Parry v Northern Territory of Australia [2007] FCA 1889 (29 November 2007)

KATHLEEN PARRY, ALBERT MYOUNG, PADDY HUDDLESTON AND MARJORIE FOSTER v NORTHERN TERRITORY OF AUSTRALIA, NAUIYU NAMBIYU COMMUNITY GOVERNMENT COUNCIL, AMATEUR FISHERMAN'S ASSOCIATION OF THE NORTHERN TERRITORY, FALCONBRIDGE (AUSTRALIA) PTY LTD, TROY RESOURCES NL, CONSERVATION LAND CORPORATION, NORTHERN TERRITORY LAND CORPORATION, BRANIR PTY LTD, TOVEHEAD PTY LTD AND TELSTRA CORPORATION

NTD 6028 OF 2001

MANSFIELD J
29 NOVEMBER 2007
ADELAIDE (BY VIDEO TO DARWIN)

BETWEEN:

KATHLEEN PARRY, ALBERT MYOUNG, PADDY HUDDLESTON AND MARJORIE FOSTER
Applicant

AND:

NORTHERN TERRITORY OF AUSTRALIA
First Respondent

NAUIYU NAMBIYU COMMUNITY GOVERNMENT COUNCIL
Second Respondent

AMATEUR FISHERMAN'S ASSOCIATION OF THE NORTHERN TERRITORY
Third Respondent

FALCONBRIDGE (AUSTRALIA) PTY LTD
Fourth Respondent

TROY RESOURCES NL
Fifth Respondent

CONSERVATION LAND CORPORATION
Sixth Respondent

NORTHERN TERRITORY LAND CORPORATION
Seventh Respondent

BRANIR PTY LTD
Eighth Respondent

TOVEHEAD PTY LTD
Ninth Respondent

TELSTRA CORPORATION
Tenth Respondent

1 In this matter, as in the matter of Que Noy v Northern Territory of Australia [2007] FCA 1888 (the Douglas North claim), there is a motion under s 66B of the Native Title Act 1993 (Cth) (the Act) by certain members of the native title claim group to replace Marjorie Foster (Ms Foster), one of the persons comprising the current "applicant" with her daughter, Margaret Foster and with Arthur Que Noy.

2 The current "applicant" in this claim (the Fish River claim) comprises Kathleen Parry (on behalf of the Ngangiwumeri people), Albert Myoung (on behalf of the Malak Malak people), Paddy Huddleston (on behalf of the Wagiman people) and Ms Foster (on behalf of the Kamu people). The motion seeks to replace Ms Foster with her daughter, Margaret Foster and Arthur Que Noy as representatives of the Kamu people. The motion is brought by Kathleen Parry, Albert Myoung, Paddy Huddleston, Arthur Que Noy, Margaret Foster and 10 other members of the Kamu people.

3 In essence, for the same reasons as in the Douglas North claim, I made orders on 22 November 2007. I will not repeat the reasons. I shall remark only upon the different facts, arising from the native title claim group being made up of the Ngangiwumeri people, the Malak Malak people, the Wagiman people and the Kamu people.

4 The meeting of the Kamu people on 9 February 2007 concerned both the Douglas North claim and the Fish River claim. The decisions made on that day with regard to each matter were made concurrently. The same can be said of the decision made by the Wagiman representatives on 21 June 2007.

5 An anthropologist, Mr Kim Barber, gave evidence about meetings of the Ngangiwumeri people on 25 June 2007 and of the Malak Malak people on 25 June 2007. His record of those meetings is in much the same terms as that used for the meetings of the Wagiman people and the Warai people recorded in the reasons in Que Noy [2007] FCA 1888. The members of the Malak Malak people who attended the meeting on 25 June 2007 were: John Sullivan, Eddie Andrews, Albert Myoung, Rita Purak, Helen Korda, Francis Miljat, Kitty Waliwararra, Biddy Lindsay, Edwin Purral and Amos Shileds. Those people were described by Mr Barber as ‘the majority of the upper generation of Malak Malak persons.’

6 The members of the Ngangiwumeri people present at their meeting on 25 June 2007 were Kathleen Parry and William Marranga. They are described by Mr Barber as being "the most senior Ngangiwumeri persons."

7 Although there is no direct evidence as to how many people there are in the upper generation of each of those peoples, or much evidence as to their traditional or agreed decision-making processes, Mr Barber’s evidence is that the decisions of each of them to remove the authority of Marjorie Foster to make the application and to make decisions in relation to it and to appoint as part of the applicant Margaret Foster and Arthur Que Noy were decisions of each of those peoples. His evidence was also that their decisions were made in accordance with their respective decision-making processes, which he regarded as traditional or – to the extent that traditional processes have been altered by the effects of colonisation – agreed. I accept his evidence.

I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mansfield.

Counsel for the s 66B Applicants:	Mr R Levy

Solicitor for the s 66B Applicants:	Northern Land Council

Counsel for Marjorie Foster:	Mr AC Neal SC (Pro Bono)

Date of Hearing:	12 June, 12 July 2007

Date of Close of Submissions:	9 August 2007

Date of Judgment:	29 November 2007

IN THE FEDERAL COURT OF AUSTRALIA
NORTHERN TERRITORY DISTRICT REGISTRY	NTD 6028 OF 2001

JUDGE:	MANSFIELD J
DATE:	29 NOVEMBER 2007
PLACE:	ADELAIDE (BY VIDEO TO DARWIN)

Federal Court of Australia

Parry v Northern Territory of Australia [2007] FCA 1889 (29 November 2007)