Freddy on behalf of the Wiluna Native Title Claimants v State of Western Australia

INTRODUCTION 1 By notice of motion, filed on 25 June 2010, Mr Charles Ghaneson is seeking the following orders: 1. To be joined as an interested party to proceedings relating to WAD6164/98 (Wiluna) and WC 99/24, as applicable and WF 10/10 as applicable. 2. Review and investigate the functions of Central Desert Native Title Services Ltd and its effectiveness in representing the Wiluna NTP/Claimants prior to any determination of native title ownership relating to WAD6164/98 (Wiluna). 3. Terminate funding by Comwth Govt [sic] under s203FE (Native Title Act 1993) to Central Desert Native Title Services Ltd on the grounds of "unsatisfactory" performance of functions of a representative body under the NT Act. 4. Replacement of Central Desert Native Title Services Ltd by a/with another totally independent Native Title Representative Body in relation to WAD6164/98 and the Wiluna NTP/Claimants. 5. Cease proceedings in relation to determination of WAD6164/98 (Wiluna) until the Federal Court has considered my motion. 2 The application in respect of which the notice of motion was filed is a native title determination application made on behalf of the Wiluna Native Title Claimants (the Wiluna application). 3 Mr Ghaneson is a past director and shareholder and current creditor of Seven Star Investment Group (SSIG). SSIG is the applicant for the grant of exploration licence 53/1356, which is currently the subject of proceedings in the National Native Title Tribunal (NNTT) under s 35 of the Native Title Act 1993 (Cth) (NTA) and given the NNTT reference WF10/10. 4 Mr Ghaneson filed two supporting affidavits sworn on the 25 June 2010 and 12 August 2010 respectively. They contained various allegations against the Central Desert Native Title Services (CDNTS) and what was described as evidentiary documentation. Much of that information is not in admissible form and is difficult to follow. 5 In his affidavit Mr Ghaneson states the purpose of his motion is to 'expose the tyrannical, contemptuous, unprofessional, unsatisfactory, unethical, unjust and unfair behaviour and functions of [CDNTS]'. He believes it is important and in the public interest that the matters deposed to in his affidavit come to the attention of the Federal Court, the State of Western Australia and the NNTT and other relevant parties since it is his belief that other mining-related people or entities may be hesitant, unwilling or unable to do something about the injustices he says are occurring. 6 Mr Ghaneson is seeking an investigation of CDNTS pursuant to s 203F NTA and if any investigation finds that CDNTS have not performed their functions satisfactorily, that the Commonwealth funding it relies upon will be limited or terminated pursuant to s 203CA NTA. He also contends that the directors should be removed under the applicable provisions of the Corporations Act 2001 (Cth). 7 A considerable amount of documentation is annexed to Mr Ghaneson's affidavit which he characterises as: 1. evidence of contemptuous and unethical behaviour towards indigenous people(s) by a native title representative body funded by the Commonwealth Government, namely CDNTS; 2. evidence of lack of integrity, knowledge or professionalism by employees or consultants of CDNTS; 3. unsatisfactory performance of functions by a Native Title representative body funded by the Commonwealth Government 4. evidence of providing false or misleading statements by CDNTS; and 5. evidence of speculative, discriminatory and hypocritical behaviour by CDNTS. 8 That documentation includes portions of the CDNTS Constitution, emails and correspondence from officers of the CDNTS, affidavits prepared by CDNTS officers, and other documents. 9 In particular, Mr Ghaneson complains that: 1. CDNTS has plagiarised its own documents; 2. CDNTS has made frequent errors and omissions in affidavit material and other documents it has prepared in the course of the Wiluna proceedings, including a reference to 'Northsun' in an affidavit that should have, according to Mr Ghaneson read 'SSIG' and the apparent omission of a name in the lists of names of indigenous people claiming to hold native title in the Claimant Application Summary; 3. CDNTS made no effort to facilitate dialogue between native title holders and SSIG; 4. CDNTS may have employed consultants as 'yes men', to sign relevant court documents and correspondence; 5. CDNTS officers have not been not sufficiently precise or professional in drafting their documents and that as a result their credibility and integrity is questionable; and 6. CDNTS has provided false or misleading information, particularly in relation to its relationship with its predecessor, the Ngaanyatjarra Council. 10 It is also contended by Mr Ghaneson that SSIG has repeatedly attempted to negotiate a mutually beneficial outcome with the Wiluna Native Title Claimants but has been rejected without exception by CDNTS, including in circumstances where SSIG has signed an agreement drafted by CDNTS without amendment. In this respect he asserts that CDNTS has failed to negotiate in good faith contrary to its own constitution and the NTA, under which CDNTS obtains its funding from the Commonwealth Government. 11 Mr Ghaneson submits that he has been the subject of particular ridicule by CDNTS in that conduct that he engaged in during and around the time of a 'Wiluna NTP meeting' has been misrepresented by the CDNTS. In particular, he complains that a CDNTS officer represented that Mr Ghaneson had staged a protest in the garden bed of the Wiluna Shire Offices when in fact that protest took place on the front verge of the Wiluna Shire Offices. 12 Mr Ghaneson requests to be joined to the proceedings as an interested party. He claims 'an interest' by reason of being a creditor of SSIG. 13 Insofar as Mr Ghaneson's motion relates to the alleged unsatisfactory performance of CDNTS, it is not within the power of this Court to either make an assessment of such conduct or take action in respect of it. Under s 203DF NTA that power lies with the Commonwealth. As such I have decided the motion should be considered as an application by Mr Ghaneson under s 84(5) NTA to become a party to the proceedings.