Is authorisation required to the Kariyarra Main Application
13 In relation to the Kariyarra Main Application, the question arises whether authorisation of the claim group amendment by the proposed amended native title claim group is required at all.
14 Section 61(1) of the Act makes it a condition of a valid application for a determination of native title that the application is authorised by the native title claim group. Section 84C(1) allows a party to apply to the Court at any time to have a proceeding struck out if the application does not comply with s 61. Consequently, where s 61 applies, it will ordinarily be relevant to the consideration of an application to amend the native title claim group to examine whether the members of the native title claim group as amended authorised the change. Otherwise, the amended application would be liable to be struck out under s 84C. Whilst such authorisation will usually be a relevant matter, it will not be determinative because s 84D of the Act gives the Court discretion to proceed with an application, despite a defect in the authorisation required by s 61(1).
15 When the application for native title was lodged in 1997, s 61 provided that the application could be made by a person or persons claiming to hold native title whether alone or with others. There was no requirement for authorisation by the native title claim group. Section 61 was amended by the Native Title Amendment Act 1998 (Cth) (the amending Act) effective from 30 September 1998. After that time, s 61 provided that an application for determination of native title could be made by a person or persons authorised by the native title claim group. However, transitional provisions in Item 21 of Schedule 5 of the amending Act provided that if the native title application was made before the commencement of the amending Act, the reference to s 61 in the strike-out provision, s 84C, was to s 61 of the Act before amendment.
16 In Quall v Risk [2001] FCA 378 (Quall) at [63]-[65], O'Loughlin J held that an application filed prior to the commencement of the amending Act which was amended after 30 September 1998 had to comply with the new provision. In Wharton on behalf of the Kooma People v State of Queensland [2003] FCA 1398 (Wharton), Emmett J also considered the issue on a strikeout application brought under s 84C, but took a different approach. His Honour referred to the transitional provision of the amending Act, and said at [27] that:
An amendment to the main application does not give rise to a new application. The scheme of the Act recognises that applications may be amended. There is nothing to suggest that, when an application is amended, it should thereupon be treated as a new application so as to lose the protection afforded by Item 21.
[Emphasis in original.]
17 His Honour also said when discussing Quall at [29]:
There may be some justification for treating as a fresh application, an application purporting to be made on behalf of a native title claim group different in substance from the group named pursuant to s 61(2) of the Old Act.
18 In Risk v Northern Territory of Australia [2006] FCA 404 at [64]-[75], Mansfield J set out the history of this issue and determined that he should follow the approach in Quall because it had been followed by a number of single judges and it was not contended before him that it was clearly wrong. I adopt the same course. Additionally, the proposed changes to the native title claim group in this instance may be regarded, on the view expressed by Emmett J in Wharton, to be a native title claim group different in substance, and hence provide the justification for treating the amended application as a new application attracting the requirement of authorisation by the proposed amended native title claim group. Consequently, the amendments to the applications must comply with the current s 61 of the Act, and must be authorised by the proposed amended native title claim groups.
Standing
19 A more fundamental question arises in relation to the capacity of the opponents to raise the authorisation issue in the Kariyarra Main Application. The opponents are not respondents in the Kariyarra Main Application. Three of them are part of the native title claim group, but none of them are applicants in the proceeding. Mr Wright contended, correctly, that the opponents have no standing to oppose the amendment application in the Kariyarra Main Application. The power to deal with all matters arising under the Act in relation to the application is conferred on the applicants (s 62A), and the Act makes provision for the replacement of applicants if necessary (s 66B).
20 In the end, nothing turns on the opponents' lack of standing, because as these reasons for judgment shortly conclude, the Kariyarra Main Application was properly authorised.
21 The opponents do not face the same obstacle in the Kariyarra-Pippingarra Application. They have standing to oppose the amendment application in that proceeding because they are respondents.
The challenge to authorisation
22 The issue in contention between the applicants and the opponents concerns the application of s 251B of the Act, which provides as follows:
For the purposes of this Act, all the persons in a native title claim group or compensation claim group authorise a person or persons to make a native title determination application or a compensation application, and to deal with matters arising in relation to it, if:
(a) where there is a process of decision-making that, under the traditional laws and customs of the persons in the native title claim group or compensation claim group, must be complied with in relation to authorising things of that kind - the persons in the native title claim group or compensation claim group authorise the person or persons to make the application and to deal with the matters in accordance with that process; or
(b) where there is no such process - the persons in the native title claim group or compensation claim group authorise the other person or persons to make the application and to deal with the matters in accordance with a process of decision-making agreed to and adopted, by the persons in the native title claim group or compensation claim group, in relation to authorising the making of the application and dealing with the matters, or in relation to doing things of that kind.
[Emphasis in original.]
23 The applicants contend that there is no traditional decision making process applicable to the authorisation of the amendments within the meaning of s 251B(a). They say that the amendments were approved by a process agreed to and adopted by the native title claim group within the meaning of s 251B(b) of the Act.
24 The opponents argue that there is a traditional decision making process applicable, and that it was not followed. Consequently, they say that the claim group amendments were not authorised by the native title claim group and should be refused.
25 The applicants rely on four affidavits all affirmed on 11 December 2013. The affidavits were affirmed by Michael John Meegan, the Principal Legal Officer of Yamatji, Amy Constance Usher, an anthropologist employed by Yamatji, Rainer Mora Mathews, a lawyer employed by Yamatji who had principal responsibility for the native title applications between May 2006 and November 2010, and Donna Elizabeth Friedl, an executive assistant employed by Yamatji.
26 These affidavits explain the process used to authorise the amendments, and the events which occurred in consequence.
27 The process involved seeking the authority of three classes of people - the existing native title claim group in the Kariyarra Main Application, the existing native title claim group in the Kariyarra-Pippingarra Application, and the proposed native title claim groups in both applications. This was the process followed in Kudjala People v State of Queensland [2006] FCA 1564 at [13]-[15], Dodd on behalf of the Wulliwulli People v State of Queensland No 2 [2009] FCA 1180 at [14], and Doctor on behalf of the Bigambul People v State of Queensland No 2 [2013] FCA 746 at [56]-[57].
28 The affidavits explain that a meeting was to be held on 23 October 2013 in South Hedland, which was comprehensively advertised. No issue was taken by the opponents with the form of the notice.
29 On that day, attendees registered for each of the three groups to which they belonged, and were provided with a coloured wrist band designating the particular group or groups to which they belonged.
30 Representatives of all of the family groups, including senior law men and women constituting the proposed native title claim group, were present.
31 The meeting was facilitated by an independent facilitator, Brendan McKeague. After the meeting attendees were given some confidential legal advice, Mr Meegan and Cheryl Collins, a lawyer employed by Yamatji, conducted the authorisation process for the amendment of the native title applications.
32 First, a resolution in the following terms was projected on to a screen and also read out by Mr Meegan:
The persons present at the meeting today agree:
(a) There is no process of decision making that under traditional laws and customs of the Kariyarra People that must be complied with in relation to amending native title claims or appointing or replacing applicants pursuant to the Native Title Act.
(b) The persons present at the meeting agree to follow the same process of decision making that has been historically followed by the Kariyarra native title claim groups for making major native title decisions for the Kariyarra claims. The agreed and adopted process (informed by traditional law and custom) is:
• Decisions should be made by consensus of the various Kariyarra families where possible.
• In reaching consensus, the views of senior Law men and women are to be given particular weight.
• Consensus does not necessarily give any individual or family a veto.
• If necessary, consensus can be reached by a majority vote of families and senior Law men and women.
33 Ms Collins said to the meeting that this was the process which had been used in the past and would be used at this meeting.
34 A few days before the meeting, on 21 October 2013, Yamatji received a letter from Mr Rumsley, the solicitor for the opponents. Among other things, he challenged the proposed decision making process to be used at the meeting. The letter included the following references to the proposed decision making process:
Dr Palmer's report spends considerable time discussing the continuing customary law in relation to country, its rights and use, acknowledging changes have been necessary including by way of example the advent of motor vehicles and rifles [1010].
Clearly this establishes the Kariyarra people do have a decision making process under traditional laws and customs in relation to Native Title rights, which are recognised and preserved by the Native Title Act 1993.
To suggest the Kariyarra people do not have a process to deal with decisions under the Native Title Act 1993, is to suggest a lack of sophistication analogous to the legal fiction of Terra nullius, which was rejected by the High Court in Mabo v Queensland [1992] HCA 23, 175 CLR 1.
Although it may be more convenient to propose a majority vote to decide issues, it is inconsistent with the traditional customary consensus based process. As the Native Title Act 1993 provides for an adopted method ONLY where there is no traditional customary process that applies, the findings of Dr Palmer are fatal to any attempt to impose an adopted method of decision making. The State have consistently raised this point generally as a reason impeding a consent determination.
…
The proposed decision making process is clearly invalid and cannot be relied upon to make a decision, even if the group constitution issue were able to be resolved, which it is currently not.
As there can be no determination of the group membership and the proposed decision making process is contrary to the evidence and the Native Title Act 1993, it is inappropriate to suggest the meeting could consider either the land agreement or ILUA.
35 At the meeting, a spokesperson for the opponents referred to the letter. In his affidavit Mr Meegan said:
Other than that, I do not recall anyone in the meeting raising any objection to proceeding by way of the decision making process set out in the slide (either at the time the slide was shown, or at any time during the process of voting on the resolutions).
36 Mr Meegan then projected onto the screen, and read aloud, three resolutions each in similar terms which were to be voted on by the relevant family groups. By way of example, the resolution to be voted on by the proposed amended native title claim group was in the following terms:
RESOLUTION 4 - AMENDING THE CLAIM GROUP
(RED WRIST BANDS)
Those members of the proposed new native title claim group in Kariyarra native title proceeding WAD 6169 of 1998 and WAD 232 of 2009 present at the meeting authorise the Kariyarra Applicant to make the native title claimant applications and to deal with all matters arising in relation to each of them, including to do all things necessary to amend the claim group description to read as follows:
The native title claim group comprises those Aboriginal persons who:
(a) are a descendant from one or more of the following apical ancestors:
• Jinapi • Fanny
• Wirtinpangu (Jimmy) • Nyitji
• Dougal Robinson • Maggie
• Puyubungu • Tommy Anderson
• Yanki Williams • Fauntleroy (Pontroy)
• Topsy McKenna
and
(b) recognise themselves as having rights and interests in the Claim Area under Kariyarra traditional law and custom.
37 The resolutions were opposed by two family groups. Consequently, Mr Meegan, Ms Usher, and Olivia Norris, who was employed by Yamitji as Director of Research and Heritage, spoke with the family groups and the members of the native title claim groups relevant to each resolution and asked for their decision. The results were as follows:
(a) Resolution 2 - Amending the claim group for the Kariyarra main claim (Green wrist bands):
Agree: 6 family groups
Disagree: 1 family group
Abstain: 1 family group
Not applicable: 2 family groups
(b) Resolution 3 - Amending the claim group for the Kariyarra Pippingarra claim (Blue wrist bands)
Agree: 4 family groups
Disagree: Nil
Abstain: 1 family group
Not applicable: 5 family groups
(c) Resolution 4 - Proposed amended claim group (red wrist bands)
Agree: 7 family groups
Disagree: 2 family groups
Abstain: 1 family group
Not applicable: Nil
38 Evidence as to the decision making process of the Kariyarra People was given in the affidavits sworn by Ms Usher and Mr Mathews.
39 Ms Usher is the principal anthropologist allocated to the Kariyarra native title applications. She has been employed by Yamitji since August 2012. Her work has involved reviewing Kariyarra anthropological materials, attending field trips with consultant anthropologist Dr Kingsley Palmer, and attending meetings of the various Kariyarra family groups to discuss Dr Palmer's research findings. Her work has provided her with knowledge of Kariyarra laws and customs. Based on her anthropological research in relation to the Kariyarra People, she expressed the opinion that there was no traditional law or custom of the Kariyarra People for authorising the making of native title claims on their behalf or for things of that kind. She expressed a further opinion, based on her research, that the decision making process adopted at the meeting on 23 October 2013 had been used by the Kariyarra People since they had been represented by Yamatji, and that the process was consistent with the laws and customs currently observed by the Kariyarra People, whereby family groups are considered to speak for particular parts of Kariyarra country.
40 Mr Mathews was employed by Yamatji from May 2006 to November 2010, and during that time had primary responsibility for the Kariyarra native title applications. Since then, he has operated as a consultant and continued to work on future act and claim-related matters with the Kariyarra People. He attended numerous meetings of the Kariyarra People in the time he was employed by Yamatiji, and has observed a consistent process of decision making. Mr Mathews reviewed the files held by Yamatji and spoke to former staff members. From those sources he concluded that the same decision making process has been utilised by the Kariyarra People since 2001, when Yamatji was first instructed. Mr Mathews described the process thus:
8. In my experience, the great majority of decisions at Kariyarra community meetings have been made by agreement of all present. However, in cases where disagreement at such meetings has arisen, decisions have been made by consensus of Kariyarra families. In such a situation, family groups have sat together separately and come to a common position themselves before reporting back to the broader group.
9. Where a small number of families have disagreed with the rest of the families, they have often put aside their differences, so that there has been a unanimous position. Sometimes a family has formally abstained from a decision with which they did not agree. Where one family, or a small number of families, has held out or resisted a decision, they have generally been overridden by the rest of the community.
10. Consideration has usually been given to views of elders with cultural authority, particularly within each family group, although their views have not necessarily been determinative.
41 The opponents rely on affidavits of Mary Attwood, sworn on 6 March 2014, of George Dann, sworn on 13 March 2014, and of Gene Smith sworn, on 24 March 2014.
42 Ms Attwood said that she is a Kariyarra woman who has lived on Kariyarra country for over 65 years and continues to practice the Kariyarra laws and customs. She said that the Kariyarra People make decisions according to traditional laws and customs by a process based on consensus, by which all of the people talk about a matter until consensus is reached. She said that it is not until consensus is reached that anything can be authorised under the traditional laws and customs. This process was followed when the Kariyarra Main Application was lodged in 1997. At that time the Kariyarra People were represented by the Pilbara Aboriginal Land Council Corporation. Ms Attwood said that after Yamitji became the representative body for the Kariyarra People she attended some meetings, but not all of them. At those meetings, decisions were made by a majority vote after a show of hands of individuals. In her experience, the process changed at a meeting held on 22 November 2012 when voting was done by family groups. There is a clear implication in Ms Attwood's affidavit that the voting process was changed at this meeting because, for the first time, her family had sufficient individual votes to control the outcome. Voting by family groups prevented her family carrying the day. Then, at a meeting on 5 March 2013 to authorise an agreement with a third party, the decision was made by a majority vote after a show of hands. Ms Attwood said that voting by family groups had not been used except at the meeting on 22 November 2012. Although his affidavit is not entirely clear on the point, it seems that Mr Dann agreed with Ms Attwood about the 22 November 2012 meeting. Ms Smith's affidavit was to the same effect as Ms Attwood's.
43 The deponents of these affidavits were not cross examined.
44 It will be recalled that when the Kariyarra Main Application was lodged in 1997, there was no requirement for authorisation by the native title group for the applicants to make the application. An amendment to that application for native title was filed on 5 January 1999. Paragraph 2 of that application, and each of the affidavits of the applicants, stated that the applicants were authorised in accordance with s 251B(b) of the Act to make the amended application. Another amended application was filed on 5 February 1999. Paragraph 2 of that application, and the affidavits of the applicants, again stated that the applicants were authorised in accordance with s 251B(b) of the Act to make the amended application. A further amended application was filed on 10 March 1999. Paragraph 2 of that application, and the affidavits of the applicants, stated that the applicants were authorised in accordance with s 251B(b) of the Act to make the amended application. Then, on 31 March 1999, another amended application for native title was filed. This is the current and operative amendment. However, [2] of the 31 March 1999 application and the affidavits of the applicants this time stated that the applicants were authorised to make the amended application in accordance with s 251B(a) of the Act.
45 Then, in 2009, the Kariyarra-Pippingarra Application was filed by the same applicants. That application for native title and the affidavits of the applicants stated that they were authorised by the native title claim group, under s 251B(b) of the Act, to make the application, albeit in respect of a different native title claim group.
46 The affidavits of Ms Attwood and Mr Dann stated that there was a traditional decision making process and that it required unanimity. The opponents also relied on the 31 March 1999 amendment to the Kariyarra Main Application and the applicants' affidavits in support, which asserted authorisation by a traditional decision making process under s 251B(a) of the Act. On the opponents' own evidence, however, the traditional process asserted by them had not been used at meetings concerning native title matters since 2001. Voting by a show of hands was used at a number of meetings which they attended, and presumably this signified decision making by majority vote. Then at the 22 November 2012 meeting, voting was done by family groups.
47 Against this evidence was the evidence of the 5 January 1999, 5 February 1999, and 10 March 1999 amendment applications and associated affidavits, which stated that there was no traditional decision making process. This was the position also reflected in 2009, when the Kariyarra-Pippingarra Application was filed. Further, all the families at the meeting held on 21 October 2013, other than the opponents, accepted that there was no traditional decision making process for decisions such as the amendment of the native title claim group. This was also the view of Ms Usher based on her anthropological research, and of Mr Matthews based on his experience from 2006 to the present, and his enquiries relating to the period from 2001 to 2006. The attendees of the meeting on 21 October 2013, other than the opponents, adopted the process of family group voting. There is an inherent improbability in the evidence of Ms Attwood, Mr Dann and Ms Smith that there was a traditional requirement of consensus decision making for all decisions. It is likely that there would have been occasions in the history of the Kariyarra People where the interests of different people could not be accommodated by consensus. That is just the way of humanity. To require consensus in such circumstances would have produced stalemate. It is improbable that the process of consensus decision making was to apply even where no consensus was possible. It may be proper to understand the evidence of Ms Attwood, Mr Dann and Ms Smith as suggesting no more than that traditional laws and customs provided a preferred process of consensus decision making. This would leave open what was to happen where consensus could not be reached.
48 The evidence favours the conclusion that in October 2013, the Kariyarra People did not have a traditional decision making process for decisions to amend the native title claim groups. The meeting on 21 October 2013 adopted a process of voting by family groups, and accepted that the decision would be made by a majority of the family groups.