Roberts v State of Western Australia [2010] FCA 1483

FEDERAL COURT OF AUSTRALIA

Roberts v State of Western Australia [2010] FCA 1483 Citation: Roberts v State of Western Australia [2010] FCA 1483

Parties: TEDDY ROBERTS, BRIDIE ALEC, TEDDY ALLEN, CYRIL GORDON, KERRY ROBINSON AND DONNY WILSON ON BEHALF OF THE KARIYARRA PEOPLE v STATE OF WESTERN AUSTRALIA AND ORS TEDDY ROBERTS, CYRIL GORDON, KERRY ROBINSON AND DONNY WILSON ON BEHALF OF THE KARIYARRA PEOPLE v STATE OF WESTERN AUSTRALIA and ORS

File number(s): WAD 6169 of 1998 WAD 232 of 2009

Judges: NORTH J

Date of judgment: 9 December 2010

Date of hearing: 9 December 2010

Place: Perth

Division: GENERAL DIVISION

Category: No Catchwords

Number of paragraphs: 19

Counsel for the Applicant: Ms Tan

Solicitor for the Applicant: Yamatji Marlpa Aboriginal Corporation

Counsel for the First Respondent: Mr Ranson

Solicitor for the First Respondent: State Solicitor for Western Australia

IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY GENERAL DIVISION WAD 6169 of 1998

BETWEEN: TEDDY ROBERTS, BRIDIE ALEC, TEDDY ALLEN, CYRIL GORDON, KERRY ROBINSON AND DONNY WILSON ON BEHALF OF THE KARIYARRA PEOPLE

Applicant

AND: STATE OF WESTERN AUSTRALIA

Respondent

JUDGE: NORTH J DATE OF ORDER: 9 DECEMBER 2010 WHERE MADE: PERTH

THE COURT ORDERS THAT:

1. On or before 31 January 2011, the Applicant and the First Respondent are to confer with a view to agreeing upon a suitably qualified and experienced anthropologist to be appointed as a Court expert pursuant to O 34 r 2 of the Federal Court Rules ('the Expert') to inquire into and report upon the questions set out in Attachment A. 2. On or before 14 February 2011, the Applicant or the First Respondent are to file and serve on all parties a report to the Court regarding any agreement that has been reached on the Expert, including the following matters: (a) Identifying the Expert who is to be appointed, and providing a copy of the Expert's curriculum vitae; (b) Outlining the steps to be taken by the Applicant and the State to assist the Expert in preparing his or her report to the Court; (c) Setting out the agreed proposed terms of reference and instructions for the Expert; (d) Setting out any proposal as to orders regarding the payment of costs associated with the appointment of the anthropologist; and (e) Identifying the proposed time frame in which the Expert is to prepare his or her report to the Court. 3. If the parties are unable to agree on the anthropologist to be appointed as Court expert: (a) on or before 14 February 2011, the Applicant and the First Respondent are to file and serve on all parties: (i) the curriculum vitae of the anthropologist whom the party contends should be the Court expert; (ii) written submissions as to why that expert should be the Court expert; and (b) the Court will determine the anthropologist to be appointed as Court expert and any orders concerning the costs of the anthropologist. 4. The matter be re-listed for 10:15am on 21 February 2011 for the Court to make appropriate orders pursuant to O 34 of the Federal Court Rules, for the appointment of an anthropologist to act as a Court expert, either as agreed between the parties or failing agreement, as determined by the Court, and for the making of any other directions regarding the obtaining or recording of the evidence of Indigenous witnesses. 5. The Federal Court's costs of the video conference for today's hearing be met by the Court. 6. The notice of motion filed by Cornerstone Legal on behalf of Barkley Marshall Day, Zane Bradley Day, Joan Elizabeth Day and Richard Ernest Day on 10 August 2010 be struck out. 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. ATTACHMENT A 1. What are the traditional laws and customs regarding membership of the Kariyarra People? 2. Having regard to the traditional laws and customs in 1 above, do any of the following groups of people satisfy the criteria to be members of the Kariyarra People: (a) The descendants of Tommy Anderson and Molly Todd (Todd/Dann family); (b) The descendants of Fanny, mother of Sylvia Whalebone (Lockyer family); (c) The descendants of Topsy McKenna (Barker family); (d) The descendants of Alec Tjigari and Njitji (Alec family); (e) Archie Captain and his descendants; (f) Nelly Wally and her descendants (Pontroy family). 3. Are there any traditional laws and customs of the Kariyarra people whereby people who are not Kariyarra may obtain native title rights and interests within the area of the Kariyarra applications, WAD 6169 of 1998 and WAD 232 of 2009? 4. Having regard to the traditional laws and customs in 3 above, do any of the following groups of people satisfy the criteria to obtain native title rights and interests within the area of the Kariyarra applications, WAD 6169 of 1998 and WAD 232 of 2009: (a) The descendants of Alec Tjigari and Njitji (Alec family); (b) Nelly Wally and her descendants (Pontroy family); (c) The descendants of Tommy Anderson and Molly Todd (Todd/Dann family); (d) The descendants of Fanny, mother of Sylvia Whalebone (Lockyer family); (e) The descendants of Topsy McKenna (Barker family); (f) Archie Captain and his descendants. IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY GENERAL DIVISION WAD 232 of 2009