Hughes on behalf of the Eastern Guruma People v State of Western Australia

MORTIMER J: 1 These reasons for judgment concern a request made to access evidentiary materials filed in proceeding WAD6208/1998 (Hughes on behalf of the Eastern Guruma People v State of Western Australia) (Eastern Guruma proceeding). The Eastern Guruma proceeding was finalised on 20 November 2012 by a consent determination: see Hughes on behalf of the Eastern Guruma People v State of Western Australia [2007] FCA 365 and Hughes on behalf of the Eastern Guruma People (No 2) v State of Western Australia [2012] FCA 1267 (Bennett J).

The request for access by Ms Boyd 2 The request in question was received in the form of a "Party Access to Files" document, relying on r 2.32 of the Federal Court Rules 2011 (Cth) (Rules). The requesting party, Ms Sue Boyd, identified herself as representing the "Eastern Guruma People", and stated that she wished to inspect and photocopy the following documents on the Court file: All anthropological evidence submitted for and on behalf of the Eastern Guruma native title claim. This includes affidavit evidence, video + audio recordings and expert witness evidence. 3 At the time the Eastern Guruma proceeding was finalised in 2012, the active parties to the proceeding were the applicant (comprised of Nelson Hughes, Peter Stevens and Eva Connors), the State of Western Australia, the Shire of Ashburton, the Yamatji Marlpa Aboriginal Corporation, Hamersley Exploration Pty Ltd, Hamersley Iron Pty Ltd, Hamersley Resources Ltd and Robe River Mining Co Pty Ltd. The applicant was represented by Corser & Corser Lawyers. Determinations under s 56(2)(b) of the Native Title Act 1993 (Cth) were made on 1 March 2007 and 20 November 2012, in terms that the Wintawari Guruma Aboriginal Corporation (ICN4730) (WGAC), as a prescribed body corporate, was to hold the rights and interests from time to time comprising the native title of the Eastern Guruma People in trust for the common law holders, as identified in the two determinations of native title. 4 Given the breadth of the access request and the likelihood it would include personal and family information about claim group members and their ancestors, on 2 August 2019, the Court sent a letter to the parties to the Eastern Guruma proceeding, enclosing the request submitted by Ms Boyd. The parties were informed that subject to submissions made, the Court proposed to allow access to the materials, provided Ms Boyd could establish the common law native title holders had consented to that access being granted to her. 5 The parties were further advised that if the Court was satisfied that the common law native title holders had been consulted about the request in accordance with the requirements of the WGAC Rule Book, the Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth) (CATSI Act) and the Corporations (Aboriginal and Torres Strait Islander) Regulations 2017 (Cth) (CATSI Regulations), and provided there were no orders precluding access to the materials on the grounds of confidentiality or gender, the Court proposed that Ms Boyd's request for access should be allowed. 6 The parties were given until 26 August 2019 to confirm their position regarding the request, including by stating, with sufficient detail, the basis for any objection to the request being granted. 7 No objections were received from any party in relation to the way the Court proposed to deal with the access request. However, a letter dated 23 August 2019 was received from the Yamatji Marlpa Aboriginal Corporation (YMAC), the relevant representative body for the land and waters included in the Eastern Guruma determinations. The letter emphasised the need for the Court to be satisfied that the common law holders had consented to the grant of access. In particular, the letter stated: We note that your letter at the first paragraph on page 2 indicates that if it can be established that the common law holders have consented to the access requested, Her Honour is minded to allow such access. YMAC considers it would be entirely appropriate to provide such access in such circumstances of consent to it by the common law holders, subject to gender and confidentiality restrictions including in relation to private family information. However, in our submissions, mere consultation by the prescribed body corporate is not sufficient in the absence of such consent. 8 In correspondence between YMAC and Judicial Registrar McGregor on 2 September 2019 it was confirmed that YMAC's letter was provided to the Court by way of comment, and not as an objection, and that YMAC was not otherwise objecting to the way the Court proposed to deal with Ms Boyd's request. I note that in its letter, YMAC acknowledged that as Ms Boyd's request "is only for access to documents submitted by or on behalf of the Eastern Guruma claim group…YMAC has no ownership or special interest in the particular documents or instructions of the claim group relating to them". I have taken YMAC's letter into consideration as a submission, rather than an objection. 9 On 13 September 2019, the Court sent a letter to Ms Boyd, which stated that no objections had been raised by any party to the Eastern Guruma proceeding in relation to the way the Court proposed to deal with her access request. As such, Ms Boyd was asked to provide evidence of the consent of the common law native title holders to her being granted access to the materials sought in the request. Ms Boyd was asked to ensure that the evidence of consent was consistent with the requirements of the WGAC Rule Book, the CATSI Act and the CATSI Regulations. 10 In response, Ms Boyd provided the Court with a letter from the Chairman of the WGAC dated 30 October 2019, enclosing an extract of Board meeting minutes from meetings held on 15-16 October 2019. The letter was addressed to Ms Boyd, and relevantly stated: On 15 October 2019, in accordance with WGAC's Rule Book and relevant regulatory requirements, the Board consulted with Eastern Guruma Elders in accordance with Eastern Guruma customs. On 16 October 2019, WGAC held an ordinary meeting of the Directors. At this meeting the Directors considered your application and the outcomes of the meeting of the Elders. I can confirm that the Directors voted in favour of providing conditional consent. Accordingly, I am pleased to inform you that WGAC agrees to the Federal Court releasing all the native title evidence to you on the condition that you provide the information directly to WGAC. WGAC will manage the dissemination of the material in accordance with customary law and practice, observing restrictions where necessary. 11 The extract of the WGAC Board minutes confirmed that at the meeting on 16 October 2019 a resolution was passed to support Ms Boyd being granted access to the evidentiary material: GC referred to the discussion the previous day on the application by Sue Boyd to obtain a copy of all of the native title evidence presented to the NNTT at the time of the determination. On the understanding that all information would be handed over to the Corporation, the Elders present agreed that the application should be supported. A discussion occurred on the potential cultural sensitivity of certain information. Elders advised that certain information would likely apply to particular families and that the Corporation should develop appropriate access protocols to respect cultural sensitivities. Based on the consultation that had occurred, the Board RESOLVED to support the application by Sue Boyd to obtain a copy of all of the native title evidence. (Original emphasis.) 12 The meeting minutes also identified Ms Boyd as a director of the WGAC and an Eastern Guruma elder.

Material on the Court file 13 The Court's records indicate the following categories of material are held on the Court file for the Eastern Guruma proceeding: (a) copies of the Form 1 originating application and amended Form 1 applications; (b) copies of various affidavits filed in the proceeding; (c) preservation evidence, including video and compact disc recordings of preservation evidence, photographs, recordings of various site visits on cassettes and floppy disk drives and video recordings of the preservation evidence hearings before Bennett J; (d) transcripts of preservation evidence; (e) a map of the claim area; and (f) video recordings of site visits where gender restricted evidence was given.

Resolution of the access request 14 Having considered the communication from the Chairman of the WGAC, as well as YMAC's submission, I consider it is appropriate to grant Ms Boyd access to the materials she has requested. The reasons are straightforward, given I am satisfied that the WGAC has consulted the elders of the Eastern Guruma common law holders, and they have agreed. Had there been objections made on behalf of the common law holders or by the relevant prescribed body corporate to the provision of the material, further consideration would have been required about how the Court's usual approach to access requests under r 2.32 should be applied in those circumstances, especially given the breadth of the material sought, and the fact that this proceeding resulted in a consent determination rather than a trial. For example, the latter fact means at least some of the affidavits on the Court file may not have been read in open court. 15 In Nicholls on behalf of the Bundjalung People of Byron Bay and Attorney General of New South Wales (No 2) [2019] FCA 1797 at [8]-[18], Robertson J set out the accepted approach to access requests under r 2.32, and the applicable principles in considering those requests. In that case, his Honour was dealing with an affidavit filed, and taken to be read, in support of an application for consent determination. I respectfully agree with, and adopt, what his Honour said in those paragraphs. What his Honour said in Burragubba on behalf of the Wangan and Jagalingou Peoples v State of Queensland (No 2) [2018] FCA 1031 at [45]-[56] should also be noted.

Is this a non-party request for the purposes of the Rules? 16 The Rules operate differently on access requests by a party to a proceeding, and access requests by a non-party. Usually, this is a straightforward issue resolved by consulting the Court's record of the parties to a proceeding. However, in native title proceedings, a literal approach to who is a party masks the difficulties thrown up by the process under the Native Title Act for securing a determination that native title exists over specific land and waters, and the Act's provisions about who is to hold that native title after a determination. I have referred to these issues in Tommy on behalf of the Yinhawangka Gobawarrah v State of Western Australia (No 2) [2019] FCA 1551 at [32]-[68] and [81]-[83]. 17 As I noted earlier, the minutes of the WGAC Board meetings identify Ms Boyd as a director of the WGAC and an Eastern Guruma elder. However, even on the approach I took in Tommy (No 2), that does not mean she can, as an individual, be considered a party to the Eastern Guruma proceeding, or even (as WGAC might be) the successor to the applicant party in the Eastern Guruma proceeding. Therefore, her request must be treated as a non-party request. 18 Further, although the request is worded in a way which might be seen to focus on anthropological evidence, I am satisfied Ms Boyd in fact seeks documents filed "for and on behalf of" the applicant in support of its application for a determination of native title, not only any expert anthropological reports or affidavits.

Does r 2.32(2) apply in its terms? 19 Rule 2.32(2) is applicable to the documents in categories (a) and (d) of the list in [13] above. The Form 1 and the attached documents can relevantly be treated as the originating application for the purposes of r 2.32(2)(a), as well as a "similar document" to a pleading, for the purposes of r 2.32(2)(c). The transcripts of the preservation evidence which are sought fall within r 2.32(2)(m) of a transcript of a hearing heard in open Court. There are no orders indicating the Court was closed for any part of the preservation evidence hearing, although there were references to gender restricted evidence. 20 Accordingly Ms Boyd is entitled to inspect those documents and no specific order is required. Ms Boyd is also entitled to be given a copy of the documents to which r 2.32(2)(a) and (c) apply, upon payment of a fee: see r 2.32(5). She will need to make arrangements with the relevant transcript provider about any fees associated with securing a copy of the transcripts of the preservation evidence, as opposed to simply inspecting them: see the terms of r 2.32(5).

Does r 2.32(4) apply? 21 The bulk of the documents sought by Ms Boyd are ones for which she requires leave to inspect, pursuant to r 2.32(4). 22 Insofar as there were hearings, and evidence was taken (and recorded) in those hearings, and insofar as there were any confidentiality orders over the evidence given in those hearings, on the principles set out by Robertson J in Nicholls, and particularly taking into account the agreement of the WGAC, and the status of Ms Boyd as both a common law native title holder and a director of the WGAC, I am prepared to grant leave to Ms Boyd to inspect, and take copies of the documents listed in [13(c) and(e)]. 23 In relation to the request for access to the affidavit material on the Court file, it is not possible without a disproportionate expenditure of time and resources (see s 37M(3) of the Federal Court of Australia Act 1976 (Cth)) to sort out which affidavits may have been read and which may have not. I do not consider that, in order to determine how to exercise the power in r 2.32 on this particular application, the Court should insist on any Court officers spending a large number of hours trying to discover which affidavits may, or may not, have been read in open court. Again, provided there are no confidentiality orders over any of the documents, I am satisfied it is appropriate in the circumstances of this particular application to grant leave to Ms Boyd to inspect, and take copies of the documents listed in [13(b)], insofar as they were filed by or on behalf of the applicant. My satisfaction is based not only on the principles to which Robertson J referred in Nicholls, but also on the agreement of the WGAC, the status of Ms Boyd as both a common law native title holder and a director of the WGAC, and the agreed arrangements for the handling of the released materials, as set out in the WGAC Board resolution in [11] above.

The gender restricted material 24 There is a category of documents which is subject to orders that it be viewed only by persons of a particular gender. 25 This is a category of documents over which it might usually not be appropriate to grant leave to a non-party to inspect. This is a situation where the identity of the non-party, and the use to which the material may be put, might be highly relevant to the Court's exercise of power. For example, although all will depend on the particular facts and circumstances of an application, an application by a non-party who has an academic interest in gender restricted evidence might be less likely to succeed unless the non-party has the support and consent of the claim group members to whom the evidence relates. Otherwise, the purpose of the Court's original gender restricted orders would be undermined, and the confidence of claim group members in the integrity of the Court's orders, and its capacity to protect the evidence they divulge, would also be undermined. 26 However, as I have noted, and as is apparent from the facts of the current application, in some circumstances in a native title proceeding, a "non-party" will actually be a person with a substantively close connection to the subject-matter of, and evidence in, the proceeding. Here, it is not only Ms Boyd's status as both a common law native title holder and a director of the WGAC that matters. She has also sought and obtained the consent of the Eastern Guruma elders, and the Board of the WGAC, on terms, to the release of the material. Those terms include an agreement that the WGAC "should develop appropriate access protocols to respect cultural sensitivities". That is a satisfactory approach for the categories of documents other than gender restricted material - namely, that the Court leave the details of such protocols to the common law holders and their prescribed body corporate, to be developed intramurally. 27 It is important that, going forward, the Court not place undue restrictions on claim groups, who secure a determination of native title, ultimately being able to reclaim their own evidence, and evidence about them and their connection to their country, which was placed on the Court file. It is their knowledge, and their history. Therefore, provided the Court is satisfied of the consent of the common law holders as a group, through a mechanism such as the one used here of consulting the elders of the common law native title holding group, as well as the statutory entity charged to hold their native title in trust, in my opinion it is appropriate for the Court to give favourable consideration to access requests such as the one made by Ms Boyd. 28 However, in the case of the gender restricted material, it is my opinion that the Court should have some evidence of the substance of those protocols, prior to the release of that material. The Court should have an opportunity to ensure that the proposed protocols are consistent with the orders it was asked to make, during the proceeding, by the applicant on behalf of the claim group members. Again, unless this process is undertaken, in my opinion, the confidence of claim group members in the Court's capacity to protect this category of information could be at risk. 29 Accordingly, I do not propose to grant Ms Boyd access to inspect and copy the documents in category [13(f)] above. Rather, there will be a direction that if access to this material is still sought by Ms Boyd, she is to file an affidavit deposing to the arrangements which will be made by her, and by the Board of the WGAC, to ensure that any access to the gender restricted material is consistent with the terms of the Court's existing orders. The affidavit should be made by a director of the WGAC. Ms Boyd will be provided with a copy of the Court's orders imposing the gender restricted access requirements to assist in preparing that affidavit. 30 If such an affidavit is received, and provided the Court is satisfied the proposed arrangements are consistent with the gender restricted order made on 29 April 2004, it is likely Ms Boyd will be granted access. However, if the Court is not satisfied about the proposed arrangements, it is likely access may be refused.

Confidentiality orders 31 To ensure there should be no specific exceptions to the orders under r 2.32 that I am otherwise satisfied are appropriate to make, it was necessary to request that a search be undertaken of the Court file to ascertain if there were any confidentiality orders made over any of the material Ms Boyd sought. 32 A staff member in the Perth Registry conducted a review of all orders on the Court file and did not identify any confidentiality orders.

Conclusion 33 Subject to what is in [34] below, and aside from the gender restricted material, for which additional evidence is required before leave to inspect and copy it will be given, the remainder of the material sought by Ms Boyd will be made available to her. 34 Ms Boyd can inspect a copy of the transcripts of preservation evidence on the Court file under r 2.32(2)(m). However, copies of those transcripts must be obtained from the Court's contracted transcript provider. In circumstances such as the present, it is difficult to foresee why copies of those transcripts would not be available to her, but the Court's Rules suggest it is a matter for the Court's transcript provider. I certify that the preceding thirty-four (34) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mortimer.