Wilson v State of South Australia

REASONS FOR JUDGMENT 1 The Wirangu No 2 claim, as it is called, is the subject of the present proceeding SAD 6019 of 1998. Like a number of claims made under the Native Title Act 1993 (Cth) (the Act) it has not progressed in a speedy manner. There are many reasons why that may have been the case. It is not for me presently to speculate about that. 2 When the claim was authorised there were five named applicants. There is now only one surviving person who constitutes the applicant, Neva Wilson. She has applied by interlocutory application of 17 November 2015 for the following orders in the application: (1) an injunction to prevent the Far West Coast Aboriginal Corporation (FWAC) of Ceduna S.A. from holding a meeting on 25 November 2015, to consider the authorisation of applicants to file an overlapping claim over the claim area of Wirangu No.2; (2) that the FWAC and its 33 Directors be prevented from lodging a native title claim as a claim group with the same as the description of the native title holders as appearing in their consent determination, made on 5 December 2013: Far West Coast Native Title Claim v State of South Australia (No 7) [2013] FCA 1285. She sought an urgent hearing prior to 25 November 2015; as the date set by FWAC for their "Native Title Community Meeting". 3 That interlocutory application names Basil Coleman "and another" as one set of respondents and Michael Pagsanjan as another respondent. Neither is presently a respondent to this proceeding. 4 Mr Coleman is apparently the chair of the FWAC. 5 Mr Pagsanjan is a solicitor employed by the South Australia Native Title Services (SANTS) who are the solicitors on the record for the applicant in this claim. It may be that there are some communication issues between Ms Wilson as the surviving applicant and SANTS as her solicitors. I do not know. There is some material to suggest that there are. Be that as it may, there is no order sought which could in any way impact upon either SANTS as the solicitors for Ms Wilson as the surviving applicant, or Mr Pagsanjan in particular. It was erroneous to join him as a respondent to this application. I order that he be removed from the interlocutory application as a respondent party to it. 6 It is necessary to address urgently the particular orders which are sought on an interim basis because they seek to injunct a meeting which is said to be taking place on 25 November 2015. In the notice of meeting, which is part of the affidavit material that is relied upon in the application listed for hearing today, the date given is 28 November 2015. The discrepancy in dates is not significant. 7 I do not propose to make the interlocutory order sought. There are two reasons for that. Before I give those two reasons it is necessary to make one extra observation. 8 Ms Wilson, as the surviving person constituting the applicant in this claim, has the conduct of the matter on behalf of the claim group. The claim has been registered by the Native Title Registrar under the Act. That means that as the applicant for the claim group Ms Wilson has, and continues to have, the right to negotiate as that is defined within the Act on behalf of the Wirangu No 2 claim group. The proposed conduct which she wants to injunct - the holding of the meeting referred to - does not affect, and cannot by itself affect, that right. To the extent to which it is said on her behalf by her son that that right is in jeopardy by the conduct of the proposed meeting, it is not. The Wirangu No 2 claim is a registered native title claim, and she is the surviving person constituting the applicant for that claim. 9 I return to the two reasons why the application for an interim injunction is refused. 10 The first is because it is not apparent to me that the FWAC which intends to hold a meeting which is to be its annual general meeting, in any way which can affect the interests of the claim group of the applicant in the present claim. The agenda for the annual general meeting is clear enough. The proposed agenda does not contemplate any resolution concerning the conduct of this claim. It is important to point that out as any irregularities in the calling or conduct of the annual general meeting of FWAC are not matters of concern to this Court because, as I have said, there is nothing proposed to be done in the conduct of that annual general meeting which is capable of resulting in any conduct to the detriment of the present claim. It is therefore necessary to focus on the second or subsequent part of that notice for a "Community Native Title Meeting". That is, the applicant's real focus is directed to the holding of a proposed claim group meeting, distinct from the FWAC annual general meeting. 11 In that context, there is insufficient material to know whether the proposed community native title meeting might or might not constitute a meeting for the purposes of a putative claim group over an area of country which covers, or covers part of, the present claim area. Even if it does and even if there is a community native title meeting it is not clear that the meeting will in fact resolve to make a separate claim under the Act over the present claim area in a way which is properly authorised under the Act. If it does, that will result in the making of a separate claim. It is not clear to me why a differently constituted claim group should be injuncted from having a meeting at which they can discuss the making of such a claim. Overlapping claims are not by themselves unlawful under the Act. There may or may not be complications if members of the present claim group are also said to be members of a new claim group but that is to be a matter addressed at a later time. Consequently, even if there were to be a valid meeting of a group of persons for the purposes of authorising a different claim over all or part of the present claim group I would not consider it appropriate to injunct the holding of that meeting. 12 For those reasons the application brought urgently, and perhaps understandably given the asserted difficulties in conferring with the solicitors on the record in the short term, is refused. I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mansfield.