REASONS FOR JUDGMENT ON NOMINATION OF PRESCRIBED BODY CORPORATE
1 On 27 September 2002, I made a Determination of Native Title in this matter by consent. As part of the Determination the following orders were made:
'3. Within three months of the date these orders are made, a representative of the common law holders of the native title rights and interests shall indicate whether they intend to have the native title rights and interests held in trust and if so by whom, by:
(a) nominating in writing to the Federal Court a prescribed body corporate to be trustee of the native title rights and interests; and
(b) including within the nomination the written consent of the prescribed body corporate.
4. If a prescribed body corporate is nominated in accordance with order 3, it will hold the native title rights and interests described in order 2 in trust for the common law holders of the native title rights and interests.
5. If a prescribed body corporate is not nominated in accordance with order 3, the native title rights and interests described in order 2 will be held by the common law holders (as defined in the determination) in respect of the determination area as the common law holders of the native title rights and interests.
6. If a prescribed body corporate is not nominated in accordance with order 3, and native title is therefore held by the common law holders in accordance with order 5, then the matter is to be relisted by the Registrar in order that the Court can consider the making of orders in accordance with section 57(2) of the Native Title Act 1993 (Cth).
7. Until such time as there is a registered native title body corporate in relation to the determination area, any notices required under the Native Title Act 1993 (Cth) or otherwise to be served on the common law holders may be served upon the Ngaanyatjarra Council Aboriginal Corporation and the Kimberley Land Council Aboriginal Corporation, and such service shall be deemed to be sufficient.'
2 A prescribed body corporate has now been nominated in writing to be trustee of the native title rights and interests recognised in the determination.
3 The nomination is made by Colin Peterson who describes himself in the nomination as 'a representative of the common law holders of the native title rights and interests the subject of these proceedings…'. He nominates Western Desert Lands Aboriginal Corporation (Jamukurnu-Yapalikunu) as the Prescribed Body Corporate for the purpose of s 56(2)(a) of the Native Title Act 1993 (Cth) ('Corporation'), to hold the native title in trust for the common law holders. Annexed to the nomination is a written consent of the Corporation bearing its common seal and signed by two members of its governing committee. Also attached is a Certificate of Incorporation of the Corporation under the Aboriginal Councils and Associations Act 1976 (Cth) and a copy of the Rules of the Association.
4 The nomination is supported by an affidavit of Malcolm O'Dell. Mr O'Dell was formerly a Case Manager employed by the National Native Title Tribunal. In 1998 and 1999 in connection with that employment he attended meetings organised by the Western Desert Puntukunaparna Aboriginal Corporation which was then the native title representative body responsible for the native title determination application which was ultimately the subject of the Determination. The purpose of the meetings was to workshop the concept and structure of a prescribed body corporate with the Martu People and to assist their understanding of its roles and functions. A consultant anthropologist, Mr Gallagher, was engaged by the representative body to organise and conduct each of the workshops. Mr O'Dell attended some four workshops in 1998 and 1999. A further three workshops were conducted with the Martu People in late 1999 and in 2000. From these early meetings and other research conducted by the anthropologist, the 'countries' or area subgroups of Martu land were documented to which Martu People could identify their connection for the purpose of decision-making within a corporate structure. These area subgroups were identified as Walalkaja/Pilakaja (Wala-Pila), Rirra, Ngayunanalku, Karlamily and Pitjikarli.
5 Subsequently, in August 2002 as a solicitor employed by Messrs Dwyer Durack, Mr O'Dell was engaged by the Ngaanyatjarra Council as a consultant solicitor to continue and complete the process of formulating and securing the registration of an entity that could act as the prescribed body corporate for the Martu People. On 9 and 11 September 2002 he attended workshops at South Hedland and Jigalong at each of which approximately thirty Martu People attended. The focus of the workshops was to again discuss the role and nature of a prescribed body corporate and to explore again with the Martu People the way in which their system of traditional laws and customs could be reflected in its structure. In October 2002, he attended a further meeting of approximately seventy Martu People with several Ngaanyatjarra Council employees and councillors and the anthropologist at Coongan River. The model for the prescribed body corporate agreed by the Martu People at their earlier meetings was reviewed at this meeting by the anthropologist. The model involved one body for all Martu People with five area groups resulting in a governing committee of twenty Martu, that is two men and two women from each of the area subgroups. There was also discussion of whether the prescribed body corporate should be a trustee or an agent. At that meeting the Martu People appointed twenty one of their number to be a working group for the prescribed body corporate. These, according to Mr O'Dell, represented an even spread of Martu People from each of the five area sub groups identified by the anthropologist.
6 Mr O'Dell attended the inaugural meeting of the working group at Telfer in October and November 2002. Discussions were discontinued until Ngurrara People who were included in the Determination in respect of part of the land covered by it, could be involved. Mr O'Dell attended a meeting of Martu working group members together with Ngurrara People at Bidyadanga on 2 December 2002. The meeting was chaired jointly by himself and Mr Ian Irving, a solicitor employed by the Kimberley Land Council. After discussion those present agreed that the Martu and Ngurrara Peoples were 'one' and there should only be one prescribed body corporate for the whole of the Determination area. The Ngurrara People present appointed six Ngurrara persons to be their representatives on the working group.
7 Subsequently, Mr O'Dell attended a meeting at Telfer attended by eighteen working group members including the Ngurrara representatives. A number of issues were discussed and, in the event, instructions were given by the working group for Mr O'Dell to prepare a draft set of Rules for the proposed Prescribed Body Corporate based upon the agreed outcomes of the issues discussed.
8 He attended a further working group meeting at Telfer on 6 February 2003. There were seventeen working group members present as well as nine other Martu and Ngurrara People. The purpose of the meeting was to show to the working group the Rules which had been drafted in accordance with its previous instructions and to discuss any issues raised. Additional instructions were provided on some matters and other issues were taken back to wider Martu and Ngurrara Peoples for further consideration. On 24 February 2003, Mr O'Dell attended a further meeting of five working group members in Perth and received additional instructions on remaining issues and instructions to complete a final draft of the Rules for presentation to a meeting of the combined Martu and Ngurrara Peoples. Following the Perth meeting several community consultations took place involving two of the working group members who travelled to a number of communities to discuss the proposed Rules and to prepare people for the combined meeting.
9 On 11-13 March 2003, Mr O'Dell attended a meeting at Punmu at which between 92 and 126 Martu and Ngurrara Peoples were present at various times. Also present was Mr Wallace-Smith, an officer of the Kimberley Land Council with other Council support staff, Mr Chaney, a Deputy President of the National Native Title Tribunal and staff and members of the Ngaanyatjarra Council. Mr O'Dell presented the amended Rules to the group at that meeting. Following discussion it was agreed that to ensure an increased representation of Ngurrara People there should be six area subgroups instead of five with the shared area being split into two subgroups. The Rules as further amended were endorsed by consensus of those present. They were filed with the Registrar of Aboriginal Corporations on 4 April 2003 and on 17 April 2003 Mr O'Dell was notified by the Registrar that the Corporation had been incorporated.
10 On 13-14 May 2003, the first meeting of the Governing Committee of the Corporation took place. Following explanations of the requisite procedures given at the meeting, the Governing Committee passed a resolution consenting to be the Prescribed Body Corporate in a process which was in compliance with the Rules. The requirements of s 56(2) of the Native Title Act were explained to Mr Peterson. Mr O'Dell deposes that he believes Mr Peterson to be a Martu person and acknowledged as such by other Martu People. On that basis he believes Mr Peterson to be an appropriate representative of the native title holders to sign the nomination form.
11 The objects of the Corporation in cl 6 of its Rules include:
'6.1(b)be and to perform the functions of a Prescribed Body Corporate, for the purpose of being the subject of a native title determination under sections 56 and 57 of the Native Title Act;
(c) be and to perform the functions of a Registered Native Title Body Corporate for the purpose of being the subject of a determination under section 57 of the Native Title Act. '
The membership of the Corporation is defined in cl 9.1 as follows:
'In addition to the Founding Members, and subject to these Rules and the PBC Regulations, the membership of the Corporation shall be open to adult Aboriginal persons who:
(a) are those people known as Martu People who hold in common the body of traditional law and culture governing the Determination Area and who identify as Martu and who, in accordance with their traditional laws and customs, identify themselves as being members of one, some or all of the following language groups:
(i) Manyjilyjarra;
(ii) Kartujarra;
(iii) Kiyajarra;
(iv) Putijarra;
(v) Nyiyaparli;
(vi) Warnman;
(vii) Ngulipartu;
(viii) Pitjikarla;
(ix) Kurajarra;
(x) Jiwaliny;
(xi) Mangala; and
(xii) Nangajarra, or
(b) those Ngurrara People who:
(i) in accordance with their traditional laws and customs identify themselves and their forebears as:
(A) Jiwaliny;
(B) Mangala;
(C) Manyjilyjarra;
(D) Walmajarri; and
(E) Wangkajungka, or
(F) any combination of sub-rule 9.1(b)(i)(A)-(E); and
(ii) hold in common the body of traditional law and culture governing the Shared Area; and
(c) apply to the Governing Committee, either in writing or in a method otherwise considered appropriate by the Governing Committee, and are accepted as Members by the Governing Committee in accordance with sub-rule 9.3 or by the Members at a General Meeting in accordance with sub-rule 9.5.'
Clause 9.2 provides:
'For the avoidance of doubt, the Members, including the Founding Members, shall be adult Aboriginal persons who belong to one or both of the groups identified in sub-rule 9.1(a) or (b).'
The term 'Founding Members' is defined in the Rules as 'those persons whose names appear in Schedule 1'. There are 110 names set out in Schedule 1.
Statutory Framework - Native Title Act 1993
12 Section 55 of the Native Title Act provides that:
'If:
(a) the Federal Court proposes to make an approved determination of native title; and
(b) the determination is that native title exists at the time of making the determination;
the Federal Court must, at the same time as it makes the determination, make the determinations in section 56 (which deals with holding the native title on trust) or 57 (which deals with non-trust functions of prescribed bodies corporate).'
Section 56(1) specifies that one of the determinations the Court must make is whether the native title is to be held in trust and, if so, by whom. Subsection (2) of s 56 then provides:
'The Federal Court is to take the following steps in making the determination:
(a) first, it must request a representative of the persons it proposes to include in the determination of native title as the native title holders (the common law holders) to indicate whether the common law holders intend to have the native title held in trust by: