TR (Deceased) on behalf of the Kariyarra - Pipingarra People v State of Western Australia

1. The application filed by the applicant on 19 February 2016, seeking orders that Mary Attwood, George Dann, Robert Dann, Shirley Lockyer, Patricia Mason and Eugenia Smith cease to be respondents, is dismissed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

NORTH ACJ: 1 Before the Court is an interlocutory application filed on 19 February 2016 by the applicant seeking orders that Mary Attwood, George Dann, Robert Dann, Shirley Lockyer, Patricia Mason and Eugenia Smith (the Indigenous respondents) cease to be respondents to this proceeding. 2 The proceeding is an application under the Native Title Act 1993 (Cth) (the Act) for a determination of native title in an area east and south of Port Hedland in Western Australia, referred to as the Kariyarra-Pipingarra application. The Kariyarra-Pipingarra application area is on the east side of a much larger area which is the subject of another application for a determination of native title brought by the same applicants and referred to as the Kariyarra application (WAD6169 of 1998). In 2014, three of the five applicants in the Kariyarra application brought a further application for a determination of native title on the east side of the Kariyarra application, referred to as the Kariyarra-Abydos application (WAD47 of 2014). 3 On 18 December 2009, the Kariyarra-Pipingarra application was filed in this Court. The native title claim group was described in the application as follows: The descendants of the following Kariyarra apical ancestors: (i) Jinapi; (ii) Wirtinpangu (Jimmy); (iii) Dougal Robinson; (iv) Puyukapu (Toby); and (v) Jalyingarli (Johnny). The following individuals incorporated into the Kariyarra community in accordance with traditional law and custom: (i) Nelly Walley; (ii) Archie Captain; (iii) Sharon Captain; (iv) Stanley Captain; (v) Alfred Barker 4 The Indigenous respondents were not included in the original native title claim group. 5 On 15 September 2010, the Indigenous respondents filed a notice of intention to become a party to the application under s 84(3)(b) of the Act. 6 On 20 September 2010, Michael Robinson, an anthropologist, provided a report to the Indigenous respondents. The report supported the claim of the Indigenous respondents that their ancestor, Tommy Anderson, was a Kariyarra person. 7 On 21 September 2010, District Registrar Jan ordered that the Indigenous respondents be joined as parties to the application. 8 The proceeding was then referred to mediation by a Registrar of the Court. The question of the membership of the native title group was an issue in the mediation. On the recommendation of the Registrar, unusually, the Court agreed to obtain an expert report from an anthropologist to assist the parties to resolve the issues including the question of group membership. 9 In February 2012, Dr John Morton, an expert anthropologist, provided that report (the Morton Report). 10 Between and including 27 - 30 May 2013, the Court heard preservation evidence on country, particularly at Yandeyarra, from two members of the claim group, namely, Elsie Williams and Irene Roberts. They were elderly and not in the best of health. 11 The Yamatji Marlpa Aboriginal Corporation, which represents the applicant, commissioned further research concerning the application including about the traditional laws and customs relating to group membership. In December 2013, Dr Kingsley Palmer, another expert anthropologist, provided that report (the Palmer Report). 12 On 19 December 2013, the applicant filed an interlocutory application seeking orders amending the description of the native title claim group to address the further research conducted by Dr Palmer. 13 The Indigenous respondents opposed the amendment on grounds including that the proposed amended native title claim group included apical ancestors who were not Kariyarra and, consequently, the amendment was not authorised by the people entitled to native title over the country in question. 14 On 9 July 2014, the Court allowed the amendment: TR (Deceased) on behalf of the Kariyarra People v State of Western Australia [2014] FCA 734. 15 The amended description of the native title claim group was 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: (i) Jinapi; (ii) Wirtinpangu (Jimmy); (iii) Dougal Robinson; (iv) Puyubungu; (v) Yanki Williams; (vi) Topsy McKenna; (vii) Fanny; (viii) Nyitji; (ix) Maggie; (x) Tommy Anderson; (xi) Fauntleroy (Pontroy); and b) recognise themselves as having rights and interests in the area covered by the application under Kariyarra traditional law and custom. 16 As a result of the amendment to the description of the native title claim group, Tommy Anderson was included as an apical ancestor. The Indigenous respondents are descendants of Tommy Anderson. Therefore, they became part of the native title claim group following the amendment. At the same time they remained respondents as a result of the order of District Registrar Jan which joined them as respondents originally. 17 On 1 October 2015, the Indigenous respondents obtained an expert anthropologist report from Dr Philip Clarke (the Clarke Report). 18 The present application was filed on 19 February 2016, seeking orders that the Indigenous respondents cease to be respondents because they are now included within the native title claim group. 19 It is convenient to first explain the basis on which the Indigenous respondents oppose the application. 20 They contend that under the traditional law and custom of the Kariyarra people only people with biological descent from a Kariyarra person present on the country pre-sovereignty is entitled to native title rights and interests. They say that of the listed apical ancestors, Jinapi, Wirtinpangu, Dougal Robinson, Yanki Williams, Nyitji, Fanny and Fauntleroy (Pontroy) were not Kariyarra but belonged to various neighbouring groups. The Indigenous respondents further contend that there is insufficient evidence of Kariyarra identity for Puyubungu and Topsy McKenna. They say that Maggie was Kariyarra but her descendants could only claim through her in respect of her children with her European partner. 21 The Indigenous respondents filed an Amended Statement of Facts Issues and Contentions on 8 May 2016, between the first and final date of hearing of the interlocutory application, in order to identify clearly the claim they make. In that Statement it became clear that the Indigenous respondents also contend that traditional law and custom required descent to be patrilineal. That requirement, so it was said, had one exception, namely, where a Kariyarra woman had children with a non-Aboriginal man, matrilineal descent applied. 22 The interest which the Indigenous respondents claim which justified them remaining respondents is an interest in preventing the making of a determination in favour of some people who are not entitled under traditional law and custom to hold rights and interests in the land. 23 The Indigenous respondents acknowledge that they are not able to obtain a determination of native title in their favour in this proceeding. Section 213 of the Act provides that a determination of native title must follow the procedures provided by the Act. An application must be made under s 13(1) of the Act by a person or persons authorised in the manner required by s 61 of the Act, namely, the authorisation process provided for in s 251B of the Act: Commonwealth of Australia v Clifton [2007] FCAFC 190; 164 FCR 355 at [48], [52], [53], [57], [58] and [61]. Furthermore, the Indigenous respondents are some but not all of the descendants of Tommy Anderson. They cannot act on behalf of the others without authorisation in accordance with the Act: Munn v Queensland [2002] FCA 486 at [9] (Munn); Moses v Western Australia [2007] FCAFC 78; 160 FCR 148 at [18] (Moses). 24 The Indigenous respondents have not made a competing claim for a determination of native title over the land, and have not indicated that they intend to do so. 25 Mr Clifford, who appeared as counsel for the Indigenous respondents, said that "my clients' interest … is finding out who it is that are the true Kariyarra people". At various times during the hearing Mr Clifford explained what might flow from the judgment of the Court on the group membership issue if the Indigenous respondents remain as respondents. He said that one result might be that the application is dismissed. Another is that there might be argument that the Court should exercise power under s 84D(4) of the Act so that any defect in the authorisation arising from the participation of people found not to be Kariyarra people not prevent the Court from making a determination. And, finally, an outcome might be that the parties enter into further negotiations to try to resolve the application in light of the judgment of the Court. 26 In support of the removal of the Indigenous respondents as respondents, the applicant submitted that the Indigenous respondents' interests as holders of communal rights with others are protected by the Indigenous respondents being included as members of the native title claim group. 27 Then, the applicant relied on authorities such as Starkey v State of South Australia [2011] FCA 456; (2011) 193 FCR 450 (Starkey) which holds that a member of the claim group who challenges matters internal to the operation of the group will rarely be permitted to do so as a respondent to the proceeding. The applicant is given a statutory function to conduct the litigation and act on behalf of the group for that purpose. Matters internal to the group must be resolved internally, in part because, under s 225 of the Act, the Court does not rule on internal arrangements when making a determination. 28 Alternatively, if the Indigenous respondents are regarded as advancing a competing native title, the Court cannot make a determination in their favour in this proceeding. That would require the Indigenous respondents to bring a separate application and obtain authorisation for that purpose. 29 The applicant contends that, in any event, the Indigenous respondents have not raised a prima facie case in support of a competing native title. Mr Wright, who appeared as counsel for the applicant, said that the native title advanced by the Indigenous respondents "just doesn't have sufficient merit to warrant it being presented to the Court. So, in effect, we say your Honour should summarily reject it". 30 Further, the applicant submitted that to allow the Indigenous respondents to contest the group membership issue would cause delay and expense. The proceeding has been on foot since December 2009. The applicant and the State are relatively close to resolving the matter by consent. On the other hand, a draft minute submitted by the applicant setting out a timetable in the event that the removal application was unsuccessful and a hearing on the question of group membership was required proposed a process taking about six months. 31 Mr Ransom, who appeared as counsel for the first respondent, the State of Western Australia, adopted the arguments advanced by Mr Wright. He added in relation to the suggestion made by Mr Clifford that one outcome from a judgment on the group membership issue would be a resumption of negotiations: [I]t's not the case that we will just continue on with a new group with a differently configured native title. We fundamentally disagree with their account of what the tradition, law and custom is so we don't agree that they are a group that holds native title. So there's no prospect, on my present instructions, that anything will just pick up and continue if your Honour were to find in a group composition hearing that they're the right people and everybody else isn't. So I just thought it was important to again make that clear.