Worimi v Minister for Lands for the State of New South Wales

The second application 8 Worimi makes the second application as a member of the native title claim group, authorised by all other persons in the claim group. He claims to be authorised in accordance with a process of traditional decision making whereby 'the eldest male of the family makes all the decisions on behalf of the immediate family and about the family's traditional country and deals with matters arising in relation to those decisions' (my emphasis). He asserts in the second application that all the persons in the native title claim group 'agreed to and adopted the traditional decision making process that the eldest male of the family would make the application and deal with the matters arising in relation to it'. 9 The other members of the claim group are Worimi's wife, Cynthia Dates and daughters Priscilla Dates, Rachael Dates, Beryl Dates and Sheena Dates. Worimi claims native title rights in accordance with and subject to the traditional laws and customs of the claim group, subject to adaptation and change. He acknowledges that 'these rights may co-exist with other statutory or common law rights in relation to' the Land.

The affidavits of the second application 10 Worimi has filed an affidavit in support of the second application. He speaks of his association and physical connection with the Garuahgal area, which includes the Land. He says that he has camped all over the area. He has taken wood and other natural materials from the Land for his art works. He describes the Garuahgal area as being a 'state' of Worimi country in a similar sense to which New South Wales is a State of the Commonwealth of Australia. 11 Worimi says that he was taught by his father's mother that there were sites sacred to Worimi women on and adjacent to the Land. As a Worimi man, he is not allowed to know most of the law and custom regarding those sites. He says that Worimi women travelled to the Land and the area adjoining the Land to have their babies. After having the babies, the women would take them to a place near the Land on an area of Kingsley Beach, known as the Poona. There the women bathed the babies in the sea water and gave them their tribal totem. The women would then take the babies to an area adjacent to the Land, to a billabong and wash the sea water off the babies. They would then choose a special spot 'on the Land or the adjoining areas' to bury the afterbirth. From Worimi's affidavit, the site or sites sacred to women are described as 'on and near to the Land' and also as not on the Land but adjacent to it. Worimi says that, under Worimi law, men are not allowed to go to the women's site at the Poona. There is no restriction on going to the billabong or the Land. 12 Worimi says that he is the custodian of the Land. His father had been the eldest initiated male in his family, which meant that he was responsible for making decisions about his country and his family and had responsibility for protecting culturally significant places, including the Land and the coastal areas nearby. On his father's death, the position of custodian passed to Worimi, his eldest son. 13 Worimi now believes that he and his children are the only persons who currently have native title rights and interests in the Land. He explains the fact that a number of Worimi women have sworn affidavits in the Hillig proceedings saying that there were no sacred women's sites on the Land ([20] to [22] below) by concluding that they have not been taught about the sites. Worimi says that it appears that he may be the only Worimi person who was given the native title rights and interests in the Land under traditional laws and customs. He is passing those laws and customs on to his children so that they also hold native title rights. 14 He claims authorisation under the traditional decision making process whereby the eldest male of the family makes all the decisions and that the others in the claim group agreed and adopted that traditional decision making process. Affidavits of Worimi's wife and daughters have been filed asserting that Worimi has the right to bring the application as the oldest male member of the family.

Worimi's earlier affidavits 15 Mr Hillig tendered earlier affidavits made by Worimi and filed in support of the first application and in the Hillig proceedings. Ms Jowett did not object to the Court having regard to those affidavits; indeed, she relied upon them to establish the existence of an arguable case that Worimi, his wife and his children possess individual or group native title rights in the Land. 16 In his original affidavit of 19 August 2005, filed in the Hillig proceedings, Worimi asserted that he held native title in the Land as did the Garuahgal people. He said that part of the Land was a sacred and secret place for women. 17 In a more extensive affidavit of 20 January 2006, filed in support of the first application, he said that his authority to make the first application was as '[c]ustodian and [p]rotector of the Garuahgal women' who wished 'to reclaim their secret, sacred place': a 'secret birthing place of tribal women'. He said there that he had been given the Land by his father who told him that he must protect it. His grandmother was the custodian and protector of Boat Harbour. The Land between Birubi Beach and Boat Harbour was a special sacred place for women. The area described as the women's site encompassed the Land. The women gave birth there. He said that the babies were washed and baptised in the fresh water spring. His father pointed out a special rock which was the boundary of the secret women's place. He and his father camped and fished at Boat Harbour and Worimi has continued his association with the Land. 18 Worimi filed a further affidavit in the Hillig proceedings sworn 28 March 2006. He reiterated in that affidavit that his father had given him all the land between Boat Harbour and Birubi Beach for care and safe keeping. He restated that his grandmother told him stories of how the Boat Harbour land was a secret, sacred place for women and that the tribal women came to the Land to give birth. He stated that his grandmother told him how they washed the newborn infants in the fresh water stream that runs along the Land. His father also told him stories of the secret women's place and pointed out the special rock which was the boundary where men could not pass. That rock was in the Land, adjoining the land at Boat Harbour. He also described his own association with the Land as a place where he lived and camped and fished. 19 In an affidavit sworn 25 May 2006 and filed in support of the first application, Worimi said, in respect of the Land: 'To say that there was no secret women's place is ridiculous. The babies were born in the area and the birthing ceremonies took place in the area. The subject land has a fresh water stream running through it. This land was most definitely the place where the babies were washed and baptised after their birth. As part of the traditional ceremony, the after-birth would have been buried.'

The other affidavits 20 In addition to tendering Worimi's earlier affidavits, Mr Hillig sought to tender and rely on affidavits sworn by Kelvin Dates (Worimi's brother), Valerie Merrick, Viola Brown and Carol Ridgeway-Bissett ('the deponents') and filed in the Hillig proceedings. Each of the deponents identified themselves as Aboriginal members of the Worimi Nation or tribe and denied the existence of any site sacred to women on or adjacent to the Land. 21 Ms Jowett objects to the relevance of these affidavits to the strike out motion. She submits that 'the information contained in the [a]ffidavits has no more probative value than evidence from a stranger who was stopped in the street and asked their opinion about the content of native title in the Land'. 22 Worimi refers to the deponents in his affidavit filed in support of the second application and states, with reference to their evidence, that he now believes that others have not been taught about the traditional laws and customs associated with the Land. He further states that he believes that he and his children are the only persons who currently have native title rights and interests in the Land. To the extent that Worimi himself cites the evidence given by the deponents to explain the composition and identity of the native title claim group, the fact that the deponents gave that evidence is relevant. The deponent's evidence as to the existence of native title rights is not relevant to the determination of the strike out application.

Mr Hillig's submissions 23 Mr Wright, who appears for Mr Hillig, submits that the second application suffers from the same "fatal defects" as did the first application, which was struck out in Hillig (No 2). His submissions can be summarised as follows: · The claim group is the same as that in the proposed application considered in Hillig (No 2). · The formulation of the claim group is wholly inconsistent with the claim group of the first application, identified and advanced by Worimi on oath. · It cannot be the case that, according to traditional law and custom, the claim group can change from the women of the Worimi nation to the Garuahgal clan to Worimi and his family. · It is not possible that, in applying traditional law and custom, the claim group of Worimi and his family is only lately identified. · Worimi either knows the traditional laws and customs associated with the Land, or he does not. If he does, there is no reason why the claim group in the first application and identified in his affidavits in relation to that application has changed. · A surviving normative system of traditional law and custom cannot admit of a belated revelation, as here, where Worimi has only now discovered beliefs that his family constitutes the claim group and not the women as he previously claimed. · It cannot be the case that legal advice has relevance in determining a native title claim group which exists according to traditional law and custom, or at least not where there is such profound inconsistency in the content of the claim group. The previous claim made by Worimi on behalf of the women is inconsistent with the exclusivity of the present claim group of Worimi and his wife and daughters. · The previous claim made by Worimi was that the Land was a site sacred to women and subject to an avoidance obligation on men. Now it is asserted by him that the women's sacred site for washing babies was adjacent to the Land. To the extent that it is still claimed that the afterbirth would be buried on the Land, there is now, apparently, no avoidance obligation on the men. · Neither Worimi's brother or sister nor their children are included in the claim group although, on the basis advanced by Worimi they would be so entitled. Worimi's sister was included in the claim group as originally formulated. · Worimi's mother, Beryl Dates senior, is not a member of the claim group despite the fact that Worimi asserts in his affidavit in support of the second application that marriage into the claim group gives a connection to the land under traditional law and custom. Worimi's wife Cynthia Dates is in the claim group. There is no evidence that Beryl Dates senior has authorised the claim as required by s 61(1) of the Act. · Despite the pro forma affidavits filed by each member of the claim group purportedly authorising the bringing of the claim by Worimi, s 251B(a) of the Act is not satisfied. There is no evidence of the process of traditional decision making, only of the consequence of a process. There is, accordingly, no authorisation for the purposes of the Act. 24 Fundamental to Mr Wright's submissions is the proposition that, where a claim group is determined by traditional law and custom and identified by the same person in different applications and where that person purports to know, observe and be custodian of that traditional law and custom over the Land, he must know who is entitled to claim native title in the Land. The identity of the claim group is dependent upon and shaped by the traditional laws and customs of the group. It is in this context, he submits, that the inconsistencies in the membership of the claim group are relevant. The inconsistencies are not, in his submission, merely reflective of the fact that Worimi did not earlier have legal advice. 25 Other matters raised by Mr Wright go to the sufficiency of and inconsistencies in the evidence. One example is that there is no explanation of how, if Worimi's father was the eldest male in his family and therefore had responsibility for the Land, Worimi's father's mother had an overlapping role of custodian and protector of women's business. If Worimi's father's mother had that role, there is no explanation of how the role of custodian fell to Worimi's father and to Worimi. Mr Wright also points to other inconsistencies between the affidavits filed by Worimi in support of the first application and the proposed application and the affidavit in support of the second application. 26 Those other matters, being merely evidentiary, are not relevant to these proceedings to strike out the second application. I will consider that application on a view of the evidence most favourable to Worimi.

Worimi's submissions 27 Ms Jowett appears with Mr Lenehan for Worimi pro bono. Ms Jowett appeared for Worimi in respect of the proposed application in the circumstances described in Hillig (No 2). She emphasises that Worimi prepared and filed the first application and the proposed application without the benefit of legal advice or assistance. She concedes that the first application and the proposed application are relevant to the consideration of these proceedings. She contends, however, that the lack of legal assistance in the preparation of the first application is sufficient to explain any inconsistencies between the first and the second applications. The proposed application was prepared in a very short time and was only a draft. Accordingly, Ms Jowett submits, inconsistencies between that document and the second application should be disregarded. 28 Ms Jowett also emphasises that the factual issues, many of which are complex in nature, should not be determined in interlocutory proceedings. The merits of the claim should be determined at trial (Bodney at [11]). She points out, correctly, that there was no cross-examination of Worimi; nor has Mr Hillig adduced evidence from his mother Beryl Dates senior or from his sister Debbie Dates. Her explanation for the identification by Worimi of the different claim group in the first application is an assumption on his part that other Worimi people were recipients of the same knowledge as he held. The second application and the identification of the claim group was, according to Ms Jowett, prepared in the knowledge from the first application that some Worimi women and Mr Kelvin Dates, Worimi's brother, denied holding any native title rights over the Land. 29 Mr Jowett submits that, if individuals cease to acknowledge and observe relevant laws and customs, they will cease to possess native title. That provides an explanation why Worimi and his wife and children who continue to observe those laws and customs represent the totality of the claim group. That knowledge was passed to Worimi by his father, his father's brothers and his father's mother. She stresses that the determination of the recipients of the native title rights requires findings of fact to be made which ought not be the subject of inquiry for the purposes of a strike-out application. 30 Having made those submissions, Ms Jowett acknowledges that, if the second application does not comply with ss 61 and 62 of the Act, it is liable to be struck out.

Is the second application liable to be struck out? 31 Worimi's evidence as to the existence of a sacred site for women has been consistent throughout the first and second applications. He has also been consistent in his description of his own association with the Land. 32 Worimi's evidence is not consistent as to the description of the location of the secret women's site. In the first application it encompassed the whole of the Land. In the second application it is either adjacent to the Land or 'on and near to the Land'. In his most recent affidavit, in support of the second application, he has changed the location of that site by associating it with the washing of babies in sea water whereas in all previous affidavits he had stated that a fresh water stream was part of the site. Inconsistency in his evidence as to the location and nature of the site sacred to women is not relevant for the purposes of a strike out application.

The claim group 33 Section 223 of the Act relevantly recognises 'communal, group or individual rights and interests of Aboriginal peoples' in relation to land where 'the rights and interests are possessed under the traditional laws acknowledged, and the traditional customs observed, by the Aboriginal peoples'. 34 The expression "native title claim group" is given meaning by s 61(1) (s 253). The native title claim group is "all the persons who, according to their traditional laws and customs, hold the common or group rights and interests comprising the particular native title claimed" (my emphasis). A person or persons authorised by the claim group may make an application for a determination that native title exists pursuant to s 61(1), provided that person is also a member of the claim group. 35 Worimi says that, under traditional laws, the position of custodian of the Land was passed to him by his father who was an initiated Worimi man and a Worimi Elder. He does not assert that traditional law and custom recognises his individual right to claim native title over the Land. He says that the fact that his father was a custodian and keeper of customary law did not mean that he had sole responsibility for protecting the country; other Worimi men were given equally important responsibility for other families and other areas in Worimi country. In relation to the Land and the surrounding area, Worimi says that his father's mother had an overlapping role as custodian and protector of women's business at that place. Worimi does not claim that under traditional law and custom his father held and he holds the native title rights to the secret women's site. 36 Worimi now excludes from the claim group many of the women on whose behalf he brought the first application and the women who, he said, held native title rights in respect of the women's secret site. His wife, he says, obtained her rights by marriage to him. By passing the laws and customs to his children, he is passing to them the native title rights and interests in the Land. 37 Worimi's claim that he and his family are the totality of the claim group is based on his belief that he may be the only Worimi person who was given the native title rights and interests in the Land under traditional laws and customs. This conclusion is based on the fact that other Worimi people, including his brother and sister and the women whom he thought would have been taught about the sites were not so taught. 38 If that were the case, then Worimi's mother, Beryl Dates senior, should be part of the claim group. She obtained her rights by marriage to Worimi's father, the previous custodian and protector of the Land. Worimi's evidence is that '[m]arriage gives a connection to land under Worimi law' and that '[w]hen a woman marries into another clan or tribe, she takes the law and custom of her husband's country'. It follows that Worimi's motheris a person who, according to the traditional laws and customs, holds the common or group rights as described by Worimi as comprising the particular native title claimed. She is not included, nor has she authorised Worimi to bring the application. 39 In the first application, it was stated that Worimi's sister Debbie Dates, who was part of the claim group, had visited the Land on numerous occasions, continues to visit the Land and has told her children stories according to traditional laws and customs. Neither she nor her children are in the claim group of the second application. 40 On Worimi's own evidence on the first application, tendered by Mr Hillig in these proceedings, there are others who have entitlement to membership of the claim group. Whether they are the persons identified in the previous application or not identified as such in these proceedings, they have not been included nor given the opportunity to authorise the claim. Previously Worimi asserted that he was part of a larger claim group and that native title interests were held by a larger group, not restricted to his immediate family, of which he was a part. It was put, variously, as membership of the Worimi nation, the Garuahgal clan, or the descendents of Mary Mahr (see Hillig (No 2) at [21] to [22]). Other than those who have stated that there is no native title over the Land, there is no evidence as to whether or not those other members of the Worimi nation or the Garuaghal clan observe traditional laws and customs. There is no evidence establishing their exclusion from the claim group as acknowledged by Worimi. 41 Worimi asserts that he has the traditional knowledge. Worimi explains inconsistencies in his evidence, such as the earlier statement that the rights were held by the women and that he was only bringing the application on their behalf, by the absence of legal advice at that time. He does not say in his evidence that he needs legal or other expert advice to speak of traditional law and custom and I do not see how the lack of such advice explains inconsistencies in the evidence as to that law and custom. 42 The reasoning can be said to be as follows. The native title rights are held by the Worimi people. The custodian and protector is the eldest son in a family, although this is not an exclusive right because, for example, women are custodians of the women's site; it is not suggested that Worimi's father's mother was the sole female custodian. There is no evidence of a basis in traditional law and custom as to the restricted class of persons who hold native title rights or individual rights or of the restriction to Worimi and his family. It is Worimi's own deduction that others whom he acknowledges would have such native title rights cannot have them because they fail to acknowledge that such rights exist over the Land. A claim group, however, may exist for the purposes of s 223(1) of the Act where only a part of the community have acknowledged and observed traditional laws and customs (De Rose v South Australia (No 2) (2005) 145 FCR 290 at [58]). 43 Worimi's case seems to be that, if the persons otherwise possessing native title interests have abandoned them, they are no longer identifiable as members of a community living under the relevant laws and customs. Worimi does not claim that, according to traditional laws and customs, individual rights or family rights (in the sense of Worimi, his wife and daughters) are recognised by traditional law and custom. This is not a case where Worimi claims that his immediate family hold native title rights by virtue of the membership of their family alone (cf Colbung v Western Australia [2003] FCA 774). He acknowledges that the Land is Worimi land. That is, according to traditional law and custom, the rights are held by Worimi people or the particular clan or group, such as the Garuahgal people. Whatever the precise identity of the people who possess such rights over the Land (see Hillig (No 2) at [20]-[22]), it is a group larger than Worimi and his family. If that is the case the family, by calling itself a native title claim group, does not establish that it is a "native title claim group" for the purposes of Worimi's entitlement to make the second application pursuant to s 61(1) of the Act (Risk v National Native Title Tribunal [2000] FCA 1589 at [60]). 44 In De Rose (No 2) at [57] the Full Court said that a claimant group whose members have never acknowledged or observed traditional laws and customs cannot succeed in a claim for native title rights and interests merely because other Aboriginal peoples have acknowledged and observed the relevant traditional laws and customs, even if by those laws and customs observed by others, the claimant group "possessed" native title rights. The Court observed that the position would be similar where a native title claim is made by one or more individuals who do not assert a communal or group claim. Here, on the basis of Worimi's evidence, traditional law and custom identifies Worimi people other than Worimi and his family as "possessing" rights and interests in the Land, not least Worimi women. Worimi's evidence is that at least some of those persons have not been taught about the Land; they do not acknowledge and observe the relevant laws and customs. They do not, by the laws and customs described by Worimi, have a connection with the Land. That would preclude them from succeeding in a claim (s 223(1)(b); De Rose (No 2) at [56]). 45 Worimi concludes that those persons who denied native title did not know of the traditional laws and customs that established it. Worimi's assertion is that he and his family hold native title rights within the meaning of s 223(1)(a) and (b) of the Act. He does not suggest that, by traditional law and custom, native title rights were only "possessed" by his family (s 223(1)(a)) or that they "hold" exclusive to them the common or group rights and interests comprising the particular native title claimed (s 61(1)). 46 De Rose (No 2) discussed the fact that a group that does not fulfil the requirements of s 223(1)(a) and (b) cannot succeed in a native title claim. This included a group that possessed the rights and interests under traditional laws and customs but did not, by those laws and customs, have a connection with the land. The native title claimant group must establish rights and interests possessed under the traditional laws acknowledged and the traditional customs observed by that community or group (at [58], original emphasis). Here, Worimi's evidence is that his claim group, himself, his wife and the daughters to whom he has passed the laws and custom, is not the totality of the group which possesses the rights and interests under traditional laws and customs. That group is the Worimi people, or Garuahgal people; the descendents of Mary Mahr. At the least it includes Worimi's mother Beryl Dates senior; his sister Debbie Dates and those of Debbie Dates' children to whom she has imparted knowledge of traditional laws and customs as specified in the first application. 47 Whichever of the groups identified by Worimi in the first application is the relevant group, it is a group of which Worimi and those persons specified in the claim group of the second application form only a part.

Bodney 48 Ms Jowett placed considerable reliance on Bodney, where the Full Court dealt with a claim group analogous to that of the present application and allowed an appeal against an order to strike out the application pursuant to s 84C of the Act. 49 Worimi has, unlike Mr Bodney, changed the composition of the claim group from the first to the second applications (cf Bodney at [5]) and has, in these proceedings, sought to explain his reasons for doing so. My consideration of the claim group and authorisation is based only on Worimi's evidence, as relied upon by him in these proceedings. That evidence includes his affidavit in these proceedings which refers to the first application and his affidavits in support of that application. Those affidavits were relied upon by Worimi in his written submissions. That evidence is untested by cross-examination. I have accepted that evidence. However, that does not preclude an analysis of that evidence to present a coherent understanding of the asserted claim group and the extent of authorisation. 50 Worimi's evidence is that there are other persons outside his immediate family who, as part of the Garuahgal people or the Worimi nation, would have been entitled to assert native title over the Land (cf Bodney at [28]). His qualification is that he now understands that they do not observe traditional laws and customs and that, accordingly, the persons specified in the claim group are the whole of the group alleged by him to hold the claimed native title rights and interests. In other words, as discussed in Bodney by Branson J at [31], Worimi relies upon the theoretical possibility that individuals who are Garuahgal or Worimi by descent do not share in all of the native title rights and interests because they have ceased to acknowledge the traditional laws and observe the traditional customs of the community. That is not a question that needs to be determined on this strike-out application. I am prepared to accept that possibility, for the purposes of this application. 51 The characteristics of those persons are members of the Garuahgal or Worimi people who presently observe traditional law and custom as described by Worimi or who may claim entitlement through marriage to the eldest son of the family. Worimi is the eldest son, as was his father. As Worimi's wife is included by her marriage to Worimi although there is no suggestion that she observes traditional law and custom, so also is his mother. As his daughters are part of the claim group as members of his family, to whom he has passed laws and customs, so too is his sister Debbie and possibly her children. The claim group of the second application is not comprised of all the persons who, according to traditional law and custom, hold the common or group rights and interests comprising the native title claimed. It follows that it is liable to be struck out for failure to comply with s 61(1) of the Act.

Authorisation 52 It is necessary to consider whether Mr Hillig has established that the requirements of authorisation in s 251B(a) have not been met. 53 Native title, by s 223, refers relevantly to rights and interests possessed under the traditional laws acknowledged and the traditional customs observed by the Aboriginal peoples. Worimi does not claim to be authorised according to traditional law and custom by the community or group who possess the native title rights within s 223. He claims to be authorised by the members of his family on the basis that they are the only ones who know that they possess the rights. That is not sufficient for the purposes of s 251B and s 61 of the Act. If native title rights are held by a group larger than the persons specified as constituting the claim group, there is no suggestion that there has been authorisation of Worimi's application. 54 It is not clear from the evidence whether Worimi could be said, under traditional law and custom, to be entitled to claim authorisation by his mother and sister Debbie Dates who, on his evidence, would be included in the claim group. He says that he is authorised to make decisions for the immediate family; in context, that equates to his wife and daughters. There is no evidence of traditional law and custom whereby Worimi could be said to be authorised by his mother and sister or of a mechanism of authorisation. There has not been authorisation under s 251B(a). Worimi's own evidence establishes that he is not entitled under s 61 to bring the second application. The application is not brought by a person who is authorised by all the persons who, according to their traditional laws andcustoms, hold the common or group rights and interests comprising the particular native title claimed. The application is also liable to be struck out under s 84C of the Act on this basis.

conclusion 55 The evidence as to the claim group is inconsistent with the claim group described in the second application. The claim group is not restricted to Worimi's immediate family. The only evidence of traditional law and custom authorises Worimi to bring the application on behalf of his immediate family. The claim group is not comprised of all the persons who, according to traditional law and custom, hold the common or group rights and interests comprising the native title claimed (s 61(1)). Further, Worimi's evidence establishes that he is not authorised to bring the second application for the purposes of s 61(1) of the Act. 56 The application should be struck out under s 84C for failure to comply with s 61. To allow the application to proceed would involve useless expense. The proceedings should also be summarily dismissed pursuant to O 20 r 2 of the Federal Court Rules. I certify that the preceding fifty-six (56) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bennett.

Associate: Dated: 19 December 2006 Counsel for Mr Dates: T L Jowett and C Lenehan (Pro bono)

Solicitor for the Minister for Lands for the State of NSW: Crown Solicitor for the State of NSW

Counsel for Mr Hillig: M Wright

Solicitor for Mr Hillig: Watson Mangioni Lawyers Pty Ltd

Date of Hearing: 25 September 2006, 9 October 2006

Date of Judgment: 19 December 2006