The fiduciary obligations
96 In accepting a role (as a member of the Ankamuthi People), of acting as persons constituting the Ankamuthi applicant so as to make the native title claim for the native title claim group, Mr Woosup and Ms Tamwoy accepted and undertook to act for and on behalf of the members of the claim group in the exercise of any right, power or discretion affecting the interests of the Ankamuthi native title claim group in either a legal sense or a practical sense. The principles which lead to that result in the context of the role of persons who constitute the applicant in a native title determination application are the essential principles which determine whether a person has accepted or assumed fiduciary obligations to another. The context in the case of Mr Woosup and Ms Tamwoy, in accepting and undertaking to act as persons constituting the applicant, is the relevant context but the principles to be applied in determining whether they owed fiduciary obligations to the native title claim group are the same principles determined in our jurisprudence for deciding whether a person has, in all the circumstances, assumed particular fiduciary obligations to another.
97 In Oliver Hume South East Queensland Pty Ltd v Investa Residential Group Pty Ltd [2017] FCAFC 141, the Full Court (Dowsett, Greenwood and White JJ) considered the question of whether particular parties owed fiduciary obligations to another. In determining that question, the Court analysed the principles to be applied, within the relevant factual matrix, in answering that question. Greenwood J (White J agreeing) identified the principles to be applied. Dowsett J differed as to the application of the principles to the facts in issue but did not depart from the expressions of principle of Greenwood J (and White J agreeing), although his Honour set out the relevant principles in his own terms.
98 The following principles identified by Greenwood J (White J agreeing) of relevance to the present proceedings are these.
236 … In developing his seminal analysis of the coherent body of law developed by Equity in identifying "certain and distinct" obligations which define their own "fiduciary" for their own respective purposes, Dr Finn expressed this observation in Fiduciary Obligations 1977 (described by Millett L.J. in the Court of Appeal in Bristol v Mothew at p 18 as "his classic work"), at p 2:
… [Equity] has evolved a series of self-contained obligations - obligations which are themselves certain and distinct, and which individually define their own "fiduciary" for their own respective purposes. These obligations attribute no large significance to the term used to describe the persons to whom each individually applies. In some instances he is referred to as a fiduciary: in others as a confidant. The term used is unimportant. It is not because a person is a "fiduciary" or a "confidant" that a rule applies to him. It is because a particular rule applies to him that he is a fiduciary or confidant for its purposes.
[original emphasis of the author]
237 The point of emphasis adopted by Dr Finn in the above passage is that a person to whom the relevant rule applies is a fiduciary for the purposes of the applied rule and not necessarily for all rules, as all rules might not apply although, plainly enough, more than one rule might apply to a person. The relevant rules, however, do not apply to a person by simply attaching a taxonomic label "fiduciary" to the person. In Bristol v Mothew, Millett L.J. at p 18 recognised the force of the point of principle identified by Dr Finn but detached it from the specific relativity of the relationship between the application of the particular rule to a person and the fiduciary relationship of trust and confidence thus arising simply for the purposes of the particular rule applied in all the relevant circumstances.
238 The matrix of fact and contextual circumstances will determine whether a relevant rule applies and if it does, the person will be a fiduciary for the purposes of the rule. Once a person is a fiduciary for the purposes of a relevant rule, remedies peculiar to the equitable jurisdiction apply which are primarily restitutionary or restorative rather than compensatory. The nature of the obligation will also determine the nature of the breach.
239 In Fiduciary Obligations 1977, Dr Finn took the approach at p 2 that particular obligations will be "imposed" upon particular persons in Equity because those persons might be carrying on particular activities which "require the law's regulation". In Bristol v Mothew, Millett L.J. observed, at p 18A-B, that the application of the relevant rule rendering a person a fiduciary of another for the purposes of the rule is a function of someone having "undertaken" to act "for or on behalf of another" in a particular matter in circumstances which give rise to a relationship of trust and confidence. These duties are "special to fiduciaries": Millett L.J. at p 18A-B.
240 In Edelman J's 2010 LQR Article, Edelman J expounds a thesis that the essential unifying theme emerging from the corpus of cases involving fiduciary duties is that the "scope of those obligations" depends upon the "scope of an express or implied undertaking", that is, a "voluntary undertaking" of one to another. However, in that article, Edelman J expressly "does not enter the debate about which duties must be owed in a voluntary undertaking before a person can be said to be a 'fiduciary'": the 2010 LQR Article at p 316.
241 In the McPherson Articles, McPherson J describes the nature of the "undertaking" as either express, implied or inferred and cautions against the analytical sloppiness inherent in finding "constructive undertakings": 72 ALJ 289; CLC Papers, Vol 5.4, Paper No. 2, p 2. McPherson J contends that the underlying explanation of "most of the decisions" is that the transaction in question is shown to be one in which "a person is expected to act in the interests of the other party": an expectation we would now describe as reflecting an obligation derived from an undertaking, express or implied, by one to the other to so act, arising out of the forensic circumstances of the transaction between the relevant participants.
242 McPherson J put his view of the principle this way (72 ALJ 290; CLC Papers, Vol 5.4, Paper No. 2 at p 4):
Approaching the matter in this way is capable of explaining most of the decisions which have been vexing the minds of so many for so long. Solicitors, agents, company directors and employees are precluded from acting in their own interests from the moment they assume the conduct of another's affairs, or a segment of those affairs. So also with an investment counsellor who advises me where to put my money. The question is one of degree. How far have I surrendered my affairs to the control of someone else?
243 In Hospital Products, Mason J at p 96 sought to "distil the essence or the characteristics" of a relationship which might be described as a "fiduciary relationship".
244 That became necessary, "[b]ecause [a] distributor - manufacturer is not an established fiduciary relationship": Mason J at p 96. His Honour observed at pp 96 and 97 that the "critical feature" of "accepted fiduciary relationships" is that a person (the fiduciary) "undertakes or agrees to act for or on behalf of or in the interests of another person in the exercise of a power or discretion which will affect the interests of that other person in a legal or practical sense" [emphasis added]. If that be so, the "relationship" between the parties is "therefore" one which gives the first person a "special opportunity" to exercise the power or discretion "to the detriment of that other person who is accordingly vulnerable to abuse by [the first person] of his position": Mason J at p 97. Thus, the first person is understood to be a fiduciary of the second and the two stand in a "fiduciary relationship". Although referred to as a relationship of "trust and confidence", this "essence" or characterising "feature" so described by Mason J is "critical" to each such relationship: Mason J at pp 96 and 97.
245 A person agreeing or undertaking to act "for" or "on behalf of" or "in the interests of" another signifies that the fiduciary acts in a "representative" character in the exercise of "his responsibility": Mason J at p 97. Mason J also observes at p 97 that it is "partly" because the first person's exercise of the power or discretion "can adversely affect the interests" of the second person and also because the second person is "at the mercy of" the first person that the first person "comes under a duty" to exercise the power or discretion "in the interests of the person to whom the duty is owed".
246 See also the observations of Gibbs CJ at pp 68-69 and 72; Dawson J at p 142 in Hospital Products.
…
248 In Hospital Products, Mason J made two further observations of importance.
249 The first concerns the co-existence of contractual and fiduciary relationships. Often, the existence of a basic contractual relationship provides "a foundation for the erection of a fiduciary relationship": Mason J at p 97. In Hospital Products, Mason J was, of course, considering a bilateral contract between a manufacturer and a distributor. Where there is a contract, "it is the contractual foundation which is all important because it is the contract that regulates the basic rights and liabilities of the parties": Mason J at p 97. Mason J also said this at p 97:
… The fiduciary relationship, if it is to exist at all, must accommodate itself to the terms of the contract so that it is consistent with, and conforms to, them. The fiduciary relationship cannot be superimposed upon the contract in such a way as to alter the operation which the contract was intended to have according to its true construction.
[emphasis added]
…
251 The second is that although Hospital Products International Pty Ltd's ("HPI") capacity to make decisions and take action in some matters by reference to its own interests was inconsistent with the existence of a "general fiduciary relationship", that circumstance did not "exclude the existence of a more limited fiduciary relationship for it is well settled that a person may be a fiduciary in some activities but not in others": Mason J at p 98.
252 In Hospital Products, Mason J concluded that a limited fiduciary obligation sprang from the United States Surgical Corporation ("USSC") having "entrusted" the Australian distributor, HPI, with the "protection, promotion and custodianship of its product goodwill in Australia". This gave rise to USSC's "vulnerability" to the distributor's abuse of its position which enabled HPI (and its controller, Mr Blackman) to "take every opportunity to enrich themselves at USSC's expense": as explained by the High Court in John Alexander's Clubs at [93].
…
258 In John Alexander's Club, French CJ, Gummow, Hayne, Heydon and Kiefel JJ observed at [88] that phrases such as acting "for or on behalf of" and "in the interests of", another person, must be understood "in a reasonably strict sense, lest the criterion they formulate becomes circular". That caution follows because although, no doubt, undertaking to act in such a way is, as their Honours say, "inherent" in the position of a trustee administering a trust or a director participating in the control and management of a company (as two examples among other often recited "accepted fiduciary relationships" to use the phrase adopted by Mason J in Hospital Products at p 96) and although such an undertaking "may be found in the facts of a particular case" ad hoc, the task of isolating whether a person has undertaken to act for another especially in the context of a co-existing contract with a multiplicity of interests may be very difficult to determine.
…
261 In his UNSW 1989 Article, Dr Finn observes at p 85 that the received judicial wisdom is that it is "unwise" and perhaps "unhelpful" to attempt to provide a general answer to that most basic question: "when and why will a relationship be a fiduciary one?". Dr Finn acknowledges that this may be prudent because a "useful jurisdiction should not be fettered" and the "perennially repeated observation" is that the "categories of fiduciary relationship are not closed". Dr Finn observes, however, that, in the end, these observations are "an endorsement of uncertainty, not of understanding".
262 Dr Finn adds this at p 85:
To the extent that judges of recent times have attempted to isolate general characteristics common to fiduciary relationships, they have focussed unevenly on two phenomena: first, the capacity (the power or discretion) one party has to affect the interests of the other and the corresponding vulnerability of that other; secondly, the reliance one party has upon the other because of the trust or confidence reposed in, or because of the influence or ascendancy enjoyed by, that other. The seeds, but only the seeds, of understanding are to be found here.
[emphasis added]
263 Dr Finn observes at p 87 that "[t]he critical matter is our evaluation [that is, on the facts] of the nature and purpose of a relationship (or of a part of it) and of the roles to be ascribed to one or both parties in it: whose interests is the relationship structured or contrived to serve and who in the relationship is responsible for serving them?".
264 Dr Finn also says this at p 87:
The cases suggest that there are two distinct approaches to relationship characterisation, though they overlap in some factual contexts. They entail quite different inquiries. The first requires an analysis of the actual legal incidents [original emphasis] of a relationship itself in the setting in which it occurs and from this a conclusion is arrived at as to the purpose to be attributed to the relationship and to a party's role in it. Thus the Restatement, Second, Agency, for example, asserts unequivocally of the principal and agent relationship that "an agent is a fiduciary with respect to matters within the scope of the agency". The second approach focuses upon the presence (actual or presumed) of factual phenomena [original emphasis] in a relationship - an ascendancy or influence acquired, a dependence or reliance conceded, a trust or confidence given - and from these a conclusion is arrived at as to the character to be attributed to the relationship and as to the role of the 'superior' party in it.
[emphasis added]
265 Dr Finn also observes at p 93 that the fiduciary question is "essentially factual in character" and "if we entrust our interests to another person's care, we should be entitled to expect that that other will act in our interests - at least where that other knows or has reason to know we are so doing and apparently accepts this". Dr Finn also observes at p 93 that the difficulty in examining the "factual phenomena in relationships" lies in isolating whether "something more" is present in a relationship so as to characterise a person as a "fiduciary" of another. Although Dr Finn was examining these matters of "relationship characterisation" in the context of whether something more is present between parties to an existing contractual relationship so as to render one person the fiduciary of another, the quoted opinions expressed at pp 85, 87 and 93 go to matters of essential principle which determine the question of appropriate characterisation in all the circumstances of the essential forensic factual enquiry.
266 Reminiscent of some of the observations of Mason J in Hospital Products is this observation at p 93:
Though the raw materials of a fiduciary finding here are a trust and confidence reposed, a dependence or reliance conceded, or an ascendancy or influence acquired, the important matter is the character to be attributed to the role the alleged fiduciary has, or should be taken as having, in the circumstances of the relationship. It must so implicate that person in the conduct of the other's affairs or so align him with the protection and promotion of that other's interests (or their joint interest) that "foundation" exists for the fiduciary expectation: it must be such as could properly entitle that other to expect that he will act in that other's interests (or their joint interests) - at least to the extent that he is practically enabled to affect those interests by action, recommendation, advice or otherwise.
[emphasis added]
267 In Tate v Williamson, Lord Chelmsford put the principle this way at p 61:
Whenever two persons stand in such a relation that, while it continues, confidence is necessarily reposed by one, and the influence which naturally grows out of that confidence is possessed by the other, and this confidence is abused, or the influence is exerted to obtain an advantage at the expense of the confiding party, the person so availing himself of his position will not be allowed to retain the advantage, although the transaction could not have been impeached if no such confidential relation had existed.
268 Dr Finn in The Fiduciary Principle 1989 took up the notion of abuse of confidence in this way at p 46:
The shape of any country's fiduciary law will turn in the end on the preparedness of the courts of that country to acknowledge the role of Lord Chelmsford's "abuse of confidence" in fiduciary law's scheme of things … [T]he courts of Canada, Australia and New Zealand, at different paces, are according it explicit recognition. If the fiduciary principle is not to suffer artificial curtailment then, in the writer's view, that recognition must be given. If, from whatever combination of factual conditions, the parties in their relationship are so circumstanced that one is reasonably entitled to expect that the other is acting or will act in his interests, then that person should be entitled, on bare grounds of public policy, to have that expectation protected.
This said, the critical question is when will parties be found to be so circumstanced? It is obviously not enough that one is in an ascendant position over another: such is the invariable prerequisite for the unconscionability principle. It is obviously not enough that one has the practical capacity to influence the other: representations are made, information is supplied (or not supplied) as of course with the object of, and in fact, influencing a host of contractual dealings. It is obviously not enough that the other party is in a position of vulnerability: such is the almost inevitable state in greater or lesser degree of all parties in contractual relationships. It is obviously not enough that some degree of trust and confidence are there: these are commonly placed in the skill, integrity, fairness and honesty of the other party in contractual dealings. It is obviously not enough that there is a dependence by one party upon the other: as the good faith cases illustrate, a party's information needs can occasion this. Indeed elements of all of the above may be present in a dealing - and consumer transactions can illustrate this - without a relationship being in any way fiduciary.
[emphasis added]
269 What is it that renders one person a fiduciary of another and places the two of them in a fiduciary relationship? Dr Finn answers that question in this way at p 46:
What must be shown, in the writer's view, is that the actual circumstances of a relationship are such that one party is entitled to expect that the other will act in his interests in and for the purposes of the relationship. Ascendancy, influence, vulnerability, trust, confidence or dependence doubtless will be of importance in making this out, but they will be important only to the extent that they evidence a relationship suggesting that entitlement. The critical matter in the end is the role that the alleged fiduciary has, or should be taken to have, in the relationship. It must so implicate that party in the other's affairs or so align him with the protection or advancement of that other's interests that foundation exists for the "fiduciary expectation". Such a role may generate an actual expectation that the other's interests are being served. This is commonly so with lawyers and investment advisers. But equally, the expectation may be a judicially prescribed one because the law itself ordains it to be that other's entitlement. This may be so either because that party should, given the actual circumstances of the relationship, be accorded that entitlement irrespective of whether he had adverted to the matter or because the purpose of the relationship itself is perceived to be such that to allow disloyalty in it would be to jeopardise its perceived social utility.
[emphasis added]
99 In the passages quoted above, the following references have been adopted.
Fiduciary Obligations, the Hon Dr P.D. Finn ("Dr Finn"), Law Book Company Limited, 1977 ("Fiduciary Obligations 1977");
The Fiduciary Principle, the Hon Dr P.D. Finn, an article contained within Equity, Fiduciaries and Trusts, Ed, T.G. Youdan, Carswell 1989, Law Book Company Limited ("The Fiduciary Principle 1989");
Contract and The Fiduciary Principle, the Hon Dr P.D. Finn, UNSW Law Journal, 1989, Vol 12, p 76 (the "UNSW 1989 Article");
Fiduciaries: Who Are They? the late the Hon Justice B.H. McPherson CBE ("McPherson J"), April 1998, 72 ALJ 288, being an edited version of a paper presented at the Vancouver 11th Commonwealth Law Conference ("CLC Papers"), Vol 5, complete presentation at 5.4 of the Conference papers, (the "McPherson Articles");
When Do Fiduciary Duties Arise? the Hon Justice Edelman, (2010) 126 LQR 302 (the "2010 LQR Article");
Bristol and West Building Society v Mothew [1998] Ch. 1 (Court of Appeal); ("Bristol v Mothew");
Hospital Products Ltd v United States Surgical Corporation (1984) 156 CLR 41 ("Hospital Products");
John Alexander's Clubs v White City (2010) 241 CLR 1 ("John Alexander's Clubs");
Tate v Williamson (1866) 2 Ch. App. 55 (L.C.).
100 In determining whether Mr Woosup and Ms Tamwoy owed fiduciary obligations to the members of the Ankamuthi native title claim group, I apply all the considerations quoted at [98] of these reasons and, in particular, the observations at the quoted paragraphs at [244], [264]-[269], although all of the quoted observations are relevant to the question in issue. I have also had regard to these authorities: Re Wadi Wadi Peoples (1995) 124 FLR 110 at 124 per French J; Weribone v Queensland (No 2) (2013) 217 FCR 189 at [44]-[46] per Rares J; Weribone on behalf of the Mandandanji People v State of Queensland [2013] FCA 255 at [58], [60]-[62] per Rares J. See also, as to matters of fundamental principle, the observations of Brennan CJ in Breen v Williams (1996) 186 CLR 71 at pp 82 and 83. In Wik Peoples v Queensland (1996) 187 CLR 1 at 95, Brennan CJ considered submissions of the Wik People which asserted the existence of a fiduciary duty owed by the Crown to the indigenous inhabitants of the leased area. Although that was the context of the discussion by Brennan CJ (which is not the present context), nevertheless the statement of general principle remains important. Brennan J said this at pp 95 and 96:
[In order to establish] … the existence of a fiduciary duty … [i]t is necessary to identify some action or function the doing or performance of which attracts the supposed fiduciary duty to be observed. The doing of the action or the performance of the function must be capable of affecting the interests of the beneficiary and the fiduciary must have so acted that it is reasonable for the beneficiary to believe and expect that the fiduciary will act in the interests of the beneficiary (or, in the case of a partnership or joint venture, in the common interest of the beneficiary and fiduciary) to the exclusion of the interest of any other person or the separate interest of the beneficiary.
101 There can simply be no doubt that Mr Woosup and Ms Tamwoy, as persons constituting the applicant at any time, undertook or agreed to act for and on behalf of and in the interests of the native title claim group in the exercise of any and all powers, responsibilities and discretions affecting the interests of the claim group in a legal or practical sense. Mr Woosup and Ms Tamwoy, by reason of that role, enjoyed a special opportunity to exercise any such powers or discretions to the detriment of the claim group, and the claim group was, plainly enough, vulnerable to any abuse of position by Mr Woosup and Ms Tamwoy. Mr Woosup and Ms Tamwoy thus stood in a fiduciary relationship, often described as a relationship of "trust or confidence" with the members of the Ankamuthi native title claim group. The members of the Ankamuthi claim group were entitled to expect that Mr Woosup and Ms Tamwoy would act in the best interests of the claim group in exercising any of the functions, powers, responsibilities or discretions conferred upon an applicant.
102 The obligations or duties Mr Woosup and Ms Tamwoy owed to the members of the Ankamuthi native title claim group were these:
(a) an obligation to not place themselves in a position where their private or personal interests came into conflict with the interests of the members of the Ankamuthi native title claim group: a conflict of interest and duty;
(b) an obligation to not pursue and secure a personal benefit: a conflict of interest and duty;
(c) an obligation to not make a profit from their position of trust unless expressly permitted to do so with the informed consent of the Ankamuthi native title claim group: a conflict of interest and duty;
(d) an obligation to not place themselves in a position where their personal interests or duties conflicted with duties owed to the Ankamuthi native title claim group: a conflict of interest and duty, and a conflict of duty and duty.
103 Mr Woosup and Ms Tamwoy owed these duties and obligations to the Ankamuthi native title claim group throughout the entire period in which they were persons constituting the applicant whether at the outset or during the period in which they were, for a time, the only living persons constituting the applicant by reason of the death of Mr Silas Woosup, the death of Mr Arthur Woosup and the death of Mr Robert Dick, or during the period in which they were persons constituting the applicant together with the other persons who also became persons constituting the applicant as described earlier in these reasons. Mr Woosup and Ms Tamwoy were removed as persons constituting the applicant on 27 April 2016.
104 When Mr Woosup and Ms Tamwoy entered into the Ancillary agreement with Gulf on 4 December 2013, they owed the duties earlier described to the Ankamuthi native title claim group.
105 The applicants rely upon the affidavit of Mr Michael O'Brien.
106 Mr O'Brien is the Project Director at Metro Mining Limited ("Metro"). He says that on or about 8 February 2017, Metro acquired 100% ownership of Gulf and by reason of that acquisition, he has access to the books and records of Gulf (that entity's name is now Gulf Alumina Pty Ltd). Mr O'Brien confirms that Gulf is a party to the Ancillary agreement in respect of the SRBM Project dated 4 December 2013. He says that Metro has now taken over the project. He also says that on or about 23 November 2016, Gulf entered into a second agreement with the Ankamuthi People and certain other parties which affirmed the Ancillary agreement (and made other changes to that agreement). Mr O'Brien says that on or about 22 March 2017, Gulf entered into a third agreement with the Ankamuthi People which also affirmed the Ancillary agreement and made some other changes. The compensation provisions under the agreements are confidential.
107 The applicants also rely upon the affidavits of Mark Gebadi, Tracey Ludwick, Catherine Salee, Nelson Stephen, Benjamin Tamwoy and Charles Woosup all filed on 17 January 2017.
108 Mr Gebadi says that he is an Ankamuthi man by descent and a traditional owner of Ankamuthi country. He says that he first became aware of the SRBM Project involving Gulf during negotiations with Metro in 2014. He says that he was a member of the negotiating committee for the Ankamuthi People in negotiations concerning Metro's proposed projects on Ankamuthi country and during those meetings someone mentioned that Gulf had already commenced their project on Ankamuthi country. Mr Gebadi says that he wondered how Gulf had been able to do that without negotiating with Ankamuthi People in a way similar to the negotiations then underway with Metro. He says that although Mr Larry Woosup was at the meetings with Metro, he did not ask Mr Woosup about any arrangements with Gulf. Rather, he raised his concerns with a legal officer employed by the Cape York Land Council. Mr Gebadi says that he has been shown, by the solicitors for the applicants during the proceeding, a copy of the Ancillary agreement dated 4 December 2013 signed by Mr Woosup and Ms Tamwoy and Gulf. He says that he had "no previous knowledge of the agreement or negotiations for the agreement before it was signed". He says that he did not know anything about any money paid under the agreement. He also says this at paras 6 and 7:
6. When Ankamuthi People need to make a decision about something that will happen on Ankamuthi Country we hold a community authorisation meeting. There is a clear understanding that the negotiating committee does not have authority to make a decision until they go back to their people at an authorisation meeting. At that meeting the negotiating committee make[s] a presentation about the negotiations from start to finish, there is an open for discussion and people can ask questions, and then we see if there is a consensus.
7. Similarly, if there is a decision to be made about what to do with payments from a mining company we would hold a community authorisation meeting, some options would be presented; everyone gets to have their say; and the people present will vote on the options.
109 Ms Tracey Ludwick says that she is an Ankamuthi woman and a traditional owner of Ankamuthi country. She says that she first heard about a possible agreement between Ankamuthi People and Gulf in 2013. She says that her brother (Harold Ludwick) understood that Gulf and Larry Woosup were "going to do a deal". She says that her brother had been part of a negotiating team which had previously tried to negotiate an agreement with Gulf but failed to reach agreement. Ms Ludwick describes the decision-making process in this way at para 4 of her affidavit:
4. There is a process which needs to be followed for Ankamuthi People to make an agreement with someone. The native title applicants will sit down with the other party and negotiate a deal, but before any final decision is taken the deal has to be presented to the Ankamuthi community in information sessions. After that, the whole Ankamuthi community needs to meet to discuss the deal and decide whether or not to proceed. According to our traditional law and custom, everyone needs to make the decision. No one person or family group has the authority to speak for the country the subject of the agreement. It needs to be a decision by all Ankamuthi People, which is everyone descended from the apical ancestors described in the Ankamuthi People #1 native title claim. This is why I did not think that Larry Woosup would sign an agreement with [Gulf] without coming back to us.
110 Ms Ludwick says that the next thing she knew about the agreement which Larry Woosup and Beverley Tamwoy had signed with Gulf was "last year" when Ms Shilo Villaflor of the Cape York Land Council telephoned Ms Ludwick and said that she wanted to talk to Ms Ludwick about "what had happened". Ms Shilo Villaflor told her that a meeting with a lawyer was to be arranged. Prior to that conversation, Ms Ludwick did not know that any agreement had been signed. Ms Ludwick says that, at least to her knowledge to the date of her affidavit of 17 January 2017, Mr Woosup has not consulted with or given any explanation to the Ankamuthi People about the Ancillary agreement he signed with Gulf.
111 Ms Catherine Salee is an Ankamuthi woman and a traditional owner of Ankamuthi country. She says that she has been shown a copy of the Gulf agreement dated 4 December 2013. She says that she knew nothing of it until after it was signed. She says that neither Mr Woosup nor Ms Tamwoy spoke to her about the agreement before it was signed. Ms Salee describes the decision-making process in relation to entering into such an agreement. The elements of her explanation are similar to those given by Mr Gebadi and Ms Ludwick.
112 Mr Nelson Stephen is an Ankamuthi man and a traditional owner of Ankamuthi country. He says that he first became aware of the SRBM Project involving Gulf when it was proposed that he become one of the persons constituting the applicant in the Ankamuthi #1 native title claim. He says that, before that, he knew nothing about it and that neither Larry Woosup nor Beverley Tamwoy ever discussed it with him. He says that he has been shown a copy of the Gulf agreement of 4 December 2013. He says he did not know anything about any negotiations which led to that agreement and he did not know anything about the agreement at any time before, or at the time that it was signed. He too explains the decision-making process of the Ankamuthi People concerning such an agreement. Although more briefly put, he too says that meetings ought to have been convened about such a thing.
113 Mr Benjamin Tamwoy says that he is an Ankamuthi man, one of the persons constituting the applicant in QUD 6158 of 1998 and a member of the Ankamuthi native title claim group in that proceeding. He says that he has a senior role in the Ankamuthi community. He says that he talks to young people about culture. He says that if something like a new mine or project comes up for the community, he tries to get young people together and get them involved. He says that he is aware of the SRBM Project proposed by Gulf and first became aware of it about five or six years ago. There was some discussion about it in the Ankamuthi community. He says that he had heard that meetings were to be held about it and so he asked Larry Woosup about it. Mr Woosup said words to the effect: "We are having a meeting. We will let you know when we are finished meeting". He says that Mr Woosup did not provide any further information to him about it. He puts his perception of it in this way: "He kept it behind closed doors", so far as disclosure to him and as he understands it, the Ankamuthi People, is concerned. Mr Tamwoy says this at para 4 of his affidavit:
4. Larry Woosup should have come back to the Ankamuthi People with information about what was happening. The traditional way of dealing with important things such as a mining agreement, is to bring all the Ankamuthi People together and talk about it. If we all agree, then ok. If we don't agree, then nothing should happen. The decision should be made by all the Ankamuthi People. No one person or family group alone has the right to speak for any part of Ankamuthi country. It needs to be all of Ankamuthi.
114 Mr Tamwoy says that he has been shown a copy of the Gulf agreement of 4 December 2013. He says he knew nothing about it at the time it was signed and has only become aware of its contents in the course of these proceedings. He says there was no meeting of the Ankamuthi People to discuss and approve the Ancillary agreement before it was signed. He also says that neither Mr Woosup nor Ms Tamwoy mentioned anything to him about any payments contemplated by the Gulf agreement. He says no such payments had ever been discussed with him. He says that so far as he is aware, there has not been any community project or anything else which might benefit Ankamuthi People which has come from the Ancillary agreement. He says that he lives on Ankamuthi country and the Ankamuthi community is a small community. He says that everybody knows everybody and if something came up in regards to a project using benefits from the Ancillary agreement, he is sure that he would know about it. Mr Tamwoy says this at para 8:
8. In my opinion Larry Woosup has not gone about this in the right way according to Ankamuthi tradition. He is a big man. He should have known. He should have let everybody know what was happening. I feel sorry for him, but he has not done the right thing. He needs to be responsible for what he has done.
115 Mr Charles Woosup is an Ankamuthi man. He was one of the persons constituting the applicant in the Ankamuthi People #1, QUD 6158 of 1998, native title claim. He is a member of the claim group. He says that a few years ago (although he cannot remember exactly when), he first became involved in the SRBM Project proposed by Gulf. He says there was a community meeting of Ankamuthi People held at Injinoo. He says that at that meeting, the Ankamuthi People chose a committee to negotiate with Gulf concerning the proposed mine and that he was a member of that committee "picked by the mob, along with Robbie Salee, Harold Ludwick, Larry Woosup and Beverley Tamwoy ("the negotiating committee")". The negotiating committee entered into negotiations with Gulf. The committee met representatives of Gulf a few times in Cairns and were supported by staff from the Cape York Land Council. Two meetings were held in Cairns. He says that the negotiating committee did not reach agreement with Gulf "and the whole thing went cold". He says that there were no more meetings involving the negotiating committee. He says this at paras 4 to 7 of his affidavit:
4. … I heard nothing more about the project until people in Larry Woosup's family started going down to Cairns to meetings, and later there were rumours in the Ankamuthi community that a deal had been made with [Gulf] by Larry Woosup.
5. The people in Larry Woosup's family who travelled to Cairns were not members of the negotiating committee. There had been no meeting of the Ankamuthi community to pick a different group from the negotiating committee previously chosen.
6. Larry Woosup did not talk to me about any negotiations or deal entered into with [Gulf]. I fronted him one time at the end of a meeting about unrelated matters in Injinoo. I told him that he should tell everyone what was happening at the meetings at Cairns. He did not reply to me.
7. Beverley Tamwoy has never spoken to me about the deal which she and Larry Woosup reached with [Gulf].
116 As to the Ancillary agreement of 4 December 2013, Mr Charles Woosup says that he did not see it or know about it before it was signed. He says that he is aware that it provides for Gulf to make prepayments of money to the traditional owners. He says that he knows nothing about any money paid under that agreement. He says that he has never received any such money and would not accept it if it was given to him. He says that "[i]t is for the clan and not for one part of the Woosup family". As to the process of decision-making, he says this at para 8:
8. For Ankamuthi People there is a proper way to make agreements and important decisions, and that involves calling a meeting of everybody. The mob selects a panel of people to meet with the other party. That panel or committee has the negotiations, and then when the negotiations are finished there is a big meeting of all Ankamuthi People to make the decision. The people on the committee do not make the decision. Everybody makes the decision. No one person or couple of people can make a decision for Ankamuthi People. You always have to take it back to the mob. That is where the decision is made.
117 The applicants also rely upon the affidavit of Mr Kevin Wone.
118 Mr Wone is an accountant. In June 2010, he was approached by Larry Woosup. Mr Woosup sought Mr Wone's assistance as an accountant in relation to the SRBM Project negotiations with Gulf. He says that he has previously worked with native title groups in relation to negotiating and implementing compensation packages received from mining companies. Mr Wone says that on 11 June 2010 he wrote to Mr Woosup recommending that Mr Woosup seek legal advice about the structures available to enable the Ankamuthi People to receive funds and take advantages of opportunities which might be provided by the Gulf bauxite mine.
119 In that letter, Mr Wone noted that individual business plans would need to take account of the overall wishes of the Ankamuthi People and that meetings of the Ankamuthi People would need to be held to establish the structures necessary to secure opportunities as they become available: see Annexure "KW-2" to Mr Wone's affidavit sworn 12 January 2017.
120 Mr Wone says that Mr Woosup appointed Chalk & Fitzgerald Lawyers to act for him in about July 2010.
121 Mr Wone says that he was present when a trust deed was executed to establish the "Ankamuthi Western Cape Community Trust". The Trust Deed is dated 29 June 2010. The founder is a solicitor, Mr Bert Carman. The trustee is Mr Larry Woosup. The deed recites that the founder wishes to establish a perpetual charitable trust for the benefit of the Ankamuthi Western Cape Community. The principal purposes of the trust are to contribute to the maximum extent possible to sustainable community development for the Communities including economic development, community development, educational health and social development, cultural development and other purposes beneficial to the Communities. Clause 4.1 provides that no later than one calendar month immediately after the date of the deed, the trustee is to appoint, by deed in the form of the deed in Sch 1 to the trust deed, a steering committee comprised of five persons to represent the interests of the Ankamuthi Western Cape Community in respect of the trust. Clause 4.1 also provides that if the trustee does not make the appointment as required by cl 4.1, the trust will terminate at the end of the calendar month immediately after the date of the deed.
122 Mr Wone says that Mr Woosup contended that a steering committee had been appointed shortly after the execution of the Trust Deed. Mr Wone says that he has never seen an executed deed of appointment of a steering committee. Mr Wone sent a facsimile to Chalk & Fitzgerald advising that Mr Woosup had copies of the executed deed of appointment. That observation was made on the basis of Mr Woosup's advice.
123 Mr Wone says that between 2010 and 2013, he attended some meetings with Gulf. Mr Larry Woosup, Mr Robert Dick (until he died) and occasionally Ms Beverley Tamwoy, as well as a lawyer from Chalk & Fitzgerald, were present at those meetings. Mr Wone has been shown a copy of the Ancillary agreement dated 4 December 2013. He says that he attended the meeting at which the agreement was signed in a serviced office in Cairns. The Gulf representative was Weidong Zhang. Mr Larry Woosup and Ms Tamwoy, Mr Woosup's sister and some other people who Mr Wone understood to be members of Mr Woosup's family were present.
124 Mr Wone says that in the months before the execution of the Ancillary agreement there was a major breakdown in the relationship between Mr Woosup and his lawyers, Chalk & Fitzgerald. Mr Wone observed some of these exchanges. Mr Wone says this at paras 19-22 and 27-32:
19. During the time I acted for Mr Woosup, he frequently said to me that he was the only decision maker for the Ankamuthi people. He told me that he disagreed with certain research which had been conducted which broadened the number of people who could be considered part of the Native Title Claim Group. This was why he believed he was the only person who could and needed to make decisions for the Ankamuthi People.
20. On many occasions I strongly cautioned Mr Woosup about making decisions on behalf of the Ankamuthi people, and frequently told him about matters which needed to go to a full community meeting for approval. As I was not a legal advisor, I did not advise in detail about this, but I understand that Chalk & Fitzgerald did so. …
21. I did not hear from Mr Woosup for a while after the execution of the Ancillary agreement. I eventually made contact with Mr Woosup and he told me he was waiting for [Gulf] to release funds. …
22. Mr Woosup rang me a little while after and he was very angry. He accused me of telling the Commonwealth Bank about the issues he had had with Chalk & Fitzgerald and that they had ceased to act for him. I told him that I had done nothing of the kind, which was true. I had never spoken with anyone at the Commonwealth Bank (CBA) and until that conversation with Mr Woosup I did not know anything about an account with [the] Commonwealth Bank.
…
27. In or about July 2010, Mr Woosup arranged for a cheque account to be opened at [the] National Australia Bank in the name of the Ankamuthi Western Cape Community Trust. I was a signatory to that account, with account number 178100703. In around 2010, funds received from [Gulf] for meeting expenses were paid into that account and small expenses were paid from that account.
28. At the time the Ancillary agreement was signed [Gulf] made a payment of $20,000 into the NAB cheque account
29. Very shortly after the meeting at which the Ancillary agreement was executed I signed various cheques totalling approximately $20,000 to pay expenses of the meeting including catering … and cash payments to the attendees at the meeting as a sitting fee to cover their expenses.
30. I recall that I presented the cheques at the bank, and gave the cash to Mr Woosup for him to distribute to the meeting attendees.
31. I also received a payment of $3,960 by cheque to cover my expenses of attending the meeting.
32. I have not operated the NAB trust account since that time.
125 Mr Wone says that on 24 May 2013, Chalk & Fitzgerald sent an email to Mr Woosup and Ms Tamwoy attaching a letter dated 24 May 2013 on the subject of "Ankamuthi and Gulf Alumina". The email was copied to Mr Wone. Mr Wone exhibits the email and attached letter as Annexure "KW-5". In the letter of 24 May 2013, the author, Mr Dominic Beckett, who says in the letter that he regards himself and Chalk & Fitzgerald as acting for "the Ankamuthi People as a whole" says this to Mr Woosup:
Advice about holding and applying payments - governance
…
You have advised us that (prior to instructing us to act on this matter) you have already established the Ankamuthi Western Cape Community Trust, and that you want payments to be made into the trust. In your email you have now asked us why we think it is necessary that we provide you with advice about this.
[The letter then sets out statements about the payment regime under the proposed agreement with Gulf including the basis for the calculation of royalties and other things.]
All of these monies are compensation to the Ankamuthi People for the [effect] of the proposed mining project on their collective native title.
In giving us instructions about this matter you are acting on behalf of - as agents for - the Ankamuthi People as a whole. By law, you owe strict duties to the Ankamuthi People.
We receive our instructions in relation to this matter from you on behalf of the whole Ankamuthi claim group. As legal advisers, we owe duties not just to you personally, but also to the claim group as a whole. We expect that we will be asked to attend the authorisation meeting for this agreement to stand up and advise all members of the group who attend.
In addition, you have previously instructed, and on that basis we have assured not only Cape York Land Council Aboriginal Corporation (and its advisers) but also the Federal Court, that the agreement being negotiated will be not only for the benefit of the native title claim group as it is presently defined, but also for the benefit of:
any further people who may be added to the claim group if and when the claim is amended (and for that purpose we have been pursuing on your behalf access to all of the anthropological material commissioned by Cape York Land Council), and
any further people who the Court may ultimately determine are common law native title holders.
Given these assurances, you are obliged to make sure that the agreement will in fact be for the benefit of this larger group.
[emphasis added]
126 The author of the letter then notes that under the Trust Deed, Mr Woosup had been appointed as sole trustee and was given full discretion to make payments out of the trust. The author also notes the provision about the appointment of a five member "Steering Committee". In that context, the author said this:
It is not in the interests of either Larry or the native title holders that Larry is the sole trustee. We do not know whether a Steering Committee was ever appointed by deed. If it was not, then, according to the terms of the trust deed, the trust is terminated. Further we do not know whether any Steering Committee that was appointed then either appointed a new trustee or, in writing, extended Larry's appointment. If the Committee did neither of these things, again, according to the trust deed, the trust has been terminated.
…
I hope that it is clear from all of the above why we believe it is important that we speak further about, and that we provide advice to you about, how the payments will be held and used.
We do not believe that we can properly discharge our duties to you and to the native title holders - and also to the Court - without doing so.
[emphasis added]