FEDERAL COURT OF AUSTRALIA Ashwin on behalf of the Wutha People v State of Western Australia [2010] FCA 206 Citation: Ashwin on behalf of the Wutha People v State of Western Australia [2010] FCA 206 Parties: RAYMOND WILLIAM ASHWIN & ORS ON BEHALF OF THE WUTHA PEOPLE v STATE OF WESTERN AUSTRALIA & ORS File number: WAD 6064 of 1998 Judge: SIOPIS J Date of judgment: 11 March 2010 Catchwords: NATIVE TITLE – finding in another proceeding that the applicant in this proceeding was not authorised under s 61 of the Native Title Act 1993 (Cth) – this proceeding not yet ready for trial – whether persons comprising the applicant in this proceeding should pursuant to s 84D(1) of the Act provide evidence of authorisation – whether the Court should pursuant to s 84D(4) permit the matter to be heard and determined despite defect in authorisation Legislation: Federal Court of Australia Act 1976 (Cth) s 31A Native Title Act 1993 (Cth) ss 61, 84D, 84D(1), 84D(2), 84D(3), 84D(4) Cases cited: Harrington-Smith on behalf of the Wongatha People v Western Australia (No 9) (2007) 238 ALR 1 Date of hearing: 4 August 2009 Place: Perth Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 52 Counsel for the Applicant: Mr RI Viner AO QC and Mr N Tolcon Solicitor for the Applicant: Mony De Kerloy Counsel for the First Respondent: Mr TA Creewel Solicitor for the First Respondent: State Solicitor's Office Counsel for the Group 4 Respondents Ms CL Tan (Yugunga‑Nya People): Solicitor for the Group 4 Respondents Yamatji Marlpa Aboriginal Corporation (Yugunga‑Nya People): IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY GENERAL DIVISION WAD 6064 of 1998 BETWEEN: RAYMOND WILLIAM ASHWIN & ORS ON BEHALF OF THE WUTHA PEOPLE Applicant AND: STATE OF WESTERN AUSTRALIA & ORS Respondents JUDGE: SIOPIS J DATE OF ORDER: 11 march 2010 WHERE MADE: PERTH THE COURT ORDERS THAT: 1. The persons comprising the applicant do file and serve by a date to be fixed, such evidence on which they seek to rely to show that the applicant is authorised to bring this native title determination application. 2. The applicant's application for relief under s 84D(4), is dismissed. Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. The text of entered orders can be located using Federal Law Search on the Court's website. IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY GENERAL DIVISION WAD 6064 of 1998 BETWEEN: RAYMOND WILLIAM ASHWIN & ORS ON BEHALF OF THE WUTHA PEOPLE Applicant AND: STATE OF WESTERN AUSTRALIA & ORS Respondents JUDGE: SIOPIS J DATE: 11 march 2010 PLACE: PERTH REASONS FOR JUDGMENT 1 The applicant in this proceeding, WAD 6064 of 1998, claims native title rights on behalf of the Wutha People, over an area of land located in the North-West Goldfields in Western Australia. The area covered by the Wutha claim overlaps geographical areas in respect of which claims for the determination of native title rights have also been made by other persons. One such claim is that made on behalf of the Wongatha People (WAD 6005 of 1998); and another (WAD 6132 of 1998), is that made on behalf of the Yugunga-Nya People. 2 The native title determination claim made on behalf of the Wongatha People was determined by Lindgren J in 2007 (Harrington-Smith on behalf of the Wongatha People v Western Australia (No 9) (2007) 238 ALR 1 (Wongatha)). 3 In the course of determining the Wongatha claim, Lindgren J considered the claim for native title rights made by the Wutha People to the extent that it overlapped the area in respect of which the Wongatha People claimed native title rights. Lindgren J found that the persons comprising the Wutha applicant were not authorised to make the application as required by s 61 of the Native Title Act 1993 (Cth) (the Act). Lindgren J also based his rejection of the Wutha claim in respect of the area comprising the overlap with the Wongatha claim, on other grounds as well. 4 As a consequence of Lindgren J's finding in Wongatha, that the applicant was not authorised to bring this claim for native title rights on behalf of the Wutha People, parties to this proceeding have refused to participate in the mediation process in respect of this claim before the National Native Title Tribunal (the NNTTA). In its report dated 2 December 2008, the NNTTA recommended to the Court that it make an order that mediation cease in the Wutha claim. The report also drew the attention of the Court to the issue of authorisation, and the power of the Court pursuant to s 84D of the Act to consider the issue of authorisation. THE YUGUNGA-NYA APPLICATION THAT THE WUTHA APPLICANT PROVIDE EVIDENCE OF AUTHORISATION 5 Ms Evelyn Gilla and others who comprise the applicant on behalf of the Yugunga‑Nya People in proceeding WAD 6132 of 1998 for the determination of native title rights, have brought this application seeking orders under s 84D(1) of the Act requiring the applicant on behalf of the Wutha People to produce evidence of authorisation. 6 Section 84D(1) and s 84D(2) provide as follows: (1) The Federal Court may make an order requiring: (a) a person who, either alone or jointly with another person, made an application under section 61, to produce evidence to the court that he or she was authorised to do so; or (b) a person who has dealt with a matter, or is dealing with a matter, arising in relation to such an application, to produce evidence to the court that he or she is authorised to do so. (2) An order under subsection (1) may be made: (a) on the Federal Court's own motion; or (b) on the application of a party to the proceedings; or (c) on the application of a member of the native title claim group or compensation claim group in relation to the application. 7 In support of their application, the Yugunga-Nya People contend that they have an interest in having the question of the authorisation of the applicant to bring the native title determination claim on behalf of the Wutha People, dealt with at a preliminary stage. This is because, by reason of the overlap of the areas covered by the Yugunga-Nya claim and the Wutha claim respectively, the Yugunga-Nya People are party to the Wutha claim. Therefore, said the Yugunga-Nya People, if the Wutha claim was programmed to go to trial, the Yugunga-Nya People would have to prepare for, and participate in, the trial of the Wutha claim. The expense and time in preparing for that trial would be significant, and would be unnecessary if the Court was to determine that the applicant was not authorised to bring the native title determination claim pursuant to s 61 of the Act. The Yugunga-Nya People contended that the finding by Lindgren J in the Wongatha claim that the applicant in the Wutha claim was not authorised, meant that the Wutha claim appeared to have no reasonable prospect of success. 8 The Yugunga-Nya People did not seek relief in the application before me that the Wutha claim be dismissed on the grounds that it had no reasonable prospect of success pursuant to s 31A of the Federal Court of Australia Act 1976 (Cth). However, it may be that the application made by the Yugunga-Nya People that the applicant produce evidence of authorisation, is a prelude to the subsequent bringing of such an application, or an application for the dismissal of the Wutha application by reason of the absence of authorisation, relying upon some other ground. 9 The first respondent to the Wutha claim, the State of Western Australia, supported the application by the Yugunga-Nya People. 10 The Wutha applicant contended, however, that the Court should exercise its discretion under s 84D(4) of the Act to permit its application for the determination of native title rights, to proceed to trial, notwithstanding the defect in the authorisation of the persons comprising the applicant found by Lindgren J. 11 In order to dispose of this application, it is necessary to have some regard to the history of this native title determination application brought on behalf of the Wutha People. THE MAKING AND AMENDMENT OF THE NATIVE TITLE DETERMINATION APPLICATION ON BEHALF OF THE WUTHA PEOPLE 12 On 19 January 1996, an application for the determination of native title rights, on behalf of the Wutha People, was lodged with the NNTTA. This application appears to have been amended on two occasions. A second application for the determination of native title rights on behalf of the Wutha People, was also lodged with the NNTTA in 1996. 13 On 19 January 1999, a further amended native title determination application Form 1 was filed for the purpose of satisfying the Native Title Amendment Act 1998 (Cth), in respect of each of the two applications. 14 In support of an application to amend Form 1 of each application, each of the four persons comprising the applicant at that time, swore an affidavit on 22 December 1998. A notice of motion seeking orders for the amendment of the claim was filed in this Court along with those affidavits and an affidavit from Mr Michael Rynne, a legal adviser, dated 19 January 1999. 15 On 22 January 1999, by orders made by a Deputy District Registrar of this Court, the Court combined the two applications into a single application and made orders amending the composition of the claim group in the combined application in accordance with the amended Form 1. The amended application stated: The name of the claim group is Wutha and the Wutha people are those persons who identify themselves as Wutha, and are the biological descendants of: (a) Wunal (also known as Tommy) Ashwin (m) and Telpha Ashwin (f); and (b) those persons adopted by the biological descendants or with marital relations to those persons. 16 A further amendment was made to the definition of the claim group by orders of a Deputy District Registrar of this Court made on 4 March 1999. The claim group was identified as: (1) the biological descendants of Wunal (aka Tommy) (m) Ashwin and Telfer Ashwin (f); and (2) those persons adopted by those biological descendants in accordance with Wutha traditions… 17 The application for amendment was supported by an affidavit from Mr Michael Rynne sworn on 9 February 1999, which referred to the previous affidavits sworn on 22 December 1998 by the persons comprising the Wutha applicant. 18 The Court also made orders dispensing with the need to file further affidavits to verify the contents of the proposed amended Wutha application. 19 By notice of motion filed on 26 March 1999, the Wutha applicant made a further application to amend the claim group on whose behalf the claim for the determination of native title rights was made. 20 Significantly for the purposes of this case, and the assessment made by Lindgren J in Wongatha, a further amendment to the claim group was made by orders of a Deputy District Registrar of this Court on 29 April 1999. Pursuant to that amendment the claim group was identified as: 1) the biological descendants of Wunal aka Tommy (m) and Telpha Ashwin (f) excluding the following individuals and descendants: Wayne Harrington-Smith and offspring Sheldon Harrington-Smith and offspring Joshua Harrington-Smith and offspring Vicky Harrington-Smith and offspring Ronella Harrington-Smith and offspring Brenda Abdullah and offspring Cleve Walker (deceased) and offspring Graham Walker (deceased) and offspring May Walker (deceased) and offspring Beryl Walker (deceased) and offspring Lyall Walker and offspring Kerry Walker (deceased) and offspring Maxine Walker (deceased) and offspring Maria Cooper and offspring Gary Cooper and offspring Sue Wyatt and offspring Milton Cooper and offspring Norman Cooper and offspring Victor Cooper and offspring Thomas Cooper and offspring; and 2) those persons adopted by those biological descendants in accordance with Wutha tradition and custom. (Adoption under Wutha tradition and custom, refers to the situation where a child is "grown up" by a relative or someone without a biological relationship, either because they have been "gifted" to them, or left in their care, as the biological parents are not in a position to care for them. This applies regardless of whether or not the child has been formally adopted under the non-Aboriginal legal system.) 21 The notice of motion for the amendment of the claim was supported by an affidavit of Mr Michael Rynne sworn on 26 March 1999. That affidavit deposed that on 23 December 1998, the Registrar of the NNTTA had made a decision as to how a part of the registration test was to be applied. The affidavit went on to say that the Wutha applicant wished to amend its application to ensure that it did not "offend the Registrar's interpretation of that particular aspect" of the registration test. The applicant also relied on a second affidavit of Mr Rynne sworn on 13 April 1999. 22 On 29 April 1999, the Court again made orders dispensing with the need to file further affidavits verifying the contents of the amended application. 23 On 15 June 1999, the application as amended on 29 April 1999, was accepted for registration pursuant to s 190A of the Act by the NNTTA. The Registrar of the NNTTA gave reasons for his decision. 24 In relation to whether the affidavits supporting the application addressed the question of authorisation (which the Registrar was required to consider under s 62(1)(a)(iv) and (v)), the Registrar referred to the affidavits of each of the four persons who comprised the applicant which had been sworn on 22 December 1998, and had been filed in support of the amended application (see [14] above). The Registrar observed that the affidavits used the "bare words" of the statute. The Registrar observed specifically: In affidavit paragraph (e), each applicant uses the bare words of section 251B(a) to satisfy the requirements of subparagraph (v). No particulars of the decision making process required by such traditions laws is provided. Considerations of the kind relevant to sections 190C(4)(b) and 190C(5) do not arise here. The bare statement contained in each affidavit is sufficient to meet the requirements of section 190C(2) such that I am satisfied, relevantly, that the application is accompanied by an affidavit that meets the requirements of section 62(1). 25 The Registrar also considered the question of authorisation by reference to s 190C(4)(b) of the Act. In considering this question, the Registrar had regard to the affidavits of each of the persons comprising the applicant sworn on 22 December 1998, as well as an affidavit of Mr Lenny Ashwin sworn on 3 March 1999, Mr Raymond Ashwin sworn on 17 February 1999 and Ms Verna Kathleen Vos sworn on 19 February 1999 which had all been filed with the NNTTA in support of the application for registration. The Registrar concluded: I find that the statements in the affidavits accompanying the application, the statement in schedule R of the amended application and the further information provided in further affidavits are sufficient to satisfy me that: · There is a process of decision making under traditional laws and customs which is to be followed; · It has been followed such that the applicants are authorised in the manner contemplated by section 251B; and · The authorisation complies with section 190C(4)(b). THE DECISION OF LINDGREN J AS TO AUTHORISATION OF THE WUTHA APPLICATION 26 It is also necessary to have regard to the findings of Lindgren J in Wongatha in relation to the question of the lack of authorisation of the Wutha applicant. 27 As mentioned, Lindgren J came to consider the question of authorisation of the Wutha claim in the context of considering that part of the Wutha claim (being the north‑eastern portion of the Wutha claim) which overlapped part of the area the subject of the Wongatha claim. Lindgren J dismissed that part of the Wutha claim. In doing so, Lindgren J found that the applicant was not authorised to make the Wutha application as required by s 61(1) of the Act. 28 First, Lindgren J held that there was no evidence that the persons comprising the Wutha applicant had been authorised by the reduced claim group identified in the Wutha native title determination application as amended on 29 April 1999. 29 Before Lindgren J, the Wutha applicant relied for evidence of authorisation on the affidavits sworn on 22 December 1998, as evidence of compliance with the authorisation requirement of s 61 of the Act. However, the State contended that when the claim group was reduced by the amendment of 29 April 1999, that evidence did not suffice to comprise authorisation as required by the Act. It was necessary, contended the State, that the persons who comprised the applicant be authorised by the reduced claim group. 30 Lindgren J accepted the contentions of the State. At 331, at [2732], Lindgren J observed: For the purpose of the challenge to authorisation, the Wutha "native title claim group", that is to say, "all the persons…who…hold…the particular native title claim", must be assumed to be either one of the earlier larger groups or the now reduced group. If the former, the only application they authorised was a pre‑reduction application. If the latter, neither the original group nor the reduced group authorised that application. Accordingly, the present reduced group application before the Court was not authorised. 31 Secondly, Lindgren J found that the persons comprising the Wutha applicant were not authorised by all holders of common or group rights or interests comprising the native title claim. In other words, Lindgren J was not satisfied that the Wutha claim was not one being made on behalf of a subgroup, rather than on behalf of all of the persons entitled to be members of the claimant group. Lindgren J observed at 333, at [2750]‑[2751]: How is it that the 20 individuals or families at one moment satisfy the criteria and the next moment do not?...In the absence of any evidence from the Wutha applicants on the point, I infer that the 20 individuals or families were excluded, whether with their agreement or not, because they were in another claim group or other claim groups. This is an NTA consideration, and suggests that the present Wutha claim group is a construct for NTA purposes, rather than a group recognised under traditional laws and customs. 32 Thirdly, Lindgren J also referred to the anthropological evidence from Mr Barber to the effect that there were other persons with claims to native title rights in respect of whom he could see no proper reason for them being excluded from the Wutha claim group. THE WUTHA APPLICANT'S CONTENTIONS 33 As previously mentioned, in resisting the Yugunga-Nya People's application, the Wutha applicant contended that the Court should exercise its discretion under s 84D(4)(a) of the Act. Section 84D(3) and s 84D(4) provides: (3) Subsection (4) applies if: (a) an application does not comply with section 61 (which deals with the basic requirements for applications) because it was made by a person or persons who were not authorised by the native title claim group to do so; or (b) a person who is or was, or one of the persons who are or were, the applicant in relation to the application has dealt with, or deals with, a matter arising in relation to the application in circumstances where the person was not authorised to do so. … (4) The Federal Court may, after balancing the need for due prosecution of the application and the interests of justice: (a) hear and determine the application, despite the defect in authorisation; or (b) make such other orders as the court considers appropriate. 34 The Wutha applicant contended that s 84D(4) was an ameliorative provision and the discretion thereby conferred was to be exercised with regard to the due prosecution of the litigation and the interests of justice. The applicant went on to contend that the particular circumstances constituted "a powerful case" for the Court to exercise its power under s 84D(4)(a) to allow the application to proceed to hearing and determination "despite the defect in authorisation" found by Lindgren J. Accordingly, the applicant said, the Court should allow the existing application (including the Yugunga-Nya overlap) to proceed to mediation or to determination, and not require the Wutha applicant to provide evidence of authorisation. 35 The Wutha applicant relied on a number of circumstances in support of its contention. 36 First, the applicant contended that the findings made by Lindgren J as to the lack of authorisation were not of general application and applied only to the extent of the area of the overlap of the Wutha claim with that of the Wongatha People. In my view, the findings are not so limited. The findings were of general application and have the propensity to invalidate the Wutha claim as a whole. 37 Secondly, the applicant said that there had been a very long period of delay between the registration of the amended Wutha claim by the NNTTA in June 1999, and the challenge made to the authorisation of the Wutha applicant by the State at a late stage of the Wongatha proceeding. 38 The State, contended the applicant, had initially objected to the registration of the amended Wutha claim by a letter to the NNTTA dated 19 November 1998. However, the Registrar rejected the State's submissions and the State did not challenge the registration by seeking a review of the registration. The applicant went on to say that it was only in its closing submissions in the Wongatha claim, which were filed five years after the registration of the amended 29 April 1999 claim, that the State raised the question of the lack of authorisation of the applicant. The applicant also pointed out that Lindgren J had commented adversely on the lateness of the challenge made by the State to authorisation and said that this may have costs consequences for the State. 39 It is the case, as the applicant contended, that one of the reasons for the introduction of the amendments comprised in s 84D of the Act was to mitigate any unfairness which may arise from an objection to authorisation being raised at a late stage of the proceeding. Further, it is the case that in June 1999, the Wutha claim as amended, passed the registration test as administered by the Registrar of the NNTTA. It is also, as Lindgren J stated, unfortunate that the State delayed making its objection until late in the trial of the Wongatha proceeding. But this is a separate proceeding to the Wongatha proceeding; and, although it has been on foot for a long period of time, the parties are not close to trial. The findings by Lindgren J raise important issues for the viability of the Wutha claim. In my view, the respondent parties to this proceeding have considered the impact of the findings of Lindgren J on the continued viability of the proceeding and reacted thereto, timeously; and certainly well before this proceeding is ready to go to trial. 40 Accordingly, albeit that this proceeding itself has been on foot a long period of time, there has not been any material delay by the respondent parties in responding to the findings of Lindgren J. 41 Thirdly, the applicant contended that there appeared to be a "discord" between the findings of Lindgren J that the applicant was not authorised pursuant to s 61 of the Act to bring the Wutha application, and the events that occurred in this Court and the NNTTA in 1999 in relation to the amended Wutha claim. 42 The applicant referred specifically to the following facts: (a) a Deputy District Registrar of this Court had, by orders made on 29 April 1999, permitted the amendment of the Wutha claim in a form which described the claim group by reference to the reduced claim group; (b) the Deputy District Registrar on that date also made orders dispensing with the filing of further affidavits to verify the amended application; and (c) on 15 June 1999, the Registrar of the NNTTA registered the amended claim on behalf of the reduced group. 43 The applicant went on to observe that in making his findings on lack of authorisation, Lindgren J had only referred to the affidavits sworn by the persons comprising the applicant on 22 December 1998, which had been filed with the amended Form 1. Lindgren J, said the applicant, had not referred to the affidavits of Mr Lenny Ashwin, Mr Raymond Ashwin and Ms Verna Vos (see [25] above) that were before the Registrar of the NNTTA, nor had he considered the affidavit of Mr Michael Rynne dated 26 March 1999 (see [21] above) that was before the Court, dealing with authorisation. 44 In my view, little weight is to be accorded to the "discord" referred to by the applicant. First, as the applicant accepted, the decisions of the Deputy District Registrar of this Court, and the Registrar of the NNTTA were not intended to be conclusive as to the question of the validity of the authorisation of the Wutha claim. In any event, even if the applicant was of the view that those actions precluded Lindgren J from coming to the view he did, or was otherwise relevant to those considerations, it was open to the applicant to have raised those matters before Lindgren J. 45 What is clear, however, is that Lindgren J has identified defects in the authorisation of the Wutha applicant, including that the claim appears to have been made on behalf of a subgroup of the Wutha People. In those circumstances, the issue of authorisation is obviously an issue of major significance to the determination of the Wutha claim as filed. 46 The applicant sought to downplay the significance of Lindgren J's finding that on the evidence before him, it appeared that the applicant had been authorised only by a subgroup of the Wutha People, by characterising Lindgren J's observations as obiter dicta. However, in my view, whether Lindgren J's observations are to be classified as obiter dicta or not, the fact remains that Lindgren J has identified an issue as to authorisation which is fundamental to the viability of the Wutha claim, namely, the precise identity and scope of the persons on whose behalf the claim is brought. The removal of the 20 families from the amended claim group is a serious issue which needs to be explained and justified. 47 The fact that the defect in authorisation referred to by Lindgren J, is founded in a matter of such fundamental importance to the Wutha claim, is a factor that weighs strongly against exercising the Court's discretion under s 84D(4) to permit the matter to proceed to trial, despite that defect. Further, as I have already said, the proceeding is still in mediation and is a long way from trial. I, accordingly, reject the Wutha applicant's application that the Court exercise its discretion under s 84D(4) of the Act, to permit the matter to be heard and determined, despite the defect in authorisation referred to by Lindgren J. 48 It is, in my view, in the interests of justice that the question of authorisation be determined as a preliminary matter. For that issue to be fairly determined, it is appropriate that the persons comprising the applicant have an opportunity to advance any evidence upon which they wish to rely and to demonstrate that the application is lawfully authorised pursuant to s 61 and s 251B of the Act. 49 In this regard, I did not understand the applicant's position to be that the probative value of the evidence, which the applicant says was before the Court and the Registrar of the NNTTA, but was not taken into account by Lindgren J, was such as to satisfy the defects that Lindgren J identified in relation to authorisation. Certainly, the evidence does not address the rationale for the definition of the Wutha claim group by reference to the reduced claim group in the amended claim, and the justification for the removal of the 20 families. The rhetorical question posed by Lindgren J at [31] above is not addressed. Such evidence as there is appears to confirm Lindgren J's observation that the reduced claim group may be a "construct for NTA purposes, rather than a group recognised under traditional laws and customs". Also, this evidence does not deal with Mr Barber's evidence. 50 Once the evidence upon which the applicant seeks to rely in support of compliance with the authorisation requirements of the Act is filed, it is possible that the respondent parties to the application may be satisfied on the question of authorisation, or they may seek to bring an application for the dismissal of the Wutha native title determination application. 51 I will, therefore, make orders that each of the persons comprising the applicant file and serve such further evidence upon which they wish to rely to satisfy the statutory requirements that the persons comprising the applicant are authorised to bring the native title determination application. 52 I will hear from the parties on further directions. I certify that the preceding fifty-two (52) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Siopis. Associate: Dated: 11 March 2010