting to proceed.
20 However, as Ms Barritt's evidence shows, on 15 September 2020, members of eight sets of family groups had remained in the hall and expressed the wish that the meeting should go ahead. It was the families of the members of the applicant who walked out; Ms Barritt's evidence makes this clear. Therefore, without any apparent reverting to all of the other common law holders, the KLC did not arrange for the meeting to proceed, but abided the wishes of the members of the Ngarrawanji applicant and abandoned the authorisation meeting.
21 In my opinion, this evidence makes it plain that the individual members of the applicant are pursuing interests which do not even purport to represent the views of the whole of the common law holders. They have an agenda of their own. It is not relevant to the present issue what that agenda is. What is relevant is that they are not acting in a way which represents the interests of the entirety of the common law holders, which is their function as members of the applicant.
22 For these reasons, even the Court's extended deadline to 7 December 2020 was not met. This was also the deadline for the Ngarrawanji #2 PBC to be nominated. In July 2020, when that determination was made, the Court expressed concern (at [39]) with the appointment of a PBC.
23 The Ngarrawanji applicant, and the wider group of common law holders, have been on notice for a long time about the level of discomfort the Court has about the default in nominating a PBC.
24 Given the ongoing dysfunction within the Ngarrawanji group, and the apparent ongoing dispute about the proper common law holders, the Court held case management hearings on 16 February 2021 and again on 3 March 2021. These had to be held remotely because of COVID-19 border restrictions, although the Court would have preferred they be held in person in Halls Creek.
25 At the first case management hearing, the Court made it clear to everyone that it had contacted the ILSC to ask it to file an affidavit explaining whether it thought that it should be appointed as the PBC for the Ngarrawanji determinations, since the common law holders could not agree on a PBC themselves. At this hearing, and at the further case management hearing on 3 March 2021, members of the Ngarrawanji applicant elaborated on their concerns with the process for nominating a PBC. Having heard from the parties, and from the ILSC about what it thought of being appointed as a PBC, the Court decided that a mediation should be held to help settle the disagreement about the common law holders.
26 This mediation was held in Halls Creek in June 2021. At the mediation, there were 29 members of the Ngarrawanji claim group, as well as lawyers from the KLC, and staff and lawyers from the ILSC.
27 Everyone agreed that Dr Tony Redmond would do some more research into the Ngarrawanji claim group members' genealogies in order to help the claim group sort out any disagreements about who were the descendants of the apical ancestors for the Ngarrawanji native title. This was going to involve Dr Redmond sitting down with and speaking to claim group members. Everyone agreed that Dr Redmond would do that in June and July 2021, in the hope he could travel to Western Australia by then.
28 Because of the COVID-19 pandemic, Dr Redmond could not come from New South Wales to Western Australia in the middle of 2021; the Western Australian government had closed its border to New South Wales. So, in September 2021, the Court directed that work be done either online by Dr Redmond, or in person by another qualified anthropologist, who was based in Western Australia and not subject to border restrictions. The orders contemplated that, in November 2021, the applicant and the group members and the ILSC would come back to the Court for another mediation.
29 The Court said that it hoped the Ngarrawanji claim groups would agree on a PBC because, if they did not, the Court would probably appoint the ILSC to be the PBC for the Ngarrawanji native title: see Farrer on behalf of the Ngarrawanji Native Title Claim Group v State of Western Australia (No 3) [2021] FCA 1131. By this time, the option of appointing the ILSC had been known to all concerned for seven months, and it was now well over two years since the Ngarrawanji #1 determination, yet the recognition of native title had still not taken effect.