should proceeding WAD6124/1998 be struck out pursuant to s 84C of the Nta?
19 Some of the background to this proceeding - which may for present purposes be called the Djabera Djabera claim - has been mentioned above. It is partly set out at [15]-[31] of MT (deceased). In that earlier decision I dismissed the application by KLC to strike out the Djabera Djabera claim pursuant to s 84C on the basis that the second amended application was not adequately authorised under s 62(1)(a)(v) of the NTA as the "basis" on which the applicant was purportedly authorised by the claimants to make that application was not adequately dealt with, and also because the application should be seen as one brought by a subgroup on behalf of a larger group of persons, in circumstances where the larger group of persons, who ought to have been included in the claim group, were not mentioned and had not authorised the making of the application.
20 KLC says that it does not seek to reagitate either of the grounds that were raised and dismissed by the Court in that earlier decision.
21 Rather, KLC submits that when the registrar made orders on 29 September 1999 for the amendment of the original claimant application, the amendment was not then authorised.
22 Section 84C(1) enables a party to a proceeding to apply to the Federal Court to strike out the main application if it does not comply with s 61.
23 Section 84C(1) is couched in slightly unusual terms in that it does not expressly empower the Court to strike out an application which does not comply with s 61, in as many words, but enables a party to the proceeding at any time to apply to the Federal Court to strike out the application. It assumes or implies the power of the Court to do so.
24 Section 84C(2) requires the Court, before any further proceedings take place in relation to that main application, to "consider the application made under subsection (1)".
25 As has been pointed out on other occasions, the obligation to "consider" the application made under subs (1) does not require the Court also to determine the application made, and so the Court has some discretion as to when the determination of such an application should be made. In Williams v Grant [2004] FCAFC 178, Lander J, with whom North and Dowsett JJ agreed, at [57]-[60], indicated that:
In some cases it will be appropriate to determine the application at the same time as it is considered, for example, where the application to strike out is obviously without merit then it may be dismissed immediately.
In other cases it may be difficult to decide whether the application should succeed. For example, where the issue is whether an applicant has been authorised by the claim group. In such a case it may be more appropriate to hear and determine the application at the same time as the main application.
26 To similar effect, in Hazelbane v Northern Territory of Australia [2008] FCA 291, Mansfield J, at [15], in the circumstances of that case, said that whether such an order is appropriate would depend upon the extent to which there would be an overlap in the evidence likely to be called relating to authorisation and on the main application and a range of factors. His Honour suggested that the apparent attraction of expedition and economy may, in such a case, be misleading.
27 Those principles and observations should be borne in mind in the course of finally considering whether this strike out application under s 84C should be determined now or, for example, left to the trial judge who will hear the claim, along with the related proceedings, at the trial commencing in September.
28 The present strike out application under s 84C refers to the question of the authorisation of the claim as amended in 1999. Of the 10 persons named as the applicant in that first amended application, five are now deceased, and have not been replaced. The surviving named applicants are Paul Cox, Greg Francis, Linos Saaban, Eileen Torres and Ramlie Haji-Noor (Ramlie Noor in the application).
29 As recounted above, in November 2002, Wilcox J, who was then the docket judge managing this proceeding, considered it appropriate to make an order for a court-appointed anthropologist, Mr Bagshaw, to enquire into and report on the identification, name or description of persons who might fall within the group of people described in the application as the "Djabera-Djabera People" and who might be members of any other group who apparently have such an association with the claimed land as might give rise to a native title claim in relation to the land.
30 As to what then happened, I refer to what I said at [21]-[25] of my earlier decision, namely:
21 Mr Bagshaw duly provided his report to the Court as required and parties were provided with a copy of it. In it he expressed the opinion that the area the subject of the claim comprises land traditionally associated with the 'Jabirr-jabirr people' and 'Nyul-nyul people', as well as the Nimanbur people. He said the description 'Djabera-Djabera' was an obsolete form of Jabirr-jabirr. He then considered the ancestry of the persons listed in Att 'A' of the claim, who were said to be the claim group members. He found that some had no relevant ancestry from any of these three groups. He identified the others as Jabirr Jabirr, or Nyul Nyul, or Nimanbur by descent. He also said there were persons not in Att 'A' who would appear to be capable of inclusion in the claim group by reason of their descent from one or other of these groups.
22 Following the circulation of the Bagshaw Report mediation between relevant parties was attempted apparently with a view to refinement of the existing claim or, perhaps, its withdrawal and the lodgement of new claims that reflected the opinions of Mr Bagshaw.
23 The evidence before the Court shows that, at a directions hearing on 12 December 2003 before Wilcox J:
• Mr Torres (deceased) informed the Court that 'basically we are all happy with the report'.
• Ms K Guest appearing for KLC (as the respondent representative body) informed the Court that KLC was of the view that the claim needed to be withdrawn because it had no chance of success, and that depending on the outcome of a forthcoming meeting KLC might take out a strike out application.
24 Further, at a directions hearing on 18 March 2005, counsel for the State in written submissions identified a range of apparent difficulties with the existing claim.
25 Nonetheless, despite attempts by the Court and all relevant parties and the National Native Title Tribunal as mediator, the circulation of the Bagshaw Report has achieved little, if anything, by way of resolution of the historic difficulties with the claim that Wilcox J identified in 2002.
31 As a result, on 2 August 2012 I ordered that mediation in the NNTT cease and the proceeding be referred to case management before a deputy district registrar. In the meantime, KLC as the native title representative body in the Kimberley region caused further anthropological work to be conducted as a result of which some earlier claimant applications made on behalf of the Nyul Nyul people were discontinued and proceeding WAD359/2013 - the Bindunbur (Area A) claim - was lodged. Subsequently the Bindunbur (Area B) claim, WAD94/2014, was lodged. See generally McKenzie v State of Western Australia [2013] FCA 1058.
32 The Bindunbur (Area B) claim overlaps the Djabera Djabera claim area.
33 In my earlier decision, while I refused to strike out the Djabera Djabera claim on the grounds then advanced, for the reasons then given, I observed that it was time for action by the applicant in the Djabera Djabera claim. In that regard, I set out what I said at [96]-[100] of my earlier decision:
96 Wilcox J plainly was so concerned with the difficult claim group issues raised by the proceeding in 2002 to have then commissioned the Bagshaw Report. That step, by a judge of this Court, was then, and remains today, an exceptional step. Normally the parties are expected, with the assistance of a native title representative body, to resolve issues concerning the traditional ownership of country. The Bagshaw Report was ordered to assist the claim group members, in particular, to resolve this issue. It appears mediation was ordered following the circulation of that report to the parties, but in 10 years since the circulation of the report, the proceeding has barely advanced.
97 Mr Gregory Francis has explained to the Court, from the bar table, that he has raised proposals for how the current proceeding might be dealt with in order to reflect opinions expressed in the Bagshaw Report. It is not at all clear to the Court, however, that all other members of the claim group or all other named applicants necessarily agree with the possible ways forward that Mr Francis has outlined. Certainly it appears that KLC, as the native title representative body, does not agree with the maintenance of the proceeding.
98 What is clear from what has been said on behalf of KLC in this proceeding, and by the Court in the related McKenzie v State of Western Australia [2013] FCA 1058 proceeding, is that considerable attention is being given by the native title representative body to the resolution of the range of issues identified in the Bagshaw Report in relation to this and related claim areas.
99 While the strike out application has not succeeded on this occasion, because of the longstanding lack of real progress in this proceeding, and the fact that resolution of the issues identified even 10 years ago by Wilcox J remains problematic notwithstanding the benefit of the Bagshaw Report, I will cause this proceeding to be returned immediately to case management by a registrar of this Court so that the relevant parties, particularly the applicant and KLC, can engage in discussions and reflect on the best way forward.
100 If the proceeding continues to languish in the way that it has for much of the last 10 years, then it may be that the only option left to the Court will be for the Court to require the applicant, under the NTA, to show cause why the proceeding should not be dismissed due to its generally unsatisfactory formulation and state of progress. In that regard, in relation to another proceeding which was suffering from difficulties not unlike those I have identified in this case, the Court ultimately dismissed the proceeding: see Budby on behalf of the Barada Barna People v State of Queensland (No 2) [2013] FCA 314.
34 I should note that, since then, the decision in Budby on behalf of the Barada Barna People v State of Queensland (No 2) [2013] FCA 314 has been the subject of a successful appeal: see Budby on behalf of the Barada Barna People v State of Queensland [2013] FCAFC 149.
35 It is apparent from [97] of my earlier decision that, while I heard from Mr Greg Francis on the occasion of that earlier strike out application, and have heard from him again in relation to the present strike out application, there is a lack of clarity, to put it generally, as to whether he actually purports to represent or indeed is authorised by other surviving named applicants to represent the applicant, or whether he only purports to represent himself, as one of the named applicants and certain other families who, as his does, identify as Nyul Nyul people. In the event, I do not consider he represents or seeks to represent the applicant, only his and his Leo family interests.
36 A little more background should also be set out at this point. The first amended application in 1999 not only clarified who were the named applicants and the claim group, but also reduced the original claim area, principally reducing the extent of the offshore areas claimed.
37 In 2012, however, by the second amended application and orders made by Gilmour J on 6 September 2012, the claim area was further reduced, to its current area, with the principal changes being the moving, significantly further to the west, of the eastern boundary of the claim area; and the extent of the offshore areas claimed in the vicinity of Beagle Bay was further reduced.
38 While in my earlier decision I found that, on its face, the Djabera Djabera claim group was simply the 85 persons mentioned in Attachment A to the claim and the application did not purport to identify the claim group by reference to any apical ancestors or by reference to any particular language group formula, I also noted that the Bagshaw Report stated that the expression "Djabera Djabera" was an archaic form of the name of an Aboriginal group who now describe themselves as "Jabirr Jabirr" people (and who now maintain proceeding WAD357/2013), and that persons in the claim group included persons who identified as Jabirr Jabirr people, Nyul Nyul people, Nimanbur people and even some other groups who did not appear to have any connection with the claim area, including a person of European descent who could not, on any view, hold traditional interests under the NTA.
39 It is also important to note, as KLC now submits, that Mr Greg Francis has indicated to the Court, including in his affidavit made 26 June 2015 and read at the current strike out hearing, that he and his family are descended from Nabi and Leo. In his affidavit, Mr Greg Francis states:
When the Missionaries came to Beagle Bay Mission area from Disaster Bay Mission they encountered Bullybullama who governed all of the Nyul Nyul country and had 8 wives.
He was recognised by all as ruler bestowing the title of King on him.
The Leo family, who we are the descendants of Nabi and Leo who was the first child of Abraham with Naomi. Naomi was his first wife.
(Emphasis as in original.)
40 Mr Greg Francis also says in his affidavit that KLC "has fought us on this point and have several times denied our rights as the Heir Apparent" (emphasis as in original).
41 As Mr Francis had previously told the Court from the bar table at the hearing of the earlier strike out application on 13 November 2013, in effect his interests arise from being a member of a Nyul Nyul family. He draws a distinction between the two surviving named applicants who are identified as Jabirr Jabirr people and the three who are not. In that regard, Mr Greg Francis stated to the Court on 13 November 2013, that:
Myself and, you know, Paul Cox, Linos Saaban who is the other named applicant, non Jabirr Jabirr ones, we would like to get off the claim. … We believe that at the time that we were going to sit down and do a section 66B removing the Nyul Nyul and Nimanbur named applicants. We wanted also to change the description of the group by having a formal meeting with our registered members and request that they all remove themselves.
They're not Jabirr Jabirr members, remove themselves, and our family all agreed on that. Unfortunately, it's - Ms Cole [KLC principal legal officer] has been directing everything since.
42 Mr Greg Francis also then described the process by which the 1999 membership of the Djabera Djabera claim group had been arrived at, and said:
We understood the Native Title Act at the time was for a communal claim, and we did it on the basis that it was a community claim then; we all went together. Myself and [Mr M Torres] went about recruiting the families because I was involved with an organisation called the Beagle Bay Outstation Council. We were lobbying ALT to return our lands back.
I got involved with that. I joined up with [Mr M Torres], and we went then and recruited the senior people from all the families. I approached the Manado family myself, the Dann family myself, the Cissy Djiagween and Carnot Bay people myself. I spoke to them also understanding that none of them wanted to talk to [Mr M Torres] at the time because the Kimberley Land Council had started, I guess, a campaign of innuendos and lies about his past … .
… And because of those personal differences between [Mr M Torres] and the families, those families refused to join us; the Manados, the Danns and the Carnot Bay people.
43 What Mr Greg Francis then told the Court effectively confirmed what Mr Bagshaw had concluded in his report (which Mr Bagshaw has confirmed by his affidavit made 5 June 2015, read at the hearing of the present strike out application) namely:
In view of the foregoing observations, I formally conclude that, as presently constituted, the [WAD6124/1998] applicant group (i.e. the totality of individuals named in 'Attachment A') is principally an aggregation of selectively recruited kin and consociates, rather than a genuinely inclusive, socio-culturally coherent group defined on the basis of recognised descent principles, common socio-linguistic heritage, territorial affiliation or the like. In this respect, it is not fully representative of all Jabirr-jabirr and Nyul-nyul (or, indeed, Nimanbur) descendants who are likely to have an association with the claim area of an order that might reasonably give rise to a native title claim.
44 At the hearing of the earlier strike out application, on 25 October 2013, Ms Eileen Torres, one of the named applicants, also appeared in person. Mr Greg Francis then, as now, sought to represent the interests of his Leo family. He does not purport to speak for Jabirr Jabirr people such as Ms Eileen Torres.
45 It should also be noted that while Mr Paul Cox, another of the surviving five named applicants, initially provided affidavit evidence in 1999 confirming that the named applicants were authorised to make the application on the part of the claim group in the first amended application, in an affidavit made 2 June 2015 and read in the current strike out proceeding on behalf of KLC, Mr Cox identifies himself as an Nimanbur man who is also a member of the Bindunbur native title claim group. He says he does not want to be a member of the applicant in the Djabera Djabera claim and does not want to have anything to do with that claim. He further states:
[5] That list does not include all people who have rights and interests in the Djabera-Djabera claim area.
[6] That list has lots of 'outsiders' - people from all over the place who aren't the right people for the Djabera-Djabera claim area. I don't even know some of those people.
[7] That list has some people who do have rights and interests in that area but does not include their immediate family members who also have rights and interests in the area.
[8] I have not been involved in the Djabera-Djabera native title claim for a long time. Since 2006 I haven't been involved in any of the decision-making.
[9] I haven't talked with Greg Francis, Eileen Torres, Ramlie Haji Noor or Linos Saaban about what should happen with this claim since at least 2006.
…
[11] I have never given Mr Francis or any other member of the Djabera Djabera applicant permission to speak on my behalf. They have never asked me for permission to speak on my behalf.
[12] I don't want the other members of the applicant in the Djabera Djabera native title claim to run the native title claim. I don't want them to represent me or my family. I never told them that they could represent me.
46 This affidavit evidence, taken with the statements made to the Court by Mr Greg Francis on the hearing of the earlier strike out application and on the hearing of this application, and in his affidavit filed and read in the hearing of this application, all go to confirm that Mr Greg Francis does not in fact have authority to speak for all the surviving named applicants or the applicant in the Djabera Djabera claim. He, to be fair, only purports to speak for himself and his immediate Leo family, as he has done in other, earlier proceedings: see, for example, KK (deceased) v State of Western Australia (2013) 217 FCR 115; [2013] FCA 1234.
47 What becomes apparent when one considers his statements, both from the bar table as an interested person, and in his affidavit read in the current strike out application, is that Mr Francis has long recognised that the current Djabera Djabera claim and claim area requires significant reformulation if it is to have any chance of success. As KLC notes, at the hearing on 25 October 2013, Mr Francis made it clear that the purpose of reducing the size of the claim area on the second amendment in 2012 before Gilmour J was to confine the claim to Jabirr Jabirr traditional country, so such a reformulation could be made. He then said:
ALP [ALT] and ourselves have been fighting over, I guess, the authority of who controls the land in the Djabera-Djabera claim today and our families have said we want to remove ourselves from the Djabera-Djabera claim, the Nyul and Nimanbur members. We would like to fix up the description of the group. Since we've moved the boundary out of Nyul land - Nimanbur land, we are willing to change the membership, but through the alteration of the membership group, the description of it, sorry. And also look at section 66B which we've been asking KLC, including Jesse Cole, for our section 66B meeting to look at changing the named applicants. Myself and Paulie Cox, we are not representing Jabirr Jabirr families. You know, currently two members representing Jabirr Jabirr families, Eileen and [Ramlie].
We believe the rest of us should remove ourselves happily. But we've always instructed KLC that Djabera-Djabera claim, if it's to be removed, wants to be replaced by Jabirr Jabirr only claim. Not by a claim that represents three different tribal groups …
(Emphasis added.)
48 In answer to a question that I then asked of Mr Francis as to who would be left if his suggestion was acted upon, he replied:
Currently you would have only two named applicants, [Eileen] Torres and [Ramlie Haji-Noor]. [Linos], myself and Uncle Paulie, we don't belong to the Jabirr Jabirr family groups, your Honour.
49 In other words, Ms Eileen Torres and Mr Ramlie Haji-Noor would be the remaining applicants because they would be the Jabirr Jabirr people representatives claiming in respect of Jabirr Jabirr country.
50 As KLC observes in their submissions on this strike out application, a major problem for the integrity of the current Djabera Djabera claim is that neither the composition of the "Djabera Djabera applicant" nor the "Djabera Djabera claim group" has been amended to accommodate the fact that the claim is recognised as being fundamentally deficient and only capable of being advanced by Jabirr Jabirr people. In other words, the claim group identified in Attachment A is not a traditional group capable of being recognised under the NTA as the holder of native title. This is made apparent by the Bagshaw Report with which key named applicants including Mr M Torres and Mr Francis have expressed substantial agreement.
51 I accept the submission made on behalf of KLC that both on the hearing of the earlier strike out application and now on the hearing of this application before the Court, the need for amendments to be made to the application has been clearly acknowledged by Mr Greg Francis, yet they have not been made. Indeed, on hearing of this strike out application, Mr Greg Francis, commendably, frankly admitted that the claim should be struck out (as he has previously); although, again to be fair to him, he did not wish for this occur until a proposed meeting of expert anthropologists, soon to be conducted in relation to the forthcoming September hearing, was completed. To be put it shortly, it appears Mr Greg Francis hopes that historic differences he has harboured with others about who holds interests in relation to certain areas, in both this and the related proceedings to be heard in September, might be resolved by the anthropologists, making redundant his concerns.
52 None of this, however, is particularly new. At a mediation meeting with the late Mr Dan O'Dea of the NNTT in 2004, the same range of issues that are now mentioned by Mr Francis were placed before Mr O'Dea. In Mr O'Dea's mediation progress report to the Court dated 31 March 2004, by reference to the Bagshaw Report, it was noted that the applicant planned to amend the claim area and the claim group "to make it a representative Djabera Djabera (Jabirr-Jabirr) language group native title application".
53 In my view, when one takes into account all of these circumstances disclosed by the uncontested evidence before me, it is reasonable to conclude, as KLC submits, a number of things:
(1) First, that as at 29 September 1999, when the first amendment to the original Djabera Djabera claim was made, the 10 named applicants were in fact not collectively authorised by all the persons for whom that application was purportedly made or who appeared to have interests in the claim area, including:
(a) by descendants of the named claim group members (who were not actually mentioned in the claim);
(b) by other members of the families who were said to have "elected" the named applicants, including Mr Francis;
(c) the Dann and Manado families, who initially declined to join the claim group, and the Carnot Bay people (who appear not to have been approached); and
(d) by other Jabirr Jabirr, Nyul Nyul and Nimanbur people who had not been, but should have been, included in the claim group.
54 In short, the evidentiary material now before the Court, and Mr Francis' statements of his family's position, makes it plain that the original claim as amended in 1999, with the 10 named claimants, purported to make a claim in respect of a claim area in respect of which it was being asserted that various peoples, including Jabirr Jabirr, Nyul Nyul and Nimanbur held traditional rights and interests. Yet, the full complement of such peoples (including the Manados, the Danns, the Carnot Bay people and various other members of the families of the 10 named applicants) did not collectively authorise the named applicants to bring the application. Rather, the individual named applicants, in particular Mr Greg Francis and the Mr M Torres, as "elected" representatives of individual families, organised the bringing of the application. The fact that certain families, such as the Manados and the Danns, were offered the opportunity to participate but declined it, and the Carnot Bay people were not approached, emphasises that not all persons who were recognised as possibly having traditional rights and interests in the claim area authorised the bringing of the first amended application in 1999.
55 Section 61(1) requires that, in relation to a claimant application, the person or persons who can make the application are "authorised by all the persons (the native title claim group) who, according to their traditional laws and customs, hold the common or group rights and interests comprising the particular native title claimed, provided the person or persons are also included in the native title claim group". It follows that where there is a group of native title holders wider than the particular group nominated (such as by Attachment A in this case), the wider group must authorise the bringing of the claimant application.
56 In this case, the evidence positively shows that persons within such a wider group were not engaged for the purpose of authorising the first amended application.
57 I therefore find that KLC is correct in making its submission that the first amended application, as of 1999, was not authorised pursuant to s 61 of the NTA and should be struck out under s 84C of the NTA.
58 As noted above, it is not necessary to determine every s 84C strike out application when it is considered. In some circumstances it may be appropriate for the application to be determined at the time of the hearing of the main application. This, however, is not a case like Hazelbane where Mansfield J explained why a delay in determination would be appropriate in a case such as that before his Honour. Here the detailed history of this matter, which has been set out above, discloses that there is nothing more to be said factually on this authorisation issue and it can be determined now.
59 It is also significant, in my view, while qualified in the limited way stated above, that Mr Greg Francis recognises that in light of the history of this matter the proceeding should be struck out. The unusual thing about the position Mr Francis generally takes is that, having regard to all the information now available to him and the other named applicants, he has long recognised that the existing proceeding needed amendment so that only Jabirr Jabirr claimants make an application in respect of traditional Jabirr Jabirr country. That simply has not occurred.
60 Indeed, no other named applicant comes before the Court to contradict the strike out application or to seek to sustain the claim. The various affidavits filed and read on behalf of KLC on the hearing of this strike out application confirmed that service of the interlocutory application has been appropriately effected on all five named applicants. None, apart from Mr Greg Francis, has elected to respond to the application.
61 In these circumstances there should be an order that proceeding WAD6124/1998 be struck out pursuant to s 84C of the NTA.