Discretion under s 66B(2)
113 The Jabirr Jabirr people have brought a separate native title determination claimant application WAD124/2010 asserting that a differently constituted claim group comprising only biological descendants of twenty two Jabirr Jabirr ancestors, which does not include any descendants of Paddy Roe, Chimbere Sitocay or Nyobing Babere, hold native title in the WAD6002/98 application area in accordance with the traditional laws and customs of Jabirr Jabirr people.
114 The Goolarabooloo people have now authorised Mr Roe and three other persons to make a native title determination application on their behalf claiming native title over part of the WAD6002/98 application area.
115 Mr Roe argues that the proposed applicant on the motion has a conflict of interest and that a duty arises in relation to the applicant's fiduciary obligations as they are the same six persons who are the joint applicant for the Jabirr Jabirr claim. The Jabirr Jabirr applicant, on 30 April 2010 at a Jabirr Jabirr claim group meeting was authorised by the Jabirr Jabirr claim group to do all that they could to have the GJJ claim dismissed. Despite this, it seems that this is a course which they have determined not to follow. The applicant on the motion did not accept Mr Roe's open offer to dismiss the GJJ claim on 1 December 2010 or on 6 December 2010. It is important to remember that the Jabirr Jabirr claim is unregistered.
116 As I mentioned earlier, Mr Roe's counsel sought, at the adjourned hearing on 14 December 2010, to have the Court resolve the motion in his favour, even if only on discretionary grounds, by dismissing the substantive application by 22 December 2010 in order to give the Jabirr Jabirr claim group and the prospective Goolarabooloo claim group time to file their respective native title claimant applications in this Court by 22 December 2010 which is the relevant date for the purposes of s 30(1)(a) NTA.
117 The background to this proposal is that the recent Jabirr Jabirr claim is not registered and cannot be registered under s 190C(3) of the NTA, as it covers the same claim area and has in common some of the same native title claimants. As the Jabirr Jabirr claim is unregistered the Jabirr Jabirr claimants currently have no procedural rights under the NTA. If the Goolarabooloo family lodges a claim it is likely that it would not obtain registration as the claim will embrace part of the same claim area and some of the same claimants as the GJJ claim. Thus, both the Jabirr Jabirr claim and the Goolarabooloo claim would be unregistered.
118 Although Mr Roe accepted the position that dismissal of the substantive application necessarily would result in loss of procedural rights under NTA s 24MD(6B) and (6A), he submitted that other avenues were available to protect the interests of the respective claimant groups. In particular, Mr Roe submitted that any person whose interests would be affected by the compulsory acquisition had standing to challenge the validity of the notices.
119 It was simply impossible, as I advised counsel for Mr Roe during the hearing, to consider the evidence and the parties' submissions in such a way as to do justice to them in a period of 6 working days. It is to be remembered that the GJJ claim and the related procedural rights are for the benefit of the entire claim group which is constituted by both Jabirr Jabirr and Goolarabooloo people.
120 I will now consider Mr Roe's submission, which I referred to earlier, that, in the exercise of the s 66B discretion, not only should the Court refuse the motion but it should dismiss the substantive application. And this for the reason on Mr Roe's submission that there is now no commonality of interest as between the Goolarabooloo peoples and the Jabirr Jabirr peoples in vindicating the common or group rights and interests claimed in the substantive application on behalf of the descendants of the apical ancestors listed in the GJJ Form 1 application.
121 It is instructive to consider the following history of the GJJ claim.
122 The original Goolarabooloo application for determination of native title was lodged on 27 June 1994 and was subsequently amended on several occasions. The application was made on behalf of the Goolarabooloo only, although Mr Roe said that the gate was "left open" for other people to come in.
123 On 28 June 1995 the KLC wrote to the National Native Title Tribunal (NNTT) on behalf of Jabirr Jabirr people requesting to be registered as an interested party in the Goolarabooloo native title claim. The letter stated that: "The Jabirr Jabirr people are traditional owners for part of the country that is included in this claim. We do not wish to claim exclusive ownership of any part of this claim and are happy to work cooperatively with Goolarabooloo in this claim, but we do want our rights in the country recognised." A process of mediation was foreshadowed.
124 Following successful mediation between Goolarabooloo and Jabirr Jabirr people the KLC wrote to the NNTT on 7 October 1995 requesting the withdrawal of Jabirr Jabirr people as an interested party to the Goolarabooloo application and seeking leave to amend the application so as to include Jabirr Jabirr claimants.
125 An amended application was filed on 7 October 1995 by Mr Roe as applicant "on his own behalf; on behalf of his family group; on behalf of Paddy Roe, Phillip Roe, Ronald Roe, Teresa Roe, Richard Hunter, Joseph (Duju) Benedict, Rita Augustine, Gordon Dixon, Mary Tarran, Cyril Shaw and Warren Greatorex and their respective family groups; and on behalf of all other Aboriginal people who are connected to the claim area according to their acknowledged laws and customs.".
126 Following amendments to the Native Title Act it became necessary to file an Amended Native Title Determination Application (the current Form 1 application in WAD6002/98) for reasons explained in the minutes of the GJJ authorisation meeting on 2 August 1999. The minutes record that Ms Krysti Guest, a KLC legal officer, gave an historical overview of the claim: "Goolarabooloo started the claim. Jabirr Jabirr went in as an interested party and then joined the application. Walmun Yawuru agreed that Goolarabooloo would represent their interests." Mr Roe was not present at the meeting according to the minutes but other members of his family were present, as were Jabirr Jabirr representatives including Cissy Djiagween and Rita Augustine among others and Michael Corpus, representing Walmun Yawuru people. The minutes record that decisions were made as to the joint named applicant, Mr Roe and Mr Shaw, the claim group description and amalgamation of the existing claims into a single claim. The minutes do not record that any person dissented from these decisions.
127 On 9 September 2008 Mr Robert Powrie, the KLC's principal legal officer, wrote to Mr Marcus Holmes of Taylor Linfoot & Holmes in relation to the GJJ native title claim group. Mr Powrie was, at that time, the solicitor on the record for WAD6002/98 and Mr Roe and Mr Shaw were his clients in their capacity as the applicant in that claim. The reason for Mr Holmes' involvement was explained by Mr Roe: "Why I got Marcus - because I couldn't trust the - my rep body wouldn't even give me a piece of paper that I asked for" with the result that he "had to get separate advice".
128 Mr Powrie's letter stated:
Please note that on Wednesday, 27 August 2008 a Jabirr Jabirr meeting was held at the Broome Recreation and Aquatic Centre (BRACs) for the registered Goolarabooloo and Jabirr Jabirr and Djabera Djabera native title claim groups. At that meeting the Kimberly Land Council (KLC) was instructed to progress a Jabirr Jabirr Country Claim and to raise the following with your client:
1. On what basis does your client claim Native Title? We are concerned, given the Rubibi determination and the high bar for connection set in the High Court in the Yorta Yorta case, that your client does not have a Native Title interest.
2. The Jabirr Jabirr Native Title group have authorised surveys in relation to Gas development and your client has interfered with their instructions. Your client directed the consultants engaged on the process, independently of the group, to stop environmental studies.
3. The KLC has been advised that your Client has met with both the State of Western Australia and the relevant gas companies independently from the Goolarabooloo and Jabirr Jabirr Native Title Claim Group.
4. The Jabirr Jabirr claim group indicated that your Client is not representing the best interests of the Claim Group. The KLC is instructed to arrange for the necessary processes for your Client and Mr Cyril Shaw to be removed as named applicants from the Goolarabooloo and Jabirr Jabirr Native Title Claim Group (the Claim Group).
129 The attendance list for the Jabirr Jabirr meeting on 27 August 2008 was produced by the KLC in response to a subpoena and records that 17 persons attended that meeting. A number of those persons including Frank Sebastian and Rita Augustine had attended the GJJ claim group authorisation meeting on 2 August 1999.
130 Mr Roe found out about the meeting from Mr Powrie's letter. No Goolarabooloo people were present at the meeting on 27 August 2008.
131 On the same day Mr Holmes replied to Mr Powrie's letter as follows:
In the interim, I confirm the following:
1. This firm acts for the Goolarabooloo people, taking instructions through Joseph Roe.
2. The Jabirr Jabirr (only) meeting to which you refer was clearly not a Goolarabooloo Jabirr Jabirr Native Title Claim Group meeting and therefore could not provide valid instructions to KLC to have Mr Roe removed as an "applicant". I remind you that in addition to being appointed by the Goolarabooloo and Jabirr Jabirr at an authorised claim group meeting as a claim group applicant, Mr Roe is an acknowledged and respected Law Boss of the Northern Tradition of the Song Cycle.
3. The Goolarabooloo, through Joseph Roe's Grandfather, Joseph himself, his brothers and others (including of course senior Jabirr Jabirr who are part of Goolarabooloo), are critical to proof of native title in the Goolarabooloo Jabirr Jabirr claim, and Goolarabooloo lodged the initial claim, always acknowledging the importance, and inclusion, of the Jabirr Jabirr as part of the claim group with them.
4. The Goolarabooloo have previously accepted the KLC's offer of KLC funded Goolarabooloo Jabirr Jabirr native title claim mediation meetings (to be held over a 5 day period).
We had been awaiting the KLC progressing that mediation. However, you confirmed yesterday that you had overlooked that, assuming for some reason that the mediation proposal had been unilaterally withdrawn by the KLC, but would now check to see if the KLC was still going to honour this commitment.
Based on:
- the past and current approach of the KLC to Goolarabooloo;
the KLC's subjective siding with some elements of the Jabirr Jabirr against the Goolarabooloo (this when the KLC is the native title claim lawyer for the Goolarabooloo Jabirr Jabirr native title claim group, with a legal obligation to act solely in that group's best interests and when key Jabirr Jabirr support, and are in fact part of, Goolarabooloo);
- the text of the 8 September letter; and
your comments to me today,
it seems that this mediation proposal has in fact now been withdrawn unilaterally by the KLC, when the KLC had itself proposed it and when it had then been embraced by Goolarabooloo. In addition, there has been a complete rejection by the KLC of the Goolarabooloo's hoped for cooperative approach as between Goolarabooloo and the KLC. This approach by the KLC is clearly at variance with its statutory obligations as a native title representative body under the NTA and the facilitative, unifying function that it is supposed to have in the gas hub consultations. Instead, the KLC seems intent on fomenting disunity as amongst the native title claim group members at a time when they need to be unified to get their claim determined through a consent determination and to effectively give an informed consent to any West Kimberly gas hub location.
132 I summarised Mr Roe's allegations concerning the circumstances that contributed to the breakdown of relations with the KLC and Jabirr Jabirr claimants in Roe v Kimberly Land Council Aboriginal Corporation at [31]. The truth or otherwise of those allegations is not an issue in these proceedings. However, as I have already said, the relationship between the Goolarabooloo and Jabirr Jabirr people has to an extent broken down.
133 Mr Roe relies upon the evidence of two witnesses, Ms Djiagween and Ms Torres, to support his contention that Jabirr Jabirr claimants assert that the Goolarabooloo people do not have rights in the claim area. However, Ms Torres did not state unequivocally that the Goolaraboolooo had no rights in the claim area. She did accept however that the Jabirr Jabirr Native Title claim, whilst unregistered, does not recognise the Goolarabooloo people in it. Ms Djiagween's evidence was somewhat difficult to understand. There is room to conclude, as the applicants on the motion submit that her evidence indicates that she understood that the rights of the Goolarabooloo, Walman Yawuru and Jabirr Jabirr were independent of each other and would be dealt with in Court just as the various claimant groups had been in the "Yawuru Court"; meaning before Merkel J in Rubibi Community v State of Western Australia (No 5) [2005] FCA 1025. In Rubibi Ms Djiagween and Mr Roe had been 2 of the persons who comprised the applicant. For example, she said of the two groups represented respectively by Mr Roe (Goolarabooloo) and Mr Shaw (Jabirr Jabirr) "…come here to join together but we were saying that they should sit like this not one". On the other hand Ms Djiagween answered "No" to a question "… well you say that it was always your position that Goolarabooloo had no rights in this country". This may, in context, be equivocal. As a whole I considered that she was asserting a view that the Goolarabooloo had no interest in the country but she was quick to state that this might lead to fights with her family presumably on the basis that they disagreed with her view.
134 The applicants on the motion do not seek to downplay the fact that the motion reflects a contest between competing groups within the claim group for the native title application. Such divisions are not uncommon in such applications. 'Pooncarie' Barkandji (Paakantyi) People v NSW Minister for Land & Water Conservation [2006] FCA 25 was such as case. There Stone J made orders pursuant to s 66B(2) NTA. This was in the face of a deeply held disagreement within the claim group where some believed that the area subject to the claim should be split between two claims, those of the people said to be 'pure' Barkandji and those of the other members of the claim group.
135 Ms Rubinich was engaged by the KLC as a consultant anthropologist to carry out research and provide advice in relation to the WAD 6002/98 application area in about February 2005. In about mid 2009 she was again engaged with Dr Daniel Vachon by the KLC to carry out anthropological research to identify all of the persons who, according to their traditional laws and customs, hold the common or group rights and interests within the GJJ (WAD 6002/98) and Djabera Djabera (WAD 6124/98) application areas and to identify the land and waters in relation to which those persons had native title interests under the traditional laws and customs.
136 Mr Roe contends that as a result of that research Ms Rubinich and Dr Vachon have substantially concluded that the Goolarabooloo people have no native title interest in the area of the claim, and that this is relevant to the exercise of discretion.
137 It is the case that, in July 2009, following their anthropological research Ms Rubinich and Dr Vachon came to the view that the general region of the GJJ claim and Djabera Djabera claim application areas was Jabirr Jabirr country. Importantly however, this view was tempered by the qualification that further research was required in relation to people who asserted connection in the very south of the GJJ claim area and others who asserted connection to the very north of the Djabera Djabera claim area. They also considered that further research was required as there may be members of the Goolarabooloo family who may have interests through rayi or through incorporation
138 It is also of note that, as Ms Rubinich testified, she had been refused interviews by the Walmun Yawuru. Counsel for Mr Roe submits that in light of her and Dr Vachon's opinions, however they may have been qualified, it is not surprising that Goolarabooloo and Walman Yawuru people would not wish to divulge confidential information to Ms Rubinich or Dr Vachon or assist them in their further research without adequate safeguards to protect their own interests, as appears from Mr Roe's letter dated 11 February 2010 responding to Dr Vachon's request that he make himself available for interview.
139 Be that as it may, her objective and independent expert evidence demonstrates that more anthropological research needs to be carried out. There is no barrier to additional anthropological opinion evidence being obtained from another expert. Any determination of native title is complex and will involve questions of fact and degree at the substantive hearing and, in my opinion, should not be determined finally in the context of a s 66B application: Daniel at [56]. It would be premature to conclude that there is no commonality of interest as submitted by Mr Roe. The rights and interests of all of the Goolarabooloo and Jabirr Jabirr claimants will be dealt with by way of evidence in the substantive native title proceedings. Ultimately it is a legal question for determination by the Court whatever present partisan views may have been expressed by some of those who are Goolarabooloo people or Jabirr Jabrr people. This is particularly so in respect to the identification of the relevant society or societies. The authorisation meeting of 3 August was attended by members of both Goolarabooloo and Jabirr Jabirr people. I do not know the precise make up. The resolutions that the present applicant was no longer authorised and that the applicant on the motion be authorised were passed by 112 votes in favour and 37 votes against. It was the vote of both peoples and should be so regarded. At the same meeting the vote against Mr Roe becoming a member of the replacement applicant was overwhelming: 7 votes for and 109 against. Nonetheless he remains a member of the GJJ Native Title Claim Group and as such has a voice in its affairs as do all Goolarabooloo members.
140 The following factors further limit the likelihood of a conflict of interest materialising:
(i) under s 190C(3) of the NTA the Jabirr Jabirr claim cannot be registered, so long as the GJJ claim is extant and registered itself. Therefore, the Jabirr Jabirr claim applicants will not be negotiation parties with respect to any compulsory acquisition dealing with land covered by the GJJ claim, and will not be necessary signatories to any indigenous land use agreements relating to land covered by the GJJ claim; and
(ii) it is usual for agreements between native title claim groups and third parties to include a clause that any compensation package is subject to a determination of native title which can be determined by the Court at a future time.
141 It is also relevant to the exercise of discretion under s 66B that the resolutions passed at the 3 August 2010 meeting included a resolution that if an agreement is reached with third parties then the applicant on the motion must not enter into "any agreement that affects the land and waters covered by the GJJ claim unless authorised to do so by the GJJ claim group". Accordingly, Mr Roe and his family have an opportunity to be heard and authorise an agreement, or not, at that time.
142 Subject to what I propose to say about the composition of the applicant, I generally accept the submissions of the applicant on the motion that the discretion under s 66B(2) should be exercised in its favour for the following reasons:
(a) the authorisation meeting under s 251B of the NTA was duly notified and validly held on 3 August 2010;
(b) Cyril Shaw no longer wants to be an applicant on the GJJ claim;
(c) the claim group resolved on 3 August 2010 that the current GJJ applicant is no longer authorised to be the applicant;
(d) the claim group resolved on 3 August 2010 that the applicant on the motion should deal with all matters arising in relation to the GJJ claim;
(e) the claim group resolved on 3 August 2010 that the applicant on the motion must act in good faith at all times and use their best endeavours to reach agreement amongst the persons comprising the applicant on all matters arising in relation to the GJJ claim for the benefit of the GJJ claim group as a whole; and
(f) the NTA is beneficial legislation and should be construed as such to enable the GJJ native title claim group to maintain their very important and significant procedural rights as the GJJ claim is registered: North Ganalanja Aboriginal Corporation & Waanyi v Queensland (1996) 185 CLR 595 ("Waanyi").