federal court of australia -...
TRANSCRIPT
FEDERAL COURT OF AUSTRALIA
NC (deceased) v State of Western Australia (No 2) [2013] FCA 70
Citation: NC (deceased) v State of Western Australia (No 2) [2013]
FCA 70 Parties: NC (DECEASED) AND OTHERS v STATE OF
WESTERN AUSTRALIA AND OTHERS File number: WAD 6005 of 2003 Judge: MCKERRACHER J Date of judgment: 12 February 2013 Catchwords: NATIVE TITLE – application under s 66B of the Native
Title Act 1993 (Cth) to replacement the current applicant – whether authorisation of replacement applicant at the meeting was effective – whether anterior question of whether there was a traditional decision-making process was addressed – whether there was a decision-making process adopted by the meeting – whether Court should exercise its residual discretion not to allow s 66B application, even if technical requirements met, where substantial minority faction would no longer be included in replacement applicant
Legislation: Native Title Act 1993 (Cth) ss 66B, 251B Cases cited: Anderson v State of Western Australia (2003) 134 FCR 1
Butchulla People v State of Queensland (2006) 154 FCR 233 Coyne v State of Western Australia [2009] FCA 533 Daniel v State of Western Australia (2002) 194 ALR 278 Daniel v State of Western Australia [2005] FCA 536 Holborow v State of Western Australia [2002] FCA 1428 Lawson on behalf of the 'Pooncarie' Barkandji (Paakantyi) People v Minister for Land and Water Conservation for the State of New South Wales [2002] FCA 1517 Noble v Mundraby, Murgha, Harris and Garling [2005] FCAFC 212 P.C. (name withheld for cultural reasons) on behalf of the Njamal People v State of Western Australia [2007] FCA 1054 'Pooncarie' Barkandji (Paakantyi) People v NSW Minister for Land & Water Conservation [2006] FCA 25 Roe v State of Western Australia (No 2) [2011] FCA 102 Ward v Northern Territory of Australia (2002) 196 ALR
- 2 -
32 Date of hearing: 2 October 2012 Place: Perth Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 108 Counsel for the Replacement Applicant:
K Judd SC with G Moloney
Solicitor for the Replacement Applicant:
Yindjibarndi Aboriginal Corporation
Counsel for the Third Named and Sixth Named Members of the Current Applicant:
GMG McIntyre SC with C Eastwood
Solicitor for the Third Named and Sixth Named Members of the Current Applicant:
Eastwood Sweeney Law
Counsel for the State of Western Australia:
The State did not appear
Counsel for FMG: K Green Solicitor for FMG: Green Legal Counsel for the Rio Tinto Iron Ore:
CD Barry
Solicitor for the Rio Tinto Iron Ore:
Ashurst Australia
IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION WAD 6005 of 2003
BETWEEN: NC (DECEASED) AND OTHERS
Applicant
AND: STATE OF WESTERN AUSTRALIA AND OTHERS Respondent
JUDGE: MCKERRACHER J
DATE OF ORDER: 12 FEBRUARY 2013
WHERE MADE: PERTH
THE COURT ORDERS THAT:
1. Within 7 days the Replacement Applicant file a minute of final orders reflecting these
reasons for judgment.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION WAD 6005 of 2003
BETWEEN: NC (DECEASED) AND OTHERS
Applicant
AND: STATE OF WESTERN AUSTRALIA AND OTHERS Respondent
JUDGE: MCKERRACHER J
DATE: 12 FEBRUARY 2013
PLACE: PERTH
REASONS FOR JUDGMENT
TABLE OF CONTENTS
1 INTRODUCTION................................................................................................ [1]
2 RELEVANT LEGISLATIVE PROVISIONS................................................... [5]
3 THE EVIDENCE ................................................................................................. [10]
3.1 The 2011 Meeting ..................................................................................... [10]
3.2 The 2012 meeting...................................................................................... [14]
3.3 Mr George Irving ..................................................................................... [15]
3.4 Lorraine Coppin....................................................................................... [21]
3.5 Mr Stanley Warrie ................................................................................... [22]
3.6 Mr Ric West.............................................................................................. [30]
3.7 Mr Philip Davies....................................................................................... [34]
3.8 Mr Robin Stevens ..................................................................................... [35]
3.9 Mr Michael Woodley ............................................................................... [37]
3.10 Ms Gloria Lee ........................................................................................... [44]
3.11 Mr Allery Sandy ....................................................................................... [45]
- 2 -
3.12 Mr Paul Aubrey and Mr John Sandy..................................................... [47]
3.13 Additional material going to the dispute................................................ [53]
4 ARGUMENTS ADVANCED FOR THE REPLACEMENT APPLICANT .. [57]
5 ARGUMENTS IN OPPOSITION TO THE RELIEF SOUGHT.................... [64]
5.1 Residual discretion ................................................................................... [72]
6 CONSIDERATION ............................................................................................. [75]
6.1 Some general matters............................................................................... [75]
6.2 Was a determination necessary at the 2012 meeting about the applicability of a traditional decision-making process? ....................... [79]
6.3 To what extent is it a requirement of the NTA that there is a resolution about the decision-making process or processes used at the 2012 meeting? ..................................................................................... [83]
6.4 Exercise of a discretion ............................................................................ [99]
7 CONCLUSION..................................................................................................... [107]
1. INTRODUCTION
1 This is an interlocutory application under s 66B of the Native Title Act 1993 (Cth)
(NTA).
2 The applicant to the interlocutory motion (the Replacement Applicant) argues that it
has, through a transparent process according with legal requirements, established that there
should be a replacement group of individuals constituting the current applicant to the primary
proceeding (the Current Applicant). The contention is strenuously opposed on both
technical and policy or discretionary grounds by two members of the Current Applicant,
Ms Aileen Sandy and Ms Sylvia Allen (to whom I will refer as respondents in these reasons).
The Replacement Applicant has adduced a considerable body of evidence and argument to
discharge its onus. In the end, as is typical, the contentious issues were relatively few.
Nonetheless the detail of the uncontentious evidence does require some attention to place the
debate in its total context.
- 3 -
3 Ultimately for reasons now expressed, I have concluded that the Replacement
Applicant is entitled to the relief it seeks.
4 The application was filed on 15 July 2012 and seeks the following interlocutory
orders:
1. Thomas Jacob, Stanley Warrie, Allum Cheedy, Kevin Guiness, Angus Mack, Michael Woodley, Joyce Hubert, Pansy Sambo, Jean Norman, Esther Pat, Judith Coppin and Maisie Ingie do jointly replace the persons currently comprising the Applicant.
2. The heading of the application be amended by removing the names of the
current Applicant and inserting the following: “Thomas Jacob, Stanley Warrie, Allum Cheedy, Kevin Guiness, Angus Mack, Michael Woodley, Joyce Hubert, Pansy Sambo, Jean Norman, Esther Pat, Judith Coppin and Maisie Ingie, on behalf of the Yindjibarndi People”.
2. RELEVANT LEGISLATIVE PROVISIONS
5 By s 61(1) NTA, in relation to a native title determination, the persons who may make
the application are a person or persons authorised by all the persons (the native title claim
group) who, according to their tradition laws and customs, hold the common or group rights
and interests comprising the particular native title claimed, provided the person or persons are
also included in the native title claim group. Section 61(4) NTA provides that for a native
title determination application, or a compensation application, persons comprising a native
title claim group or a compensation claim group who authorise the applicant to make it must
either (a) name the persons or (b) otherwise describe the persons sufficiently clearly so that it
can be ascertained whether any particular person is one of those persons.
6 Section 66B NTA provides for the replacement of members comprising the applicant
in a native title claim determination application. Under that provision, one or more members
of the native title claim group in relation to a claimant application may apply to the Court for
an order that the member or the members jointly replace the current applicant on grounds,
amongst others, that the person is no longer authorised by the claim group to make the
application and to deal with matters arising in relation to it (s 66B(1)(a)(iii) NTA).
7 It is necessary to examine s 253 NTA to understand the meaning of ‘authorised’. The
term in the context of native title determination applications is defined in s 253 NTA as
having the meaning given to it by s 251B NTA. Section 251B NTA provides that the persons
- 4 -
comprising a native title claim group authorise a person (or persons) to make an application,
and to deal with matters arising in relation to it, if, (a) where there is a process of decision-
making under the traditional laws and customs, it is complied with, or (b) where there is no
such process, the persons in the native title claim group authorise the other person or persons
to make the application and to deal with the matters in accordance with the process of
decision-making agreed to and adopted by the persons in the native title claim group. It has
been held that these provisions are also applicable to the revocation of authority: see Ward v
Northern Territory of Australia (2002) 196 ALR 32 (at [10]) per Mansfield J; Lawson on
behalf of the 'Pooncarie' Barkandji (Paakantyi) People v Minister for Land and Water
Conservation for the State of New South Wales [2002] FCA 1517 (at [14]) per Stone J; and
Butchulla People v State of Queensland (2006) 154 FCR 233 (at [22]) per Kiefel J.
8 By the definition section (s 253 NTA) ‘claimant application’ and ‘native title claim
group’ are defined respectively as follows:
claimant application means a native title determination application that a native title claim group has authorised to be made, and, unless the contrary intention appears, includes such an application that has been amended. … native title claim group means: (a) in relation to a claim in an application for a determination of native title made
to the Federal Court-the native title claim group mentioned in relation to the application in the table in subsection 61(1)
…
9 It follows that the orders sought by the Replacement Applicant would require
amendment of the native title determination application. There is power to make such an
amendment under r 8.21 and r 34.102 of the Federal Court Rules 2011 (Cth) but that general
power is subject to the specific provisions imposed by s 64 and s 66B NTA: see Anderson v
State of Western Australia (2003) 134 FCR 1 (at [36]) per French J (as his Honour then was).
3. THE EVIDENCE
3.1 The 2011 Meeting
10 These reasons do not deal at length with the 2011 meeting. There had been some
debate as to the appropriate approach to determination of the validity of the resolutions
passed at the 2011 meeting by those who support the Wirlu-Murra Yindjibarndi Aboriginal
Corporation (WMYAC). Any application pursuant to those resolutions was, in turn, opposed
by those represented by the Yindjibarndi Aboriginal Corporation (YAC).
- 5 -
11 Those advising and representing the WMYAC group initially sought that the 2011
meeting be dealt with before the 2012 meeting. I have considered some evidence about that
meeting together with other evidence relied upon in opposition to this motion. However, I
declined to pursue the course of considering the 2011 meeting first.
12 It appeared clear to me that if the resolutions passed at the 2012 meeting were valid
and had the effect for which the Replacement Applicant contends, they would necessarily
displace the resolutions which occurred at the 2011 meeting, making analysis of the process
of that meeting entirely redundant.
13 Of course, had the opposition to the 2012 meeting been successful, it would still be
possible to consider arguments for and against the effect of resolutions passed at the 2011
meeting. As it happens, in light of the conclusions I have reached, the 2011 meeting
arguments fall away.
3.2 The 2012 meeting
14 As deposed in the affidavit of Mr Ric West, the Chief Financial Officer of Central
Desert Native Title Services (CDNTS), and independent chairperson of the 2012 meeting,
four principal resolutions were considered at the 2012 meeting, as well as two amendments,
plus one additional proposed resolution. They are annexed to these reasons as Annexure 1.
3.3 Mr George Irving
15 The application is supported by a body of evidence including an affidavit affirmed by
Mr George Irving, solicitor and in-house counsel for the YAC. Mr Irving is the Director of
Legal Services for the Juluwarlu Group Aboriginal Corporation (Juluwarlu). This is a
position which, pursuant to a decision of the directors of the YAC, serves as a solicitor and
in-house legal counsel for YAC.
16 For the Replacement Applicant Mr Irving produces a copy of a notice for a meeting of
the Yindjibarndi native title claim group held on 24 March 2012 at the Community Hall in
Roebourne (the 2012 meeting).
17 The preparation for and procedure at the meeting was particularly thorough. There is
unchallenged evidence that the Language and Archive Manager for Juluwarlu, Ms Lorraine
- 6 -
Coppin, assisted by approximately 20 women including senior Yindjibarndi women and
employees of Juluwarlu, prepared a spreadsheet based on information obtained from
genealogies used in the hearing of the Ngarluma and Yindjibarndi native title claim and
genealogies collected by Radcliffe-Brown and Norman Tindale which showed all known
living descendents of the Yindjibarndi ancestors whose names were published in the notice.
The spreadsheet was subsequently reviewed by Mr Robin Stevens, an anthropologist engaged
by Juluwarlu and used by Mr Stevens as an attendance register for the 2012 meeting to ensure
all persons who attended that meeting were descendents of the Yindjibarndi ancestors as
described in the notice and thereby entitled to vote at the meeting. There were some 180
adults descendents of the Yindjibarndi ancestors described in the notice who attended the
2012 meeting.
18 Proceedings at the meeting were recorded on video and were the subject of DVD
evidence as well as printed transcription accepted in to evidence in the application.
19 Mr Irving was present at the whole of the 2012 meeting and observed the passing of
the resolutions by what he describes as ‘a large majority’ of those 180 attendees:
(a) That the current Applicant, jointly comprising [NC (deceased)], Michael Woodley, Thomas Jacob, Allum Cheedy, Mavis Pat, Sylvia Allen and Aileen Sandy, be no longer authorised to make the Yindjibarndi [No 1] Application or to deal with matters relating to it.
(b) That the members of the claim group named below be authorised to make an
application to the Court for orders under s 66B [NTA] to replace previous Applicant, and, that they be authorised – subject to such of the conditions set out below as are approved at this meeting and by the Court – to make the Yindjibarndi [No 1] Application and to deal with matters relating to it; namely: i. [NC (deceased)]; ii. Thomas Jacob; iii. Stanley Warrie; iv. Allum Cheedy; v. Kevin Guiness; vi. Angus Mack; vii. Michael Woodley; viii. Joyce Hubert; ix. Pansy Sambo; x. Jean Norman; xi. Esther Pat; xii. Judith Coppin; and xiii. Maisie Ingie
- 7 -
20 Mr Irving goes onto explain that the ‘conditions’ mentioned in subpara (b) above that
were approved by a large majority of the 180 attendees were as follows:
(a) The applicant shall appoint YAC to act as agent for the applicant and shall receive legal advice and legal representation from the principal legal officer and in-house counsel for YAC, who shall be the solicitor on the record; and for the avoidance of doubt, no member of the applicant shall seek separate legal representation for or on behalf of the Yindjibarndi [No] 1 native title claim group in respect of the Yindjibarndi No 1 application or any matters relating to it without YAC’s written consent;
(b) The members of the applicant authorised shall not either separately or jointly make any decision about any area of land or waters to do, or agree to do, any act that will affect any area of land or waters without first obtaining informed written consent from the YAC;
(c) The members of the applicant shall not separately or jointly make any decision to hold any further authorisation meeting, for the purposes of s 66B of the NTA without first obtaining informed written consent from the YAC;
(d) In the event that a member of the applicant passes away or is unable, unwilling to remain a member of the applicant or in the event that any member of the applicant breaches the conditions set out above then that member is no longer authorised to make the Yindjibarndi No 1 application and to deal with matters relating to it and the remaining members of the applicant remain authorised to make the Yindjibarndi No 1 application and to deal with matters relating to it.
3.4 Lorraine Coppin
21 Similar detail about the preparatory processes is addressed in an affidavit of
Ms Lorraine Coppin in which she expands on the detail of the methodology of calling the
2012 meeting.
3.5 Mr Stanley Warrie
22 Mr Stanley Warrie is the Chair of YAC. The Replacement Applicant concedes that
his evidence is background information only. As will be seen, I have not relied on the
background information in determining the substantive issue (s 66B NTA). Mr Warrie notes
that the Yindjibarndi No 1 claim was filed on 9 July 2003 by ten members of the
Yindjibarndi people, the society of Aboriginal persons that was the subject of the native title
determination made by Nicholson J in 2005 in Daniel v State of Western Australia [2005]
FCA 536 (the Yindjibarndi determination). Four of the ten members who jointly lodged
the Yindjibarndi No 1 claim have now passed away. On 13 and 14 February 2012, there was
a joint meeting of the members of YAC and the members of the Yindjibarndi No 1 claim
group at the Community Hall in Roebourne to discuss the land use agreement proposed by
Rio Tinto Iron Ore (RTIO) which would affect both the Yindjibarndi determination area and
- 8 -
the Yindjibarndi No 1 claim area. In the course of that meeting YAC was told that two of the
members of the applicant, Ms Aileen Sandy and Ms Sylvia Allen, would not sign any
agreement with RTIO unless certain conditions were met. One of these was that half of all
compensation paid under the agreement would have to be paid to the WMYAC. Mr Warrie
deposes that the WMYAC was set up in November 2010 by about 30 members of YAC
including Ms Sandy and Ms Allen who split away from YAC in August 2010. At a public
meeting on 10 August 2010, they told Mr Warrie and other YAC members and directors that
they were going their own way because they did not agree with YAC’s approach to
negotiations with FMG Pilbara Pty Ltd (FMG).
23 Mr Warrie deposes that there are Supreme Court of Western Australia proceedings
brought on behalf of Ms Mavis Pat, Ms Allen and Ms Sandy against YAC and Mr Warrie to
have a receiver and manager appointed to YAC. Mr Warrie has been the Chairman of YAC
since 2007 when the Yindjibarndi community and the YAC Board decided that YAC should
take responsibility for all heritage surveys and all native title negotiations concerning
Yindjibarndi country. YAC, he says, is the representative body that was chosen by the
Yindjibarndi people to be the Prescribed Body Corporate (PBC) under the NTA to hold
native title rights and interests in trust for the Yindjibarndi people. Since 2007, YAC has also
acted as agent for the applicant. Mr Warrie makes the point that FMG knows YAC is the
agent of the applicant because in June 2007 FMG signed a heritage agreement, the preamble
of which acknowledged the agency of YAC.
24 YAC was advised by FMG that the heritage agreement had been signed and was in
the post. On the strength of that, Mr Warrie says YAC, through Juluwarlu, arranged to do a
heritage survey for FMG before signing the agreement. After the heritage survey was
completed, Mr Warrie was informed by FMG that one of the significant sites which had been
identified during the survey had been bulldozed by FMG. YAC then refused to sign the
agreement after that because it was clear, he said, that the agreement would not protect the
Yindjibarndi sites. FMG, he said, wanted to start negotiations for a land access agreement
over the whole of the Yindjibarndi No 1 claim area which would include a protocol for
heritage surveys. YAC decided to stop doing heritage surveys until those negotiations were
finished and there was a proper heritage protection agreement. The evidence given by
Mr Warrie was that at that time and throughout the next two years the Yindjibarndi
- 9 -
community was united. Everything was decided at community meetings and everybody was
standing together to support the main spokesman, Mr Michael Woodley.
25 Mr Warrie’s evidence was that YAC decided to ‘fight for the right to carry out
religious practices on [our] country’ which meant that it could be necessary to give evidence
about the things that the ‘old law bosses’ had kept secret. The ‘law bosses’ discussed it and
YAC decided to go ahead with the plan because it was clear that keeping the secrets had not
helped when attempts had been made to protect sacred sites in the past. The hope was that a
greater understanding of religious beliefs and practices would lead to a greater respect for the
relationship with country. It was agreed that Mr Woodley should speak for the group.
26 In July 2010, members of the WMYAC started doing heritage surveys for FMG.
Mr Warrie says that afterwards:
FMG held a secret meeting and convinced them that Yindjibarndi wouldn’t be able to prove native title in the Solomon Project area because Yindjibarndi people weren’t going there and if they didn’t start doing heritage surveys for FMG, the country would be gone and they’d get nothing.
27 (I hasten to add specifically that I have certainly not relied on this evidence to resolve
the application before me.)
28 On 8 December 2010, YAC discovered that WMYAC had negotiated a land access
agreement with FMG (the FMG agreement). It affects both the Yindjibarndi No 1 claim
area and the Yindjibarndi determination area. The FMG agreement was negotiated,
Mr Warrie says, without the knowledge or consent of YAC and without the knowledge or
consent of the majority of members of the applicant. Mr Warrie gives evidence that attempts
were made to reconcile with the WMYAC directors in January 2012 at two meetings
arranged by a lawyer who used to work with WMYAC.
29 Mr Warrie deposes that on 8 February 2012 he wrote to WMYAC’s solicitors urging
them on the basis of the two meetings to do everything they could to assist to mediate the
differences. (I am aware also from statements made by both senior counsel that lengthy
attempts have occurred through the Court facilities to attempt to mediate a solution to this
dispute but they did not succeed.) With the breakdown of those attempts, it became
necessary for the Replacement Applicant to pursue this application and organise the meeting.
I do not propose dwelling on that evidence which the respondents object to on grounds of
- 10 -
irrelevance, hearsay and non-disclosure of the source. The issues as they unfolded in the
hearing related to the nature of the authorisation, and if any was actually given at the meeting,
rather than the preparatory aspects of it.
3.6 Mr Ric West
30 As noted above, Mr Ric West, the Chief Financial Officer of CDNTS, was invited as
an independent party to chair the 2012 meeting. Mr West gives evidence that he has chaired
many meetings and, after discussing the nature and requirements of an authorisation meeting
with the chief executive officer and principal legal officer at CDNTS, he decided to accept
the invitation. He performed the task as a volunteer and attended the Community Hall at
Roebourne at approximately 8.00 am on 24 March 2012 remaining in attendance at the Hall
until the meeting concluded, some six or seven hours later.
31 In his affidavit, Mr West deposes that at the start of the meeting Mr Irving explained
to the attendees that in order to provide a choice in respect of an independent chair, he had
invited several people to attend the meeting. However, none of the other invitees had been
able to accept the invitation so he apologised for the absence of choice. In the absence of any
objection being expressed to Mr West taking the position, he took the chair. Mr West
expresses the opinion that no attempt was made by Mr Irving or anyone else, either before or
during the meeting, to influence the way in which the meeting would be conducted. No
objection was made during the meeting in respect of his performance in the role. He was
aware of the division in the claim group because at the commencement of the meeting the
substance of that division was addressed by Mr Irving on behalf of YAC and by
Mr McIntyre SC who spoke on behalf of the WMYAC. Mr West’s evidence is that although
there were clear differences of opinion on a couple of the issues that were discussed and
voted upon in the meeting, there were no incidents of intimidation or abuse and the meeting
proceeded in an orderly manner. Having watched the DVD of the 2012 meeting and having
read the transcript, I can confirm that this assessment by Mr West is entirely correct.
32 Two DVDs were prepared of the meeting, each recording vision from a different
camera. They are copies of the DVDs which have gone into evidence in this application.
Mr West gives evidence that the DVDs and the voting record reflect an accurate record of all
business conducted at the 2012 meeting apart from the two hour registration process at the
commencement of the meeting.
- 11 -
33 Mr West records in his affidavit, and it is supported by the video evidence, that
initially the attendees agreed that since there was no traditional process for deciding matters
of the kind that were to be decided at the meeting, a procedure for voting by ballot should be
adopted. The procedure was set out in the first proposed resolution in the voting record.
However, the first proposed resolution itself was carried on a ‘show of hands’ as it quickly
became apparent that it was uncontentious as between the parties at the meeting. A ‘show of
hands’ vote was also adopted for the second proposed resolution which was to replace the
current applicant on the Yindjibarndi No 1 native title claim because, again, it became
apparent in the discussion regarding the proposal but there was no disagreement. The third
proposed resolution which was to authorise the Replacement Applicant was contentious. A
proposal to amend it was moved and seconded by members from WMYAC. The proposed
amendment then became the subject of a ballot in accordance with the voting procedure that
had been agreed. However, the ballot took approximately two hours to complete and it
became obvious that if the remainder of the meeting proceeded along the same lines, it was
unlikely to be completed before nightfall and might even require another day. Accordingly,
Mr West suggested an alternative procedure which was to vote by way of show of hands but
if there was any doubt about the outcome to determine the vote by way of a division with
people in favour of the motion moving to one side of the hall and people against, moving to
the other side. That procedure was agreed and used for the remainder of voting.
3.7 Mr Philip Davies
34 As Mr Philip Davies, the Administration Manager of Juluwarlu, explains, the agreed
procedure for registration at the meeting that the name of each person who entered the hall
would be checked against the hard copies on the genealogy database. If the person’s name
was in the database, the relevant contact and family connection form would be checked for
accuracy and then placed in a file. If an attendee’s name was not in the database, then the
people at the front desk would assist them to establish their genealogical connections and to
complete a contact and family connection form. Those forms were then checked by an
independent anthropologist, Mr Stevens, and then conveyed to Mr Davies and used to create
a voting register using the Yindjibarndi mailing list as a base. The procedures as designed
were carried out. As the 2012 meeting proceeded, Mr Davies created a record of the
proposed resolutions and voting results, also recording the voting procedure used for each
vote. That document was produced in evidence.
- 12 -
3.8 Mr Robin Stevens
35 Corroborative evidence was given by Mr Stevens. Again, while he gives quite
extensive evidence about the process, there is little on his evidence which appears to be
challenged in the opposition to the application. As he notes, and I confirm from my
observations on the DVD, the YAC and WMYAC representatives addressed each other with
courtesy and with an air of mutual respect. Several comments were made about trying to heal
past rifts and moving forward together. Mr Stevens gives evidence that apart from two
instances of minor disagreement across the floor, the Yindjibarndi people who were at the
meeting conducted themselves in an equally courteous manner. Mr Stevens confirms that
Mr West as chair of the 2012 meeting:
did an excellent job at keeping control and politely giving equal time to ‘for and against’ arguments in relation to motions and amendments’. He also carefully explained the process and asked for an endorsement of the voting process from the 2012 meeting, with a resounding affirmative. In the voting process, though some may have been disappointed with the results, no one openly objected to it and no one contested the respective results.
36 I concur with those observations.
3.9 Mr Michael Woodley
37 Mr Woodley, the Chief Executive Officer of YAC and Chief Executive Officer of
Juluwarlu, affirms that he is a member of the Yindjibarndi people as recognised in the
Yindjibarndi determination and a member of the native title claim group. He refers to a
meeting on 15 February 2012 at the Juluwarlu office in Roebourne involving the YAC Chair,
Mr Warrie, and the directors from which it was subsequently decided that a claim group
meeting should be held which led to the 2012 meeting.
38 Mr Woodley describes the decision-making process in the Yindjibarndi native title
community. Mr Woodley explains that Yindjibarndi country is divided into 13 home areas
called Ngurra. Each Ngurra is the home of the Ngurrarangarli, the human beings whose
spirits come from the Ngurra. Ngurrara is an abbreviation of Ngurrarangarli. According to
the religious beliefs of the Yindjibarndi, the spirits of the Ngurrara come from inside the
Ngurra, belong to the Ngurra and return to the Ngurra after the Yindjibarndi die. Even when
the Yindjibarndi people are physically separated from their Ngurra by their daily activities,
the spirit of each Ngurrara is always connected to his or her Ngurra. Each Ngurra in turn is
divided by a Wurndu (water course) from which the Ngurra gets its name. Each Ngurra has
- 13 -
four parts, one for each of the four social groups known as Galharra. In each Ngurra there are
four ‘bosses’ (Mirduwarra). There is one boss for each of the four Galharra groups. One of
those Mirduwarra, the most knowledgeable, is the boss for the both the Ngurra and the
Ngurrara, namely the Tharngungarli (or Tharngu). The Tharngu is assisted by one of the
other Mirduwarra who is called a Minga-Margu. Because the Minga-Margu is closest to the
Tharngungarli, having spent the most time with him and having learned the most from him,
he is most likely to become the next Tharngu for that Ngurra. The most knowledgeable of all
the Yindjibarndi Tharngu is the Nyambali who is the ultimate to human boss for Yindjibarndi
country.
39 Mr Woodley explains that in the old days decisions about matters that affected
Yindjibarndi country would be made following consultation with the Yindjibarndi people by
the Tharngu and the Nyambali sitting together in what was called the Nyambali-
Tharngungarli. However, this original way of making decisions has changed over the last 20
years or so to make way for more democratic processes. Today decisions concerning rights
and interests in Yindjibarndi country are usually made by consensus at community meetings
after taking advice from the Nyambali-Tharngungarli.
40 As Mr Woodley notes and as will be seen, it is common ground there is no traditional
decision-making process for dealing with an application for a determination of native title.
Under traditional Yindjibarndi law, there was no need for any Yindjibarndi person to claim
rights and interests in their Ngurra because ‘they belong to it and everyone knows that’.
41 Likewise, there is no traditional decision-making process which would allow the
traditional rights and interests of the Yindjibarndi people in Yindjibarndi country to be
recognised by others because Yindjibarndi people have always belonged to Yindjibarndi
country and ‘everyone else already knew this’.
42 Mr Woodley says that since the passing of the NTA, important decisions about
Yindjibarndi native title claims, such as who should be the applicant, have been made by the
Yindjibarndi people at community meetings like the 2012 meeting. Mr Woodley has
attended many Yindjibarndi community meetings over the past five years and has observed
that the issues discussed at those meetings are generally decided by consensus. This is
- 14 -
because more often than not the Yindjibarndi people follow the advice and guidance of the
Tharngu.
43 However, Mr Woodley deposes that on occasions, where there is a division of opinion
as to what should happen, the issue is usually decided by a majority vote. The process
followed at the 2012 meeting to appoint the Replacement Applicant for the Yindjibarndi No 1
claim accords, he says, with the process that was followed to appoint the Current Applicant.
To Mr Woodley’s knowledge and belief, all the members who were authorised to become the
applicant for the Yindjibarndi No 1 claim are members of the Yindjibarndi No 1 claim group.
3.10 Ms Gloria Lee
44 In opposition to the Replacement Applicant’s application, Ms Gloria Lee, Director of
WMYAC, affirmed an affidavit to the effect that she is a member of the Yindjibarndi native
title claim group and that she attended the Yindjibarndi native title claim group meeting on
16 March 2011 at the Fifty Cent Hall. She describes those who attended at that claim group
meeting.
3.11 Mr Allery Sandy
45 Mr Allery Sandy, who is Vice-Chair of WMYAC, also deposes that Yindjibarndi
persons attended the 2011 meeting. He says the number of persons who attended was similar
to the number who attended previous meetings of the Yindjibarndi people, although he does
identify some who attended the 2011 meeting who did not attend the 2012 meeting.
46 He confirms that there is no traditional decision-making process that, under traditional
laws and customs of the Yindjibarndi native title claim group, must be followed to authorise
the making of a native title determination application or application to replace the applicant
or deal with matters arising under such applications. Mr Sandy’s evidence is that in order to
work out the link between the persons who attended the Yindjibarndi meetings and all the
apical ancestors, it is necessary to speak to the elders of the Community and to discuss the
matter with them.
- 15 -
3.12 Mr Paul Aubrey and Mr John Sandy
47 In relation to the 2012 meeting, Mr Paul Aubrey and Mr John Sandy jointly affirmed
an affidavit as members of the Yindjibarndi native title claim group, members of the YAC
and members and directors of the WMYAC. They attended both the 2011 meeting and the
2012 meeting. They confirm that a resolution was passed at the 2012 meeting which would
result in 12 people being authorised to make an application to replace the current applicant
group. Those 12 people, they say, are supporters and members of YAC and opposed the
position that WMYAC was taking at that meeting.
48 The position taken at the 2012 meeting by the WMYAC was that there should be even
representation between supporters of WMYAC and supporters of YAC. The resolution
passed at the 2012 meeting would preclude the authorisation of any of the people whom the
WMYAC board wished to have included in the Replacement Applicant.
49 To give some of the WMYAC members a chance at being appointed as part of the
Replacement Applicant, Mr Aubrey moved a motion as an amendment to the proposed
motion to the effect that the 12 people be nominated one by one from the floor for selection
as members of the Replacement Applicant. That motion was lost, he says, by a vote of 110
against to 69 in favour with one abstention. The vote was conducted by the process of
individual signing off on a list of names, being given a button and placing that button in one
or other of two ballot boxes. With the amended motion being lost, the original motion was
then put to appoint the 12 members of the Replacement Applicant who are YAC supporters.
The motion was declared to be carried on a show of hands by the Chairman without any
count being made. Mr Aubrey and Mr Sandy make the point that those who voted in favour
of the motion to appoint the 12 members were YAC supporters and those who voted against
were WMYAC supporters with the vote being split approximately 60/40.
50 There was then a motion moved by Mr John Sandy to authorise the following
additional people to be members of the Replacement Applicant: Paul Aubrey, Jimmy Horace,
Bruce Woodley, Diana Smith and Sylvia Allen. The purpose of that motion was to add to
that group of people who were supporters of WMYAC group to the 12 authorised. The
motion was put to a vote by show of hands. A division was then called for and those in
favour moved to the left from the perspective of the Chair of the meeting and those against
moved to the right. The motion was declared by the Chair to be lost. The point is made that
- 16 -
those attending the meeting sat on chairs which were divided by an aisle down the centre of
the room. Mr Sandy states that those who supported YAC sat on the right side of the room,
those who supported WMYAC sat on the left, and that when the vote was taken by a show of
hands to the motion, in general, those on the right hand side of the room voted against the
motion and those on the left voted for the motion. In other words, the YAC supporters
opposed the motion and WMYAC supported it.
51 The motion which then followed provided authority to YAC to act as agent on behalf
of the Replacement Applicant with Mr Irving to act as legal representative on behalf of the
Replacement Applicant and for the Replacement Applicant to act with informed consent of
YAC.
52 An additional motion was moved relating to what was to happen when a person
passes away or is unable or unwilling to be a member of the Replacement Applicant. The
motions were passed by a show of hands and the voting pattern was the same as occurred
with the other motions discussed above.
3.13 Additional material going to the dispute
53 Two further affidavits were relied upon by the respondents, namely, a joint affidavit
of Allery Sandy and Aileen Sandy and an affidavit of Mr Cameron Eastwood, solicitor for the
Current Applicant.
54 The affidavit of Mr Eastwood annexes a further DVD recording evidencing in greater
detail the nature of the dispute between the respondents and the YAC. Similarly, the joint
affidavit of Allery Sandy and Aileen Sandy affirmed on 22 August 2012 sets out much of the
history of the personnel, the disputes and annexes a further DVD recording in relation to
those disputes.
55 Much of it relates to dealings with FMG and the litigation which has ensued between
the parties as a result of those disputes.
56 Objection was taken to portions of the affidavits relied on by the Replacement
Applicant detailing the history of the dispute but I have referred to those particulars by way
of background only. In relation to the joint affidavit of 22 August 2012 by Allery Sandy and
- 17 -
Aileen Sandy exhibiting a DVD and two unsworn affidavits and Mr Eastwood’s affidavit
which exhibits a further DVD, I uphold the objections on the grounds of relevance. As is
elsewhere evident in these reasons, the task of the Court is not to question the wisdom or
merits of the group’s decision providing that there has been authorisation within the meaning
of s 251B NTA. While I can accept that there may some relevance about the existence of the
dispute and its nature to the residual discretion to be exercised in relation to the Replacement
Applicant’s application, there is no doubt that there is a dispute and that is freely recognised
by the Replacement Applicant. None of the material in these affidavits would enable me to
resolve that dispute, nor to recognise that it is a genuine dispute based on views strongly held.
None of the detail of that dispute or its foundation is properly admissible in relation to the
issues which require my resolution, even in relation to the residual discretion.
4. ARGUMENTS ADVANCED FOR THE REPLACEMENT APPLICANT
57 By way of overview the Replacement Applicant says the effect of the evidence is that:
The 12 persons comprising the Replacement Applicant are all members of the
Yindjibarndi native title claim group and are Yindjibarndi people;
The Current Applicant is no longer authorised by the Yindjibarndi native title claim
group to make the native title determination application or deal with the matters
arising in relation to that application; and
The Replacement Applicant is authorised by the Yindjibarndi native title claim group
to make the native title determination and deal with matters arising in relation to it.
58 The Replacement Applicant stresses that s 66B NTA is a facilitative provision
directed to maintaining the ultimate authority of the native title claim group in relation to a
native title determination application under the NTA.
59 The argument advanced by the Replacement Applicant is that following the passage
of a series of resolutions at the 2012 meeting, pursuant to s 251B NTA, the native title claim
group resolved that the Current Applicant was no longer authorised by the Yindjibarndi
native title claim group and that it be replaced by 12 named persons drawn from that group as
the Replacement Applicant, together with another member of the Yindjibarndi native title
claim group who passed away after the 2012 meeting but prior to the making of the s 66B
application.
- 18 -
60 The Replacement Applicant accepts it must establish these things:
That there is a claimant application within the meaning of that term in s 61(1) and
s 253 NTA;
That each person jointly comprising the Replacement Applicant is a member of the
Yindjibarndi native title claim group;
That the Current Applicant is no longer authorised by the Yindjibarndi native title
claim group to make the application and to deal with matters arising in relation to it;
and
That the persons comprising the Replacement Applicant are authorised by the
Yindjibarndi native title claim group to make the application and to deal with matters
arising under it.
61 See Anderson (at [39]) and Daniel v State of Western Australia (2002) 194 ALR 278
(at [17]) per French J.
62 It is accepted that there remains a residual discretion, even if those four matters are
satisfied, as to whether the orders for removal and replacement should be made: Daniel
(at [18]).
63 Dealing with each of those four matters, there is no doubt that there is a current
application which was filed on 9 July 2003 and the Replacement Applicant’s interlocutory
application is made within that proceeding. There is also no dispute as to the second issue,
namely, that each person comprising the Replacement Applicant is a member of the
Yindjibarndi native title claim group. That is established on the evidence of Mr Davies and
the evidence of Ms Coppin. It is common ground that there is no relevant process of
decision-making that under the traditional laws and customs of the Yindjibarndi people had
to be complied with in relation to the granting of authorisation. There is no contrary evidence
to that of Mr Woodley referred to above. Indeed, the evidence advanced by the opponents
supports that factual finding which I make. The main area of disputation relates to the
process and mechanisms by which the decisions were reached and recorded at the 2012
meeting.
- 19 -
5. ARGUMENTS IN OPPOSITION TO THE RELIEF SOUGHT
64 The respondents contend that no decision was made at the 2012 meeting which
satisfied the requirements of s 251B NTA.
65 It is argued that it was not determined at the 2012 meeting whether there was a
decision-making process under traditional laws and customs of the native title claim group
that must be complied with or not. Rather, what occurred was that the Chair recited from a
statement projected on the screen that there was not such a process. No decision was made to
that effect.
66 It is submitted that the 2012 meeting did not decide what French J described in
Anderson as being the ‘anterior question’ of whether there was a traditional decision-making
process. Rather, there was an elaborate process by resolution for recording who sought to
vote and noting eligibility to vote, and the method of voting in favour of or against the
resolution by use of a button placed in a ballot box. This process itself was adopted by
resolution conducted by another process, that is, a show of hands. The respondents complain
that the button voting process was used for one resolution only and then the Chair, without
any further vote being taken on the process, adopted various other voting processes including
a show of hands and a division where those in favour moved to the right of the room and
those against, to the left. The 2012 meeting did not, it is contended, at any point settle on any
process by which votes would constitute a decision being made. For example, it did not
resolve that a decision would be by unanimous vote, a special majority or a simple majority.
67 The respondents say that while a majority decision-making process may be adopted,
there must be a decision to adopt that process and it must be done after addressing the
anterior question of whether there is a traditional decision-making process: Anderson
(at [46]). In this instance, it is argued that the persons in the native title claim group did not
authorise anything ‘in accordance with a process of decision-making agreed and adopted’ by
them in accordance with s 251B(b) NTA. This is illustrated by the fact, it is said, that 40% of
those present at the 2012 meeting voted in favour of a process of authorising individuals one
by one to make that application. 60% voted in favour of all 12 proposed members being
considered in one block but this was a process opposed by 40%. The respondents rely on the
observations of Stone J in 'Pooncarie' Barkandji (Paakantyi) People v NSW Minister for
Land & Water Conservation [2006] FCA 25 where her Honour noted (at [22]):
- 20 -
The minutes record that the meeting discussed decision-making methods in the context of the requirements of s 251B of the NTA. The meeting resolved that those present were sufficiently representative of the Claim Group. This is consistent with evidence given by Dr Lum on this point. In addition, those present at the meeting confirmed that when authorising amendments to the claim and dealing with matters arising in relation to the claim there is no particular process of decision-making under traditional laws and customs that must be complied with by the Claim Group. As such, they resolved that decisions at the meeting would be made in the following manner: 1. the decision to be made would be put in the form of a clearly worded written
motion; 2. the motion would be read out to the meeting; 3. the motion must be moved and seconded by members of the group before
being decided; 4. the group’s decision would then be made by a show of hands; 5. a decision of the majority in relation to the motion would be a decision of the
meeting.
68 The respondents note that in P.C. (name withheld for cultural reasons) on behalf of
the Njamal People v State of Western Australia [2007] FCA 1054, Bennett J observed that
each resolution was passed unanimously. In Noble v Mundraby, Murgha, Harris and Garling
[2005] FCAFC 212, the Full Court noted (at [18]) that all persons present voted in favour of
the motion. In Daniel, French J observed there was no dissent expressed (see [34]).
69 Citing the affidavit of Mr Woodley of 22 August 2012, and r 4.10 of the YAC Rule
Book, the respondents in their written submissions contest any assertion that it is usual for
Yindjibarndi people at native title claim group meetings to decide issues by a majority vote
where there is a division of opinion. I note, however, that r 4.10 of the YAC Rule Book is
not in evidence. However, r 4.10 of the WMYAC Rule Book, exhibited to the joint affidavit
of Allery Sandy and Aileen Sandy affirmed 22 August 2012, reads as follows:
4.10 Voting Each member has one vote. The Chair has one vote (if he or she is a member) plus a casting vote. A resolution at a general meeting should be reached by consensus (discussion and agreement). If consensus cannot be reached after a reasonable effort is made, the resolution should be decided by majority vote. A challenge to a right to vote at a general meeting may only be made at the meeting, and must be determined by the Chair, whose decision is final. A resolution can be decided by a majority on a show of hands, unless a poll is demanded … (emphasis added)
70 No objection was taken to the evidence of Mr Woodley, nor was he called for cross-
examination.
- 21 -
71 A fundamental submission for the respondents is that the communal nature of the
process requires that the decision to be made be a communal decision; and that ordinarily
implies a unanimous decision, or a decision without substantial dissent, unless there is a clear
unanimous decision that a particular matter be decided by a majority. In this instance the
authorisation decisions were reached only on a 60/40 split whereas the authorisation decision
at the 2011 meeting was unanimous. This factual submission as to the approximate voting
ratio is correct. The question will be what bearing it has on the resolution.
5.1 Residual discretion
72 As to the residual discretion, the respondents to the application argue that even if the
Court is satisfied that there is, at a technical level, authorisation within the meaning of the
NTA, in an instance such as this where the claim group is plainly factionalised and the
authorised applicant group has the authority of only one of the two factions, then the
applicant does not have the authority of the native title claim group as a whole. The
respondents to the application refer to Holborow v State of Western Australia [2002] FCA
1428, where French J considered it to be significant in the exercise of the discretion that one
member only of the applicant group had ‘fallen out with most of the other members of the
native title claim group’ (at [51]). The discretion was exercised favourably as his Honour
described the majority as being the ‘overwhelming majority’ (at [4]). Similarly, in Daniel
there was a single only dissentient who had not participated in group meetings.
73 What is stressed, with some persuasive force, is that in the present case it is not one
member of the applicant group or a small dissentient minority but a substantial number of the
native title claim group and a significant portion of them. The obvious difficulty to which the
respondents direct attention is that a decision to replace the Current Applicant with the
Replacement Applicant as proposed by resolution three of the 2012 meeting would
effectively place one of the two factions of the native title claim group in control of all
decisions concerning the native title application through the agency of YAC. That would
disenfranchise the 283 members of the WMYAC such that the management of the claim by
YAC in the absence of any representation of WMYAC among the applicant group would
have potential, particularly in the present circumstances of the factional dispute, to result in
decisions of YAC ‘oppressive to, unfairly prejudicial to or unfairly discriminatory against the
283 members of the native title claim group who have aligned themselves with WMYAC’.
- 22 -
74 The respondents say that the best opportunity to resolve the stalemate is if the whole
applicant group has the general support of the native title claim group by representing both of
the factions in dispute. It is argued that if the status quo is maintained in relation to the six
remaining members of the Current Applicant, it is representative of the two factions. It
would be open for them to arrive at a compromise with the assistance of a mediator if
necessary which results in them representing the interests of the native title claim group as a
whole.
6. CONSIDERATION
6.1 Some general matters
75 The main areas of dispute centre as to the processes and the future effect if the
application succeeds.
76 As to the processes adopted within the 2012 meeting, the Court is not concerned with
the merits or wisdom of the native title claim group’s decision. The Court’s focus it is on
whether the correct procedure in relation to authorisation in accordance with s 251B NTA has
been followed: see P.C. per Bennett J (at [39]); Roe v State of Western Australia (No 2)
[2011] FCA 102 (at [12]) per Gilmour J.
77 As summarised by the Replacement Applicant:
The second resolution was passed by majority vote through a show of hands and this
was a process in which most of those in attendance, if not all, participated.
The third resolution was passed by majority vote through a show of hands on the
same basis and, again, most, if not all, of those in attendance participated.
The resolution to add further persons to the Replacement Applicant was moved and
seconded after the process of voting by way of a show of hands had been adopted by
those present at the 2012 meeting for the second and third resolutions.
78 In summary, the following appear to be the central specific issues:
- 23 -
6.2 Was a determination necessary at the 2012 meeting about the applicability of a traditional decision-making process?
79 In my view the answer to this is no. It is common ground that there was no such
process for meetings.
80 It is also not necessary that an anterior process for decision-making is agreed or
adopted before the members of the native title group can validly resolve to remove an
applicant at a native title determination application. The Full Court (North, Weinberg and
Greenwood JJ) in Noble (at [18]) observed:
The matter was then put to the vote. On the basis of this evidence, it was open to his Honour to conclude that by voting on the motions, those present agreed to a process of authorisation under s 251B(b) by a vote of all the members of the native title claim group. Section 251B does not require proof of a system of decision-making beyond proof of the process used to arrive at the particular decision in question. The section accommodates a situation where a native title claim group agrees to follow a particular procedure for a particular decision even if other procedures are normally used for other decisions. Nor does s 251B require a formal agreement to the process adopted for the making of a particular decision. Agreement within the contemplation of s 251B may be proved by the conduct of the parties. There was evidence in this case that the claim group conducted itself at the meeting on the basis that it agreed to a vote by the members of the group to determine the question of authorisation. All persons present voted in favour of the motion. Nobody is recorded as leaving the meeting or refusing to vote or in any other way conducting to indicate dissent from the course adopted. There was thus evidence from the conduct of the claim group on which the primary judge could base his conclusion that the requirements of s 251B were satisfied. (emphasis added)
81 See also Roe (at [14] and [15]) where Gilmour J said:
14 Although a meeting to replace an applicant should be attended by persons fairly representative of the claim group, authorisation can nonetheless be validly given by a small percentage of the whole claim group provided that the process leading to that authorisation has been appropriately notified and conducted. In Coyne v Western Australia [2009] FCA 533, for example, a meeting of 72 people (including 29 people opposed to its outcome) was able to authorise the change of applicant for a broader claim group of between 5,000 and 20,000. His Honour, Siopis J at [51] concluded that because the meeting had been widely notified, including that the meeting could consider changing the applicant, it could be inferred that:
Those who decided not to attend the meeting were content to abide by any decision made by those who did attend the meeting and … accordingly, the decisions made at the meeting were the legitimate binding expression of the view of the … claim group as a whole.
15 Where there is no accepted law or custom within a claim group relevant to authorisation, for example, due to conflicting practices within the group, then s 251B(b) would apply to the issue of authorisation: Combined Gunggandji Claim v Queensland [2005] FCA 575 and affirmed on appeal Noble v Murgha [2005] FCAFC 211. This also applies where some parts of a claim group assert customary decision-
- 24 -
making processes, but that is not the law or custom of the whole group: Butchulla People v Queensland (2006) 154 FCR 233 at [30]. In such circumstances, the adoption of a majority vote for making decisions has been accepted in numerous cases: Daniel at [36]; Holborow v Western Australia [2002] FCA 1428; Pooncarie Barkandji (Paakantyi) People v NSW Minister for Land & Water Conservation [2006] FCA 25; and Njamal People v Western Australia at [32].
82 It would be pointless to debate or resolve what is common ground. The Chair who
conducted the meeting with great care and patience left ample opportunity for those who held
a different view, including senior counsel for the respondents to the application, to express an
opposing view. Such a view was not expressed as it did not exist.
6.3 To what extent is it a requirement of the NTA that there is a resolution about the decision-making process or processes used at the 2012 meeting?
83 As to the question whether the 2012 meeting settled on any process by which votes
would constitute a decision being made, for instance that decisions should be made by
unanimous votes, special majority or simple majority, in my view, the 2012 meeting in
practical effect did settle such matters.
84 The Replacement Applicant submits, and I accept, that at the meeting it was agreed
and the meeting proceeded on the basis that the decision would be by simple majority. By
resolution one it was agreed that the vote was a vote of all the members of the native title
claim group present at the meeting. This rules out a decision by ‘absolute majority’ being a
vote by a majority of all of the votes entitled to be cast if all members were present and voted
(see AD Lang, Horsley’s Meetings: Procedure, Law and Practice (LexisNexis Butterworths,
6th ed, 2012 (at [14.16])). It also rules out a decision of any particular category of native title
members such as, for example, a decision being made by the elders. At no time was there
any specification of a requirement different to the general principle that requires a mere
majority of votes of persons in attendance: see ES Manger, Joske’s Law and Procedure at
Meetings in Australia (Lawbook Co, 10th ed, 2007) (at [10.30]) and Horsley’s Meetings
(at [14.10], [14.15] and [14.17]). There was no requirement for any special majority and
certainly no suggestion at any point that voting should be unanimous.
85 To the extent that there was a requirement for a show of hands, this is, of its nature, a
process which is meant to be by simple majority. As noted in Horsley’s Meetings (at [14.12])
the show of hands is defined at common law as being:
- 25 -
each person present and entitled to vote has one vote and one vote only, and those who wish to vote do so by a show of hands … Under this method the voting does not take into account variations and sizes of shareholdings or other entitlements, nor the presence of representatives of absent persons entitled to vote. (citations omitted)
86 The adoption of the button and the disc system on one resolution was a simple system
of counting all the buttons and discs cast by the eligible members present at the time of
voting’. Clearly, this was a simple majority. Finally, the division following the show of
hands was again plainly a simple majority clarification.
87 All of this is abundantly evident from examining the DVD of the 2012 meeting. No
one objected on any occasion to the manner in which the Chair took the vote, nor to his
declaration as to the result, notwithstanding that the respondents to the application had legal
representation present at the 2012 meeting including experienced senior counsel.
88 The respondents to the application have also raised the question as to whether it was
permissible to ‘agree to and adopt’ more than one vote taking process. There is no doubt that
that process is permissible. It is entirely customary for the chair of a meeting to take a vote
by a show of hands in the first instance before proceeding to a poll to clarify the position.
Taking those measures was simply one example of the very considerable care that the Chair
took in the conduct of the 2012 meeting. Nothing more needs to be said about this topic
other than the fact that all parties proceeded without any form of objection at the time to the
process that the Chair indicated would be adopted.
89 It was not suggested that the Chair acted in any imperious manner imposing his will
but simply that the Chair made the decisions as to the voting mechanisms rather than those in
attendance. The respondents argue that although the Chair consulted, he did not take a vote
on how votes should be taken and ultimately he made his own decisions. For all the reasons
previously expressed, I cannot accept this submission. The whole purpose of having a chair,
particularly an independent chair, is to ensure that the meeting progresses in a functional
manner. It was necessary in the first resolution for the Chair to be proactive about the
method of making a decision about how to vote. No objection was expressed, no other
suggestions were made and no queries were raised as to how the first vote could or should
proceed. It proceeded in an entirely conventional and appropriate manner.
- 26 -
90 Having done so, the members agreed to and adopted that process of voting through
their participation and putting up their hands. The resolution was carried unanimously.
Subsequently, as the DVD shows, where there was a departure from the show of hands, it
was at the suggestion of others rather than the Chair. It was a sensible suggestion. In other
words, where the vote was close, there would be a more accurate method of recording the
vote adopted.
91 The commendable temperament and patience of the Chair makes it very clear that
whenever propositions were put to the 2012 meeting, there was ample opportunity for
questioning or disagreement with the methods of voting proposed. There was no relevant
dissent as to the process.
92 The voting in respect of the second and third resolutions was participated in by all or
at least a significant proportion of those in attendance at the 2012 meeting including those
who voted against the third resolution. In this regard, the procedure adopted was relevantly
similar to that in Anderson. Despite variations in the method of vote counting used over the
course of the 2012 meeting, each vote was determined by a process of majority decision-
making. The central question is whether the persons who attended the 2012 meeting had an
opportunity to fully participate in the decision-making process.
93 In my view, there was no requirement under the NTA for an express resolution on this
topic providing that the topic was clearly discussed at the 2012 meeting and there was ample
opportunity for an alternative view to be expressed. Having examined the DVD and to a
lesser extent, having considered the transcript, it is quite clear in my view that the Chair of
the meeting, while recording that there was no traditional decision-making process,
conducted the meeting in a manner which gave the utmost opportunity for any person to
express a contrary view on that topic. No person sought to do so.
94 In my view, it is patently clear from carefully viewing the DVD of the 2012 meeting
and reading the transcript that those present accepted the form of decision-making proposed
both generally and specifically in each instance where there was any departure. As
previously noted, there was ample opportunity for persons present to object to the process
which was proposed by the independent and careful Chair. There was no shortage of
- 27 -
willingness from those in attendance to contribute or participate in other areas of discussion.
I infer that the process of decision-making in each instance was accepted and agreed.
95 It appears also to be suggested that the decision-making process adopted needs to be
agreed or adopted unanimously or without substantial dissent. I do not accept that the
decision-making process needs to be adopted unanimously. On any view of the matter, the
decision-making process was reasonable and I repeat my observations about the opportunity
for those present to object to it.
96 It is a recurring theme for the respondents to the application that the majority was too
slim and not only had majority decision-making not been properly agreed, but that it required
agreement by all people or almost all people. I do not consider this to be the case. In Coyne
v State of Western Australia [2009] FCA 533, a meeting of 72 people was held to be able to
authorise the replacement applicant where 29 people opposed the motion. Given the division
present within the Yindjibarndi native title claim group, to suggest that unanimous or near
unanimous approval of the decision-making process was required would ‘make it extremely
difficult if not impossible for a claimant group to progress a claim’: see Lawson (at [25]) per
Stone J and P.C. (at [22]) per Bennett J.
97 The absence of dissent or even a recorded opposition to the process, either from
laypersons or from any of the experienced legal representatives in attendance, speaks
volumes in my view in support of the inference that is to be drawn.
98 For all those reasons, in my view, all of the technical arguments as to compliance with
the NTA fall away.
6.4 Exercise of a discretion
99 This issue is more difficult. As I have previously observed, the authorities make it
clear that the Court’s consideration is not directed to the wisdom of the decision made by the
native title group but rather as to whether the process satisfies the requirements of the NTA.
Nevertheless, there is a residual discretion and the submissions made for the respondents to
the application actively engage the factor which might in a certain case stand in the way of
Replacement Applicant succeeding.
- 28 -
100 The respondents to the interlocutory application argue in substance that there should
be joint representation of each of the factions by the Replacement Applicant. This highlights
a difficult issue and I note the submission for the respondents that the road ahead, if this
application succeeds, may not be smooth and may not satisfy the requirements of all
members or the claim group.
101 The Replacement Applicant points to the fact that this is often the case. The adoption
of a majority vote for making decisions has been accepted in numerous cases, for example, in
Roe (at [14] and [15]), Lawson (at [25]) and Coyne (at [8], [33] and [34]). It has become
regrettably common and a serious impediment to the general advancement of native title
claims that there are competing factions within claimant groups. In Roe (at [134]) Gilmour J
said:
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.
And in ‘Pooncarie’ (at [36]) Stone J said:
For the above reasons, I will make the orders sought in the amended notice filed on 13 December 2005. However, it is pertinent to note that in making these orders the Court is not adversely reflecting in any way on the conduct of Mr Lawson and Mr Johnson. There clearly has been a deeply held disagreement within the Claim Group and this has been resolved in accordance with the provisions of the NTA. As was discussed at the 1 October meeting, an order made under s 66B(2) of the NTA does not remove Mr Lawson and Mr Johnson from the Claim Group, nor does it affect their standing according to traditional law and custom. As members of the Claim Group both will continue to have the opportunity to participate in discussions as to the future conduct of the native title claim and it is to be hoped that they will avail themselves of the opportunity to do so.
102 In Coyne (at [24]) Siopis J observed:
In my view, the respondents’ contention cannot be accepted. There is no provision in the Act which provides that the applicant must be comprised of representatives from each of the family groups within the claim group.
103 There is a countervailing argument. Although it would not be supported by the
minority, whom the respondents represent, the majority at the 2012 meeting appear to have
recognised in their voting that the inclusion of some of the dissenting group as members of
- 29 -
the Replacement Applicant would have perpetuated the risk of the current serious stalemate
continuing.
104 I must say that I accept the submission of the Replacement Applicant that a
consideration of the DVD makes it clear that the native title group as a whole has put its trust
and authority in the Replacement Applicant.
105 I should also record that numerous attempts have been made to mediate the dispute
between the two factions. Those attempts have been time consuming, expensive and, of
course, charged with emotional and other considerations. A decision has to be made as to
whether the fact that one minority group, albeit a substantial minority, will not be represented
in what would be the Replacement Applicant is sufficient a reason to refuse the application.
106 Although considerations are finally balanced, in my view, the time has come for the
claim to move on. The 2012 meeting was entirely professional, balanced and careful. There
is no technical reason why the Replacement Applicant should not succeed in their application
and the potential disharmony between the two groups is something which is unlikely to be
resolved simply by refusing the application.
7. CONCLUSION
107 For all those reasons, I am satisfied that the Replacement Applicant should succeed in
its application. I will order that within seven days, the Replacement Applicant file a minute
of final orders reflecting these reasons for judgment.
108 As a final matter, I expressly reiterate that this conclusion is in no way influenced by
a variety of remarks made on both sides but perhaps more strenuously by the Replacement
Applicant and, in particular, Mr Woodley in the 2012 meeting as to the circumstances and
content of negotiations between third parties (particularly FMG) and the Current Applicant.
There is no independent admissible evidence on that topic at all. This judgment is purely
directed to the question of whether the Replacement Applicant has discharged its onus of
proving authorisation at the 2012 meeting. For the reasons expressed above, the
Replacement Applicant has done so.
I certify that the preceding one hundred-eight (108) numbered
- 30 -
paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice McKerracher.
Associate:
Dated: 12 February 2013
- 31 -
ANNEXURE 1
(a) Resolution 1 - Voting Method
Under the traditional laws and customs of the Yindjibarndi people decisions concerning
rights and interest in Yindjibarndi country are made by consensus at community meetings
after hearing from the Nyambali - Tharngungarli; however, there is no traditional decision-
making process for dealing with an application for a determination of native title. In light of
the recent discord in the community surrounding the Yindjibarndi No 1 application, it is
proposed:
That each resolution considered today be decided by ballot in the following manner:
The people who are eligible to vote are the people who are 18 years of age or older
and are descended from the Yindjibarndi ancestors who are listed on the meeting
Notice. Each person who is eligible to vote will be included on a voting register -
which will be an excel spreadsheet on a computer and printed out so people can see
who is eligible to vote.
Resolutions will be put front the floor by way of a mover and a seconder - these will
be written up projected on a screen. The resolutions may then be discussed; and,
anyone who wishes to speak for or against will be given the opportunity - and then be
put to a vote.
The people who are registered to vote will then be asked to line up single file and
come to a voting table set up in the hall - if they are an eligible voter they will be
given one button/disk which then can then place in one of two boxes - the boxes will
be marked 'YES - I support this ... resolution' or 'NO - I do not agree with this
resolution'. If they do not place their button/disk in one of the boxes then they will be
deemed to have abstained from voting each person will be ticked off as they reach the
table - the voter will also sign the voting register to indicate they have made their
vote.
The registered voter list will be checked to see if anyone who is eligible hasn’t voted -
those people will be given the opportunity to vote - if they don't vote then they will he
deemed to have abstained from voting.
- 32 -
Each of the buttons/disks will be counted; and the votes will be decided in the
affirmative or negative - and the outcome will be recorded on the spreadsheet and in
the minutes.
If people come in late to the meeting, and they are deemed eligible to vote, they will
be allowed to vote on any resolutions that have not yet been voted upon, but not on
resolutions that have already been passed or rejected.
Moved: Gabrielle Cheedy
Seconded: Kasey Cheedy
Motion Carried: By show of hands
(b) Resolution 2 - Replacing the Current Applicant
Since the Yindjibarndi No 1 native title determination application WAD 6005 of 2003 … was
lodged in July 2003, some of the members of the applicant have passed away; and, more
recently there has been a division between the remaining members; accordingly, it is
proposed:
That the current applicant, jointly comprising [NC (deceased)], Michael Woodley, Thomas
Jacob, Allum Cheedy, Mavis Pat, Sylvia Allen and Aileen Sandy, be no longer authorised to
make the Yindjibarndi No 1 application or to deal with matters relating to it.
Moved: Margaret Read
Seconded: Paul Aubrey
Motion Carried: By show of hands
(c) Resolution 3 - Authorisation of New Applicant
That the members of the claim group named below be authorised to make an application to
the Court for orders under s 66B [NTA] to replace [the] previous applicant; and, that they be
authorised - subject to such of the conditions set out below (in proposed resolution 4) as are
approved at this meeting and by the Court - to make the Yindjibarndi No 1 application and to
deal with matters relating to it; namely:
i. [NC (deceased)];
- 33 -
ii. Thomas Jacob;
iii. Stanley Warrie;
iv. Allan Cheedy
v. Kevin Guiness;
vi. Angus Mack;
vii. Michael Woodley;
viii. Joyce Hubert;
ix. Pansy Sambo;
x. Jean Norman;
xi. Esther Pat;
xii. Judith Coppin; and
xiii. Maisie Ingie.
Moved: Bigali Hanlon
Seconded: Jane Cheedy
(d) Proposed Amendment to Proposed Resolution 3
That the members of the claim group named below be authorised to make an application to
the Court for orders under s 66B [NTA] to replace previous applicant; and, that they be
authorised individually, that is as individuals, one by one.
Moved: Paul Aubrey
Seconded: Allery Sandy
Vote by way of ballot for proposed amendment to proposed resolution 3. Results, as counted
by Ric West, under the scrutiny of Greg McIntyre SC and George Irving:
Abstain I
No 110
Yes 69
(Confirmed: that 180 registered voters signed the Voting Register and their cast ballots)
- 34 -
Motion defeated
Proposed Resolution 3 (again put in its previous form):
As Moved: Bigali Hanlon and
As Seconded: Jane Cheedy
Motion Carried: By show of hands.
(e) Proposed Additional Resolution [3A]
That this meeting authorise the following additionally named people to be members of the
applicant authorised to make and deal with … the application, namely: Paul Aubrey, Jimmy
Horace, Bruce Woodley, Diana Smith and Sylvia Allen.
Moved: John Sandy
Seconded: Maudie Jerrold
Motion Defeated: By show of hands and division
(f) Proposed Resolution 4 - Conditions on Authorisation
Although YAC acts as the PBC and Trustee for the Yindjibarndi people, only in respect of
the Yindjibarndi determination area, YAC's mandate to act for and on behalf of the
Yindjibarndi people as a representative institution is broader than just carrying out
responsibilities imposed under the [NTA]. YAC's objectives require YAC to protect the
traditions, laws, customs and language of the Yindjibarndi people and to do so in accordance
with the traditional laws, customs and religious beliefs of the Yindjibarndi people. In order
to ensure the applicant acts consistently with YAC, it is proposed that:
a. the applicant shall appoint YAC to act as agent for the applicant and shall receive
legal advice and legal representation from the principal legal officer and in-house
counsel for YAC, who shall be the solicitor on the record; and, for the avoidance of
doubt, no member of the applicant shall seek separate legal representation for or on
- 35 -
behalf of the Yindjibarndi No 1 native title claim group in respect of the Yindjibarndi
No 1 application or any matters relating to it without YAC 's written consent.
b. the members of the applicant authorised today shall not, either separately or ,jointly,
make any decisions about any area of land or waters or do, or agree to do, any act that
will affect any area of land or waters without firs! obtaining informed written consent
from the YAC.
c. the members of the applicant authorised today shall not, separately or jointly, make
any decision to hold any further authorisation meeting, for the purposes of a s 66B of
the [NTA], without first obtaining informed written consent from the YAC.
Moved: Michelle Broun
Seconded: Lyn Cheedy
Motion Carried: By show of hands
(g) Resolution 5
In order to ensure that the applicant retains authority to make the Yindjibarndi No 1
application and to deal with all matters relating to it, in the event that individual members of
the applicant pass away, or are no longer able or willing to remain members of the applicant;
or in the event that the individual members of the applicant breach the conditions set out
above (in Proposed Resolution 4), it is proposed that:
In the event that a member of the applicant passes away or is unable or unwilling to remain a
member of the applicant; or in the event that any member of the applicant breaches the
conditions set out above (in Proposed Resolution 4), then that member is no longer authorised
to make the Yindjibarndi No 1 application and to deal with matters relating to it and the
remaining members of the applicant remain authorised to make the Yindjibarndi No 1
application and to deal with maters relating to it.
Moved: Pansy Sambo
Seconded: Bigali Hanlon
Motion Carried: By show of hands