FEDERAL COURT OF AUSTRALIA Lungunan v State of Western Australia [2012] FCA 78 Citation: Lungunan v State of Western Australia [2012] FCA 78 Parties: DAISY LUNGUNAN & OTHERS v STATE OF WESTERN AUSTRALIA & OTHERS File number: WAD 6099 of 1998 Judge: GILMOUR J Date of judgment: 2 February 2012 Legislation: Native Title Act 1993 (Cth) Date of hearing: 2 February 2012 Place: Perth Division: GENERAL DIVISION Category: No catchwords Number of paragraphs: 9 Counsel for the Applicant: Mr S Blackshield Solicitor for the Applicant: Kimberley Land Council Aboriginal Corporation Counsel for the Respondent: The Respondent did not appear IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY GENERAL DIVISION WAD 6099 of 1998 BETWEEN: DAISY LUNGUNAN & OTHERS Applicant AND: STATE OF WESTERN AUSTRALIA & OTHERS Respondent JUDGE: GILMOUR J DATE OF ORDER: 2 FEBRUARY 2012 WHERE MADE: PERTH THE COURT ORDERS THAT: 1. Pursuant to section 66B of the Native Title Act 1993 (Cth), that John Watson, Annie Milgin, Anthony Watson, David Banjo, Cyril Archer, Harry Watson, Rosita Shaw, Joe Green, Rona Charles and Robert Watson do jointly replace the current Applicant. 2. The heading of the current application be amended by removing the words "Daisy Lungunan and Others" from the title of the action and by adding the words "John Watson and Others" to the title of the action. 3. That any requirement to file and serve an amended claimant application be waived. 4. Service of this Interlocutory Application on any Respondent other than the State of Western Australia, be dispensed with. 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 6099 of 1998 BETWEEN: DAISY LUNGUNAN & OTHERS Applicant AND: STATE OF WESTERN AUSTRALIA & OTHERS Respondent JUDGE: GILMOUR J DATE: 2 FEBRUARY 2012 PLACE: PERTH REASONS FOR JUDGMENT 1 In this matter, I have an interlocutory application seeking orders pursuant to s 66B of the Native Title Act 1993 (Cth) (NT Act) that various persons jointly replace the current applicant, as well as additional orders that the current application be amended in particular ways. Subsequent relief concerning the filing and serving of an amended application being waived, as well as the dispensing of service for this application on any respondent other than the State of Western Australia is also sought. 2 The application is supported by a number of affidavits. The first was by Alexander David Chalmers, affirmed on 31 January 2012. Mr Chalmers is a native title officer employed by the Kimberley Land Council Aboriginal Corporation (KLC). He is also an admitted legal practitioner in the Supreme Court of New South Wales. 3 Mr Chalmers provides very detailed evidence concerning the relevant meetings of the native title claim group in the Nyikina and Mangala People's native title determination, which took place at Jarlmadangha, Burru Community, near Mt Anderson in the Kimberley region of Western Australia on Wednesday the 23rd and Thursday the 24th of November 2011. He provides very detailed evidence concerning the location of the meeting; notification of the meeting to the Nyikina and Mangala claimants; the security that was in place at the meeting; the provision of transport for a number of the claimants so they were able to attend the meeting; matters such as food and accommodation as well as the very detailed registration process that occurred for the meeting. 4 There is then the affidavit of Jacki Lynn Cole, who is employed as the principal legal officer of the KLC. Ms Cole is also the solicitor on the record for the applicant in these proceedings, and she has the conduct of the matter. She sets out the background to this application which is that presently, the persons comprising the current applicant in this proceeding were 18 in number, but that between the initiation of the proceeding and the present time, 7 of those have become deceased, and one, a Mr Buckle, has instructed the KLC that he does not wish to continue to act as a member of the applicant. 5 Ms Cole also provides detailed evidence concerning the meeting to which I have referred, which occurred on 23 and 24 November 2011 at Jarlmadangha. She gives evidence of the involvement of an independent facilitator, as well as the attendance of senior counsel at the meeting. She sets out, at para 20 and following, a record of the meeting and the resolutions that were taken at the meeting. The claim group at that meeting resolved and authorised that the current applicant of the Nyikina and Mangala native title application comprising the persons set out in para 4 of Ms Cole's affidavit are no longer authorised to proceed with the application and to deal with matters arising in relation to it. The passage of this resolution satisfies one of the relevant criteria found in s 66B(1)(iii) of the NT Act. The claim group additionally resolved that ten people, or such of them are as eligible to act as applicant and who are and remain willing and able to do so, are authorised to deal with all matters arising in relation to the Nyikina Mangala claim. Ms Cole then sets out the names of the following ten persons; John Watson, Annie Milgin, Anthony Watson, David Banjo, Cyril Archer, Harry Watson, Rosita Shaw, Joe Green, Rona Charles and Robert Watson. Each of those persons, on several dates in late last year, has affirmed an affidavit each deposing that they are a member of the native title claim group in the Nyikina Mangala people's native title determine application – that is, the present application WAD 6099 of 98. 6 Each affirmed that they attended the meeting to which I have referred on 23 and 24 November 2011. Each deposes to the resolutions to which I have already referred. They also give evidence concerning the absence of any particular process of decision making under the Nyikina Mangala traditional laws and customs that must be complied with for their authorisation of a person or persons to be the applicant of the native title claim group, and the removal or replacement of an applicant of that native title group. Each has affirmed and deposed that to the best of their knowledge and belief, there is no process of decision-making that, under the traditional laws and the customs of the Nyikina Mangala claim group, must be complied with in relation to authorising a person or persons to be the applicant, and to deal with matters arising in relation to the Nyikina Mangala native title claim. They continue, in each case, to say that at the meeting of the Nyikina Mangala claim group, it was agreed to adopt a particular decision-making process which is then set out as a result of which the resolutions to which I have referred were put and passed. 7 It is implicit in the affidavits as a whole that several deponents are ready, willing and able to take up the position as members of the proposed new applicant. 8 I am satisfied, on the detailed evidence before me, that the relevant provisions of s 66B of the NT Act have been complied with, and that there is a proper basis for the replacing of the present applicant with those who were the subject of the resolutions to which I have referred. 9 I am also satisfied that the current application ought be amended by removing the words "Daisy Lungunan and Others" from the title of the action, and adding the words "John Watson and Others" title of the action. It seems to me, on the evidence, that nothing would be served by requiring the applicant to file an amended claimant application, and there will also be an order, therefore, that that requirement be waived. I will also dispense with any requirement for the service of this interlocutory application on any respondent other than the State of Western Australia, and there will, accordingly, be orders in terms of paras 1, 2, 3 and 4 of the interlocutory application dated 14 December 2011. I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gilmour. Associate: Dated: 22 February 2012