The Wagyl Kaip & Southern Noongar ILUA decision (the McGlade decision)
41 In the Wagyl Kaip & Southern Noongar ILUA decision, which is mirrored by the other five ILUA decisions (save for some voting and other details), the Registrar noted that the ILUA was one of six agreements that had been negotiated by SWALSC and the "Noongar Negotiation Team" on behalf of the Noongar people of the South West and the State to implement the proposed South West Settlement. She noted that the objective of the South West Settlement was to resolve all native title determination applications brought by the Noongar people across the South West region of Western Australia and referred to the meeting which had been held in respect of the ILUAs (referred to at [8]). The Registrar outlined the chronology, including the litigation in McGlade v Native Title Registrar (2017) 251 FCR 172 (McGlade (FCAFC)) and the ruling in that case that the Registrar did not have jurisdiction to register four of the agreements as not all parties comprising the registered native title claimants had signed them. Reference was made to the amending legislation, which responded to that deficiency.
42 The Registrar then proceeded to detail the information which had been considered pursuant to s 24CK(4) of the NTA, noting that she was required to examine any information given by the objectors and the representative body that certified the application and that she may, but need not, take into account any other matter or thing. She said that the material she had taken into account was:
• the information contained in the application for registration, agreement and accompanying documents;
• the geospatial assessment and overlap analysis (geospatial assessment) dated 29 August 2017;
• the geospatial end of notification overlap analysis dated 12 January 2018;
• the material provided to the Registrar during the process of procedural fairness; and
• the results of [her] own searches using the NNTT's mapping database.
43 The Registrar then turned to examine the legislation and the relevant case law, noting in relation to s 24CK of the NTA that if the conditions of s 24CK(2) and s 24CK(3) are satisfied, she must register the ILUA, and if they are not satisfied, she must not register the ILUA.
44 Addressing the first condition for registration, the Registrar set out s 24CK(2) and s 24CI(1) of the NTA and proceeded to examine the objections having regard to the requirements of those provisions and concluding (at [53]) that each objection was validly made (as distinct from being correct).
45 The Registrar set out her understanding of the nature of the task involved in relation to s 24CK(2)(c) of the NTA, noting the requirements of s 203BE(5).
46 The Registrar followed the decision of White J in Bright to the effect that s 24CK(2)(c) of the NTA required objectors to discharge an onus to satisfy the Registrar that the requirements of s 203BE(5)(a) and s 203BE(5)(b) were not satisfied. In examining the certificate containing the required statement of opinion by SWALSC, the Registrar noted that the certificate also provided details of that opinion, including the following:
3.1 The efforts that have been made to ensure that all people who hold or may hold native title in relation to land or waters in the Agreement Area have been identified have included the following:
(a) As part of the South West Native Title Settlement negotiations, during 2012 SWALSC and the State requested the National Native Title Tribunal (NNTT) to provide formal Notice of the Wagyl Kaip and the Southern Noongar registered native title claims inviting any Noongar person who could trace descent from one or more of the named apical ancestors listed in the Notice or who considered there were additional apical ancestors who were relevant to the claims to contact the NNTT by 20 April 2012, the date set out in the Notice to receive or request further information about the claims. Subject to NNTT processes new information that may lead to identification of new apical ancestors was provided to SWALSC for further research purposes.
Throughout and during the South West Native Title Settlement negotiation phase, at the request of SWALSC and the State the NNTT conducted extensive historical and current geospatial data searches providing data analysis information of registered and unregistered claims in the South West, including for the Wagyl Kaip and Southern Noongar registered native title claim areas.
From the commencement of and during the South West Native Title Settlement negotiation phase SWALSC provided information to Noongar people about the South West Native Title Settlement negotiations process and intention to carry out negotiations for the proposed Agreement and for Noongar people to contact SWALSC to assist SWALSC to identify those people who hold or may hold native title in the Agreement area.
These efforts confirmed that the members of the native title claim groups for the following native title determination applications - to the extent that they asserted such native title rights and interests - were people who hold or may hold native title in relation to land or waters in the Agreement Area:
(i) WAD6286/1998 (Alan Bolton & Ors - v- the State of Western Australia & Ors (Wagyl Kaip)) (Wagyl Kaip Claim);
(ii) WAD6134/1998 (Dallas Coyne & Ors and State of Western Australia & Ors (Southern Noongar) (Southern Noongar Claim);
(iii) WAD33/2007 (Gerald Williams & Ors and State of Western Australia (Wagyl Kaip - Dillon Bay People) (Wagyl Kaip - Dillon Bay People Claim); and
(iv) WAD6006/2003 (Anthony Bennell & Ors v State of Western Australia (Single Noongar Claim (Area 1)) (Single Noongar Claim).
(b) In addition to the above efforts, SWALSC has commissioned - and has relied on the findings of - an extensive research program to identify those people who hold or may hold native title in relation to land or waters in the Agreement Area. This program included:
(i) the ethno-historical, anthropological and genealogical research undertaken to support the lodgement (and litigation) of the Wagyl Kaip Claim and the Southern Noongar Claim; and
(ii) the fieldwork and further research that contributed to the production of the Anthropologist's Report produced in connection with the lodgement (and litigation) of the Single Noongar Claim.
(c) Since the commencement of the South West Settlement negotiations, SWALSC's research section has engaged in a specific connection research process as agreed with the State in the Heads of Agreement dated 2009. This connection research process involved "Agreed Facts" sample genealogies reviewed with the State Solicitor's Office (SSO) and the production of Apical Ancestor Reports for the purposes of the negotiations and identification of the Native Title Agreement Groups.
(d) During the Settlement ILUA negotiation period, SWALSC's research section has focused on this connection research process, which required reading and analysing all available sources of information relevant to the area of the relevant Settlement ILUA (in this case, the Agreement Area) in an effort to determine the identity of:
(i) the Aboriginal people who (prior to European settlement of the South West in 1829):
A. by the traditional laws they acknowledged and the traditional customs they observed, had a connection to the Agreement Area; and
B. held rights and interests in relation to the land or waters in the Agreement Area that were possessed under such traditional laws and traditional customs,
(together, WK & SN Apical Ancestors); and
(ii) the descendants of these WK & SN Apical Ancestors (WK & SN Area Descendants).
(e) Numerous types of sources were consulted during this process, including (but not limited to) early 20th century ethnographic materials and genealogies (such as those of Daisy Bates and Norman Tindale), the diaries of early colonists and explorers, Native Welfare Department files sourced from the Department of Aboriginal Affairs and donated by SWALSC clients, Western Australian Birth, Death and Marriage Records, Mission records, published materials and oral histories of SWALSC clients. SWALSC Anthropologists have a high degree of familiarity with the source materials relevant to the regions of the South West (and the area of the Noongar Claims) to which they have been assigned.
(f) In consulting these materials, SWALSC Anthropologists applied a historiographical methodology, weighing the value of materials based on the context in which they were produced and interrogating potential underlying biases and inaccuracies in the materials. The same rigour was caused and applied to materials whatever their provenance. The research process described above often resulted in the identification of new and/or challenging information - often involving the identification of new WK & SN Apical Area Ancestors and WK & SN Area Descendants, which was then communicated to the applicant on the Wagyl Kaip and the Southern Noongar Claims (WK & SN Applicant) through the Wagyl Kaip Claim and the Southern Noongar Claim Working Parties. Where the Anthropologist reached a high degree of certainty about a research conclusion and communicated this to the WK & SN Applicant, this resulted in the recognition of new WK & SN Apical Area Ancestors in addition to those described in the native title claim group description for the Wagyl Claim (as it was described in the Federal Court Form 1 that commenced that claim). The group of WK & SN Apical Area Ancestors and WK & SN Area Descendants identified by this extensive and rigorous process of research came to be known (and is described in the Agreement) as the Native Title Agreement Group (NTAG) for the Agreement Area.
(g) Throughout 2013 and the first half of 2014, SWALSC's Anthropologists focussed on consolidating the research materials to produce a finalised NTAG description for the Agreement Area that was provided to the SSO. Internal reports were produced addressing each WK & SN Apical Area Ancestor, establishing their connection to the Agreement Area. An accompanying genogram showing the Noongar family groups (i.e. WK & SN Apical Area Descendants) who were descended from each WK & SN Area Ancestor were also produced. Where the SSO was unable to identify any WK & SN Apical Area Ancestors based on their materials, extracts of these reports were provided.
(h) On 3 September and 17 September 2014, SWALSC held two "Agreement Information Meetings" for the WK & SN Applicant. These meetings included a presentation of the information underpinning the identification of the WK & SN Area Ancestors and the Agreement Area NTAG, a display of the genograms and information about the proposed process to seek the authorisation of the making of the Agreement in accordance with the requirements of the [NTA].
(i) The NTAG description for the Agreement Area, which defines those who hold or may hold native title in relation to land or waters in the Agreement Area, is regarded by the SWALSC Research Section as being as inclusive and accurate as possible.
3.2 It is SWALSC's opinion, the above efforts represent all reasonable efforts that could, and should, have been made to ensure that all people who hold or may hold native title in relation to land or waters in the Agreement Area were identified.
47 The Registrar then recorded the assertions of the objectors, noting that many of the objections were either identical or contained similar material and, therefore, were made on similar grounds. The Registrar noted that there was an objection that the research process was deficient, a ground not pursued in the present application. The Registrar also noted the ground which is pursued by the Mackay applicants, namely that SWALSC should have invited to the authorisation meeting, and sought authorisation, from all members of the Noongar community. This was described as the Miller objection, being lodged by Mr Kevin Miller. The Registrar then set out the response to the objections given in 2018 by SWALSC and the Native Title Agreement Group (NTAG), who were described as the group of Wagyl Kaip & Southern Noongar Apical Area Ancestors and Wagyl Kaip & Southern Noongar area descendants identified by the extensive research by SWALSC's anthropologists. The Registrar noted (at [65]-[74]):
[65] In the 2018 Response, SWALSC and NTAG make the following assertions and comments in response to the Williams objection:
• SWALSC has not failed to satisfy the requirements of s 203BE(5)(a) by including in the NTAG individuals with historical associations to the agreement area. The NTAG differs significantly from the native title claim groups described in the Wagyl Kaip and Southern Noongar claims because of the detailed and expansive research programme undertaken by SWALSC following execution of the Heads of Agreement. This research resulted in identifying more ancestors who had a connection to the agreement area, tracing ancestry of some ancestors back to or at least closer to sovereignty, and showing some ancestors on the Form 1 not having a connection to the agreement area. The objectors do not define what is meant by 'historical associations', but if the intent is that some ancestors are not traditional owners but only came to live in the area due to historical factors such as migration and deportation, the assertion is denied. SWALSC made extensive efforts to ensure that all people who hold or may hold native title in relation to the land or waters in the agreement areas as detailed in SWALSC and NTAG's 2016 Response. Since the lodgement of the Wagyl Kaip and Southern Noongar claims, extensive anthropological research has been conducted to identify all persons who hold or may hold native title in relation to land and waters within the agreement area. It is submitted that this process, which included the commissioning of an expert anthropological report by Dr Kingsley Palmer that was filed in Court in support of the Single Noongar claim, intensified following execution of the Heads of Agreement with the 'Agreed Facts' process and involved SWALSC anthropologists undertaking research to establish genealogical connection of claim group members to the apical ancestors in the agreement area. The sample genealogies were scrutinised by the State's researchers who provided further information from the State government databases, and after further discussion, negotiation and scrutiny, resulted in final versions agreed upon by SWALSC and State researchers. The Apical Ancestor reports, produced pursuant to the Heads of Agreement, incorporated the findings from the Agreed Facts process and sought to describe the ancestors who, in the authors' opinion, possessed rights and interests in relation to land and waters within the agreement area at sovereignty on 18 June 1829. The objective of the research programme was to identify those ancestors who were traditional owners of land and waters within the agreement area at sovereignty or settlement by Europeans. It is therefore submitted that the research programme did not result in the inclusion of individuals only with historical association.
• The objectors further assert that the agreement allows for certain classes of people to be incorporated into the NTAG in the future. Traditional Noongar law and custom stipulates that rights to Noongar country can be gained both by lineage (or in some cases marriage, adoption or other links) and by knowledge. SWALSC's research programme is ongoing and SWALSC remains open to the prospects of supplementing the NTAG where warranted by further information and on the basis that the existing members of the NTAG agree. Nevertheless, it is submitted that the assertions by the objectors are not relevant to the task here.
• The assertion that SWALSC undertook its research programme and developed its amended NTAG ancestor list without consulting the Noongar community is denied. The 2016 Response details the efforts taken by SWALSC to consult with the community including the role of the Working Party in appointing the negotiation team that represented the Noongar people in the Settlement negotiations, the Working Party and applicant meetings held to consider the progress of the negotiations, the extensive community information programme undertaken by SWALSC from 2013 at which apical ancestor updates were given, and updated description of the claim groups published on SWALSC's website from October 2014. The objectors were also either a Director of SWALSC, member of the Noongar Negotiation Team, appointed to the Working Party as family representatives or a member of the applicant for the Wagyl Kaip claim who also executed the agreement in this capacity, indicating that they were privy to information about the Settlement. The objectors should have raised these matters in the community information sessions and the authorisation meeting to persuade others to vote against the authorisation of the agreement, but did not and instead were 'championing' the agreement.
[66] As indicated above, SWALSC and NTAG also rely on their 2016 Response which provides information in relation to the efforts taken to meet the requirements of s 203BE(5)(a), which are outlined in my reasons below.
[67] SWALSC and NTAG submit that efforts parties to a proposed ILUA can take to identify, and invite to participate in negotiations, persons who hold or may hold native title in relation to the proposed ILUA area include:
• contacting the NNTT for assistance with searches;
• publicly advertising the intention to commence negotiations in a variety of media as well as sending personal notice to known claim groups in the proposed area;
• inviting people who hold or may hold native title to attend information sessions and consultations about the proposed ILUA; and
• making other reasonable inquiries that can include the commissioning of anthropological research.
[68] It is submitted that the inquiries made for the Settlement ILUAs 'were either the same as, or certainly were supported and strengthened by, those made by SWALSC in the exercise of its statutory NTRB functions, including those under ss.203BB(1)(a) and 203BJ(b) of the' Act, which are summarised at [3.1] in the certification. It appears from the certification that the efforts made were both expansive and inclusive, and incorporated:
• 'extensive public notification and other efforts to advertise the proposed ILUA processes to as broad a pool of prospective native title holders as possible, with a view to inviting all who might consider themselves to be "Other Claimants" to contact SWALSC with any information they had (including as to their apical ancestors) connecting them to the proposed Agreement Areas';
• requesting NNTT assistance with geospatial data searches and other research into historical and current claims, both registered and unregistered, across the Settlement Area; and
• a comprehensive, wide-ranging and detailed program of anthropological, ethno-historical and genealogical research to identify the people who hold or may hold native title in relation to the whole of the Settlement Area.
[69] SWALSC and NTAG contend that the research program has:
• supplemented understanding of the claim groups for each Noongar claim;
• enabled development of a set of agreed facts for the registered Noongar claims and the Single Noongar claims;
• resulted in greater knowledge of those who hold or may hold native title in the area for each of these Noongar claims; and
• resulted in a reformed set of ancestor lists for all Noongar claims in question.
[70] SWALSC and NTAG say that between March and June 2012, the NNTT provided assistance and advertised the apical ancestor lists for the registered Noongar Claims nationally, in an effort to identify those people who may not currently be included in the membership of the applicable native title claim group. The NNTT received a total of 401 inquiries, with eight providing additional information on ancestors not listed. Of these, three had already been identified by SWALSC researchers for inclusion, two more needed to be added and, of the remaining three, there was either insufficient evidence to include them as an apical ancestor, and/or their descendants were already included through other apical ancestors.
[71] SWALSC and NTAG submit that specific connection research, undertaken in accordance with a process agreed with the State following the execution of the Heads of Agreement in late 2009, required reading and analysing all available sources of information relevant to each agreement area in an effort to determine the identity of:
• the Aboriginal people who (before 1829) by the traditional laws they acknowledged and the traditional customs they observed, had a connection to each Agreement Area, and held rights and interests in relation to the land or waters in each Agreement Area that were possessed under such traditional laws and traditional customs; and
• the descendants of these ancestors.
[72] The certification provides details of the extent of this anthropological research program as well as the rigour with which it was conducted, resulting in the anthropologist reaching a high degree of certainty as to the identity of apical ancestors not currently listed on the application filed in respect of each Noongar claim, and the descendants of these ancestors. This finding was then communicated to the applicant on the relevant Noongar Claim.
[73] SWALSC and NTAG say that the groups of ancestors and descendants identified by this research are the NTAGs for the agreement areas, and that the description of the NTAG for each agreement area represents 'the most anthropologically accurate formulation currently achievable of the people who hold or may hold native title rights and interests in relation to each Agreement Area'.
[74] It is contended that 'SWALSC's expansive and inclusive approach to identification meant that, whether or not they were also members of the NTAG, people were identified as people who hold or may hold native title in each Agreement Area if they were members of … registered and unregistered Noongar Claims that overlapped with the Agreement Area'. SWALSC and NTAG further submit that 'by any measure and notwithstanding Objections made (without giving particulars) to the effect that SWALSC had made insufficient and misconceived efforts to satisfy the Identification Requirement, the efforts made to identify the people who hold or may hold native title in each Agreement Area must be regarded as having been reasonable'.
(Citations omitted.)
48 Some of the objectors asserted that the research efforts were flawed and they strongly contended that the outcome and process undertaken by SWALSC did not identify the "right people for country" and SWALSC had only showed traditional owners contempt and deceit throughout the process.
49 The Registrar commenced her consideration of the two s 203BE(5) requirements by noting that there is no definition in the NTA of what constitutes "all reasonable efforts" in the context of s 203BE(5)(a). She noted the responsibility of the representative body to not certify an application for registration of an ILUA unless it is of the opinion that "all reasonable efforts have been made to ensure that all persons who hold or may hold native title in relation to land or waters in the area covered by an agreement have been identified". The Registrar was of the view that "all reasonable efforts" should take into account the particular facts and circumstances. It was a question of fact, as noted by White J in Bright, to be determined by the particular circumstances of the given case.
50 White J's discussion of the expression in Bright (at [131]-[133]) was then cited, which included the following observations:
Section 203BE(5) "does not oblige the representative body itself to make the requisite reasonable efforts" (at [131]).
It can form an opinion required for its certification on the basis of efforts made by others (at [131]).
Section 203BE(5) does not contain any temporal specification with respect to the required efforts (at [132]).
Section 203BE(5) of the NTA did not require that all persons who hold or may hold native title in the area in question have been identified, but only that the representative body be of the opinion that all reasonable efforts had been made to ensure that they had been identified (at [132]).
51 The meaning of the expression "persons who hold or may hold native title" in light of explanation of Reeves J in QGC Pty Ltd v Bygrave (No 3) (2011) 199 FCR 94, and his Honour's observation for the need for an expansive and inclusive approach, was noted by the Registrar. She understood that she was not required to consider whether all potential native title holders had been identified or whether she agreed with the views formed by the representative body about "all persons who hold or may hold native title" in relation to the land and waters covered by the agreement area. Rather, it was whether the material showed that the representative body's views were shaped as a consequence of reasonable efforts (at [81]). To satisfy her that all reasonable efforts had not been made would require the objectors to show that SWALSC's efforts to ensure all persons who hold or may hold native title in the area had been identified were wanting such that the efforts and subsequent views could not be said to be reasonably based (at [81]).
52 The Registrar did not consider her task was to speculate about the correctness or otherwise of the anthropological research results, but noted (at [84]) that the material to which she referred demonstrated that SWALSC had manifestly investigated the persons who hold or may hold native title in the areas through extensive research. She concluded the objectors had not satisfied her that the requirements of s 203BE(5)(a) of the NTA were not satisfied.
53 Importantly to these applications and in relation to the second requirement, namely, authorisation under s 203BE(5)(b) of the NTA, the Registrar noted (at [95]) that in addition to the information referred to above, the certificate by SWALSC included the following information:
Notice of Authorisation Meeting - Proposed Agreement
4.4 In order to give all of the people identified as people who hold or may hold native title in relation to land or waters in the Agreement Area a reasonable opportunity to make an informed decision about whether to attend the Agreement Authorisation Meeting and to participate in the authorisation processes for the Agreement, it was necessary to advertise and broadcast the intention to hold the Agreement Authorisation Meeting to as many of such people as was practicable.
4.5 To this end, SWALSC caused a Formal Notice of the Agreement Authorisation Meeting to be prepared - for wide distribution in a broad range of newspapers, including in several newspapers of State-wide and regional circulation and in a national newspaper catering mainly or exclusively for the interests of Aboriginal peoples or Torres Strait Islanders. This Formal Notice provided comprehensive details and information about the location, date, time, logistics and purpose of the Agreement Authorisation Meeting. The Formal Notice also gave a comprehensive description of those people (as to whom, see paragraph 4.1 above) who, to that point, had been identified as people who hold or may hold native title in relation to land or waters in the Agreement Area. These people were collectively referred to in the Formal Notice as the "Identified Native Title Group". It also invited anyone else who considered that they held native title to the area to contact SWALSC.
4.6 SWALSC caused a full page advertisement of the Formal Notice to be placed in:
(a) the Koori Mail on Wednesday, 14 January 2015 and Wednesday, 28 January 2015;
(b) the Weekend West (West Australian) on Saturday, 24 January 2015; and
(c) the Albany Advertiser on Thursday, 5 February 2015 and the Great Southern Herald on Thursday , 5 February 2015.
4.7 The Formal Notice for the Agreement Authorisation Meeting was supported by a General Reminder Notice, which SWALSC caused to be placed in:
(a) the Weekend West (West Australian) on Saturday, 14 February 2015;
(b) the Great Southern Herald on Thursday, 19 February 2015; and
(c) the Albany Advertiser on Thursday, 19 February 2015.
4.8 The Formal Notice and General Reminder Notice were supported by a General Notice that was very widely distributed in State-wide, regional and Aboriginal special interest newspapers. The General Notice, which was in the form of a Schedule of the Authorisation Meetings for all of the Settlement ILUAs, included the details for the Agreement Authorisation Meeting. SWALSC caused advertisements of the General Notices to be placed and to appear in:
(a) the Koori Mail on Wednesday, 17 December 2014 and Wednesday, 14 January 2015;
(b) the Weekend West (West Australian) on Saturday, 13 December 2014;
(c) the Countryman on Thursday, 8 January 2015;
(d) various metropolitan community newspapers from 6 to 9 January 2015;
(e) the Great Southern Herald, Narrogin Observer and Manjimup-Bridgetown Times on Wednesday, 7 January 2015;
(f) the South Western Times, Central Midlands & Coastal Advocate on 15 January 2015 and Albany Advertiser on Thursday, 8 January 2015;
(g) the Busselton-Dunsborough Times on Friday, 9 January 2015;
(h) the York & Districts Community Matters on Friday, 9 January 2015; and
(i) the Harvey-Waroona Reporter on Tuesday, 13 January 2015.
4.9 This extensive advertising of both the Formal Notice and General Notice advertisements were supported by a program of information about the Authorisation Meetings for all of the Settlement ILUAs to further ensure that the Identified Native Title Group had the opportunity to become aware both of the Agreement Authorisation Meeting and of the Authorisation Meetings for all of the other Settlement ILUAs. The program of information was caused to be implemented by SWALSC to maximize coverage using varied media and forms of communication, including the SWALSC website, social media, mail out of letters (using a database of known addresses) to SWALSC Members, an Authorisation Meeting pre-registration program and a telephone contact program. This program was supported by an extensive Noongar community "face to face" information meeting program prior to and leading up to the Authorisation Meeting.
4.10 In this regard, SWALSC caused:
(a) a schedule of details of the six Settlement ILUA Authorisation Meetings, including the Agreement Authorisation Meeting, to be posted to the SWALSC website from 12 November 2014 and to be given out at Community Information Meetings;
(b) a mail out on 18 August 2014 of an information package on the South West Settlement (using a database of known addresses) to SWALSC Members. This information package included copies of the "Summary Guide to the Settlement Documents" and the "Quick Guide to the Settlement", copies of both which were also posted to the SWALSC website, as well as of the General Notice and Schedule of all six Authorisation Meetings. Importantly, this information included details both of the Agreement Authorisation Meeting and of the Authorisation Meeting pre-registration program;
(c) the implementation and promotion of an Authorisation Meeting pre-registration program from August 2014, giving an early opportunity for Noongar people to identify eligibility to attend the Agreement Authorisation Meeting. Promotion of the program was carried out through General Notices, social media posts, mail out to SWALSC Members and by "face-to-face" consultation at Family and Community meetings;
(d) the undertaking of a telephone contact program, which commenced on 4 December 2014, to provide details of the Agreement Authorisation Meeting, including of the Identified Native Title Group for the Agreement. Members of the Identified Native Title Group were given the opportunity to pre-register up until 6 February 2015, as provided in the Formal Notice;
(e) radio announcements providing details of all of the Settlement ILUAs and associated Authorisation Meetings to be made on Noongar Radio and Koori Radio between 6 January 2015 and 29 January 2015;
(f) meetings of the South West Claims Working Party and Named Applicants Meetings to be convened in accordance with its functions under the [NTA] and consistently with meetings convened since the commencement of those claims - in particular between 2010-2014, providing extensive updates on the South West Settlement process including details about the Agreement Authorisation Meeting process (and Authorisation Meeting details); and
(g) a meeting of all of the South West Claims Named Applicants (including the WK & SN Applicant) to be called and convened on Wednesday, 17 December 2014. The meeting provided information on the proposed Settlement ILUAs (including the proposed Agreement), the role of the Applicant for each Noongar Claim and details of the proposed Authorisation Meetings (including the Agreement Authorisation Meeting to be held on Saturday 21 February 2015).
Authorisation Meeting - Proposed Agreement
4.11 SWALSC has undertaken and commissioned substantial preparation, planning and legal services to meet the requirements under s.251A of the [NTA] with respect to the proposed Authorisation of the making of the Agreement. This preparation included the establishment of an Authorisation Plan and Authorisation Meeting procedures.
4.12 The people present at the Authorisation Meeting for the proposed Agreement were verified for eligibility to participate in the authorisation process as members of the Identified Native Title Group by applying the relevant procedure (as described below) to enable their entry to, and participation in, the Agreement Authorisation Meeting.
4.13 SWALSC arranged for the Agreement Authorisation Meeting to be facilitated by a person independent of SWALSC. In addition, independent Legal Counsel (a QC) attended the Agreement Authorisation Meeting to provide independent legal counsel and advice. Finally, an independent person acted as Returning Officer to officiate the decision-making process of the Agreement Authorisation Meeting.
4.14 During the Agreement Authorisation Meeting, the independent Facilitator convened an information session, to provide an opportunity for the meeting attendees to be given information about the South West Settlement and the proposed Agreement, and a question-and-answer session, to provide an opportunity for people to participate in discussions in an open forum. Discussions were facilitated to ensure that as many participants had an opportunity to speak, express their views and ask questions on the South West Settlement process generally, and the proposed Agreement in particular.
4.15 Also during the Agreement Authorisation Meeting, meeting attendees had the opportunity to seek independent legal advice. It was observed that a number of people approached the independent Legal Counsel to seek his advice, both formally and informally.
4.16 The members of the Identified Native Title Group present at the Agreement Authorisation Meeting engaged in a full discussion on the requirements for the adoption of a decision-making process for the proposed authorisation of the Agreement - be that a mandatory traditional process under section 251A(a) of the [NTA] or an agreed and adopted process under section 251A(b). As well as the detailed discussion, meeting attendees had the benefit of an address by the independent Legal Counsel in relation to the relevant requirements. It was acknowledged that the members of the Identified Native Title Group in attendance at the Authorisation Meeting:
(a) had been identified as people who hold or may hold native title in relation to land or waters in the Agreement Area; and
(b) included people who hold or may hold the common or group rights comprising such native title.
4.17 Following the discussion and address mentioned in paragraph 4.16 above, proposed Authorisation Resolution 1 was read out to the Authorisation Meeting (a copy of the final Authorisation Resolutions is attached at Annexure A to this document). A majority of the members of the Identified Native Title Group present at the Agreement Authorisation Meeting subsequently voted by a show of hands to pass Resolution 1.
4.18 By passing Resolution 1 in its entirety, the members of the Identified Native Title Group present at the Agreement Authorisation Meeting:
(a) confirmed that the Agreement Authorisation Meeting was a proper meeting of the Identified Native Title Group, of which they were satisfied that adequate notice was given;
(b) confirmed that there was no particular process of decision-making that, under the traditional laws and customs of the people who hold or may hold the common or group rights comprising the native title in relation to the Agreement Area, must be complied with in relation to authorising such things of the making of the proposed Agreement;
(c) in the absence of any such process, agreed and adopted (in relation to making a decision about authorising such things as the making of the proposed Agreement) a decision-making process constituted by majority decision by secret ballot of all of the meeting attendees; and
(d) agreed and acknowledged that:
(i) a decision made in accordance with this agreed and adopted decision-making process will be taken to be a decision of all of the people who hold or may hold native title in relation to land or waters in the Agreement Area; and
(ii) no person will have a right to challenge or veto a decision made in accordance with that process.
4.19 A full discussion was then held on the main resolution, Resolution 2, in its entirety.
4.20 Following the discussion mentioned in paragraph 4.19 above, Resolution 2 was read out to the Agreement Authorisation Meeting - again, in its entirety.
4.21 Resolution 2 was moved, seconded and passed by an overwhelming majority by secret ballot by the attendees at the Agreement Authorisation Meeting. In accordance with the process of decision-making agreed and adopted by the passing of Resolution 1, the effect of this majority decision to pass Resolution 2 is that all of the people who hold or may hold native title in relation to land or waters in the Agreement Area must be taken to have (among other things):
(a) authorised the making of the Agreement;
(b) authorised and directed the people comprising the applicant on each of the native title determination applications mentioned in paragraph 3.1(a) above, as well as any other members of the Agreement Area NTAG who wish to do so, to sign the Agreement as Representative Parties for all of the people who hold or may hold native title in relation to land or waters in the Agreement Area;
(c) agreed to, and promised to support, the State making an application to have the Agreement registered on the Register of Indigenous Land Use Agreements; and
(d) acknowledged and confirmed their understanding that such registration of the Agreement is intended ultimately to result in:
(i) the surrender to the State of all native title rights and interests that might exist in relation to land or waters in the Agreement Area; and
(ii) the applicant for each of the native title determination applications mentioned in paragraph 3.1(a) above seeking the making by the Federal Court of one or more determinations that native title does not exist in relation to the area within the external boundaries of each such application.
4.22 Following the Agreement Authorisation Meeting, SWALSC caused letters to be sent to each member of the WK & SN Applicant providing details regarding the execution of the Agreement. A majority of the people comprising the WK & SN Applicant have signed the Agreement, with the last of such people executing the Agreement on 2 April 2015.
4.23 SWALSC has also caused letters to be sent to the members of the applicant for the Single Noongar Claim inviting those of them who wished to be named as Representative Parties to sign the Agreement.
…
(Emphasis added.)
54 The Registrar then sets out the resolutions, Resolution 1 and Resolution 2, referred to above. Resolution 1 (also referred to as the First Resolution) provided the decision-making process for the authorisation of the ILUA (on the basis that there was no applicable traditional decision-making process). Resolution 2 (also referred to as the Second Resolution) provided for the authorisation of the ILUA in accordance with that process. It is to be noted that what is recorded in 4.21 above in respect of the manner in which Resolution 2 was passed varied from meeting to meeting as to whether done by secret ballot count or show of hands and as to the extent of the majority.
55 The Registrar then recorded the assertions of the objectors, noting:
[96] I understand the objectors also assert that not all persons identified as holding or who may hold native title in the area covered by the agreement authorised the making of the agreement. In particular, the objectors assert that a reasonable opportunity was not provided to participate in the adoption of a particular process, making decisions pursuant to that process and/or the conduct at the meeting and that the specific process of authorisation of the agreement was flawed. As indicated earlier in my reasons, many of the objections were either identical or contained similar material and therefore were made on similar grounds. Rather than restating each ground, I provide the following summary of each. In particular:
• The meeting attendees were misinformed about the requirements of the authorisation meeting resulting in the adoption of an incorrect decision-making process instead of one that allowed vote by post or proxy, that denied many native title holders the ability to participate in the authorisation process.
• There was no attempt to distinguish who was entitled to participate in either of the two-step decision-making process required by s 251A, namely a decision to determine the authorisation process and a decision about whether the agreement should be authorised, and in fact the same individuals were permitted to vote on each issue.
• Not all the persons who hold or may hold native title in the agreement area were given an opportunity to attend or participate, such as due to being incarcerated in prison, distance of the authorisation meeting, travel arrangements or failure to accommodate voting by proxy or postal vote, resulting in insufficient attendance.
• No alternative and impartial view was provided apart from those in support of the agreement.
• Intimidation and/or inappropriate/biased behaviour by SWALSC staff, security, police and/or other groups, such as in relation to voting in favour of the agreement.
• The voting process was unclear.
• A traditional decision-making process that decisions are to be made by elders, was required to be followed but was not and/or comments about the decision-making process were ignored.
• A predetermined secret ballot/voting process was imposed or based on the minority.
• A reasonable opportunity to be heard at the meeting was not provided, such as the microphone being turned down for some attendees and comments were ignored.
(Citations omitted.)
56 The Registrar recorded (at [97]) the response from SWALSC and NTAG in their 2018 response as follows:
• Responding to the Miller objections, it is asserted that:
- The objector says that many of the people who have authorised the making of the agreement are the wrong people to speak for country. It is noted that SWALSC took extensive steps, as described in the 2016 Response, to ensure that all the persons who hold or may hold native title in relation to the agreement area were identified, including undertaking a rigorous research programme which was scrutinised and informed by, and agreed with the State.
- The objector was not excluded as he was a registered attendee at the authorisation meetings for the Wagyl Kaip and Southern Noongar ILUA and Whadjuk ILUA. The objector also attended the South West Boojarah #2 ILUA authorisation meeting where he spoke briefly against the Settlement and then chose to leave.
- Although there exists a single Noongar society in the Settlement Area at sovereignty, this does not mean that all descendants of that society hold or may hold native title in relation to the whole of the Settlement Area. This is the reason for the various separate registered claims underlying the Settlement Area and the split of the Settlement Area into six separate regions with six related ILUAs to implement the Settlement.
- Section 251A does not require every member of an authorising group to authorise an agreement. 'Where authorisation meetings are adequately publicised, and every reasonable opportunity is provided to encourage attendance, the law does not permit members of (or even the bulk of) an Authorising Group to delegitimise an authorisation process by "sitting it out"', and if the 'bulk of the Noongar community really were opposed to the Settlement, they would have attended the meetings and voted to defeat the relevant resolutions'.
- In relation to the assertions that there was intimidation, inadequate notification, unclear voting process, unclear right for prisoners to vote, inadequate transportation, improper financial inducements to secure a positive outcome, and overbearing security leading to attendees being turned away, the details in the 2016 Response are relied upon.
• In relation to the [McGlade] submissions made on behalf of several objectors, it is submitted:
- The [McGlade] submissions admit that there may be no traditional process of decision-making in relation to the authorisation of these kinds of agreements.
- The authorities do not require a large number of native title holders to be involved in authorisation, or the separate involvement of common or group rights holders and individual rights holders.
- Arguments that SWALSC misled the attendees to agree and adopt a process are denied, as, among other things, those present had an opportunity with the presence of an independent facilitator and independent legal counsel to vote again either or both the decision-making process for the authorisation of the agreement, and the authorisation of the agreement according to that decision-making process. There is extensive precedent for Noongar native title business to be conducted on country.
- Section 203BE(5) does not require common or group rights holders and individual rights holders to be separately identified.
- SWALSC used extensive efforts to ensure that all registered claimants and other claimants were identified and that this did not result in individuals not being identified as members of the identified native title groups because they were serving terms of imprisonment. The very broad and detailed notification exercise undertaken for the meeting ensured the details of the meetings would have come to the attention of incarcerated members, and SWALSC nevertheless convened information sessions within penal facilities with known Noongar populations. In accordance with judicial authority, it can be taken that authorisation was undertaken by sufficiently representative sections of the authorising group, and the absence of any member for whatever reason could not prevent the business of the meeting to be decided by those who did attend the meeting in a way that would bind the authorising group as a whole.
- Sections 203BE(5) and 251A do not require separate decision-making process and authorisation meetings. A majority of the attendees agreed to and adopted a decision-making process that did not require the convening of a separate authorisation meeting or voting to be by proxy or post.
- The Settlement was not presented as a 'done deal' at the authorisation meeting. At each meeting, the alternate view to the Settlement deal was also provided, which was reverting to native title litigation.
- The significance of wristbands was explained to attendees and the voting procedures adopted were rigorously applied and all results verified by the independent returning officer.
- SWALSC provided bus transportation to offset any transport difficulties and provided reasonable opportunities for accommodation.
- The Settlement was not presented as non-negotiable and information provided about the Settlement did not only focus on the positive elements without explaining the consequences. The Summary Guide, the legal advice which was available on SWALSC's website, the extensive community consultation and the independent legal counsel available at the meeting provided information about what was being exchanged for the package of benefits from the State including the surrender of native title.
(Citations omitted.)
57 The Registrar noted that SWALSC and NTAG had asserted that all of the people identified and invited to attend each authorisation meeting were registered claimants or other claimants with a sufficiently "credible claim" to be appropriately regarded as being common or group rights holders. She continued (at [99]):
… Therefore the persons who hold or may hold native title in relation to the agreement area were the Wagyl Kaip and the Southern Noongar registered claimants, and the other claimants being the NTAG, Single Noongar claim groups and the Wagyl Kaip - Dillon Bay People claim group. SWALSC and NTAG submit that the other claimants should be regarded as being common or group right holders because:
• the members of the NTAGs are the descendants of the apical ancestors whom the latest research has connected to the relevant agreement area with more certainty than had been possible given the state of anthropological knowledge when many of the registered Noongar Claims were filed;
• the [unregistered claim WAD24/2011] claim has been adjudged by the Registrar to have satisfied all of the merit-based elements of the registration test and therefore the members of the claim group were identified for each of the four agreement areas overlapped by the claim;
• the Single Noongar Claims could not be registered but the Single Noongar Claim 1 was the subject of the positive determination (at first instance) in Bennell; and
• membership of the claim groups for WAD33/2007 Wagyl Kaip - Dillon Bay People claim is coextensive with that for the (registered) Southern Noongar Claim.
58 SWALSC submitted that it would not have been justified in excluding any members of the registered claimants or other claimants from attending the authorisation meeting and participating in the process through adopting a decision-making process on the basis they were not common or group rights holders. Further, notwithstanding the extensive advertising, inquires, consultations and research programs carried out to satisfy the identification requirement, SWALSC could not identify any purely individual native title holders who, by definition, could not be regarded as the holders of common or group rights.
59 The Registrar then recorded the following matters concerning the decision-making process (at [101]-[104]):
[101] SWALSC and NTAG refer to cases such as Daniel v State of Western Australia (2002) 194 ALR 278, Moran [1999] FCA 1637, and Lawson on behalf of the 'Pooncarie' Barkandji (Paakantyi) People v Minister for Land and Water Conservation for the State of New South Wales [2002] FCA 1517 (Lawson), which discuss 'the difficulty inherent in any attempt to demonstrate the existence of a traditional decision-making process' that has survived through the ages; is known to the claim group; was applicable to decisions in the nature of (relevantly) authorising claims or compensation claims; and was mandatory for the claim group to follow.
[102] SWALSC and NTAG refer to Anderson v Western Australia (2003) 134 FCR 1 and Anderson v State of Western Australia [2007] FCA 1733 (Anderson 2) where the Court decided that there was never any traditional process by which the Ballardong People would make decisions as a whole with regard to speaking for country, and the claim group does not have a traditional process of decision-making in relation to making a claim and dealing with matters arising from it. The court also stated that 'native title litigation is not exactly a traditional activity'. In Coyne v State of Western Australia [2009] FCA 533 (Coyne), the Court observed that the Wagyl Kaip claim group never had a traditional process by which the whole group would get together and make decisions about speaking for the country.
[103] SWALSC and NTAG assert that it has been normal practice at authorisation meetings convened by Noongar people to agree to and adopt a decision-making process constituted by a majority vote on a show of hands or by secret ballot. It was contended that similar difficulties as were encountered in all of the above cases would arise in relation to any attempt to demonstrate, with respect to the agreement area, the existence of a traditional decision-making process that must be used in relation to authorising things like the making of ILUAs that would bind all people who hold or may hold native title in the agreement area, particularly where the ILUA provided for such things as the proposed Surrender, Determinations and Retrospective Validations (and the provision of the Settlement Package in exchange).
[104] SWALSC and NTAG say that it was not clearly demonstrated at the meeting and then accepted by the attendees generally that there existed a decision-making process applicable to the authorisation of the agreement that was traditional and mandatory, and none of the objectors establish the existence of such a process.
(Citations omitted.)
60 The Registrar recorded what had taken place at each meeting in the context of considering whether there was a mandatory traditional decision-making process and resolving how to proceed. The Registrar recorded SWALSC's and NTAG's submissions in relation to the conduct of the meetings and notification of the meetings, saying (at [107]-[109]):
[107] SWALSC and NTAG say that the steps taken both at and in advance of the meeting that establish the authorisation requirement was satisfied are:
• Referring to Articles 10 and 19 of the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), it is asserted that SWALSC took steps to ensure that Noongar people were in a position to make informed decisions by the time the authorisation meetings were held and to provide their free, prior and informed consent should they wish to do so. In relation to the obligation for free, prior informed consent, SWALSC interpreted this obligation as meaning that Noongar people as a whole should understand the contents of the Settlement ILUAs, the effects that registration of the Settlement ILUAs would have, the likelihood of success of alternative options such as litigated native title outcomes and the results (for example, the entitlement to compensation) that are available through this alternative option. In addition to the processes contained in the Act that allows for the fulfilment of free, prior and informed consent, SWALSC also sought to ensure that, in its execution of the statutory processes, it did all it could to ensure that any consent given by Noongar people to the Settlement was given freely, in advance, from a position of knowledge and with the benefit of independent legal advice. It is contended that in Weribone on behalf of the Mandandanji People v State of Queensland [2013] FCA 255 (Weribone), Rares J found that a notice must be such that it fully informs the persons entitled to attend the meeting so that they can make an informed decision whether or not to be present, and therefore found the concept of 'giving every reasonable opportunity' and establishing 'informed consent' point to the importance of details in the meeting notice. It is submitted that SWALSC issued extensive and detailed notification in advance of the authorisation meeting and also sought to ensure that Noongar people would be fully informed prior to the meeting by implementing a multifaceted communication strategy that included:
- making the Settlement ILUA documents available for Noongar people to view on the State and SWALSC's websites on or about 30 October 2014;
- publishing simplified explanations of the contents of the ILUA;
- disseminating information in relation to the Settlement through a wide range of media and other platforms, including continually reviewing and improving the readability and legibility of documents on the basis of feedback received;
- conducting community meetings to discuss the proposed Settlement and the decision-making process; and
- obtaining and distributing Senior Counsel's independent legal advice on the merits of the Settlement.
• Prior to the authorisation meeting, SWALSC also held a formal "Agreement Information Meeting" based around publishing the apical ancestor sets, which generated significant community interest and enabled SWALSC to test the logistics associated with the meeting venue and provide each NTAG with a final opportunity to become informed about the content of each Settlement ILUA, as well as the process of the authorisation meeting itself.
Notification
[108] SWALSC and NTAG assert that in settling the content of its notification exercise, SWALSC had regard to the principles established in Anderson 2, in which French J had based his conclusion that a sufficiently representative sample of the claim group had participated in the authorisation process on the fact that there had been wide-ranging notification, both targeted and general, of both the proposed meeting and of what it was being asked to decide.
[109] SWALSC and NTAG assert that, consistently with this authority, SWALSC determined to formally advertise notice of the Settlement ILUA authorisation meetings nationally as well as in newspapers of State-wide and regional circulation; and engage in an extensive general notification process in addition to the formal notification process. In order to provide such opportunity, and ensure the Noongar people would have an opportunity to give their informed consent, SWALSC sought to ensure notification of the meetings were widely published in reasonable time prior to the meeting. Details of the notification exercise are contained in the certification. The Formal Notice for each authorisation meeting was carefully crafted to ensure that it satisfied all of the guidance discernible from the decided cases in relation to the requirements for a valid meeting notice, including:
(a) gave background information in relation to the Settlement;
(b) explained that it was proposed to implement the Settlement by the registration of six ILUAs, each relating to a defined part of the Settlement Area, and identified (by reference to a map and written description) which area was the subject of the particular notice;
(c) stated that the parties to each Settlement ILUA would be the State, SWALSC and certain named individuals as representative parties for all of the people who hold or may hold native title in relation to land or waters in the Agreement Area;
(d) summarised the efforts that had been made to identify all of the people who hold or may hold native title in relation to land or waters in the Agreement Area;
(e) described the people who, as a result of those efforts, had in fact been identified as people who hold or may hold native title in relation to land or waters in the Agreement Area. In each case, the people identified (described as the "Identified Native Title Group") comprised:
(i) the members of the NTCG for each Claim - whether registered or unregistered - overlapping any part of the Agreement Area, identified in the same way as they are described in their Claim; and
(ii) the members of the NTAG for each Agreement Area, described as being the descendants of named Agreement Area Apical Ancestors, adoptees (and their descendants) of any named Agreement Area Apical Ancestors or of their descendants and people recognised by the NTAG members as having rights in the Agreement Area through possessing substantial knowledge of Noongar laws and customs in relation to the Agreement Area;
(f) noted that authorisation of the making of the proposed Settlement ILUA was to be sought in accordance with the NTA, gave details of the date, venue and time of the meeting to be convened for that purpose (which was to be a "one-day" meeting only) and invited all members of the Identified Native Title Group to attend the authorisation meeting;
(g) described the purpose of the meeting, in bold font, as being to give all members of the Identified Native Title Group a reasonable opportunity to participate in all processes directed at the making of a decision whether or not to authorise the Settlement ILUA;
(h) explained that authorisation and registration of the Settlement ILUA would result in the Surrender, Retrospective Validations and Determinations, summarised the Settlement Package and further explained that the Determinations would result in the finalisation of all of the overlapping Claims (and any outstanding compensation applications) on the basis that, as a result of the Surrender, native title does not exist in relation to the whole of the Agreement Area;
(i) people who considered they were members of the Identified Native Title Group were encouraged to contact SWALSC using contact details given in the notice to pre-register their attendance;
(j) noted that more fulsome details about the proposed Settlement ILUA and the benefits package could be accessed on the SWALSC website (www.noongar.org.au);
(k) noted that free bus travel to and from meetings would be provided to those who required it and called SWALSC to reserve a seat, and that refreshments and lunch would be provided at the meeting, but confirmed that no accommodation, mileage or travel allowance would be provided; and
(l) contained advice - labelled "important" in capital letter and bold font - that those who asserted native title rights and interests in the Agreement Area but were not members of the Identified Native Title Group should contact SWALSC as soon as possible.
(Citations omitted.)
61 The Registrar recorded the submission that the level of detail included in the notices advertising the Settlement ILUAs and the early, frequent and wide-ranging nature of the notification involved, were well adapted to ensure all members of the identified native title group and any other person who holds or may hold native title in the agreement area were given every reasonable opportunity to participate in the relevant decision-making processes. She also recorded that, although 10% of the adult Noongar population voted, this represented "a healthy enough segment of the Noongar population to give reliable indication by the mood of the Noongar people towards the Settlement". She noted the evidence given in Coyne by a SWALSC senior cultural advisor that "generally Noongar people do not take an active interest in native title until they are in their 30s or 40s", which would affect the attendance and voting numbers, but equally SWALSC and NTAG had referred to the comparatively low number of objectors compared to the total number of attendees at the meeting, being less than 2%.
62 The Registrar recorded the assertions of SWALSC and NTAG in relation to the extensive consultation process (at [111]-[119]) and in particular noted the assertions that from about September 2013, SWALSC's Regional Development Unit (RDU) had the task of circulating sufficient information to the Noongar community to provide a proper understanding of the Settlement terms, including the impacts the Settlement would have on Noongar native title rights and interests and Noongar Claims and the opportunities the Settlement would present to Noongar people. SWALSC considered this to be vital to ensuring that Noongar people would be able to gain the fullest knowledge they could prior to making their decisions as to whether or not to authorise the agreement. SWALSC submitted to the Registrar that the ultimate goal of the communications strategy was to "inform, educate, and celebrate the journey towards the negotiated settlement of the Noongar Claims and to ensure that free, prior and informed consent was achieved".
63 The Registrar noted the following information was provided in relation to the communication strategy:
10.5 The objectives of the communications strategy included:
(a) educating and informing target audiences about the Settlement offer and the long-term benefits that could arise;
(b) delivering clear, consistent messages through a range of communication tools to enable Noongar people to make an informed vote; and
(c) educating the Noongar community about the authorisation process.
10.6 These "target audiences" comprised:
(a) members of the Noongar community, including Elders and Seniors, community leaders, men, women and youth;
(b) Noongar business leaders, SWALSC Board members and Aboriginal corporations;
(c) the public sector, including public servants, educators, local government and regional community groups;
(d) outspoken opponents of the Settlement; and
(e) media, including the West Australian, Indigenous newspapers, regional newspapers, Noongar Radio and online outlets such as the SWALSC facebook page and website.
10.7 In an effort to achieve the objectives of its communications strategy, the RDU sought to address during consultations such issues as:
(a) the lack of knowledge and understanding within the Noongar community of native title, the NTA and the length of time it had taken to arrive at agreement-in-principle on the terms of the Settlement;
(b) some apathy towards the Settlement among some members of the Noongar community and a level of cynicism towards any negotiations with government; and
(c) the actions of certain vocal opponents to the Settlement[.]
10.8 The strategies adopted by the RDU to guide its communications plan included:
(a) engagement through open, accountable communications that present all the facts to resolve any questions/arguments. Information-sharing techniques used included emails, newsletters, press releases, web pages, radio announcements, social media, face-to-face dialogue and community parks and hall meetings;
(b) championing the merits of the Settlement proposal in the sense of the delivery of long-term benefits and outcomes - but also candidly discussing the availability and reality of the alternative options of reverting to litigation with a view to obtaining either consent or contested determinations in relation to the Noongar Claims; and
(c) using values-based story-telling techniques with strong visual components to connect people and promote Noongar culture.
10.9 To disseminate maximum information in the lead-up to the authorisation meetings, the RDU conducted or facilitated:
(a) face-to-face meetings;
(b) community (roadshow) meetings, publicised using metro, suburban and regional newspaper advertising, Noongar Radio announcements, Facebook, email list and web-based promotion; and
(c) target group, Aboriginal organisations and family meetings, to convey information about the Settlement and authorisation process to individuals or groups who carry significant status and influence.
64 The Registrar observed (at [112]-[116]) that SWALSC and NTAG said that:
(1) PowerPoint presentations, where appropriate, or otherwise hard copy presentations were used for consistency in the structure and content of presentations. Facebook was used as a key tool to disseminate information and obtain feedback given its high and inter-generational usage in the Noongar Community, including inviting people to call and hold family meetings to allow SWALSC the opportunity to provide families with the latest information about the proposed settlement and authorisation process.
(2) The RDU also hosted a series of family-friendly day events, which were broadly advertised in a range of media, for the community in each region to enable members of the community to be updated on the Settlement and the authorisation process while their children were entertained with organised activities. Each of these events involved informal discussions with SWALSC staff providing information about the negotiations and the audience being encouraged to speak with staff and provided with reading material to take home and share to enable them to participate and make informed decisions about whether or not to authorise the Settlement ILUAs.
(3) Key and known Noongar organisations, corporations and businesses were targeted to attend luncheons with the Chief Executive Officer (CEO) of SWALSC, which involved an informal presentation followed by discussion, to gain an understanding of what the Settlement would mean for them and their organisation, corporation or business. Reading materials were also distributed.
(4) During the outbound telephone contact program commencing on 4 December 2014, 149 calls were made in relation to the authorisation meeting to inform those eligible people about the meeting, bus arrangements if required and to provide further information about the Settlement.
(5) The Agreement Information Meeting was of particular significance to the consultation process where there was provision of information and discussion about the Agreement and the apical ancestor lists for the Agreement Area, and SWALSC was able to perform a final run-through of the authorisation process and test the logistics associated with each meeting venue.
65 Further the Registrar considered SWALSC and NTAG's assertions (at [17]) regarding their attempts to disseminate information to incarcerated Noongar people. As part of its free, prior and informed consent strategy, SWALSC sought to convene information sessions with penal facilities within known Noongar populations to enable those Noongar people serving sentences of imprisonment a reasonable opportunity to participate in the decision-making process and SWALSC staff visited various facilities on 15 August 2013, 27 August 2013, and 5 March 2014. Noongar prisoners could also listen to the Noongar Radio announcements which were arranged to disseminate maximum information in the lead-up to the authorisation meetings. The efforts by SWALSC to inform the community were sufficient to apprise Noongar prisoners and their families of the meetings and to provide them with the opportunity to discuss their views on the settlement and make arrangements for eligible family members to attend the meetings and participate.
66 The Registrar noted (at [118]) that in relation to postal and proxy voting, SWALSC and NTAG asserted:
(a) such processes were not required nor workable in the context of statutory ILUA authorisation processes. In this regard, SWALSC formed the opinion based on case law that under the NTA, the Noongar people would be required to attend the meeting and make a decision in relation to the making of the agreement;
(b) that SWALSC considered postal voting not to be acceptable as people absent from the meeting would not be able to participate in a key element of the authorisation process, being the process of discussing and making a decision about the applicable decision-making process;
(c) that there would have been a risk of multiple postal voting. Those who attended the authorisation meeting also did not agree to and adopt a decision-making process that allowed for postal voting; and
(d) similarly, "the suggestion that the attendee should also be allowed, by proxy, to exercise the voting rights of Noongar people who were unable to attend would again become unworkable" as, for example, there would be no practical and secure way to check the eligibility of the absent people.
67 The Registrar noted (at [119]) that SWALSC and NTAG explained that between the time the agreement-in-principle was reached on the terms of the agreement in September 2014 and February 2015, SWALSC convened at least 34 community and family meetings across the Settlement area. In addition, SWALSC has convened 16 family meetings at the request of various families, between May and August 2014.
68 In particular and relevantly to the matters currently being advanced by the applicants, the Registrar examined the objectors' assertions of the difficulty of accessing the meeting venues, recording these matters (at [120]). It was noted that SWALSC and NTAG said, in response to the objectors' assertions of the difficulty of accessing the venue of the authorisation meeting, that Rares J found in Weribone that objections based on the location of a meeting would be an insufficient basis on which to invalidate a meeting that had otherwise been validly constituted. SWALSC contended it would be reasonable to hold each authorisation meeting "on country", in the claim area to which the agreement applies, on the basis that all the registered claims, the venues for the Settlement ILUA implementation matters such as land estate management, heritage matters, joint management and community development, and the offices of the proposed regional corporations relate to, or are located in, areas or places outside Perth.
69 The Registrar further recorded (at [120]) that SWALSC and NTAG argued in respect of the "on country" authorisation meetings that:
(a) this is consistent with practice, which is driven by Noongar community sentiment, to hold s 251B authorisation meetings for Noongar claims on country, and working party meetings on a rotating basis in Perth and in the region; and
(b) SWALSC offered reasonable transport services to enable people to travel to and from the meetings, as it had in past authorisation meetings, including bus transportation, but the two buses provided were not filled to capacity. SWALSC also ensured that, while meetings were held on country, they were held where there were reasonable opportunities for accommodation and early notification of the authorisation meetings so as to ensure that Noongar people would have adequate time to organise making a trip to other areas of the South West for the purpose of attending (and participating in) the authorisation meetings.
70 The Registrar also dealt with questions of fairness in the meeting processes, the safety and security management measures at the meetings and the nature of the meetings convened. As to the latter, she noted the submission that it would be sufficient to satisfy the requirements of the NTA to hold one meeting when considering the duration of the meetings would allow adequate time for both aspects under the NTA for authorisation to be discussed and resolved and that this accorded with substantial precedent for one day meetings, rather than longer or multiple meetings.
71 The Registrar noted that the pre-registration and registration process was designed to ensure that the meeting was attended by identified actual or potential native title holders so as to avoid the matters referred to by French J (as the Chief Justice then was) in Bolton on behalf of the Southern Noongar Families v State of Western Australia [2004] FCA 760. In this regard, the test for eligibility to attend was descent from the list of apical ancestors that were notified, adoption by an eligible family, or being recognised by other Noongar people as belonging to the relevant NTAG through possessing substantial knowledge of Noongar laws and customs in relation to the relevant area.
72 Additionally, it was noted that SWALSC distinguished between those attendees at each meeting who were members of one or more overlapping claim groups and the applicable NTAG, only one or more overlapping claim groups, or only the applicable NTAG by issuing differently coloured wristbands to assist in identifying the different groups and tracking their voting patterns. The wristbands were as follows:
Silver wristbands were given to NTAG (including relevant Single Noongar Claim group) and Wagyl Kaip and Southern Noongar claim groups.
Orange to NTAG only (including relevant Single Noongar Claim group).
Teal to NTAG only (including relevant Single Noongar Claim group) and Southern Noongar claim group only (not Wagyl Kaip claim group).
73 The details of the steps taken on entry to the venue and the distribution of wristbands amongst the various voting groups were then set out. In the case of the Wagyl Kaip there were four people denied entry on the basis that they were assessed as not being members of the claim groups or members of the Single Noongar Claim who could establish a connection to the agreement area.
74 The Registrar discussed the agenda, the information and the decision-making process concerning the First Resolution. This included discussion as to whether there was a mandatory traditional process and, if not, what process should be adopted. The Registrar recorded the information which had been conveyed by SWALSC and the NTAG in relation to this topic in a manner which clearly suggested that she accepted the correctness of the information provided. The Registrar approached the discussion of the Second Resolution in similar manner in relation to the authorisation of the ILUA. The First Resolution provided the decision-making process for the authorisation of the ILUA (on the basis that there was no applicable traditional decision-making process). The Second Resolution provided for the authorisation of the ILUA in accordance with that process. There is certainly no suggestion in the Registrar's reasons that she did not accept any aspect of this account from SWALSC concerning what transpired at the meeting.
75 The Registrar then turned to examine a number of objections which have not been pursued in these applications, which were raised in respect of the requirements of s 203BE(5)(b) of the NTA, before shifting her focus to s 251A dealing with the authority to make ILUAs. She noted the following concerning the question of a traditional decision-making process (at [154]-[157]):
[154] I also understand some of the objectors say the process that was agreed and adopted was predetermined and/or no alternate decision-making process was offered, such as proxy or postal voting.
[155] In my view, the information before me indicates that the persons who were present at the meeting were given an opportunity to make comment, and although it is viewed that these comments were disregarded or ignored, the majority of those present resolved that there was not a traditional decision-making process that was required to be followed and therefore they agreed to and adopted a decision-making process of majority vote by secret ballot.
[156] In relation to the assertion that members of another claim group were permitted to have their own separate authorisation meeting but other groups were not, I understand that this was a decision that was not made by SWALSC or the persons attending the authorisation meeting but by that group and the persons who attended and participated in the authorisation meeting convened by SWALSC did not agree to or adopt a process that permitted different groups to have their own decision-making process.
[157] In light of the above, I consider there does not exist a traditional decision-making process which should have been followed in authorising the making of the agreement and therefore an agreed to and adopted process was instead utilised.
76 The Registrar set out the observations of Reeves J in Kemppi v Adani Mining Pty Ltd (No 4) (2018) 360 ALR 697 and Logan J in Fesl concerning authorisations. She considered it appropriate that she have regard to the principles distilled from those cases, as well as Lawson per Stone J and Dingaal per Cooper J concerning s 251B of the NTA in light of Logan J's observations in Fesl as to the "analogy of application" between s 251A and s 251B of the NTA. The Registrar extracted (at [165]) the observation of Cooper J in Dingaal who referred to absences from the meetings, saying (at [37]):
… I am satisfied on the balance of probabilities that the extent and nature of the notice of meeting, the agenda and the explanatory memoranda, were such that all members of the claim group had notice of the meeting and notice that it was the business of the meeting to consider resolutions which were intended to affect and bind them as members of the claim group. I am satisfied that those who did not attend, for whatever reason, knew and accepted that the question of the authority and replacement of … the current applicants in respect of the native title claim, would be decided by those attending the meeting in a way which would bind the claim group as a whole, and accepted that process.
77 Submissions as to a lack of an opportunity to participate, inadequate prior notice of the meeting and predetermination of the process or inadequate explanation about the process were set out. The Registrar noted (at [171]) that some of the objectors also appeared to assert that a reasonable opportunity was not given as inadequate prior notice or information about the meeting/agreement was given, and, therefore, there was no free, prior and informed consent to the decisions made. Additionally, it was contended by the objectors that not all the persons who hold or may hold native title in the agreement area were given an opportunity to attend due to incarceration, hospitalisation, the costs of travelling, transport, distance of the meeting, failure to use the Australian Electoral Commission (the AEC) or accommodate proxy or postal voting or otherwise general exclusion. It was asserted that some people who attended were not persons who hold or may hold native title. Some of the objectors said the process adopted for decision making was pre-determined or not sufficiently explained. In addition, a reasonable opportunity was not given to be heard at the meeting with some attendees being ignored and no alternate or impartial view apart from supporting the agreement was provided.
78 However, importantly, the Registrar expressed her view to the contrary. The material before the Registrar indicated that SWALSC implemented a multifaceted communication strategy involving making Settlement ILUA documents available on websites from October 2014, publishing simplified explanations of the contents of the agreement, disseminating information through a wide range of media and other platforms while continually reviewing and improving readability of documents, conducting community meetings to discuss the proposed Settlement and the decision-making process, and obtaining and distributing independent legal advice received about the merits of the Settlement. In addition, prior to the meeting, SWALSC held a formal Agreement Information Meeting based around publishing the apical ancestor sets which generated community interest and allowed SWALSC to test the meeting venue and provide information about the agreement and the process of the authorisation meeting (at [172]). The Registrar placed weight on the effort undertaken by SWALSC:
SWALSC had formally advertised the notice of the ILUA nationally and in newspapers with State-wide and regional circulation, ensuring that the meeting was published widely in reasonable time prior to the meeting and the notice contained sufficient details of the business to be conducted at the meeting. The Registrar also had regard to the extensive consultation that was undertaken with the Noongar community by SWALSC's RDU to provide sufficient information and understanding about the Settlement terms, including the impact on native title rights and interests and the opportunities the Settlement presented to Noongar people, such as by holding a series of family-friendly day events. Facebook was also used as a key tool to distribute information (at [173]).
Key and known Noongar organisations, corporations and businesses were targeted to attend luncheons with the CEO of SWALSC to provide information about the Settlement. An outbound telephone contact program was also undertaken to inform eligible people about the meeting, bus arrangements and provide further information about the Settlement (at [174]).
SWALSC convened information sessions with penal facilities with known Noongar populations to enable those Noongar people in prison a reasonable opportunity to participate in the decision-making process, and said that efforts by SWALSC to inform the community were sufficient to apprise Noongar prisoners and their families of the meetings and have an opportunity to discuss their views on the settlement and make arrangements for eligible family members to attend the meetings and participate (at [175]).
79 The material before the Registrar indicated that SWALSC considered the options of proxy and postal voting and sought the assistance of the AEC, but made assessments that these options were not feasible for various reasons.
80 The Registrar noted the objectors' claims that informing Noongar people in imprisonment of the meeting did not allow them the opportunity to attend and participate in the process, however, the information before her indicated that SWALSC did take this into consideration and provided an opportunity to participate through other means. The Registrar analogised, like Cooper J found in Dingaal, those who were present at the meeting were apprised of the position of those Noongar persons in imprisonment and still decided to continue with the meeting and make decisions in relation to the resolutions.
81 The information provided to the Registrar indicated to her that notification of the meeting was wide and gave a reasonable opportunity to participate in the processes at the meeting. Some of the objectors said they were not given an opportunity to participate in their own authorisation process. However, the Registrar reasoned (at [178]) that if this was the reason they did not attend the meeting, then this suggested they chose not to attend whereas others from their group did take this opportunity and decided to participate, including adoption of the established decision-making process.
82 The Registrar concluded on this point (at [179]), that in light of this information and all the material before her, the objectors had not satisfied her that a reasonable opportunity was not afforded "to participate in the adoption of a particular process and the making of decisions pursuant to that process" (see Fesl (at [71])). Consequently, it was her view, that there was an agreed and adopted process of decision-making. She also noted that the objectors said that SWALSC had not provided sufficient evidence in relation to some of its submissions. However, as mentioned, s 24CK(2)(c) required the objectors to discharge the onus. The Registrar reasoned (at [180]):
The [NTA] does not impose any obligation on a representative body to adduce evidence supporting the accuracy of its certification under s 24CG(3)(a), even when an objection under s 24CI to registration of an ILUA has been lodged.
(Citing Bright (at [62])).
Accordingly, she did not consider that SWALSC was required to provide evidence or address specific matters, if that was the objectors' intention, for her consideration of s 203BE(5)(b). In any event, she did not consider that failure of SWALSC to provide evidence in relation to any of its assertions suggested that the making of the ILUA was not authorised in accordance with an agreed to and adopted process.
83 After discussing O'Loughlin J's decision in Ward v Northern Territory [2002] FCA 171 in relation to the actual conduct of the meeting and the specific processes of authorisation of the agreement, the Registrar observed the following (at [184]-[190]):
[184] The notices of the authorisation meeting reveal the date, time, place and purpose of the authorisation meeting and I understand that the meeting was convened by SWALSC as the representative body for the area covered by the agreement. Members who were identified as people who hold or may hold native title in relation to the land or waters of the agreement area (Identified Native Title Group), were the native title claim groups for the Wagyl Kaip, Southern Noongar, Wagyl Kaip - Dillon Nay People, and Single Noongar claims and the additional people identified through the extensive research by SWALSC's research section as members of the NTAG being the Wagyl Kaip and Southern Noongar apical ancestors and the descendants of those ancestors. Those members were invited and notified of the authorisation meeting through public advertisement of the formal notice, a general reminder notice and a general notice in a broad range of State-wide, regional and Aboriginal or Torres Strait Islander special interest newspapers, SWALSC's program of information using SWALSC's website, social media, an information package mailed to each member listed on SWALSC's database, an authorisation meeting pre-registration program, telephone contract program, radio announcements, meetings of the South West Claims Working Party and Named Applicants, and a meeting of all the South West Claims Named Applicants. I am of the view that the members of the claim group were given a reasonable opportunity to attend.
[185] The meeting was attended by [express number of] members of the identified NTAG and a comprehensive registration process was undertaken to ensure that those attending were entitled to participate. In my view, the conduct of the meeting was such that those present resolved to use the agreed and adopted decision-making process, and it is indicative that the actual process was participative and inclusive, allowing those present an opportunity to participate. For instance, the persons who were present were given information about the agreement including from an independent legal counsel, able to consider the proposed resolutions, discuss or ask questions about the proposed resolutions, and vote by a show of hands or secret ballot prior to the passing of the resolutions. I also consider that a majority of the members of the Identified Native Title Group voted in support of the resolutions.
[186] Some of the objectors say that a reasonable opportunity was not given to be heard at the meeting with some attendees being ignored, and no alternate or impartial view apart from supporting the agreement was provided. The material indicates that views were heard and responded to by SWALSC, the independent facilitator, and the independent legal counsel, and those present at the meeting decided to proceed with the meeting and vote in favour of the agreement.
[187] The objectors also contend that their legal counsel, facilitator, minute taker and returning officer were not independent. The material provided by SWALSC and NTAG details the responsibilities of each of these persons and SWALSC formed the opinion that each had undertaken his or her duties appropriately. I do not consider my task here is to speculate that having different people conducting these tasks at each meeting would result in fairer outcomes.
[188] There are also contentions that no alternate view or option was provided apart from in favour of the agreement. The material before me indicates that the independent legal counsel provided his views about the other option to settlement, namely having a litigated outcome. There also appears to be further assertions by objectors about their right to have their claim resolved by the Court. However, my task is not to draw conclusions in this respect, but I note that despite this, those who attended were informed of the option of a litigated outcome through the Court system and decided to authorise the making of the agreement.
[189] I note that s 251A does not require 'proof of a system of decision-making beyond proof of the process used to arrive at the particular decision in question', rather the agreement may 'be proved by the conduct of the parties' [Noble v Mundraby, Murgha, Harris and Garling [2005] FCAFC 212 at [18] cited in Fesl at [70]].
[190] On the basis of the information provided, I am satisfied that all the persons identified had authorised the making of the agreement. The objectors have therefore not satisfied me that the requirements of paragraph 203BE(5)(b) were not satisfied in relation to the certification of the application for registration.
84 The first condition of s 24CK was met according to the Registrar. The Registrar also concluded that the second condition was satisfied. It does not arise on these applications and it is unnecessary to set out the Registrar's reasons on this point.