FEDERAL COURT OF AUSTRALIA Brown v State of Western Australia (No 2) [2003] FCA 556 NATIVE TITLE – determination of native title – prescribed body corporate – requirements for determination that prescribed body corporate holds native title rights and interests in trust – requirements of Native Title (Prescribed Bodies Corporate) Regulations 1999 – membership requirements – membership limited to native title holders – membership of proposed prescribed body corporate open to Traditional Owners – definition of Traditional Owners – congruent with native title holders – suggested amendment to align text of membership requirement in association rules with class of native title holders described in determination – current membership requirement nevertheless complies – determination made under s 56. Native Title Act 1993 (Cth) s 56, s 59 JIMMY BROWN ON BEHALF OF THE KIWIRRKURRA PEOPLE v THE STATE OF WESTERN AUSTRALIA AND OTHERS WAG6019 OF 1998 FRENCH J 4 JUNE 2003 PERTH IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY WAG6019 OF 1998 BETWEEN: JIMMY BROWN ON BEHALF OF THE KIWIRRKURRA PEOPLE APPLICANT AND: THE STATE OF WESTERN AUSTRALIA FIRST RESPONDENT TELSTRA CORPORATION LIMITED SECOND RESPONDENT AURORA GOLD (WA) PTY LTD THIRD RESPONDENT JUDGE: FRENCH J DATE OF ORDER: 4 JUNE 2002 WHERE MADE: PERTH THE COURT ORDERS THAT: Pursuant to sections 55 and 56 of the Native Title Act 1993 (Cth) the Court determines that Tjamu Tjamu (Aboriginal Corporation) is to hold the rights and interests from time to time comprising the native title the subject of the determination made on 19 October 2001 in trust for the common law holders identified in the said determination. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY WAG6019 OF 1998 BETWEEN: JIMMY BROWN ON BEHALF OF THE KIWIRRKURRA PEOPLE APPLICANT AND: THE STATE OF WESTERN AUSTRALIA FIRST RESPONDENT TELSTRA CORPORATION LIMITED SECOND RESPONDENT AURORA GOLD (WA) PTY LTD THIRD RESPONDENT JUDGE: FRENCH J DATE: 4 JUNE 2002 PLACE: PERTH REASONS FOR JUDGMENT ON NOMINATION OF PRESCRIBED BODY CORPORATE 1 On 19 October 2001, I made a determination of native title in these proceedings by consent. Section 225 of the Native Title Act 1993 (Cth), by its definition of a determination of native title, requires that it include a determination of: '(a) who the persons, or each group of persons, holding the common or group rights comprising the native title are; …' 2 In this case the native title holders were identified in the consent determination thus: '3. The native title rights and interests are held by the Kiwirrkurra people as the common law holders of the native title rights and interests. The Kiwirrkurra people are those people described in the Second Schedule.' The Kiwirrkurra People were described in the Second Schedule thus: 'The Kiwirrkurra people are: those people who hold in common the body of traditional law and culture governing the Determination Area and who hold native title rights and interests in the Determination Area at the following three levels: (a) The total group level: Here all the Kiwirrkurra people hold in common the native title rights (amounting to ownership) of the total land area of the Determination Area. This is the most important level of the system, for in the final analysis the total group is the decision-making body, and the rights of the total group in the overall land area are the over-riding ones. (b) The individual level: Here each individual among the Kiwirrkurra people has his or her particular rights in individual places in the Determination Area. For each individual, such places may be concentrated in a certain part of the Determination Area or they may be in different parts of it. These rights of the individual may have been obtained directly (by conception, birth and the like) or by virtue of a direct connection of one or more of that person's antecedents. The total group of Kiwirrkurra people must take into account the individual level of connection in any instance of the exercise of native title rights. (c) The local group level: Here the Kiwirrkurra people may be seen as belonging to a set of local groups each of which is associated with a particular localised area within the Determination Area. The membership of the local groups comprises the bilateral descendants of an antecedent set of siblings which is associated with the area concerned. There are twenty such local groups among the Kiwirrkurra people, and the sets of antecedent siblings from which these groups derive is set out here. As is the case with the individual level of connection, the total group of Kiwirrkurra people must take into account the local group level of connection in any instance of the exercise of native title rights.' There were then set out in the Second Schedule the names of the antecedents of local groups which groups were numbered 1 to 20. There was a total of 140 persons identified by their Aboriginal names under the various group designations. 3 Other orders were made at the time of the determination relevant to the nomination of a prescribed body corporate. These were in the following terms: '2. Within three months of the date of this determination coming into effect, a representative of the common law holders of the native title rights and interests be requested to indicate whether they intend to have the native title rights and interests held in trust and if so by whom. They are invited to do so by: (a) nominating in writing to the Federal Court a prescribed body corporate to be trustee of the native title rights and interests; and (b) including within the nomination the written consent of the body corporate. 3. If a prescribed body corporate is nominated in accordance with Order 2, it will hold the native title rights and interests described in Order 1 in trust for the common law holders of the native title rights and interests. 4. If a prescribed body corporate is not nominated in accordance with Order 2, the native title rights and interests described in Order 1 will be held by the Kiwirrkurra people (as defined in the determination) in respect of the determination areas as the common law holders of the native title rights and interests. 5. If a prescribed body corporate is not nominated in accordance with Order 2 and native title is therefore held by the Kiwirrkurra people as the common law holders of the native title rights and interests in accordance with Order 4, then the matter is to be relisted by the Registrar in order that the Court can consider the making of orders in accordance with section 57(2) of the Native Title Act. 6. Until such time as there is a registered native title body corporate in relation to the determination area, any notices required under the Native Title Act or otherwise to be served on the common law holders may be served upon the Ngaanyatjarra Council Aboriginal Corporation, and such service shall be deemed to be sufficient.' Subsequently a number of orders were made extending the time for the nomination of a prescribed body corporate. Those orders were made on 21 December 2001, 17 June 2002, 18 November 2002, 19 March 2003 and 29 April 2003. Their combined effect was to extend the time for nomination of the prescribed body corporate to 29 May 2003. 4 On 19 May 2003, an affidavit was filed by the applicant, Jimmy Brown, being authorised by and a representative of, the common law holders of the native title rights and interests, nominating Tjamu Tjamu Aboriginal Corporation ("the Association") as the prescribed body corporate for the purpose of s 56(2)(a) of the Native Title Act, to hold the native title in trust for the common law holders. He exhibited to his affidavit a written consent of the Association to be the trustee of the native title rights and interests the subject of these proceedings. He also exhibited the Certificate of Incorporation of the Association under the Aboriginal Councils and Associations Act 1996 and the Rules of the Association. In a separate affidavit he deposed that he is the Chairperson of the Kiwirrkurra community and has been the registered applicant for the Kiwirrkurra claim. He said he has been authorised to nominate the Association as the prescribed body corporate. The authority was given to him at a meeting of the common law native title holders on 9 May 2003. He also deposed that the authority was given to him in accordance with the traditional laws and customs of the Kiwirrkurra people. Another affidavit by Ann-Sophie Deleflie, the Acting Principal Legal Officer of the Ngaanyatjarra Council Native Title Representative Body, deposed to the convening of a meeting of common law native title holders held on 7 November 2002 at which they resolved to have their native title rights and interests held by a prescribed body corporate acting as trustee and finalised the rules of the proposed association. She attended the meeting held on Friday, 9 May 2003 also attended by Mr Brown. At this meeting she noted that the following resolution was passed unanimously by the native title holders present: 'We give our consent for Tjamu Tjamu (Aboriginal Corporation) to be the trustee and to hold on trust on behalf of the Kiwirrkura (sic) people, all the native title rights and interests that we hold in the Determination Area.' She also deposed to the passing of a unanimous resolution authorising Jimmy Brown to nominate the Association to the Federal Court as the prescribed body corporate to hold the native title in trust for the Kiwirrkurra people. 5 The Rules of the Association identify it as an incorporated Aboriginal Association under the Aboriginal Councils and Associations Act 1976 (Rule 3). Its objects include the object of performing the functions of a prescribed body corporate as defined in the Native Title Act pursuant to the requirements of the Act and the prescribed body corporate regulations. The membership clause, cl 8, is in the following terms: '(a) All adult Traditional Owners shall be eligible to be members of the Association; (b) The members of the Association shall be those aboriginal persons who qualify for membership, and apply to the Governing Committee and are approved by the Governing Committee. Whether a person is eligible to be a member is a question of fact to be determined by the Governing Committee in consultation with Traditional Owners according to traditional laws and customs. (c) All members of the Association shall be entitled to attend, speak and vote at all general meetings and are eligible for election or appointment as members of the Governing Committee; (d) A register of members for the time being shall be kept by the Public Officer.' 6 The term "Traditional Owner" is defined in rule 2 as follows: '"Traditional Owner" in relation to the Kiwirrkurra Land means a Kiwirrkurra person who, in accordance with Aboriginal law and tradition has social, economic and spiritual affiliations with, and responsibilities for, the Kiwirrkurra Land or any part of them. A reference to a traditional owner includes a reference to a native title holder.' 7 The term "Kiwirrkurra Land" is also defined thus: '"Kiwirrkurra Land" means (a) all the land vested from time to time in fee simple or by lease in the Association; (b) any land for which the Association has been determined to be, or becomes determined, the prescribed body corporate under section 56 of the Native Title Act.' Statutory Framework 8 Section 55 of the Native Title Act requires the Federal Court, in making a determination, to make the determinations in s 56 (which deals with holding native title on trust) or s 57 (which deals with non-trust functions of prescribed bodies corporate). 9 Section 56 provides: '56(1) One of the determinations that the Federal Court must make is whether the native title is to be held in trust, and, if so, by whom. (2) The Federal Court is to take the following steps in making the determination: (a) first, it must request a representative of the persons it proposes to include in the determination of native title as the native title holders (the common law holders) to indicate whether the common law holders intend to have the native title held in trust by: (i) nominating, in writing given to the Federal Court within a specified period, a prescribed body corporate to be trustee of the native title; and (ii) including with the nomination the written consent of the body corporate; and (b) secondly, if the common law holders give the nomination within the period, the Federal Court must determine that the prescribed body corporate is to hold the rights and interests from time to time comprising the native title in trust for the common law holders; and (c) thirdly, if the common law holders do not give the nomination within the period, the Federal Court must determine that the rights and interests are to be held by the common law holders. (3) On the making of a determination under paragraph (2)(b), the prescribed body corporate holds, in accordance with the regulations, the rights and interests from time to time comprising the native title in trust for the common law holders. (4) The regulations may also make provision in respect of the following matters relating to the holding in trust of the native title rights and interests: (a) the functions to be performed by the body corporate; (b) the nature of any consultation with, or other role for, the common law holders; (c) the circumstances in which the rights and interests may be surrendered, transferred or otherwise dealt with; (d) the determination of any other matter by the Federal Court; (e) the termination of the trust or replacement of the trustee where the common law holders wish the trust to be terminated or the trustee to be replaced; (f) any other matter.' Subsections (5) and (6) are not relevant for present purposes. 10 Section 59 provides: 'The regulations may prescribe the kinds of bodies corporate that may be determined under section 56 or 57.' The relevant regulations are the Native Title (Prescribed Bodies Corporate) Regulations 1999. Regulation 4 provides: '4(1) An Aboriginal association is prescribed for section 59 of the Act if it is incorporated under the Aboriginal Councils and Associations Act 1976: (a) on or after 30 December 1994; and (b) for the purpose of being the subject of a section 56 of 57 determination. (2) An Aboriginal association is taken to be incorporated for the purpose of being the subject of a section 56 or 57 determination only if: (a) all members of the association are persons who, at the time of making of the section 56 or 57 determination, are included, or proposed to be included, in the native title determination as native title holders; ;and (b) the purpose of becoming a registered native title body corporate is set out in the objects of the association; and (c) at all times after the section 56 or 57 determination is made, all members of the association are persons who have native title rights and interests in relation to the land or waters to which the native title determination relates." 11 The requirement of reg 4(2)(b) is met in paragraphs (a) and (b) of the objects of the association set out in r 6. 12 Regulation 4(2)(a) and (c) limit membership of the association to those who are included in the native title determination as native title holders. The term "Traditional Owners" which defines eligibility for membership under r 8 of the Rules of the Tjamu Tjamu Association, is said to "include a reference to a native title holder". On one reading this might suggest that the definition of "Traditional Owners" covers a class wider than that of the native title holders the subject of the determination. In my opinion, however, having regard to the linkage of membership under the definition to social, economic and spiritual affiliation with, and responsibilities for, the Kiwirrkurra Land in accordance with Aboriginal law and tradition, there is no case in which a traditional owner would be other than a native title holder as contemplated by the determination. However in order that the matter should be put beyond doubt, it would be desirable to amend the definition of "Traditional Owner" to coincide with the class of native title holders in the determination. 13 Notwithstanding that suggestion, I am of the opinion that Tjamu Tjamu (Aboriginal Corporation) is a body in respect of which I can make a determination under s 56 and I will so determine as set out in the minute of orders which I now publish. I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice French. Associate: Dated: 4 June 2002 Counsel for the Applicant: Ms A-S Deleflie Solicitor for the Applicant: Ngaanyatjarra Council (Aboriginal Corporation) Counsel for the State of Mr TA Creewel Western Australia: Solicitor for the State of Crown Solicitor for the State of Western Australia Western Australia: Date of Hearing: 29 May 2003 Date of Judgment: 4 June 2003