Mulardy, on behalf of the Birriman-gan Native Title Claim Group v State of Western Australia

BANKS-SMITH J: 1 On 19 December 2019, in Mulardy, on behalf of the Birriman-gan Native Title Claim Group v State of Western Australia [2019] FCA 2119, the Court made a consent determination that native title exists over approximately 2194 square kilometres in the western Kimberley region of Western Australia. 2 The determination recognises the native title rights and interests of the Birriman-gan native title common law holders, comprising the Karajarri people, the Yawuru people and the Nyikina people, who are described by reference to culture and by descent from certain apicals, as set out more fully in schedule 4 to the determination orders. 3 The determination orders included orders requiring nomination of a Birriman-gan Prescribed Body Corporate (PBC) under s 56 or s 57 of the Native Title Act 1993 (Cth) to be the trustee of their native title rights and interests within nine months of the date of the orders, being 19 September 2020. 4 The date for nomination of a PBC has been varied three times. 5 Without the nomination of a PBC, and subject to further orders, the determination is not effective. 6 The practice of making a consent determination prior to the nomination of a PBC was discussed by Mortimer J in Farrer on behalf of the Ngarrawanji Native Title Claim Group v State of Western Australia (No 4) [2021] FCA 1497 (Farrer (No 4)). Her Honour addressed difficulties that had arisen following two consent determinations relating to the Ngarrawanji common law holders: Farrer on behalf of the Ngarrawanji Native Title Claim Group v State of Western Australia [2019] FCA 655; and Farrer on behalf of the Ngarrawanji Native Title Claim Group v State of Western Australia [2020] FCA 929. The relevant orders in those matters contemplated nomination of the PBC up to 12 months from the making of the consent determinations. The 12 month deadlines were extended by the Court but the failure to agree on the nomination of a PBC persisted, leaving the Court to consider what step might then be appropriate. The risk of such failure to nominate led her Honour to observe that the practice of deferring nominations until after a consent determination is made should not continue without compelling justification. 7 This is another example where the common law holders have failed to nominate a PBC within the time extended by the Court. 8 The parties have suggested that similar orders to those made in Farrer (No 4) be made in this case. 9 The parties requested that I determine on the papers whether it was appropriate to make such orders. I considered the proposed orders were appropriate, and made orders on 16 March 2022. I now provide my reasons for doing so.

The legal principles as discussed in Farrer (No 4) 10 By s 55, decisions by the Court under s 56 or s 57 must be made either at the time of the determination of native title, or 'as soon as practicable' after the determination. 11 As explained by Mortimer J in Farrer (No 4): [37] By s 55, decisions by the Court under s 56 or s 57 must be made either at the time of the determination of native title, or 'as soon as practicable' after the determination. That provision is important. The Parliament requires the Court to resolve the issue of a PBC contemporaneously with, or alternatively 'as soon as practicable' after, a determination of native title. While a phrase such as 'as soon as practicable' involves a level of evaluative judgment, and does accommodate for a range of contingencies, I doubt that it could be said that Parliament intended it to encompass a situation where, after two and a half years, the common law holders still had not nominated a PBC. [38] Division 6 contemplates two different kinds of arrangements - a 'trustee' arrangement (s 56) or an 'agent' arrangement (s 57). In either case, and subject to one circumstance, the entity performing the functions of trustee or agent must be a corporation registered under the Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth): see Native Title Act s 59, read with rr 3 and 4 of the Native Title (Prescribed Bodies Corporate) Regulations 1999 (Cth). The one exception arises from s 57(2)(c) and s 59(2), read with r 11 of the Regulations, which empowers this Court to determine that the ILSC be an agent body corporate for the purposes (relevantly) of s 57(2)(c). [39] In other words, where the common law holders cannot, and do not, nominate a PBC, Parliament has given two other options. One (apparently interim) option is that the common law holders hold the native title collectively. How any decision making could practically occur under that option, even if an interim one, is unclear. 12 The orders in the consent determinations the subject of the discussion in Farrer (No 4) were effectively identical to those in this consent determination. The orders in this consent determination were relevantly as follows: 2. There be a determination of native title in the terms of the Minute of Consent Determination of Native Title attached. The determination is to take effect immediately upon the making of a determination under section 56(1) or 57(2) of the Native Title Act 1993 (Cth) as the case may be. 3. Within nine months of the date upon which these orders are made, a representative of the common law holders of the native title rights and interests shall indicate whether they intend to have the native title rights and interests held in trust and, if so, by whom. They are invited to do so by: (a) nominating in writing to the Federal Court a prescribed body corporate or prescribed bodies corporate to be trustee of the native title rights and interests; and (b) including within the nomination the written consent of the body corporate or bodies corporate. 4. If a prescribed body corporate or bodies corporate are nominated in accordance with order 3, it will hold the native title rights and interests described in order 1 in trust for the common law holders of the native title rights and interests. 5. In the event that there is no nomination within the time specified in order 3, or such later time as the Court may order, the matter is to be listed for further directions. 13 As explained in Farrer (No 4) at [47]-[49], taken as a whole, orders of this nature involve a request for a nomination under s 56(2)(a), and the prescription of a time period for that request, together with provisions for extension to that time period. The process set out was a process under s 56: a trustee process. No process under s 57(2) is contemplated or provided for by the Court's orders on 19 December 2019. However, I concur with Mortimer J (in Farrer (No 4) at [49]) that what was intended by orders such as those considered in that matter and those made on 19 December 2019 in this matter is that assuming the failure of the trustee process, then the determination of native title will not come into effect until after the completion of any process under s 57(2). 14 In Farrer (No 4) Mortimer J considered what steps should be taken next in a scenario such as this where there has not been a nomination for the purpose of s 56. 15 In that context Mortimer J cited and adopted the explanation of the legislative scheme provided by her Honour and Colvin J in Drury on behalf of the Nanda People v State of Western Australia [2020] FCAFC 69; (2020) 276 FCR 203: [59] Where the Court orders that the common law holders are to hold the native title then there is a further process to be followed for the nomination of a PBC to act as agent or representative of the common law holders in respect of matters relating to native title: s 57(2). The process is similar. There is a request for a representative of the common law holders to nominate a PBC to act as agent or representative: s 57(2)(a). If there is a nomination then the Court must determine that the nominated prescribed body is to perform the functions as agent or representative: s 57(2)(b). However, if there is no nomination, then the Court must determine in accordance with the regulations which body is to perform the functions of agent or representative: s 57(2)(c). In either case, the functions of the PBC may be specified by regulations: s 58. 16 Accordingly, her Honour considered that there should be a determination under s 56(2)(c) to the effect that the area covered by the determination was to be held by the common law holders. Then, for reasons explained at [59]-[66], where a mediation process had been unsuccessful, it was appropriate for the Court to make orders to engage the terms of s 57(2)(c) of the Native Title Act. So in summary, orders were made in Farrer (No 4) to facilitate a process whereby a representative of the common law holders (in Farrer (No 4) being the Kimberly Land Council (KLC) as representative body) was to be invited to nominate a PBC to act as agent, and there were steps in place for the common law holders to authorise the KLC to make such nomination. If such nomination did not proceed, then there was a self-executing order so that the Indigenous Land and Sea Corporation (ILSC) would be determined to be appointed under s 57(2)(c) of the Native Title Act, and would then become the registered native title body corporate and perform the relevant functions under s 57(3) of the Native Title Act. 17 The orders I made in this matter on 16 March 2022 reflected the same approach. 18 In order to understand why I considered it appropriate to follow the approach in Farrer (No 4), it is first necessary to consider the case management and delays that have ensued since the consent determination in this matter was made on 19 December 2019.

The case management and delays in this case 19 On 11 August 2020 the applicant sought an extension of time with the consent of all parties to 18 December 2020 to nominate a PBC. The reason for the extension was set out in the affidavit of Alexander Romano, in-house legal counsel of the KLC affirmed 11 August 2020. The KLC acts for the applicant in this matter. Mr Romano explained that there was delay in establishing a PBC due to COVID-19 restrictions, which had delayed some applicant meetings, and there was disagreement regarding the proposed PBC structure. To address the disagreement it was proposed that a further meeting would take place on 26 August 2020 between members of the applicant, the boards of each of the Yawuru PBC, Karajarri PBC and Walalakoo PBC, and senior cultural advisors representing the common law holders. It was proposed that this would be followed by a further common law holders meeting on 15 September 2020 for the purpose of finalising the PBC rule book, followed by an authorisation meeting on 11 or 12 November 2020 to nominate a PBC. 20 Having regard to those matters, an order was made on 17 August 2020 allowing an extension for nomination of a PBC to 18 December 2020. 21 On 10 December 2020 the applicant, with the consent of all the parties, sought an extension of time to nominate a PBC to 18 June 2021. Mr Romano again deposed to the reasons. He explained that although there was broad agreement at a native title holders meeting on 17 September 2020 for the nomination of a single PBC, further work was needed regarding the native title decision-making process before a PBC could be nominated. The common law holders had been unable to agree on whether the PBC rule book should include an alternative consultation process or guidelines relating to native title decision-making. It was hoped that an extension of time would allow for common law holders to consider and consult on any alternative consultation process, and for a two day meeting or workshop in February 2021 with the Birriman-gan common law holders to finalise the processes for the PBC rule book. 22 On 21 December 2020 I granted the application for the extension of time to 18 June 2021. The terms of the orders for the second extension required the applicant to file a report to the Court confirming the progress and outcome of the proposed two day meeting or workshop, and required a registrar to convene a case management hearing in March 2021 to discuss the status of the nomination of a PBC and confirm the next requisite steps. 23 On 26 February 2021 the applicant filed a report to the Court confirming the outcome of a two-day workshop held on 18 and 19 February 2021. Regrettably no decision was made regarding the decision-making process and any boundaries to be included within the PBC rule book, and a further meeting limited to senior cultural men and senior cultural women was proposed to be convened to resolve these issues. It was proposed that a further meeting be convened in early April 2021 followed by a meeting in May 2021 to nominate a PBC. 24 On 20 May 2021 the applicant with the consent of the parties sought a third extension of time to 18 October 2021 to nominate a PBC. The basis on which the extension was sought is set out in the affidavit of Ms Claire Saffery, a deputy principal legal officer at the KLC, affirmed 20 May 2021, which outlined three steps that it was proposed would be pursued: (a) a judicial case management hearing and/or a court ordered mediation to consider how a PBC nomination could be made by the Birriman-gan common law holders, or any other steps deemed necessary by the Court in the circumstances; (b) a one-day meeting of the common law holders to decide whether to make a PBC nomination; and (c) if a PBC nomination is made by the common law holders, then there would be time to both facilitate the registration of the relevant Aboriginal corporation under the Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth) with the Office of the Registrar of Aboriginal Corporations and submit the PBC nomination to the Court. 25 On 4 June 2021 I heard the extension application and granted an extension of time to 10 September 2021. I also referred the matter to mediation before a registrar of this Court. I joined the ILSC as a respondent party to the proceeding so that the parties could consider the prospect that it be the default PBC if the common law holders did not nominate a PBC by 10 September 2021. The ILSC had been informed of this prospect in advance, was represented at the hearing and consented to being joined. 26 A mediation was conducted on dates between 10 June 2021 and 7 September 2021. 27 On 10 September 2021 the applicant filed a report to the Court confirming that no nomination of a PBC had been made. The applicant's report to the Court advised that the structure of the PBC and the drafting of the PBC rule book were largely agreed, but that the two issues preventing PBC nomination were a disagreement about how decisions that affect the native title rights and interests of the common law holders should be made, and whether the PBC rule book should include rules or guidance about native title decision making, including a map demarcating internal cultural boundaries. 28 There was a further case management hearing before me on 27 October 2021. Having considered submissions prepared by the ILSC and further affidavit evidence, I made orders requiring a series of case management conferences to be convened by a registrar involving the common law holders and the ILSC by 14 April 2022. The intended purpose of the conferences was to discuss the ILSC's performance of the role of PBC in the event that the Court determines that the ILSC should proceed to perform that role. 29 The orders required the ILSC to file a report to the Court by 29 April 2022 concerning the conduct of the registrar's case management conferences and any agreed outcomes, noting that the Court would then consider the determination of a PBC.

The last report to the Court and the appropriate next steps in this case 30 As it happens, the ILSC (by its lawyer, Michael Pagsanjan) provided a report earlier than expected, on 17 February 2022. In that report the ILSC recommended that given that the successive deadlines had passed, it was now appropriate that the Court consider making an order under s 56(2)(c) and otherwise make orders similar to those made in Farrer (No 4). It was considered particularly useful that such orders be made at the present time, because the case management conferences have been listed for late March 2022 (see [28] above) and at those meetings the Birriman-gan common law holders can consider whether to nominate their own agent PBC and also consider the prospect that, failing such nomination, the Court will make a determination under s 57(2)(c) that the ILSC is to be the agent PBC for the common law holders. 31 The ILSC has been involved in this matter for some time, as the procedural history reveals. 32 I considered it appropriate to make the orders as sought, having regard to: the guidance provided by the decision in Farrer (No 4); the fact that the successive deadlines over a considerable time period have passed; the difficulties encountered between the common law holders as revealed by the case management history set out above; the involvement and support of the ILSC; the consent of all the parties who have participated in the various hearings; and the need for a resolution of the position with respect to a PBC without further delay. 33 Orders were made accordingly. I certify that the preceding thirty-three (33) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Banks-Smith.