FEDERAL COURT OF AUSTRALIA Roberts v State of Western Australia [2011] FCA 257 Citation: Roberts v State of Western Australia [2011] FCA 257 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 Judge: NORTH J Date of judgment: 21 February 2011 Date of hearing: 21 February 2011 Place: Perth Division: GENERAL DIVISION Category: No catchwords Number of paragraphs: 9 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 AND ORS Respondent JUDGE: NORTH J DATE OF ORDER: 21 FEBRUARY 2011 WHERE MADE: PERTH THE COURT ORDERS THAT: 1. The directions hearing is adjourned until Friday, 21 October 2011 at 10.15 am WST. 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 232 of 2009 BETWEEN: TEDDY ROBERTS, CYRIL GORDON, KERRY ROBINSON AND DONNY WILSON ON BEHALF OF THE KARIYARRA PEOPLE Applicant AND: STATE OF WESTERN AUSTRALIA AND ORS Respondent JUDGE: NORTH J DATE OF ORDER: 21 FEBRUARY 2011 WHERE MADE: PERTH THE COURT ORDERS THAT: 1. The directions hearing is adjourned until Friday, 21 October 2011 at 10.15 am WST. 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 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 AND ORS Respondent GENERAL DIVISION WAD 232 of 2009 BETWEEN: TEDDY ROBERTS, CYRIL GORDON, KERRY ROBINSON AND DONNY WILSON ON BEHALF OF THE KARIYARRA PEOPLE Applicant AND: STATE OF WESTERN AUSTRALIA AND ORS Respondent JUDGE: NORTH J DATE: 21 FEBRUARY 2011 PLACE: PERTH REASONS FOR JUDGMENT 1 On 9 December 2010 orders were made for the applicants and the State 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 orders also required the State to file and serve a report to the Court regarding any agreement reached and dealing with the following: 1. identifying the expert to be appointed including providing a curriculum vitae; 2. outlining the steps to be taken by the applicant and the State to assist the expert in preparing his or her report; 3. setting out the agreed proposed terms of reference and instructions for the expert; 4. setting out any proposal as to orders regarding the payment of costs associated with the appointment of the anthropologist, and 5. identifying the proposed time frame in which the expert is to prepare his or her report to the Court. 2 The applicant and the State conferred on those matters as required. As a result of that negotiation it has been agreed between the applicant and the State to nominate two experts. One is a senior anthropologist who is unable to attend to the matter before July 2011, the other is a less senior anthropologist who would be more readily available. In view of the experience of the former it is the parties' desire, endorsed by the Court, that the senior anthropologist Dr Morton be the appointed expert. 3 The discussions also addressed the likely time necessary to be taken for the work involved and the approximate cost. Those are matters upon which I am not presently able to commit the Court. They need to be discussed with officers of the Court in order to finalise a contract between the Court and Dr Morton. It will be necessary to adjourn the directions hearing in order for that discussion to be concluded. 4 The report of the parties also set out the steps which would be taken by the applicant to assist the expert. Those steps have been designed to ensure the independence of the expert and include logistical matters aimed to make the exercise of research by the expert as efficient as possible. Therefore, the applicant, through the native title representative body (Yamatji Marlpa Aboriginal Corporation), will provide group descriptions, maps, lists of the key families and contact points, and have also offered to assist with matters such as accommodation and bookings. 5 The applicant and the first respondent have formulated terms of reference as follows: 1. Your instructions concern two native title determination applications lodged in the Federal Court on behalf of the Kariyarra people. These are WAD 6169 of 1998 and 232 of 2009 respectively ("the Kariyarra claims"). Maps of the Kariyarra claim area are Attachment 1 and 2 respectively. The cover page of the Kariyarra claim Form 1s and the pages containing the claim group descriptions are Attachment 3 and 4 respectively. The Kariyarra claims are currently put on the basis that Kariyarra people as a whole have communal native title rights and interests throughout Kariyarra country. 2. The Kariyarra claims are currently the subject of mediation and negotiations to see whether consent determinations can be arrived at. The history as to how the current issues and instructions arise are set out in the decision and orders of North J on 9 December 2010 (Attachment 5). 3. You are requested to carry out the necessary work to ascertain the answers to the questions set out in Attachment A to the Orders of His Honour Justice North on 9 December 2010 (Attachment 6) and to provide a written expert report with your opinion as to the answers to the said questions and your analysis of the issues. You should include with your report supporting genealogical diagrams and other material to support your analysis and opinion. 4. In answering the questions, especially question 1, please give consideration to, inter alia, the following issues: (a) Whether descent from a Kariyarra ancestor is a necessary element of being Kariyarra, and if so, whether there are other elements that need to be satisfied. If there are other elements that need to be satisfied, what are they? For example, is it necessary for such a person to be accepted as Kariyarra by the wider Kariyarra community or is it necessary for a person to identify as Kariyarra? If so, can they identify as a member of another language group as well? Is it necessary for a person to also acknowledge and observe Kariyarra laws and customs? Is it necessary for a person to also be familiar with Kariyarra country or parts thereof? (b) Is it necessary for a Kariyarra ancestor to be known and accepted by other senior Kariyarra people as Kariyarra? For example, if an ancestor can be proven to be Kariyarra but this was not generally known and accepted by other Kariyarra people, is this sufficient to make the descendants Kariyarra? (c) Whether a person who is not biologically descended from a Kariyarra person can become Kariyarra through adoption, and if so, what are the conditions and rules governing this? (d) Is there any way in which a person who is not Kariyarra by descent or adopted by a Kariyarra person can be incorporated as a member of the Kariyarra people? If so, what are the conditions and rules governing this? Can this extend to the descendants of person who is so incorporated and if so, in what situations? 5. If your investigations into the questions set out in Attachment A to the Orders of His Honour Justice North on 9 December 2010 reveal any other issues in respect of the membership of the Kariyarra claims you should, to the extent possible given any relevant timeframes and resources, also consider and report upon these issues. 6. For your information, a map of the native title claims and determined native title areas are provided in Attachment 7. Although the Kariyarra claims outlined in the maps are the ones before the court, you should not assume that this is not necessarily the limit of what Kariyarra people assert is traditional Kariyarra country and there may be families who are primarily associated with areas outside the Kariyarra claim areas which they still assert is Kariyarra country. 7. In answering the above questions, you will need to comply with the Practice Directions of the Federal Court in relation to Expert Evidence (Attachment 8). 8. You will be managed and answerable to the Federal Court. In this regard, you are required to comply with the timelines and other terms of the contract. 9. You will need to carry out interviews with relevant members of the families referred to in the Attachment 6 as well as the applicants to the Kariyarra claims and other key Kariyarra people and any others who may have relevant information. Most of these interviews will need to be carried out in South Hedland in Western Australia but you may come across additional interviews that may need to take place in other locations in Perth or in the Pilbara. 10. The relevant representative body, Yamatji Marlpa Aboriginal Corporation ("YMAC") will provide you with logistical assistance as requested, such as booking accommodation and vehicles, assistance in finding and visiting the relevant informants or transporting them to your premises and the like. You will need to liaise with the in-house anthropologist at the South Hedland office of YMAC at 3 Brand Street, South Hedland WA 6722 and on (08) 9144 2866. Email contact details will also be provided to you in due course. 11. YMAC will also provide to you copies of relevant historical material that it has in its possession such as copies of the relevant works and genealogies of Daisy Bates, Radcliffe-Brown, Tindale and others and also copies of relevant native welfare documents and other government records. 12. YMAC will also provide to you a list of names of contact persons for the key Kariyarra families and their contact details. If requested, YMAC may be able to provide contact details for other non-Kariyarra people who you may wish to interview. 13. In the event that you require the assistance of a female anthropologist for cultural reasons, this is a matter which may be discussed with the Registrar. YMAC can provide the names and curriculum vitae of female anthroplogists who may be available. 6 The terms of reference appear to meet the circumstances of the case. They will need to be scrutinised by Court officials from a contractual point of view. Once the administrative matters are attended to between the Court and the expert, orders will need to be made under O 34 of the Federal Court Rules. In particular, it is necessary that the remuneration for the Court expert be fixed by the Court: O 34 r 5(1), Federal Court Rules. 7 Further, the intention in the present case is that the Court will pay the costs of the expert. This intention needs to be reflected by an order because O 34 r 5(2) will otherwise render the parties jointly and severally liable for the amount of the remuneration. 8 Finally, the applicant and the State anticipate that the expert report will be available by the end of September 2011. This again is a matter which will need to be reflected in the contractual document. 9 Once the contractual arrangements have been finalised, the applicant and the first respondent should advise my chambers in writing and indicate the orders which they require in accordance with O 34 of the Federal Court Rules. I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice North. Associate: Dated: 22 March 2011