The Bunna Lawrie Parties
118 The affidavits of the Bunna Lawrie Parties indicate, and it was not in dispute (other than in the case of Mr Laing), that they are Mirning People. Some (including Bunna Lawrie, Robert Lawrie and Dorcas Miller) are Senior Elders and others are Elders. The Bunna Lawrie Parties assert that the Mirning are a distinct people with a distinct language and distinct laws and customs. They deny that they form part of any larger society or group and, in particular, of the Far West Coast People. The Bunna Lawrie Parties claim that much of the area claimed in the Far West Coast Sea Claim is Mirning country - the claimed Mirning country does not extend as far east as does the Far West Coast Sea Claim but does extend further west, beyond the South Australian-Western Australia border. They assert that only the Mirning have authority to speak for, and to bring a claim for native title in respect of, this country. They dispute that the Kokatha People and the Wirangu People have any connection with their sea country and dispute that those people are entitled to claim native title in respect of it. Each of the Bunna Lawrie Parties has deposed that the Mirning People have not authorised the Far West Coast Sea Claim.
119 In short, the claim of the Bunna Lawrie parties is that it is the Mirning People, and only the Mirning People, who can have native title over a significant part of the area which is the subject of the Far West Coast Sea Claim. They dispute that the Mirning People form part of a wider society, and in particular, of the Far West Coast People in respect of the area which is the subject of the Far West Coast Sea Claim.
120 The dissatisfaction of a claim group member with the institution of proceedings or the manner of their conduct does not of itself warrant that person being joined to, or remaining as, a party to the proceedings: Kulkalgal People v State of Queensland [2003] FCA 163 at [7]-[8]. An authorisation of an applicant pursuant to s 251B does not require unanimity amongst the claim group (unless the traditional laws and customs or other agreed decision-making groups so require). That is to say, lack of unanimity, and even dissension among a claim group is a recognised prospect, but the NT Act does not contemplate that the authorised proceedings will be a vehicle for the resolutions of all such disagreements. In Starkey, Mansfield J reviewed many of the authorities and concluded, at [61], that, while there is no necessary legal impediment to a member of a native title claim group being joined, or remaining, as a respondent party to a claim, the circumstances in which a dissentient member will be permitted to become or remain a respondent party will be rare. His Honour gave a number of reasons for that conclusion which is not necessary to repeat presently. I agree, respectfully, with the analysis of Mansfield J in this respect.
121 The position may be different, however, for those persons, who although within the description of the applicant claim group, contend that their native title rights and interests exist by reason of their membership of a different and competing claim group which will be affected by a determination of native title in the proceedings.
122 This makes it necessary to have close regard to the interest asserted by the Bunna Lawrie Parties and to their purpose in seeking to remain parties to the Far West Coast Sea Claim.
123 The position of the Bunna Lawrie Parties is similar in some respects to that of the Walman Yawuru Claimants considered in Rubibi Community v State of Western Australia (No 3) [2002] FCA 876; (2002) 120 FCR 512. The Walman Yawuru claimed to have competing and conflicting native title rights and interests in respect of part of the area claimed by two applicant groups in separate proceedings. Merkel J permitted the joinder of the Walman Yawuru as respondents in the two proceedings even though they were within the description of the claim groups bringing each proceeding.
124 The position of Bunna Lawrie Parties is also similar in some respects to that of the "Indigenous Respondents" considered by North ACJ in TR (deceased) on behalf of the Kariyarra-Pipingarra People v State of Western Australia [2016] FCA 1158. In that case, the Indigenous Respondents had become parties to native title proceedings pursuant to s 84(3)(b). It seems that their interest was to challenge the composition of the claim group. Following an amendment to the claim group, an apical ancestor of the Indigenous Respondents was included so that they themselves then became members of the applicant claim group. The Applicant then sought their removal as parties.
125 North ACJ considered that in the circumstances of the Kariyarra-Pipingarra Claim, the Indigenous Respondents were not to be characterised as dissentient members of the claim group of the kind discussed by Mansfield J in Starkey. His Honour held that their interest in contesting the membership of the claim group itself was not an intra mural matter, at [36]-[37]. Although North ACJ considered that a number of discretionary considerations militated against the Indigenous Respondents remaining as parties to the proceedings, he did not order their removal as parties. The matters which pointed to removal were that the Indigenous Respondents could not seek a determination of native title in their favour in the proceedings and had not indicated any intention to institute a competing application, at [45]; having regard to s 67(1) of the NT Act and the principles of finality and avoidance of multiplicity of proceedings implicit in s 22 of the Federal Court of Australia Act 1976 (Cth), they may well be forever precluded from bringing such an application, at [45]; the State supported the view of the two anthropologists on whom the Applicant relied for the composition of the claim group, at [47]; and the continuation of the Indigenous Respondents as parties to the proceedings had the potential to delay the finalisation of the application and to be productive of further expense at a time when the Applicant and the State were otherwise relatively close to agreement on a consent determination, at [48]. The decisive consideration which led to the refusal of the removal applications was that the position of the Indigenous Respondents with respect to the society which they claimed held the native title rights and interests was supported by a third anthropologist. This meant that the Indigenous Respondents had raised an arguable case in support of competing native title which it was appropriate to have resolved in a substantive hearing, at [50].
126 Ultimately, the question of whether the Bunna Lawrie Parties should be permitted to remain parties to the Far West Coast Sea Claim turns on the interests of justice. The Applicant submitted that in the present case, consideration of the interests of justice required regard to be had to the interlocutory activity instigated or supported by the Bunna Lawrie Parties which preceded the 2013 Determination.
127 The relevant interlocutory activity commenced with an application made on 15 June 2010 by Mirning Community Incorporated (MCI) to be joined as a respondent party. MCI had been incorporated on 20 November 2009 with the primary objects of encouraging, promoting and cultivating an appreciation of Mirning language, culture, history and heritage. Its rules confined eligibility in MCI to descendants of several named persons. The first members of the MCI Board were Bunna Lawrie, Robert Lawrie, Iris Burgoyne, Dorcas Miller and Michael Laing. All but Iris Burgoyne are one of the Bunna Lawrie Parties.
128 Mansfield J rejected the application for joinder, holding that MCI itself did not have a sufficient interest for the purposes of s 84(5) to be joined as a respondent party: Far West Coast Native Title Claim v South Australia [2011] FCA 24; (2011) 191 FCR 381 at [29]. In doing so Mansfield J referred, at [18], to the apparent intra-mural dissension which lay behind the application:
It is therefore clear enough that MCI, and those persons who support the application on behalf of MCI and who are its members, seek to use MCI as a vehicle to protect or enforce their claimed native title rights and interests in the claim area as a subgroup as against other members of the claim group. Potentially, to a degree, there may be a departure from the consensus previously reached (this being that the combined claim reasonably promptly should progress towards determination) because there are (inter alia) assertions that the "Mirning Community" still claims that the land and waters identified in the original Mirning Peoples claim is solely Mirning land. I suspect that MCI may assert that part of the present claim area, which previously was subject of the Mirning Peoples claim, is in fact an area of land in which a different and smaller claim group than the combined native title claim group occupies and enjoys native title rights and interests to the exclusion of others. There are assertions in the affidavit material that the "Mirning community" would not have given away their registered claim and agreed to combine unless their concerns were met. There are assertions that, if the claim is progressed in its present form, the "Mirning People" will not have any right to manage their own land. There are also concerns, interestingly, having regard to my provisional understanding that not all persons who previously identified as Mirning People as a separate claim group are eligible for membership of MCI, that there is some disagreement within the Mirning People community (to use a neutral term) and within the wider claim group, as between the Mirning People or some of them and the wider claim group, as to how the claim should be managed and progressed to finality.
129 The next interlocutory application was brought by Robert Miller (one of the Bunna Lawrie Parties) on 30 September 2011. When filed, this application sought the reinstatement of the Mirning Native Title Claim and its de-consolidation from the Far West Coast Native Title Claim. Mr Laing was one of the deponents who provided an affidavit relied upon by Mr Miller in support of his application. As noted earlier, the application for reinstatement and de-consolidation was unsuccessful: [2012] FCA 733; (2012) 204 FCR 542. Mansfield J referred again to the intra-mural dissension underlying the application:
[12] The present application is another step in the attempt to advance the perceived interests of some of the Mirning people, reflecting the discontent or the concerns expressed above. It is not clear how extensive that discontent is. The evidence suggests that a significant section of the Mirning people do not support the position Mr Miller seeks to adopt, but on the other hand, there are a number of Mirning people who share Mr Miller's concerns.
130 Next, in Laing v State of South Australia (No 2) [2012] FCA 980, Mansfield J dismissed an application, called the Naley Native Title Claim, over an area of land on the western side of the South Australian-Western Australia border brought by Mr Laing. This was because the claimant group was a subgroup of a native title group, as the application itself recognised.
131 In Graham on behalf of the Ngadju People v State of Western Australia [2012] FCA 1003, Marshall J dismissed interlocutory applications by Mr Laing, Bunna Lawrie and Rose Miller to be joined as parties to the native title claim brought on behalf of the Ngadju People in respect of the area of land on the western side of the South Australian-Western Australia border abutting the area claimed by the Mirning in their 1998 proceedings. Marshall J had particular regard to the lateness of the applications.
132 Next, in Far West Coast Native Title Claim Group v State of South Australia (No 4) [2012] FCA 1468, Mansfield J dealt with further aspects of the interlocutory application of Robert Miller brought on 30 September 2011. His Honour refused to allow Mr Miller to amend the interlocutory application so as to include a claim that the authorisation for the Far West Coast Native Title Claim was defective, a claim that the proposed consent determination provide for the establishment of a Mirning Aboriginal Corporation with matters concerning the Mirning to be referred to it, and for the claim group to be redefined to include the descendants of Gordon Charles Naley as part of the Mirning People. Mansfield J refused each of these applications. His Honour noted, at [10], that the status of the descendants of Gordon Charles Naley had been a matter of considerable debate during the course of the Far West Coast Native Title Claim. As will be seen, Mr Laing claims that Mr Naley was Mirning and that he is a Mirning person by reason of his descent from Mr Naley.
133 Next, in Far West Coast Native Title Claim v State of South Australia (No 5) [2013] FCA 717, Mansfield J dismissed an interlocutory application by Mr Laing by which he sought an order that he be joined as a respondent to the Far West Coast Native Title Claim. Essentially, this was because in the circumstances then before the Court, Mr Laing's interest could be seen to be no more than that of a dissentient member wishing to be involved in the proceedings. Mansfield J summarised some of the history just set out and said, at [23]:
The joinder application can therefore be seen as yet a further step in a lengthy process by which Mr Laing has sought to directly interpose himself in the conduct of the claim by the applicant, or to support Mr Miller or Mirning Community Inc to do so.
134 On 3 October 2013, McKerracher J refused an application by Mr Laing to be joined as a respondent to native title proceedings brought by the Mirning People in the Western Australian Registry of the Court (relating to land on the western side of the South Australian-Western Australian border): AD (deceased) on behalf of the Mirning People v Western Australia (No 2) [2013] FCA 1000. The refusal turned on a close analysis of the claim of the Mirning People and of the area to which it related, on the one hand, and the basis of Mr Laing's claimed connection with that land, on the other.
135 In late 2013, Mr Miller sought to amend further his interlocutory application of 30 September 2011 so as to permit him to challenge the authorisation for the Far West Coast Native Title Claim as well as other relief. On 4 December 2013, Mansfield J declined to grant leave to amend holding, amongst other things, that Mr Miller lacked standing to bring the proceedings (Mr Miller not having pursued his own earlier application to be joined as a respondent to the proceedings): Far West Coast Native Title Claim v State of South Australia (No 6) [2013] FCA 1270. The 2013 Determination was made on the following day.
136 I accept that the assessment of the interests of justice in relation to the application for the removal of the Bunna Lawrie Parties should take account of this course of interlocutory activity and, in particular, the intra-mural dissension manifested in it.
137 There are other matters to which the Applicant referred to which it is also appropriate to have regard. The first is that, although the Bunna Lawrie Parties assert in their Form 5 notice filed on 16 January 2017 that they are acting on behalf of the Mirning People, the evidence they have provided does not support that contention. There is no evidence of any decision having been made by all the Mirning People authorising them to so act. The mere fact that some of the Bunna Lawrie Parties are Senior Elders, and others are Elders, is not sufficient for this purpose. Dorcas Miller acknowledged as much in her affidavit of 30 June 2017 when she deposed that the authority to make decisions binding the Mirning People rested with the Mirning Council of Elders (of which she is a Senior Elder). None of the Bunna Lawrie Parties deposed that the Mirning Council of Elders had made any decision with respect to the lodgement of the Form 5 notice, and the strong inference from the affidavits of the Bunna Lawrie Parties is that it has not. Dorcas Miller, for example, referred only to the views of some of the members of the Mirning Council of Elders. Meegan Sparrow claimed only that the Bunna Lawrie Parties represented the Mirning "by the mere fact that they are representatives of the Mirning Council of Elders".
138 The Court was not told of the persons who are recognised as making up the Mirning Council of Elders.
139 Bunna Lawrie deposed to the decision-making process of the Mirning People in a way which differed from Dorcas Miller. He deposed:
[46] Mirning People under Mirning laws, practices and customs have [a] decision-making process to meet as family groups when any decision would affect the family group.
[47] In the decision-making process the family groups would prefer to agree or not agree and if that does not happen a majority can be accepted on circumstances and conditions.
[48] After the decision is made by the Mirning People the head of the Mirning family groups meet and state what their family group decision [is].
[49] Where each of the head[s] of the Mirning family group [do] not agree then the decision-making begins again.
140 Robert Lawrie described a similar process in his affidavit of 1 May 2017, although his description would allow that a decision could be made by a majority both at the family group level and by the heads of the family groups when meeting together. He also deposed that "[a]ll eligible Mirning People must be given the best chance to participate in any decision-making process".
141 Whether this process differs from that described by Dorcas Miller is not critical for present purposes. What is significant is that none of the Bunna Lawrie Parties claims that the filing of the Form 5 notice occurred in accordance with this process of decision-making. As I have said, the strong inference is that it did not.
142 I record that Dorcas Miller deposed that she had authority as matriarch of one family group consisting of 110 Mirning People. It is apparent, however, that, even if this be the case, the 110 are likely to be a small proportion only of the total numbers of Mirning as Mr Linde deposed to the numbers of the Mirning being "in the hundreds".
143 Further, the minutes of the Second Meeting record that some 38 attendees identified themselves as Mirning and resolved expressly that the Bunna Lawrie Parties do not represent all Mirning People.
144 Another matter bearing on the interests of justice in the removal application is the alternatives available to the Bunna Lawrie Parties. Counsel for the Applicant submitted that they had two alternatives:
(a) seek the removal of the current applicant pursuant to s 66B of the NT Act by seeking the authority of the entire claim group for such an application; or
(b) bring their own application for a determination of native title, providing that they can obtain the authority of all the Mirning People to do so.
145 The Bunna Lawrie Parties have not pursued any of these alternatives in relation to the Far West Coast Sea Claim and have not provided any explanation for their omission to do so. They have not provided any evidence of a decision made by the Mirning Council of Elders, or of the Mirning more generally, of a kind which would satisfy the requirements of s 251B of the NT Act. None of the Bunna Lawrie Parties attended the Second Meeting even though all (other than Mr Laing) had been notified appropriately that it was to be held and of the matters to be addressed by the meeting. There is no evidence of any attempts to resolve internally the intra-mural disputes within the meeting.
146 Further, in contrast to the action of the Indigenous Respondents in TR (deceased) on behalf of the Kariyarra-Pipingarra People to whom reference was made earlier, the Bunna Lawrie Parties have not adduced on the present applications any anthropological evidence to support the interest which they contend warrants their retention in the proceedings. The Bunna Lawrie Parties may well be sincere in the beliefs which underpin their wish to be involved in the Far West Coast Sea Claim. One may accept for the purposes of determining the present application that that is so. However, ordinarily, a person wishing to become or remain a party to native title proceedings must show more than sincere belief. A prima facie case in relation to the asserted interest is usually required: Wakka Wakka People (No 2) v State of Queensland [2005] FCA 1578 at [35]; Far West Coast Native Title Claim v State of South Australia (No 5) [2013] FCA 717 at [34]. That being so, the absence of anthropological evidence by the Bunna Lawrie Parties has particular significance.
147 It seems that the Far West Coast Sea Claim has been contemplated for some time. To my mind, it is pertinent that, despite that time, the lengthy period during which the Far West Coast Native Claim was on foot, and the extensive interlocutory activity which occurred in relation to that claim, the Bunna Lawrie Parties have still not (apparently) sought authority from the Mirning People to bring a separate claim for the determination of native title over the sea area or otherwise to achieve a consensual resolution and have not adduced any anthropological evidence.
148 In my view, a number of these matters have substance. However, I am not satisfied on balance that I should accede to the Applicant's removal application with respect to the Bunna Lawrie Parties. Although there is an intra-mural dispute, its subject matter is the composition of the claim group as the party asserting native title, and not the manner of conduct of the claim. It cannot be assumed that, if native title exists in relation to the sea area, it is held by the same group recognised as having native title over the adjacent land. That recognition is likely to be an important factor in the determination of the sea claim but it is not decisive. It is open to the Bunna Lawrie Parties to contend that the native title is held by a more confined group. It has been recognised that when the sub-group of a community sharing traditional laws and customs alone possesses rights and interests in a particular area, that sub-group may itself constitute a native title claim group: Kite v State of South Australia at [22]. That tends to confirm that the Bunna Lawrie Parties may have an interest to be defended in the present proceedings.
149 The Bunna Lawrie Parties have not delayed in seeking to be joined in the proceedings. Although they have not so far adduced any anthropological evidence, each has deposed to matters which may underpin such evidence. It may be appropriate in due course to make programming orders which require the Bunna Lawrie Parties to provide at an early stage any anthropological evidence on which they do intend to rely.
150 I accept that the Bunna Lawrie Parties have the alternatives under the NT Act to which the Applicant referred but they may not exhaust the means by which they may obtain a judicial determination of their underlying grievance.
151 Accordingly, I decline to order that the Bunna Lawrie Parties, other than Mr Laing, be removed as parties. His claim will have to be considered separately.