Gallagher on behalf of the Wanggil Native Title Claim Group v State of Western Australia

Background and summary 4 The applicant filed the Wanggil claimant application in this Court on 10 May 2019. The application covers a small area of almost 1.66 square kilometres, located approximately 50 kilometres west of Kununurra. This area is wholly contiguous with lot 525 in deposited plan 409302, which is an area of unallocated Crown land that is currently subject to a notice of intention to take by way of conversion into freehold title. The conversion would facilitate the extraction of gravel by Western Australia's Commissioner of Main Roads. There is no dispute that this act is captured by the future act provisions under the Native Title Act 1993 (Cth). In these reasons, I refer to this area as the Wanggil claim area. 5 The Wanggil claim area is located near areas in which native title has already been determined to exist. To the northeast is the determination area of Miriuwung Gajerrong #4 (Ward v State of Western Australia [2006] FCA 1848), to the southwest is the determination area of Wanjima-Wunggurr Wilinggin (Neowarra v State of Western Australia [2004] FCA 1092) and to the northwest is the determination area of Balanggarra #3 (Cheinmora v State of Western Australia (No 3) [2013] FCA 769). There are also vast amounts of unallocated Crown land to the north and south of the Wanggil claim area over which no native title determination application has been filed to date. These areas have been described as the 'unclaimed areas'. Subject to securing funding and human resources, the Court has been informed during case management hearings that it has always been intended to file a native title claim over the unclaimed areas. In the meantime, the clear intention of the Wanggil claimant application has been to enable the Wanggil applicant to negotiate with the State of Western Australia measures designed to protect cultural heritage from the threat of damage caused by gravel extraction in the Wanggil claim area, while a further claim is progressed in relation to the unclaimed areas. That negotiation has occurred and there has been an Indigenous Land Use Agreement (ILUA) concluded. 6 On 26 November 2019, Dean Williams, Shirley Williams, Peggy Trust and Christine Williams (for the purposes of this judgment, the respondents) filed a notice of intention to become respondent parties to the claimant application, on the basis that they hold native title rights and interests in relation to the Wanggil claim area and are not included in the claim group. The respondents were joined to the application on 28 November 2019, and the matter was referred to mediation. The mediation, which was originally planned to occur during March 2020 in the East Kimberley, was postponed due to the COVID-19 pandemic and was eventually conducted by a series of phone or video conferences over a period of several months. 7 Following mediation, the applicant, the respondents and the State agreed that the KLC would engage an anthropologist (Dr Anthony Redmond) to undertake desktop and fieldwork research in the Wanggil claim area and the unclaimed areas, and that the parties would negotiate an ILUA in relation to the Wanggil claim area that includes measures to protect cultural heritage within it, or provide compensation for cultural heritage destruction. These steps were reflected in timetable orders subsequently made by the Court. An outcome of the mediation, reported to the Court, was that the proceedings would be discontinued following the registration of the ILUA. 8 The parties reached in-principle agreement on the terms of an ILUA in August 2021. That ILUA was subsequently authorised in accordance with s 251A of the Native Title Act at a meeting notified and open to all members of the claim group, as well as the respondents, and then certified by the KLC under s 203BE(1)(b) of the Act. The ILUA was notified on 13 October 2021, it was expected to be registered in January 2022, and any rights to appeal or review of the registration decision were expected to lapse by 9 April 2022 at the earliest. So far as the Court has been able to ascertain, there have been no appeals or reviews filed in relation to the ILUA registration decision. 9 On 31 August 2021, the respondents filed a request for leave to issue a subpoena on the KLC for production of Dr Kim Doohan's reports, and field notes or other records of interviews with the respondents and Mona Williams (the respondents' grandmother), that were made for the purposes of the native title applications for the period 1998 to 2013 in relation to the Balanggarra People. These native title applications, supported by Dr Doohan's anthropological work, eventually resulted in the consent determination of Balanggarra #3 over an area of 26,025 square kilometres, the southern part of which adjoins the Wanggil claim area. The respondents claimed that Dr Doohan's work covered areas close to the Wanggil claim area, as well as the claim area itself, and that the work is therefore relevant to the respondents' claims of connection in the current proceeding. 10 The respondents have been seeking access to this material for some time. In 2020, the respondents contacted the KLC to inspect copies of the material. The KLC advised that it could not release the material without the permission of the prescribed body corporate for the Balanggarra #3 determination (the Balanggarra Aboriginal Corporation). The BAC passed a resolution in 2020 that, while the KLC could access the Balanggarra connection report for the purposes of researching and identifying the people who hold native title rights and interests in the Wanggil claim area and the unclaimed area, the BAC would not consent to the KLC releasing this report or other materials to the respondents. In light of the respondents' submission that the material could only be accessed pursuant to a subpoena, the Court granted leave to issue a subpoena. 11 The subpoena was listed for return on 15 October 2021. In light of the KLC's foreshadowed intention to apply to have the subpoena set aside, the return date was subsequently adjourned to 17 November 2021, and eventually vacated pending the hearing of the KLC's application. The KLC filed the foreshadowed application to have the subpoena set aside on 12 November 2021. On 14 January 2022, subsequently to the KLC's application, but before the respondents' submissions were received, the ILUA was registered with the identifier WI2021/012. 12 In support of its application, the KLC submitted that the subpoena should be set aside because it is an abuse of process. The KLC raised eight (or, on another view, nine) objections to the subpoena. There were some differences between the objections identified in the supporting affidavit and the KLC's submissions, but in my opinion the objections fall into four broad categories: (1) because the claimant application has been settled in principle, the subpoena cannot be for the purpose of a pending trial or hearing, and is instead effectively seeking third party discovery or impermissibly 'fishing'; (2) the subpoena is not relevant to the claimant application; (3) the documents sought in the proceeding are subject to privilege that has not been waived; and (4) compliance with the subpoena would be oppressive to the KLC. 13 At a judicial case management hearing in December 2021, it was agreed that the KLC's application would be determined on the papers. The Court ordered the KLC to file and serve a list of material in its possession that falls within the scope of the subpoena, with annotations identifying which materials the KLC resists production of. This list, which was filed on 21 December 2021 and accepted by the respondents as conclusive, identified 11 documents within the scope of the subpoena. They are all reports by Dr Doohan (as sole or co-author). The respondents submitted (and the KLC did not dispute) that: Enquiries made to Dr Doohan by KLC have indicated that there is no likelihood of the existence of any field notes. Dr Doohan explained that this was because she employed a particular methodology by which all notes and records are incorporated into the final report and are not kept separately. (Footnotes omitted.) 14 The respondents accepted in their submissions that the KLC's list contains all the documents in the KLC's possession responsive to the subpoena, and there is "no likelihood of any further residual material being available". Further, upon review of the list, the respondents limited their request for production to only the seven documents listed in Annexure A to the Court's orders made today. 15 For the reasons that follow, the objections to production by the KLC should be overruled, and the application to set aside the subpoena should be refused.

Submissions 16 The KLC's first principal submission was that, because the Wanggil claim has been settled in principle and will be discontinued in early 2022, the subpoena was not issued for the purpose of a pending trial or hearing. Since no issues remain in dispute between the parties in relation to the Wanggil claim, the subpoenaed documents cannot assist the respondents' 'case' or the resolution of an identified issue in the proceeding. On this submission, the subpoena would fail to satisfy the test or tests outlined in Rinehart v Rinehart [2018] NSWSC 1102 at [43]-[47]. Relatedly, the KLC submitted that the subpoena is being used for the purpose of obtaining discovery against a third party (being the KLC), and that the subpoena may be seen to be a 'fishing expedition', within the meaning that was given to that term in Associated Dominions Assurance Society Pty Ltd v John Fairfax & Sons Pty Ltd (1955) 72 WN (NSW) 250 at 254. 17 In response, the respondents submitted that the Wanggil proceeding is still on foot and that the anthropological research in the Wanggil claim area and the unclaimed areas that is prescribed by the current timetable orders will continue after the registration of the ILUA and the discontinuance of the proceeding. They submitted that the subpoenaed documents should be provided to Dr Redmond as part of his desktop research, as contemplated by the parties at mediation in 2020. They also submitted that their connection to the Wanggil claim area must be proven in order to entitle them to compensation under the ILUA. On these bases, the respondents submitted that the subpoena is for the purposes of current litigation, and not some collateral or private purpose. The respondents also submitted that the subpoena cannot be described as a fishing expedition, as they have provided evidence that the documents sought are likely to support their claim to connection. The respondents referred to the affidavit evidence of Shirley Williams that her family has connection to land adjacent to the Wanggil claim area and that she recalls drawing a map with Mona Williams and other relatives showing her family's connection to an area that included the Wanggil claim area.

Resolution 18 The proposal to discontinue the claimant application means there will not be a determination that native title exists, or that it does not exist. While no party suggested the claimant application was colourable, it is now clear it was lodged with the intention of securing a collateral outcome under the Native Title Act, namely: an ILUA. That is not to suggest there is anything improper in such an intention, but rather to characterise the purpose of the claimant application. Nevertheless, the area covered by this claimant application forms part of a much larger area over which native title is asserted. In due course, no doubt a claimant application over a much larger area will be filed, as foreshadowed by the KLC at a case management hearing in December 2019. The respondents having asserted native title in the present claim area, recognising it to be a part of a larger area of country associated with the Wanggil estate group, adherence to the objectives in s 37M of the Federal Court of Australia Act 1976 (Cth) supports ordering production of the documents in relation to the only presently existing native title claim on behalf of the descendants of the Wanggil estate group in this region. 19 The KLC's objections rely on the technical separation between this claimant application and the assertion of native title by the Wanggil applicant, and an assertion of native title over all or some of the unclaimed areas. However, the pleaded allegations and the evidence supporting this claim are directed at the (larger) unclaimed areas, not the Wanggil claim area specifically. This area is included as no more than a part of what is clearly a larger assertion of native title. That is the only rational way to understand the originating process, and the decision by the National Native Title Tribunal to register the Wanggil ILUA. 20 Whatever the motivation of the Wanggil applicant (and other parties), the respondents are correct that this proceeding remains on foot. Its discontinuance will require the leave of the Court, because - I infer - the respondents will not provide their consent. That leave may or may not be granted at the time the Wanggil applicant seeks discontinuance. 21 The respondents are also correct to submit that this proceeding has been case managed on the basis that mediation between the Wanggil applicant and the respondents about connection was a material part of the any resolution to the proceeding, as was the further timetabled research by Dr Redmond. As the respondents submitted, the August 2020 mediation report to the Court stated: The KLC has engaged Dr Anthony Redmond to undertake research to identify the persons who should be engaged in consultations for a native title claim or claims for the unclaimed areas surrounding the Wanggil claim, as well as the area of the Wanggil claim. It is agreed that the William family will be involved in the field research to be undertaken by Dr Redmond, and they may identify any materials in addition to those the KLC will provide to Dr Redmond which they say should also be included in his brief for the desktop component of the research. 22 There is no evidence Dr Redmond's research has been completed. The respondents seek to use the subpoenaed material in their involvement with Dr Redmond's work. So far as the Court is presently concerned, that work is still part of the connection aspect of this proceeding, and is being undertaken in accordance with orders of the Court, to which the Wanggil applicant consented. 23 The KLC has submitted the terms of the ILUA are confidential. The respondents' submissions indicate that at least one term of the ILUA involves compensation. This is confirmed by Judicial Registrar McGregor's report to the Court dated 26 August 2020, and by Ms Kilpatrick's affidavit evidence. The respondents contend that, unless they can establish themselves as native title holders, they will not be eligible for compensation under the ILUA. The KLC did not challenge Ms Kilpatrick's affidavit evidence (at [17(e)]) to this effect. 24 These considerations also provide a further adequate forensic foundation in the context of the current proceeding for the subpoena.

Submissions 25 The KLC's second principal submission was that, because the subpoenaed documents were created for proceedings over "vastly different areas", with claims that did not include any Wanggil apical ancestors, the documents sought in the subpoena are not relevant to the Wanggil proceeding. 26 In response, the respondents submitted that they are common law holders under the Balanggarra native title determination and are claiming connection to the Wanggil area through the research programmed in this proceeding, which makes the subpoenaed documents relevant. The respondents' position is said to be supported by their evidence about Shirley Williams' connection to an area adjacent to the Wanggil claim area, and the map that included the Wanggil area.

Resolution 27 In the claimant application itself, and in the course of case management, the reality was that native title over the unclaimed areas remained prominent, and further the question whether the respondents were properly part of the Wanggil claim group for the unclaimed areas was recognised. 28 The claimant application itself implicitly recognises the connection between it and the unclaimed areas. Five apical ancestors are nominated for an area of less than 1.66 square kilometres. In my opinion, that nomination can only be explained on the basis of an implicit recognition that the present claim area is part of a much larger area belonging to the putative Wanggil native title holders. Similarly, the native title rights asserted in Schedule E are expressed in terms appropriate for a larger area, and are plainly referable to a larger area. 29 The affidavit material filed with the claimant application deposes principally to connection to places outside the Wanggil claim area, and is directed at connection to the unclaimed areas as "Wanggil country". Interposed into this evidence are phrases such as "including the claim area". The anthropological report filed with the claimant application, by Mr Justin Lincoln, expressly recognises that the Wanggil claim area forms part of a larger estate: The country within which the Claim Area is situated in an area of country associated with the Wularr language group - in particular the Wanggil estate - and this is reflected in those possessing traditional rights and interests in the area. 30 Therefore, it is incorrect that the subpoenaed documents are not relevant to the present claimant application. Whatever the collateral purpose of the claimant application might have been, it is still a claimant application - that is, an application for a determination that native title exists. The respondents have, quite properly, been joined because they assert native title over the Wanggil claim area, as well as perhaps a larger area including some of the unclaimed areas. That puts them in no different position to the Wanggil applicant, whose evidence in support of the claimant application almost entirely concerned areas of land and waters outside the Wanggil claim area. I infer the National Native Title Tribunal relied on this evidence relating to the unclaimed areas, as well as the 1.66 square kilometres, to register the claim. 31 Generally, the approach in this Court is to deal with the reality and substance of native title claims before it, and not rely on technicalities. That is also the approach which s 37M of the Federal Court Act requires. The reality and substance of the present claim is that it covers an area that is part of a larger area over which native title is asserted, this reality being recognised and indeed highlighted in the evidence and pleaded allegations supporting the claim, even if the larger native title claim is not yet formally made. The fact that a collateral purpose drove the making of an initial and separate claim over a very small and specific area should not detract from that reality. 32 For similar reasons, the KLC's contention that the subpoena is "fishing" should be rejected. The subpoena is now agreed to be confined to a small number of documents for a legitimate forensic purpose - that is, to assist the respondents in establishing their asserted native title over the Wanggil claim area, as the only area presently subject to a claim by the applicant, but with all parties recognising that the applicant's claim to native title is over a much larger area.

Submissions 33 The KLC's third principal submission was that the subpoenaed documents are exempt from disclosure because they are privileged. In the KLC's submission, the subpoenaed documents were created for the dominant purpose of legal advice, or the purpose of litigation. The KLC asserted that Dr Doohan's material was provided to other parties during the mediation of the Balanggarra #3 claim on a confidential and without prejudice basis. This material has not been published, and was not cited in the Balanggarra #3 determination. In the KLC's submission, the subpoena ought to have been served on the BAC, as the holder of the privilege that was previously held by the Balanggarra #3 applicant (referring to Tommy on behalf of the Yinhawangka Gobawarrah People v State of Western Australia (No 2) [2019] FCA 1551 at [34]). 34 In response, the respondents submitted that the KLC has failed to adduce evidence that can ground a claim for legal professional privilege or without prejudice privilege over the subpoenaed documents. In relation to legal professional privilege, the respondents noted that the title of one of the subpoenaed documents - Response to the request by the State of Western Australia for further information, 2005 - suggests that it was intended for provision to a third party and therefore not subject to legal professional privilege. The respondents further noted that the document's title suggests that one or more of the earlier reports had also been provided to the State. In relation to without prejudice privilege, the respondents submitted that the KLC has failed to show that the documents contain anything other than expressions of opinion by an independent expert, which would not contain admissions or offers of compromise and may have been put to adversarial use. 35 In the alternative, the respondents submitted that the BAC had notified the KLC that it has waived privilege in favour of the respondents, since they are members of the BAC. The respondents referred to affidavit evidence annexing emails between the KLC's Principal Legal Officer and the BAC's Chief Executive Officer, Mr Joe Heffernan, in September 2021. In the respondents' submission, the emails evinced a clear indication to the KLC that the BAC did not consider it appropriate to prevent access to the documents sought in the subpoena.

Resolution 36 The KLC's submissions appear to assume that the BAC also has copies of these 11 reports of Dr Doohan, including the seven now sought. It is not clear from the evidence that this is in fact the case. 37 Nevertheless, any settlement privilege, or client legal privilege, which may still exist is not the privilege of the KLC to claim. The KLC's submissions recognised as much, and recognised the privilege was likely to be that of the BAC, as the successor under the legislative scheme of the Native Title Act to the claimant applicant in Balanggarra #3: see Tommy at [34]. I infer the KLC accepts that it is BAC which, ultimately, has "control" of the documents subject to the subpoena. 38 The real difficulty for the KLC's objection in this context is the position of BAC. In evidence is an email from Mr Heffernan, dated 19 September 2021, which states: Following discussion with Balanggarra Aboriginal Corporation RNTBC (BAC) directors, BAC does not consider it appropriate to attempt to prevent some of its members from accessing the documents requested in this Federal Court subpoena from the KLC. Subject to the assumption that BAC is successor to the Applicants in the identified matters, BAC will consider a resolution at its next meeting to instruct the KLC produce the documents identified in this subpoena so far as they are legally entitled to. 39 As the respondents submit, there is no evidence that any instruction was given to the KLC. However, the position of the BAC is clear from this correspondence. While the communication may not expressly deal with any claims of privilege, if there is either a settlement privilege or any client legal privilege, it would reside with the BAC, and the terms of the correspondence make it as clear as it could be that the BAC would waive any privilege, as it wishes to see the respondents have access to the subpoenaed documents. 40 No objection on the basis of privilege can be sustained. Further, I am positively satisfied that the BAC, as the entity admitted by the KLC to be the "owner" of the documents and to have ultimate "control" over them (again, as the successor to the Balanggarra native title applicant), and as the entity representing the Balanggarra native title holders, positively consents to the production of these documents to the respondents. That is a weighty matter. It is difficult to see why the KLC had maintained its objection to production in those circumstances. 41 These findings also dispose of any objections based on the KLC being a "third party". In its capacity as the representative body for this region, it has quite properly admitted possession of the copies of the documents. It has quite properly made inquiries of the entity it treats as the primary "owner" of the documents and the entity with ultimate control over them. These steps indicate that a subpoena directed to the KLC was a reasonable and appropriate step for the respondents to take.

Submissions 42 The KLC's fourth principal submission was that compliance with the subpoena would be oppressive to the KLC. The KLC asserted that it is currently incapable of ascertaining what confidentiality and non-disclosure directions may affect the subpoenaed documents, since this would require the KLC to identify whether any specific prohibitions had been made in respect of any of the 11 reports under s 94L of the Native Title Act. 43 In response, the respondents submitted that the KLC should have no difficulty determining which, if any, documents are subject to confidentiality and non-disclosure directions. The respondents contended the KLC did not provide any evidence or arguments as to why the subpoenaed documents were subject to an implied undertaking of confidentiality and noted that, in any event, confidentiality is not of itself a reason to set aside a subpoena. Furthermore, the respondents submitted that the KLC did not adduce any evidence of directions made under s 94L of the Native Title Act that the reports be kept confidential. In circumstances where there were only 11 documents to review, all of which concern Balanggarra claims in respect of which the KLC was acting as legal representative, where the KLC has stated that it has identified the relevant court orders for the mediation reports, and where the KLC has ascertained that the Court may have a record of whether documents produced in mediation were subject to particular restrictions on use, the respondents submitted that it was not oppressive to require the KLC to identify applicable confidentiality and non-disclosure directions.

Resolution 44 I accept the respondent's submissions. Whether 11, or now seven, the number of documents is a perfectly manageable number. If the KLC's records are not sufficiently organised for it to be aware whether it is holding documents over which there are court orders in respect of confidentiality, that is a difficulty with its proper records management, and not a matter which should interfere with production. Further, the consent of the BAC to production means it would be very unlikely that production under this subpoena would breach any existing orders in anything but the most technical of senses. However, there is no evidence of any such orders and the KLC bore at least an evidentiary burden on this application of persuading the Court there was a likelihood such orders exist.

Conclusion 45 There will be orders that the KLC produce the documents numbered 1 to 7 in the list produced by the KLC to the Court, on or before a date to be fixed in the Court's orders. I certify that the preceding forty-five (45) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Mortimer.

SCHEDULE OF PARTIES WAD 274 of 2019 Applicants Second Applicant REBECCA SAMPI Third Applicant CHARLYNE JOHNSON Fourth Applicant DEAN MORGAN Respondents Second Respondent DEAN WILLIAMS Third Respondent SHIRLEY WILLIAMS Fourth Respondent PEGGY TRUST Fifth Respondent CHRISTINE WILLIAMS