PAT -v- YINDJIBARNDI ABORIGINAL CORPORATION (ICN 4370) [2011] WASC 354 (22 December 2011)

3 After hearing argument on 28 November 2011, I reserved my decision. On 29 November 2011, I granted an injunction largely in terms sought by the plaintiffs. I indicated I would publish reasons at a later date. These are those reasons.

4 The defendant is an Aboriginal and Torres Strait Islander corporation registered under the Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth) (the Act). The Act is a special measure for the advancement and protection of Aboriginal people and Torres Strait Islanders. Apart from being a corporation registered under the Act, the defendant is, under the Native Title Act (1993) (Cth), a prescribed body corporate, a trustee of native title, and a registered native title body corporate. One of the purposes of the Act is to provide for the incorporation, operation and regulation of bodies that are incorporated for the purpose of becoming a 'registered native title body corporate' under the Native Title Act.

5 The defendant holds native title rights and interests in trust for the Yindjibarndi people as the common law holders pursuant to a determination of the Federal Court in Daniel v The State of Western Australia [2005] FCA 536 as upheld in Moses v The State of Western Australia [2007] FCAFC 78. The native title covers an area of land and waters in the Pilbara region of Western Australia.

6 A registered native title body corporate is defined under s 253 of the Native Title Act to be, relevantly, a 'prescribed body corporate' registered on the national Native Title Register where the Federal Court determined that the prescribed body corporate held native rights and interests on trust.

7 To reach that point, s 56(2) of the Native Title Act required a representative of the common law holders to nominate, to the Federal Court, the defendant, as a prescribed body corporate to be the trustee of native title. This is what occurred. The Native Title (Prescribed Bodies Corporate) Regulations 1999 (Cth) provide, by reg 4:

(1) An Aboriginal and Torres Strait Islander corporation is prescribed for section 59 of the Act if it is registered for the purpose of being the subject of a section 56 or 57 determination.

(2) An Aboriginal and Torres Strait Islander corporation is taken to be registered for the purpose of being the subject of a section 56 or 57 determination only if:

(a) all members of the corporation are persons who, at the time of making of the section 56 or 57 determination, are included, or proposed to be included, in the native title determination as native title holders; and

(b) the purpose of becoming a registered native title body corporate is set out in the objects of the corporation; and

(c) at all times after the section 56 or 57 determination is made, all members of the corporation are persons who have native title rights and interests in relation to the land or waters to which the native title determination relates.

8 Further reg 6 of the Regulations says if a prescribed body corporate holds native title rights and interests on trust then it has certain functions including to manage the native title rights and interests of the common law holders and to consult with common law holders in accordance with reg 8. By reg 8 with respect to a native title decision, the prescribed body corporate must consult with and obtain the 'consent' of the common law holders. If there is a particular process of decisionmaking under a traditional law then customs must be followed in relation to the giving of consent. Otherwise the consent must be given by the common law holders in accordance with 'the process of decisionmaking agreed to, or adopted, by them for the purpose of native title decision or for decisions of the same kind as that decision'.

9 The defendant has a Constitution, as is required by the Act. That Constitution has the effect of operating as a contract between the corporation and each member: see s 60.10 of the Act.

10 The plaintiffs claim they are members of the defendant. A 'member' of a corporation is defined by s 138.1 of the Act. A corporation's constitution may provide for eligible requirements for membership: s 141.25 of the Act. Under the defendant's Constitution, a member is required to be at least 18 years of age, and a Yindjibarndi person who holds in common law the body of traditional law and culture governing the determination area and who identifies as a Yindjibarndi: see r 3.1.

11 At an annual general meeting held on 15 December 2010, the defendant purported to cancel the membership of numerous members of the corporation including the plaintiffs. The grounds upon which the membership was cancelled was an allegation of misbehaviour or conduct detrimental to the interests of the corporation for the purposes of r 3.7.

12 The plaintiffs say it is clear the purported resolutions at the annual general meeting of 15 December 2010, were ineffective. At first they say no notice prior to the meeting of any special resolution to cancel memberships was given. The notice of the meeting on 15 December 2010 did not set out a special resolution for the cancellation of memberships. Clause 4.5 of the Constitution requires a notice of general meeting to set out if a special resolution is being proposed and what it is. Similarly, s 201.35(1)(c) of the Act provides that a notice of a general meeting 'must', if a special resolution is to be proposed at the meeting, set out an intention to propose the special resolution and state the special resolution. The evidence clearly establishes that no notice of a special resolution was received by the members.

13 The plaintiffs' case on this point is very strong. In fairness to the defendant, it must be acknowledged this matter was brought on as a matter of urgency and the defendant did not have the opportunity to advance any evidence. A determination was required because it was proposed to hold a general meeting on 30 November 2011. No adjournment was sought by counsel for the defendant for the purposes of putting on any evidence. In any event, the material which is annexed to the various affidavits makes the position quite clear. The requirements of the Constitution and the Act appear not to have been met so as to properly exclude the plaintiffs from membership of the defendant.

14 I should emphasise here I am not making a final determination on this matter. It is a matter which will ultimately go to trial. It is sufficient if I say I am satisfied the plaintiffs have a very strong case.

15 The plaintiffs also had a strong case in relation to the proposed annual general meeting. Because the defendant took the view the plaintiffs were not members of the corporation, notice was not given to them of the meeting. Moreover, the notice that was given was not in a form required by the Constitution. The defendant had published in the Pilbara News a notice advising the meeting would be held on 30 November 2011. A notice was also placed in the post office. But that is not what is required by the Constitution and the Act. Under cl 4.5 of the Constitution, notices can be given to members 'personally (or in a manner which accords with Aboriginal or Torres Strait Islander custom) sent to their address sent by fax or sent by email'. The defendant did not make use of any of these options. The plaintiffs have a very strong case for arguing notice of the proposed annual general meeting had not been properly given.

16 In the circumstances then, the plaintiffs have a very strong case and requirement for the grant of an injunction that there be a serious question to be tried. The remaining question is the balance of convenience.

17 It was argued on behalf of the plaintiffs, it was unfair to allow a purported annual general meeting to proceed in these circumstances. The plaintiffs would be excluded from that meeting, would not have an opportunity to take part in the debates and would not be able to cast their votes in relation to any of the matters raised at the meeting. This it was said was prejudicial to the interests of the plaintiffs and warranted an injunction being granted.

18 On behalf of the defendants, it was said both the Constitution and the Act required an annual general meeting to be held by 30 November 2011. Failure to hold a meeting is an offence of strict liability under s 201.150(2) of the Act. Under s 201.155 of the Act, the registrar may grant an extension of time for the holding of an annual general meeting if such an application is made before the end of November. However, the annual general meeting must then be held 'within the extended period' and again it is an offence of strict liability not to do so: see s 201.155(5). It was submitted on this basis alone to prevent the holding of the proposed annual general meeting would expose the directors to penalty. On that basis, the balance of convenience was said to favour refusing the injunction.

19 Counsel for the plaintiffs in response submitted the requirement to hold an annual general meeting must mean an obligation to hold a general meeting which complied with the requirements of the Constitution and the Act. To purport to hold a meeting which did not comply with the contractual and statutory requirements, was not to hold a meeting at all. Counsel submitted the case for the plaintiffs was so strong it was clear the proposed meeting was not validly called and could not properly be considered an annual general meeting of the defendant.

20 On balance, I was satisfied the proper course was to restrain the holding of the proposed meeting. As I have indicated, the plaintiffs' case the meeting was not validly constituted was very strong. When the other matters raised by the plaintiffs were taken into account, I was satisfied the balance of convenience and the justice of the situation required an injunction be granted. I was therefore prepared to make the orders sought by the plaintiffs.

21 The third limb of the injunction sought by the plaintiffs was of a different character. The power to amend the rules is found in cl 22 of the Constitution and s 69.5 of the Act. The defendant's notice of proposed annual general meeting includes a number of agenda items involving amendment to the Rules, including items 7 and 8 of the agenda as follows:

1. Resolution proposed to change the current YAC Constitution:

At Rule 3.1 regarding qualification of membership of the organisation, the following insertions are to be added from 3.1(b) as follows:

(c) competent in knowing and speaking the Yindjibarndi language fluently

(d) competent in, and always practice, Yindjibarndi Birdarra Law and Culture

(e) knowledgeable of Yindjibarndi country, songs, stories, dances, history, sights, Galharra, family relationships and kinship systems

(f) loyal to the YAC and must not participate, associate or support any other organisation or organisations that oppose the YAC objectives with regard to protecting the native title and common law rights and interests of the Yindjibarndi nation

1. Resolution proposed to change the current YAC Constitution:

At Rule 3.7 regarding cancelling the membership of members from the organisation, the following insertion is to be added as a dot point below the current fourth dot point as follows:

• contravenes any of the membership eligibility criteria listed at rule 3.1.

22 On behalf of the plaintiffs it was submitted the amendments were contrary to the Act. It was said proposed limb (f) of r 3.1 is contrary to s 150.15(2)(c) and s 150.35(2) which cover the field with respect to cancellation of membership for misbehaviour. To pass the amendments would amount to a breach of s 66.1(5)(c) of the Act which requires a corporation's internal governance rules to be consistent with the Act. Further, it was said the proposed limb (f) would be contrary to s 66.1(3A) of the Act and therefore in breach of s 66.1(5)(c) for not being consistent with the Act. It would also mean the rules would breach s 66.1(5)(a) as the rules would not be 'internally consistent'.

23 It was further argued the proposed amendments were contrary to the interests of members, oppressive and attract statutory remedies under s 166.1 of the Act. It is unnecessary to summarise fully the arguments which were advanced in support of this proposition. Suffice it to say it was submitted the thrust of the amendments would exclude from membership of the corporation, individuals who were properly entitled to remain as members. It was said it was oppressive to require all of the members of the corporation to comply with all of the requirements as proposed. If the amendments were passed it could allow for persons to be excluded as members of the corporation despite the fact they fell within the broad rubric of native title holders.

24 In answer to these submissions, counsel for the defendants pointed to the fact if the resolutions were passed, it was still necessary for the registrar to consider whether or not the proposed amendments ought be registered. Rule 22.4 of the Constitution provides that any alteration 'shall not take effect unless and until registered by the registrar'. It was submitted the order sought by the plaintiffs asked the court to pre-empt the exercise of power given to the registrar to determine whether or not the proposed alteration should be registered.

25 On balance I was satisfied the order as sought by the plaintiffs ought be granted. I was satisfied for reasons advanced by the plaintiffs it was arguable the proposed changes to the Constitution were oppressive. In my view, it is arguable the changes would exclude from the corporation persons who would otherwise be members and may have an interest in the native title. Again, I emphasise I make no final determination on this question. However, I am satisfied there is a serious question to be tried.

26 It also seems to me the balance of convenience favours granting the injunction. It may well be the case the registrar would not register the amendments. However, the procedure adopted by the registrar is not set out in the Act and it is unclear whether and what the registrar does involves any inquiry or is simply an administrative determination. In other words, if the resolutions were carried, the position of the plaintiffs could be adversely affected because the amendments may be registered potentially excluding them from participation in the affairs of the corporation.

27 For these reasons I was satisfied an injunction ought be granted.