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Roe v State of Western Australia (No 2) [2011] FCA 102 (15 February 2011)

Last Updated: 17 February 2011

FEDERAL COURT OF AUSTRALIA

Roe v State of Western Australia (No 2) [2011] FCA 102

Citation:		Roe v State of Western Australia (No 2) [2011] FCA 102

Parties:		JOSEPH ROE AND CYRIL SHAW v THE STATE OF WESTERN AUSTRALIA & ORS

File number:		WAD 6002 of 1998

Judge:		GILMOUR J

Date of judgment:		15 February 2011

Catchwords:		NATIVE TITLE – application to replace current applicant – s 66B of the Native Title Act 1993 (Cth) – whether proposed applicants are descendants of apical ancestors – authorisation meeting – construction of authorisation resolution – whether conflict of interests – exercise of discretion

Legislation:		Native Title Act 1993 (Cth) s 66B

Cases cited:		Anderson v Western Australia [2007] FCA 1733 Bolton on behalf of the Southern Noongar Families v Western Australia [2004] FCA 760 Bullen v Western Australia [2010] FCA 900 Butchulla People v Queensland (2006) 154 FCR 233 Combined Gunggandji Claim v Queensland [2005] FCA 575 Coyne v Western Australia [2009] FCA 533 Daniel v Western Australia [2002] FCA 1147; (2002) 194 ALR 278 Dann v State of Western Australia [2011] FCA 99 De Rose v South Australia [2003] FCAFC 286; (2003) 133 FCR 325 Doolan v Native Title Registrar [2007] FCA 192; (2007) 158 FCR 56 Holborow v Western Australia [2002] FCA 1428 Lennon v South Australia [2010] FCA 743 Mabo v Queensland [No. 2] [1992] HCA 23; (1992) 175 CLR 1 Njamal People v Western Australia [2007] FCA 1054 Noble v Murgha [2005] FCAFC 211 Norilya Minerals Pty Ltd v Ireland [2010] WASC 260 Pooncarie Barkandji (Paakantyi) People v NSW Minister for Land & Water Conservation [2006] FCA 25 Quandamooka People (No 1) v Queensland [2002] FCA 259 Roe v Kimberley Land Council Aboriginal Corporation [2010] FCA 809 Rubibi Community v State of Western Australia (No 5) [2005] FCA 1025 Sambo v Western Australia [2008] FCA 1575; (2008) 172 FCR 271 Ward v Northern Territory [2002] FCA 171

Date of hearing:	29 & 30 November, 1, 2, & 14 December 2010

Place:	Perth

Division:	GENERAL DIVISION

Category:	Catchwords

Number of paragraphs:	157

Counsel for the Applicant on the motion:	Mr V Hughston SC with Ms T Jowett

Solicitor for the Applicant on the motion:	HWL Ebsworth Lawyers

Counsel for the Respondent on the motion:	Mr M Orlov

Solicitor for the Respondent on the motion:	Chalk & Fitzgerald Lawyers

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION	WAD 6002 of 1998

BETWEEN:	JOSEPH ROE AND CYRIL SHAW ON BEHALF OF THE GOOLARABOOLOO AND JABIRR JABIRR PEOPLES Applicant
AND:	THE STATE OF WESTERN AUSTRALIA & ORS Respondent

JUDGE:	GILMOUR J
DATE OF ORDER:	15 FEBRUARY 2011
WHERE MADE:	PERTH

THE COURT ORDERS THAT:

Rita Augustine, Anthony Watson and Ignatius Paddy on behalf of the Goolarabooloo and Jabirr Jabirr People do jointly replace the persons currently comprising the applicant.
The heading of the current application be amended by removing the words Joseph Roe and Cyril Shaw from the title of the action and by adding the words Rita Augustine, Anthony Watson and Ignatius Paddy to the title of the action.
There be a stay execution of judgment for seven days.

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 6002 of 1998

BETWEEN:	JOSEPH ROE AND CYRIL SHAW ON BEHALF OF THE GOOLARABOOLOO AND JABIRR JABIRR PEOPLES Applicant
AND:	THE STATE OF WESTERN AUSTRALIA & ORS Respondent

JUDGE:	GILMOUR J
DATE:	15 FEBRUARY 2011
PLACE:	PERTH

REASONS FOR JUDGMENT

Introduction

Rita Augustine, Cecilia Djiagween, William McKenzie, Patricia Torres, Anthony Watson and Ignatius Paddy are jointly the applicant on a notice of motion, filed on 16 August 2010, to replace the current applicant, Joseph Roe and Cyril Shaw, under s 66B of the Native Title Act 1993 (Cth) (NTA).
Mr Roe but not Mr Shaw, opposes the orders that are sought. The State of Western Australia elected not to make submissions other than that it would abide by the determination of the Court.
I have been greatly assisted by the detailed written submissions of the parties and, to the extent possible, have adopted parts of these without attribution at every point.
The following affidavits have been read in support of the notice of motion:

(i) Affidavit of Philip Anthony Hunter sworn 13 August 2010;

(ii) Affidavits of Justin Lee Edwards sworn 13 August and 21 October 2010;

(iii) Affidavits of Mala Prem Ocean Sky Fairborn affirmed 13 August and 10 September 2010;

(iv) Affidavits of Ophelia Cress Rubinich affirmed 13 August, 10 September, 12 October and 23 November 2010;

(v) Affidavits of Rita Augustine affirmed 9 August and 1 October 2010;

(vi) Affidavit of Patricia Torres affirmed 10 September 2010;

(vii) Affidavit of Mary Theresa Barker affirmed 5 October 2010;

(viii) Affidavits of William McKenzie affirmed 9 September and 26 November 2010;

(ix) Affidavit of Ignatius “Iga” Paddy affirmed 9 September 2010;

(x) Affidavits of Cecilia Djiagween affirmed 10 September and 25 November 2010;

(xi) Affidavit of Anthony Edward Watson affirmed 9 September 2010;

(xii) Affidavit of Miles Chisholm Carleton Holmes affirmed 10 September 2010;

(xiii) Affidavits of Tiffany Joan Labuc affirmed 14 September and 8 November 2010;

(xiv) Affidavits of Kara Christina Dunn affirmed 10 September and 26 November 2010; and

(xv) Affidavit of Daniel Aime Vachon affirmed 1 October 2010.

(xvi) Affidavits of Robert James Julius Powrie affirmed 20 October, 29 October and 3 November 2010.

Mr Shaw’s solicitor, Robert Lindsay Eagle, has sworn an affidavit in the proceedings on 6 August 2010 deposing that Mr Shaw wanted to be removed as an applicant. The other applicant, Mr Roe, who is the respondent to the motion, consented, during the hearing of the motion, to Mr Shaw’s removal.
Mr Roe read the following affidavits at the hearing:

(i) affidavit of Joseph Edward Roe sworn 23 September 2010 except for paragraph 1;

(ii) affidavit of Gregory Joseph Francis sworn 23 September 2010;

(iii) affidavit of Tamara Gae Howard sworn 23 September 2010;

(iv) affidavit of Lynnette Joyce Clark sworn 24 September 2010; and

(v) affidavit of Owen Christopher Torres filed 28 September 2010.

Further, Mr Roe filed an Expert Report of Professor David Samuel Trigger (Professor Trigger’s Report) on 18 November 2010.

At the adjourned hearing of the motion on 14 December 2010 Mr Roe read an affidavit by Adam Elliott Butt affirmed on 13 December 2010.

Background

The substantive application was commenced by Mr Roe and Mr Shaw as a representative proceeding under ss 13 and 61 of the NTA on behalf of the Goolarabooloo / Jabirr Jabirr (GJJ) native title claim group. In the Form 1 application, the GJJ claim group are described in the following terms:

This claim is brought on behalf of those Aboriginal People who are ancestrally connected to the original occupiers of the area the subject of the claim and who hold in common the body of traditional law and custom governing the area the subject of the claim; namely, the descendants of Bornal, Appolonia, Wallai William, Nelagumia Mary ‘Maudie’, Keleregado, Milare, Frank Dixon, Nyobing Babere, Chimbere Sitocay and Paddy Roe, and excepting those people who, for their own reasons, have chosen not to be part of the claim group and who have given instructions to this effect, namely: Louisa Grey, Barry Grey, Donald Grey Junior, Doreen Grey, Pauline Grey, Lorraine Grey, Thomas Grey, Regina Grey and James Grey.

For some time, Mr Roe and Mr Shaw have been unable to agree on how to deal with issues arising in relation to the GJJ application. As an illustration, Mr Shaw did not support the bringing or the continuation of the recent proceeding against the Kimberley Land Council Aboriginal Corporation (KLC): Roe v Kimberley Land Council Aboriginal Corporation [2010] FCA 809. Mr Roe rightly describes his position as joint applicant with Mr Shaw as unworkable rendering them incapable of discharging their duties and functions in that regard.
In order to resolve this impasse which had resulted in the KLC being unable to obtain instructions from the applicant, the KLC helped organise and facilitate a meeting of the GJJ claim group at Broome on 3 August 2010 to consider replacing the current applicant. As a result of resolutions passed at that meeting, the applicant on the motion asks the Court to make an order under s 66B of the NTA that they replace Mr Roe and Mr Shaw as the applicant in the proceeding on the grounds that:

(a) Mr Shaw consents to his replacement or removal;

(b) Mr Roe and Mr Shaw are no longer authorised by the claim group to make the application and to deal with matters arising in relation to it; and

(c) The persons who comprise the applicant on the motion are authorised by the claim group to make the application and to deal with matters arising in relation it.

The statutory provisions

Section 66B of the NTA provides:

Application to replace applicant in claimant application:

(1) One or more members of the native title claim group (the claim group) in relation to a claimant application, or of the compensation claim group (also the claim group) in relation to a compensation application, may apply to the Federal Court for an order that the member, or the members jointly, replace the current applicant for the application on the grounds that:
(a) one or more of the following applies to a person who is, either alone or jointly with one or more other persons, the current applicant:
(i) the person consents to his or her replacement or removal;
(ii) the person has died or become incapacitated;
(iii) the person is no longer authorised by the claim group to make the application and to deal with matters arising in relation to it;
(iv) the person has exceeded the authority given to him or her by the claim group to make the application and to deal with matters arising in relation to it; and
(b) the member or members are authorised by the claim group to make the application and to deal with matters arising in relation to it.

Court order

(2) The Court may make the order if it is satisfied that the grounds are established.

In Daniel v Western Australia [2002] FCA 1147; (2002) 194 ALR 278 at [16], French J (as his Honour then was) observed that s 66B is a facultative provision directed to maintaining the ultimate authority of the native title claim group. Where a group seeks to remove an applicant for not being authorised, the Court is not concerned with the wisdom or merits of the group’s decision, but simply whether the correct procedure in relation to authorisation has been followed: PC (name withheld for cultural reasons) on behalf or the Njamal People v Western Australia [2007] FCA 1054 (Njamal People v Western Australia) at [39].
The person or persons proposed as the new applicant must have been authorised by the claim group to make the application and to deal with matters arising in relation to it: Quandamooka People (No 1) v Queensland [2002] FCA 259 at [23]. Section 251B sets out what it means for a person or persons to be authorised by the claim group to make the application and to deal with matters arising in relation to it:

For the purposes of this Act, all the persons in a native title claim group or compensation claim group authorise a person or persons to make a native title determination application or a compensation application, and to deal with matters arising in relation to it, if:

(a) where there is a process of decision-making that, under the traditional laws and customs of the persons in the native title claim group or compensation claim group, must be complied with in relation to authorising things of that kind – the persons in the native title claim group or compensation claim group authorise the person or persons to make the application and to deal with the matters in accordance with that process; or

(b) where there is no such process – the persons in the native title claim group or compensation claim group authorise the other person or persons to make the application and to deal with the matters in accordance with a process of decision-making agreed to and adopted, by the persons in the native title claim group or compensation claim group, in relation to authorising the making of the application and dealing with the matters, or in relation to doing things of that kind.

Although a meeting to replace an applicant should be attended by persons fairly representative of the claim group, authorisation can nonetheless be validly given by a small percentage of the whole claim group provided that the process leading to that authorisation has been appropriately notified and conducted. In Coyne v Western Australia [2009] FCA 533, for example, a meeting of 72 people (including 29 people opposed to its outcome) was able to authorise the change of applicant for a broader claim group of between 5,000 and 20,000. His Honour, Siopis J at [51] concluded that because the meeting had been widely notified, including that the meeting could consider changing the applicant, it could be inferred that:

Those who decided not to attend the meeting were content to abide by any decision made by those who did attend the meeting and ... accordingly, the decisions made at the meeting were the legitimate binding expression of the view of the ... claim group as a whole.

Where there is no accepted law or custom within a claim group relevant to authorisation, for example, due to conflicting practices within the group, then s 251B(b) would apply to the issue of authorisation: Combined Gunggandji Claim v Queensland [2005] FCA 575 and affirmed on appeal Noble v Murgha [2005] FCAFC 211. This also applies where some parts of a claim group assert customary decision-making processes, but that is not the law or custom of the whole group: Butchulla People v Queensland (2006) 154 FCR 233 at [30]. In such circumstances, the adoption of a majority vote for making decisions has been accepted in numerous cases: Daniel at [36]; Holborow v Western Australia [2002] FCA 1428; Pooncarie Barkandji (Paakantyi) People v NSW Minister for Land & Water Conservation [2006] FCA 25; and Njamal People v Western Australia at [32].
The withdrawal and conferring of authority for the purposes of a s 66B application must be shown to flow from the claim group: Bolton on behalf of the Southern Noongar Families v Western Australia [2004] FCA 760 at [44] per French J. Once this is established, the actions of the claim group and the means by which it makes decisions is a matter for it. It is not for the Court to interfere with decisions reached in accordance with the NTA. Nor is it for the Court to consider the wisdom of those decisions or whether there is merit in them. It is for those in the claim group who are dissatisfied to communicate to other claimants and for the applicant, on receipt of instructions from the claim group, to act as authorised: Njamal People v Western Australia at [39].

Proposal to dismiss the substantive application

On the third day of the hearing counsel for Mr Roe submitted that the appropriate order to make on the motion was that the substantive application ought be dismissed by reference to three grounds:

(1) no commonality of interest between the Jabirr Jabirr people and the Goolarabooloo people in vindicating the common or group rights and interests claimed in the proceeding on behalf of the descendants of the apical ancestors listed in the GJJ Form 1 application;

(2) the continuation of the substantive application constitutes an abuse of process;

(3) dismissal of this application will enable the Goolarabooloo and Jabirr Jabirr people to take appropriate steps to secure procedural rights and protect their respective interests in opposing compulsory acquisition of land over which each group claims native title.

Notices of compulsory acquisition by the State of Western Australia issued some time after the 3 August meeting of the GJJ claim group.
Indeed, in his written closing submissions, these dismissal submissions were characterised as the "primary issue". These submissions were filed outside the time directed and for all practical purposes were not available to the applicant on the motion or the Court until the morning of the last day of the hearing on 14 December 2010.
The applicant on the motion objects to this belated attempt to raise dismissal of the substantive application for determination on the motion. I stated at the hearing and now repeat that I am not prepared to permit an allegation of abuse of process to be raised. The submission was made at a time when all of the written evidence had been read and all of the Aboriginal witnesses required for cross-examination had been cross-examined. The factual matters relevant to an application for such relief are not co-extensive with those on the motion which concerns s 66B. Even were the motion to fail it would still be open to the claim group to hold a further meeting to authorise some of its members as replacements for the present applicant. Such an application for dismissal of the substantive proceeding should have been made with due notice under the rules of this Court with specificity as to the legal and factual bases for it. That did not happen here.
After the hearing the solicitor for Mr Roe referred the court to the decision in Norilya Minerals Pty Ltd v Ireland [2010] WASC 260 at [76] which is to the effect that if the Court finds that there is an abuse of process then there is no discretion whether or not to make an appropriate order to remedy the abuse such as, for example, to order a stay of proceedings.
This additional submission, if it be that, is misconceived. Norilya Minerals concerned, amongst other grounds, an application by the defendants for an order to stay the proceedings as being an abuse of process of the Court. That, as I have described, is not this case. The ground of abuse of process was raised without reasonable notice. It would have been quite unfair to the applicant on the motion to have entertained it. The passage cited by Mr Roe has then to be seen in that context.
I will, nonetheless, in due course consider the remaining two grounds when dealing with the discretionary question whether or not I should make the orders sought assuming the criteria under s 66B NTA are established.

The issues on the motion

The position of Mr Roe in respect to his opposition to the motion has been ambulatory from beginning to end.
On the return of the motion on 2 September 2010, counsel for Mr Roe informed the Court that, as part of the consultation process that preceded the directions hearing, his instructing solicitors wrote to the solicitors for the applicant on the motion outlining the basis of objections that were proposed to be taken to various parts of the affidavit evidence that had been filed as well as identifying the objections Mr Roe had to the Court making an order under s 66B. In particular, counsel for Mr Roe informed the Court that Mr Roe opposed the making of an order under s 66B on the following 3 grounds:

(a) 5 of the 6 persons comprising the applicant on the motion were said not to be descendants of one of the apical ancestors listed in the Form 1 application and hence are not members of the GJJ claim group;

(b) 85 of the 228 persons, including the persons described in sub-para (a) above, who attended the authorisation meeting on 3 August 2010 were also not descendants of one of the apical ancestors listed in the Form 1 application and hence are not members of the GJJ claim group; and

(c) the 6 persons who comprise the applicant on the motion also comprise the applicant in the Jabirr Jabirr native title claim (WAD 124 of 2010) which overlaps the GJJ native title claim and hence have a conflict of interest.

The correspondence to which counsel referred was only received shortly before the directions hearing. In particular, it was not until just hours before the directions hearing that Mr Roe’s solicitors sent an email to the solicitors for the applicant on the motion:

(a) identifying the 85 people who attended the authorisation meeting and who were allegedly not members of the GJJ claim group; and

(b) advising that those 85 persons included all of the persons who comprise the applicant on the motion other than Rita Augustine.

As a result of that correspondence, the content of which was repeated in open Court, the applicant on the motion prepared further responsive affidavit evidence to address:

(a) the foreshadowed objections to portions of the evidence;

(b) whether the persons who attended and participated at the 3 August 2010 meeting were members of the GJJ claim group; and

(c) whether the persons who are the applicant on the motion, other than Rita Augustine, are members of the GJJ claim group.

On 21 September 2010, Mr Roe’s solicitors identified a further 37 people who attended the authorisation meeting and who were allegedly not members of the GJJ claim group, bringing those challenged to a total of 122 people.
On 24 September 2010, Mr Roe’s solicitors served on the solicitors for the applicant on the motion the affidavits then filed by Mr Roe as described above. In the covering email Mr Roe’s solicitors advised:

... [h]aving completed our review of [material then provided to Mr Roe’s solicitors by the solicitors for the applicant on the notice of motion] we consider the issues on the hearing of your clients application are encapsulated by the following principal contentions:

Patricia Torres is not eligible to be an applicant because she is not ancestrally connected to [the GJJ apical ancestors] Keleregado and/or Milare.
William McKenzie is not eligible to be an applicant because he is not ancestrally connected to [the GJJ apical ancestors] William Wallai and/or Mary Nelagumia.
Rita Augustine is not eligible to be an applicant because she is not ancestrally connected to Wallai William and/or Mary Nelagumia.
Further and alternatively to [the first three issues outlined above] Patricia Torres, William McKenzie, Rita Augustine, Cecilia Djiagween, Anthony Watson and Ignatius Paddy are not eligible to be the applicant because they are already the applicant in native title determination claimant application WAD 124 of 2010 (the new Jabirr Jabirr claim) as a result of which they would owe conflicting fiduciary duties to differently constituted claim groups, each asserting native title over the same area of land and waters.
Members of the Barker family were not eligible to participate in decisions made at the meeting because they are not ancestrally connected to Keleregado and/or Milare.
Members of the McKenzie family were not eligible to participate in decisions made at the meeting because they are not ancestrally connected to William Wallai and/or Mary Nelagumia.
Members of the Augustine family were not eligible to participate in decisions made at the meeting because they are not ancestrally connected to William Wallai and/or Mary Nelagumia.
Members of the Greatorex and Sebastian families were not eligible to participate in decisions made at the meeting because they are not ancestrally connected to William Wallai and/or Mary Nelagumia.
The applicants have not discharged the onus of showing that other persons who participated in decisions at the meeting on the basis of a claimed connection to Wallai William and/or Mary Nelagumia (except members of the Bernard family who claim through Senanus) are ancestrally connected to William Wallai and/or Mary Nelagumia.
More generally, the applicants have not discharged the onus of showing that they were authorised by a decision made by a majority of members of the claim group .....
The agreed decision making process was not followed in that proposed resolutions were not moved and seconded in each case by members of the group in that some of the motions passed at the authorisation meeting] were moved and seconded by people who Mr Roe alleged were not ancestrally connected to a relevant apical ancestor].

....
These are the only issues upon which our client intends to rely.

The five affidavits filed by Mr Roe on 24 September 2010 appeared to focus on whether:

(a) decisions have been made for the Djaberra Djaberra native title claim and the GJJ native title claim to be amended to combine them;

(b) Mr Roe has been denied access to genealogical information about the ancestors for the McKenzie, Augustine, Kelly and Sebastian families by KLC staff since August 2008; and

The issue relating to the combination of the Djaberra Djaberra native title claim and the GJJ native title claim was not canvassed at the hearing of the motion. Neither was there any objection to the Kelly family.
The applicant on the motion filed a further 6 affidavits in response to the affidavits filed by Mr Roe on 24 September 2010 to address:

(i) issues raised by Mr Roe in his affidavit sworn on 23 September 2010;

(ii) whether Rita Augustine and members of her family were members of the GJJ claim group;

(iii) whether William McKenzie and members of the McKenzie family were members of the GJJ claim group;

(iv) whether Patricia Torres and members of the Barker family were members of the GJJ claim group; and

(v) whether members of the Greatorex and Sebastian families were members of the GJJ claim group.

As to the allegation that Theresa Barker’s father was Chinese, the applicant on the motion filed an affidavit from Mary Theresa Barker (Theresa Barker) which annexed her birth certificate indicating that her father was Joseph Torres. Four affidavits containing hearsay evidence regarding Ms Barker’s parentage were read but Mr Roe did not request that his expert anthropologist, Professor Trigger, provide a hearsay opinion about this issue. This allegation ultimately, it seems, was not pressed. Even had it been I would have given negligible weight to the hearsay evidence advanced on Mr Roe’s behalf.
In his outline of submissions filed on 7 October 2010 Mr Roe raises two broad grounds of objection to the motion. First, Mr Roe objects on the ground that the Court does not have jurisdiction to make the orders sought on the motion. He contends that the applicant on the motion has not satisfied the requirements of ss 66B(1) of the NTA. Second, Mr Roe says that if the Court does have jurisdiction to make the orders sought then it should refuse to do so in the exercise of its discretion under ss 66B(2) of the NTA.
At the hearing of the motion the position changed yet again when counsel for Mr Roe informed the Court that Mr Roe would not be submitting that:

(i) Rita Augustine or members of the Augustine family are not members of the GJJ claim group;

(ii) members of the Sebastian family are not members of the GJJ claim group; and

(iii) members of the Greatorex family are not members of the GJJ claim group.

As a result of these concessions the only people who attended and voted at the GJJ authorisation meeting on 3 August 2010 and who remained in issue as at that stage of the hearing were:

(i) William McKenzie as a proposed applicant and members of the McKenzie family as claimants; and

(ii) Patricia Torres as a proposed applicant and members of the Barker family as claimants.

Ultimately, however, Mr Roe does not submit that the Court can or should make findings that any person or group of persons is not a descendant of at least one of the apical ancestors listed in Schedule A of the WAD 6002/98 Form 1 claimant application. Rather he submits that the applicant on the notice of motion has failed to discharge the burden of proof to establish that:

(a) William McKenzie Jnr is a descendant of the apical ancestors William Wallai and Mary Nelagumia through Sophie McKenzie and/or that Patricia Torres is a descendant of Keleregado and Milare through Matilda;

(b) the applicants were authorised by a decision by a majority of persons who are descendants of at least one of the apical ancestors listed in Schedule A of the WAD 6002/98 Form 1 claimant application.

Mr Roe submits that a finding in terms of either limb of (a) is sufficient to dispose of the application and that the issue in (b) arises only if the applicant on the motion succeeds in establishing both limbs of (a).
During the hearing the landscape of the litigation was further altered by Mr Roe. His counsel, for the first time, raised the descendants of the GJJ apical ancestor Frank Dixon as being in issue. Mr Roe's solicitors had not raised the descendants of Frank Dixon as being in issue in their email to the solicitors for the applicant on the motion dated 24 September 2010 and Mr Roe did not raise this issue in his outline of submissions filed on 7 October 2010. As a result, Ms Rubinich, an anthropologist engaged by the KLC, was not asked to provide her expert opinion on whether the descendants of Frank Dixon are members of the GJJ native title claim group. Neither was Professor Trigger, an anthropologist retained by Mr Roe, asked to examine genealogical documents and comment on the descendants of apical ancestor Frank Dixon.

The identification of the GJJ claim group members

The KLC is the recognised representative body for the Kimberley region of Western Australia under Part 11 of the NTA. The facilitation and assistance functions of a representative body conferred by s 203BB(1) are:

(a) To research and prepare native title applications and to facilitate research into, preparation of and making of native title applications; and

(b) To assist registered native title bodies corporate, native title holders and persons who may hold native title (including by representing them or facilitating their representation) in consultations, mediations, negotiations and proceedings relating to the following:
(i) native title applications;
(ii) future acts;
(iii) indigenous land use agreements or other agreements in relation to native title;
(iv) rights of access conferred under this Act or otherwise;
(v) any other matters relating to native title or to the operation of this Act.

Section 203BC(1) provides that in performing its facilitation and assistance functions in relation to any matter, a representative body must:

(a) consult with, and have regard to the interests of, any registered native title bodies corporate, native title holders or persons who may hold native title who are affected by the matter; and

(b) if the matter involves the representative body representing such bodies corporate, native title holders or persons – the be satisfied they understand and consent to any general course of action that the representative body takes on their behalf in relation to the matter.

The members of the GJJ claim group are persons who may hold native title. The KLC would not be able to perform its facilitation and assistance functions in relation to any matter which may affect the members of the GJJ claim group unless it takes steps to identify and record the contact details of those persons who fall within the description of the GJJ native title claim group as set out in the Form 1 application. I accept that the affidavit evidence establishes that the KLC has taken considerable steps to identify and record the details of the members of the group. I will now describe the steps taken.
First, the KLC maintains a list containing the names of all known members of the GJJ native title claim group, being those persons who are the descendants of the apical ancestors listed in the GJJ Form 1 application (GJJ claim group list). As well as containing the contact details of people whose names are listed in it, the GJJ claim group list also records details of the apical ancestors from whom, according to the KLC’s records, individual claim group members are descended. In early 2009, the names on the GJJ claim group list were cross-checked against genealogies prepared by anthropologists, Sarah Yu, Gro Ween, Patrick Sullivan and Geoffrey Bagshaw and were collated in a Microsoft Excel spreadsheet.
Second, the KLC also maintains an electronic genealogy database containing the genealogies of the GJJ claim group members (GJJ database). The GJJ database was compiled by a consultant anthropologist, Miles Holmes in February 2010, based on previous genealogical and anthropological research data held by the KLC. The data provided by the KLC to Mr Holmes included:

(a) hand drawn genealogies prepared by Ms Ophelia Rubinich in the course of her and Dr Vachon’s anthropological research in relation to the GJJ native title claim area;

(b) genealogies contained in appendices and attachments to Geoffrey Bagshaw’s report on the Djabera Djabera native title claim dated September 2003;

(c) genealogies relating to the GJJ native title claim area prepared by previous anthropologists including: Gro Ween, Sarah Yu, and Patrick Sullivan;

(d) genealogies relating to the GJJ native title claim area prepared by N B Tindale and A P Elkin;

(e) information from numerous family history sheets completed by attendees at a GJJ claim group meeting held at Broome over 16 and 17 December 2009;

(f) a genealogy for Mr Paddy Roe prepared by Nicholas Green; and

(g) a book entitled “This is your place” by Nailon, Sr Brigida & Father Huegel (eds) 2001, Pallottine Centre.

The GJJ database is extensively referenced so that the source of each piece of data in it can be identified. The database has not been updated since late February 2010 although, since that time, Dr Vachon and Ms Rubinich have continued their anthropological research, including the collection and analysis of genealogical information from Aboriginal informants and from secondary sources. This has resulted in new information in relation to some members of the McKenzie family. The further research has revealed that these people are likely to be descended from the apical ancestors Mary Nelagumia and William Wallai. This is challenged by Mr Roe.
After the GJJ database was compiled by Mr Holmes and prior to a meeting of the GJJ claim group held on 7 April 2010, KLC staff, Kara Dunn, an anthropologist, and Tiffany Labuc, a senior native title officer, cross-checked the names in the GJJ claim group list against the names of people recorded in the GJJ database. Ms Dunn and Ms Labuc checked to see that each person whose name was listed in the GJJ claim group list was also shown in the GJJ database as having descended from an apical ancestor listed in the GJJ Form 1 application. Ms Rubinich was also involved in this process, although her involvement extended mainly to answering genealogical queries from Ms Labuc and Ms Dunn.
During this cross-checking exercise and afterwards, Ms Dunn updated the GJJ claim group list as necessary. After the 7 April meeting of GJJ claim group, Ms Dunn created another worksheet in the Excel spreadsheet containing the GJJ claim group list. KLC staff used the GJJ claim group list as cross-checked by Ms Dunn and Ms Labuc to prepare registration books for use at the GJJ claim group meeting on 3 August 2010. The registration books contained the names of all those persons who were listed in the GJJ claim group list.
Mr Roe submits that during the cross-examination of Ms Labuc and Ms Dunn it became apparent that the GJJ claim group list had passed through many hands since its initial preparation and no single person had come forward to identify the changes that had been made or attest to its accuracy or reliability at the time of its use for the purposes of the 3 August 2010 claim group meeting as a record of the ancestral connections of all of the persons who attended the meeting.
This, he argues, casts doubt on the reliability and accuracy of the KLC’s claim group list and in turn considerable doubt over whether each member of the applicant was properly authorised at the meeting.
I do not accept this submission. I am satisfied on the evidence as a whole that the GJJ claim group list was created and maintained by the KLC officers in a competent manner. I have no reason to conclude otherwise. Certainly the generalised complaint made by Mr Roe does not persuade me that the list is inaccurate and unreliable. I find, on the balance of probabilities, that the list is sufficiently accurate and reliable in the present context.

Notice of the 3 August 2010 meeting

The 2 affidavits of Ms Fairborn describe the process involved in giving notice to the GJJ claim group members of the claim group meeting to be held in Broome on 3 August 2010. This evidence was not challenged by Mr Roe. Ms Fairborn and other KLC staff members were involved in notifying members of the GJJ claim group who were included on the GJJ claim group list about the proposed meeting and the agenda for the meeting. Notification took place between 2 and 29 July 2010 and included:

(a) 2 mail-outs of meeting notices to the GJJ claim group members for whom the KLC had a last known postal address;

(b) telephone contact;

(d) email of meeting notices;

(e) faxing meeting notices to remote communities including: Beagle Bay; One Arm Point; Djardinjin / Lombardina; Jarlmadanga; and Bidjidanga;

(f) local radio broadcasts; and

(g) public notice advertisements in various newspapers.

The first mail out of meeting notices took place on 6 July 2010. Meeting notices were sent to 587 GJJ claim group members for whom the KLC had a last known postal address. Ms Fairborn posted these in 410 envelopes as several GJJ claim group members use the same postal address. The notice described the members of the GJJ claim group in the same terms as are used in the Form 1 application and contained an agenda which included considering the replacement of the current applicant. The second mail out took place on 20 July 2010.
Mr Roe and his solicitors were given very specific notice of the meeting and of the agenda for the meeting and this is described in the affidavit of Philip Anthony Hunter sworn on 13 August 2010. In particular, Mr Hunter’s firm:

(a) advised Mr Roe’s solicitors that the KLC proposed to facilitate a meeting of the members of the GJJ claim group to provide them with an opportunity to consider and to make decisions in relation to the authorisation of a new applicant;

(b) advised Mr Roe’s solicitors what arrangements the KLC proposed to make for this meeting;

(c) invited Mr Roe’s solicitors and Mr Roe to comment on the proposed arrangements for the meeting which included offering to fund a legal representative for Mr Roe to attend and observe the meeting, and on the proposed agenda for the meeting;

(d) advised Mr Roe’s solicitors that the meeting of the GJJ claim group would be held at Broome on 3 August 2010 and provided a copy of the proposed notice of the meeting which included the proposed agenda and again invited Mr Roe to comment on the proposed arrangements and on the proposed agenda;

(e) provided Mr Roe’s solicitors with the draft brief to Mr Darryl Pearce, the independent facilitator engaged by the KLC to facilitate the meeting, and invited Mr Roe to comment on the brief before it was provided to Mr Pearce.

Mr Roe and his solicitors were given a reasonable opportunity to become involved in the planning and preparation for the meeting. Neither Mr Roe nor his solicitors accepted any of the offers that were made in this regard. In particular, Mr Roe and his solicitors did not accept the offer which the KLC made to pay for a lawyer representing Mr Roe to attend and observe the claim group meeting.
Prior to the 3 August 2010 meeting, the GJJ claim group list contained the names of 587 GJJ claim group members for whom the KLC had a postal address. The first postal mail out resulted in 40 envelopes containing meeting notices being returned to the KLC. The second mail out of meeting notices saw notices being sent to 570 GJJ claim group members (this was the 587 people less the number of returned to sender notices that were not able to be re-directed and the return to sender notices which were hand delivered).

The 3 August 2010 claim group meeting

Other than the right of the individuals and family members, whose membership of the claim group and hence their right to vote is under challenge, no complaint is made as to the conduct of the meeting. The meeting was attended with 227 GJJ claim group members registering before participating in the meeting, including 190 of those were already listed in the registration booklet as members of the claim group whilst another 36 people who completed a family history form on the day were established as being members of the GJJ claim group.
The registration process, which was used to determine whether or not a person who wished to attend the meeting was in fact a member of the GJJ claim group, is described in a number of affidavits. That procedure was as follows:

(a) registration tables were set up outside of but close to the entrance to the meeting venue;

(b) registration for the meeting started at 8.00 am and was conducted by KLC staff assisted by Ms Rubinich;

(c) to gain access to the meeting venue, a person had to first approach a KLC staff member at one of the registration desks and tell the KLC staff member their name;

(d) the KLC staff member would then look to see whether that person’s name was listed in the registration booklet as a member of the GJJ claim group and if so, mark the registration booklet in the attendance column and give to that person a pink wristband and advise them that they would not be admitted to the meeting venue unless they wore their wristband;

(e) if the person’s name was not listed in the registration booklet, the KLC staff member would check the spelling of the name or would ask if the person might be listed in the registration booklet under a different name;

(f) if the KLC staff member could not locate the person on the registration booklet, they would ask the person to complete a family history sheet. When that sheet had been completed, it would be checked by the staff member to see whether an immediate family member of the person was listed in the registration booklet. If so, the KLC staff member would indicate on the family history sheet that the person was entitled to participate in the meeting and would give the person a pink wristband as referred to above. If an immediate family member on the registration booklet could not be found, the person would be sent to Ms Rubinich who would interview the person to determine whether they were a descendent of one of the GJJ apical ancestors; and

(g) when a person presented to a registration desk and indicated that they were not a member of the GJJ claim group but were entitled to attend the meeting in some other capacity, the KLC staff member would record that person’s name in the green observer list in the registration booklet and would give the person a green wristband and advise them that they would only be admitted to the building if they were wearing that wristband.

The meeting commenced at 9.30 am and was chaired and conducted by Mr Darryl Pearce, an independent facilitator engaged by the KLC. Mr Chris Athanasiou, an independent lawyer engaged by the KLC was also present to provide legal advice to Mr Pearce and to the meeting.
What occurred at that meeting is deposed to in a number of affidavits. The following description is taken largely from the affidavit of Mr Edwards, who was present at and observed all but approximately 5 minutes of the meeting. He prepared detailed minutes of the meeting which are exhibited to his affidavit (JLE-4). Mr Edwards was also involved in preparing an attendance register for the meeting based on all the information recorded on the registration materials.
At the meeting a resolution was proposed that there was no decision-making process under the traditional laws and customs of the GJJ claim group that must be complied with for the authorisation of a person or persons to be an applicant on the GJJ claim or to remove or replace an applicant on the GJJ claim. The meeting passed this resolution with 140 votes in favour and 51 votes against. The meeting then resolved with 133 voting in favour and 52 voting against to adopt an agreed process of decision making under which a decision by the group would be made by a majority show of hands.
Mr Roe nominated himself as one of the persons who would comprise the replacement applicant. Seven persons voted for and 109 persons voted against so authorising Mr Roe. Mr Shaw wished to be removed as an applicant.
The resolution that was passed at the meeting that Mr Roe and Mr Shaw were no longer authorised to be the applicant and that the 6 persons who now comprise the applicant on the motion, or such of them who remain willing and able to act in respect of the GJJ claim in the future, were authorised to be the applicant by 112 in favour and 37 against.
Accordingly, subject only to the resolution of the challenges to the status of William McKenzie, Patricia Torres and their families as well as those who claim membership of the claim group through Frank Dixon, the conditions set out under s 66B(1)(a)(iii) and 1(b) NTA have been met.

The challenge to the status of William McKenzie, Patricia Torres, Frank Dixon and their families

It is only a person or persons who are members of a native title claim group who can apply for an order under s 66B(1) NTA. Mr Roe has put in issue whether 2 of the 6 persons who are applying for a s 66B order in this proceeding are descendants from one of the apical ancestors listed in the Form 1 application and, hence, are members of the GJJ claim group. The two are William McKenzie and Patricia Torres.
There are also challenges to the members of the McKenzie family, the Barker family as well as the Dixon family who attended the 3 August meeting. I will now consider the challenges made to each of them in turn, dealing first with the expert opinion evidence of Professor Trigger, who, as I mentioned, was retained by Mr Roe.

Professor Trigger’s Expert Report

Professor Trigger gave written expert opinion evidence for Mr Roe. He was not cross-examined although it was agreed by counsel for Mr Roe that he would not take any Brown v Dunn point. Professor Trigger is a prominent anthropologist who has carried out more than 30 years of anthropological study on indigenous systems of land tenure and completed more than 50 substantial commissioned projects relating to land claims and native title matters.
Professor Trigger was asked in his Expert Report to read Ms Rubinich’s affidavits of 10 September 2010 and 12 October 2010 and to consider whether, in his opinion, the evidentiary foundation and reasoning disclosed by Ms Rubinich in her two affidavits provides a proper basis for her opinions as follows:

(a) In [40] of her first affidavit, that it is likely that William McKenzie Jr is a descendant of Mary Nelagumia and William Wallai;

(b) In [25] of her second affidavit, that Sophie McKenzie and her descendants (one of whom is William McKenzie Jr) are descendants of Mary Nelagumia and/or William Wallai;

(c) In [24] of her second affidavit, that Rita Augustine, her siblings and their descendants are descendants of Mary Nelagumia and/or William Wallai;

(d) In [26] of her second affidavit, that Frank Sebastian aka Gadjai, his siblings and their descendants are descendants of Mary Nelagumia and/or William Wallai; and

(e) In [27] of the second affidavit, that Aubrey Greatorex and Johnny Peters and their descendants are descendants of Mary Nelagumia and/or William Wallai.

Notably, at the hearing, the challenges summarised in the previous paragraph in respect of (c)-(e) above were abandoned by Mr Roe, even although Professor Trigger had concluded that there was not a proper basis disclosed for the opinions held by Ms Rubinich as described in (c)-(e). He reached the same conclusion in relation to her opinions described in (a) and (b).
As Professor Trigger points out, Ms Rubinich’s first affidavit identifies a number of conflicting sources and references that have a bearing on the issue of Sophie McKenzie’s status. The complaint is made that none of the primary or secondary materials upon which Ms Rubinich relied for the purpose of forming her opinion on this issue, including field notes genealogies and other documents, are in evidence. The further complaint is that she has not properly explained the reasoning process by which she resolved those various conflicts to arrive at her opinion.
Uncontroversially, Professor Trigger accepts Ms Rubinich’s evidence that “consolidated genealogies” will sometimes contain information that is “unfamiliar to some claimants” and that the reliability of source genealogical data is a matter of anthropological opinion. Much of the genealogical data collected and assessed by Ms Rubinich was sourced in her interviews and less formal discussions with her many Aboriginal informants. Ms Rubinich was thus in a position of significant advantage over Professor Trigger in assessing the cogency of the various sources.
Professor Trigger was asked to comment on the proper foundation for Ms Rubinich's opinion. He indicated that he had not conducted any independent research or relied on any data which was not referred to in Ms Rubinich's affidavit. In compiling his report, Professor Trigger has had access to the same records and reports that Ms Rubinich considered. He has also had access to Ms Rubinich’s field notes. Despite this he does not point in his report to any documentary or other evidence relevant to the issues considered by Ms Rubinich and which he says she failed to consider.
Importantly, Professor Trigger does not say in his report that, based on the documentary evidence which was available to Ms Rubinich and on the content of her notebooks, the individuals and families whose membership of the GJJ claim group are challenged by Mr Roe, are not members of the group. Nor does he say that Ms Rubinich’s opinions are necessarily wrong. I accept the submission of the applicant on the motion that his criticism is not one of substance but is rather one of process. That is, Professor Trigger is of the view that the reasoning process by which Ms Rubinich arrived at some of her opinions has not been made sufficiently transparent in her affidavit evidence.
Professor Trigger does not say that Ms Rubinich has failed to disclose the assumptions or the data upon which her opinions are based, because indeed she has. His criticism is simply that she has not sufficiently explained the process. Hence the expression, employed by him in each case, that in Ms Rubinich's affidavits there is "not a proper basis disclosed ... in the affidavits". In circumstances where, as here, Ms Rubinich has considered all of the relevant information or data available, and that body of information is considerable, I do not consider it necessary for her to refer to every item of information or to indicate why she preferred one or several sources of information over others. Ms Rubinich’s conclusions, I accept, are clearly based on a multitude of factors and involve elements of fact, degree and judgment.
If Professor Trigger considered that the evidence which Ms Rubinich considered was not sufficient to support her opinions, or should have led her to arrive at different opinions, it was open to him to say so. He has not done this. Moreover, it was open to counsel for Mr Roe to have challenged Ms Rubinich's opinions as having no basis in fact. In substance that was not done. Resort is had to a submission that the applicant on the motion has not discharged its evidentiary burden.
I conclude that if there were bases, in substance, to challenge Ms Rubinich's opinion then they should have been put. It cannot be said that there was no evidentiary basis for Ms Rubinich's opinions. That, arguably, more could have been disclosed in her affidavit does not detract from the cogency of those opinions. I accept the following submissions made by the applicant on the motion. In arriving at her conclusions, Ms Rubinich has had the opportunity to carry out a lengthy period of field work where she dealt directly with a number of different Aboriginal informants. She was in a position to question her informants about issues which may have concerned her and she would also have been in a position to gauge and to assess their response. Ms Rubinich would also have had time for reflection and mature consideration and assessment in relation to what her Aboriginal informants were telling her, as well as the various documentary sources. Ms Rubinich had the opportunity, as she worked, to discuss the oral and written evidence with her colleague, Dr Vachon. This necessarily places her in a position of considerable advantage in determining what weight should be given to the various sources which she considered.
Professor Trigger did not have any of those advantages when he came to analyse the data which Ms Rubinich considered. Furthermore, the contents of Ms Rubinich’s notebooks which Professor Trigger has also looked at are not, and do not purport to be, a complete transcription of everything that she was told. The notebooks do not record every impression which the various primary and secondary sources may have made on her. In looking at the documented and the recorded oral evidence, Professor Trigger would only be looking at a portion of the evidence which was available to Ms Rubinich. But even based upon what he has considered he is not prepared to say that Ms Rubinich is wrong.
None of these observations is intended in any way to reflect adversely upon Professor Trigger. He had a confined brief and his opinion addresses the questions so confined.

William McKenzie Jnr and persons claiming to be descendants of William Wallai and/or Mary Nelagumia through Sophie McKenzie

Ms Rubinich stated that based on claimants' assertions and Bagshaw's genealogies there is evidence that Sophie McKenzie is a descendant of Frank Walmandu. She said also that there is evidence, again based on Bagshaw and claimants materials, that Frank Walmandu is a son of Mary Nelagumia and William Wallai. On that basis Ms Rubinich said that in her opinion it was likely that William McKenzie Jnr was a descendant of Mary Nelagumia and William Wallai.
As part of Mr Roe's challenge to this opinion, the marriage certificate of Sophia McKenzie was tendered during the hearing on 2 December 2010 on behalf of Mr Roe. It discloses, according to Mr Roe, that "Sophie" McKenzie's maiden name was Chatmann and that her mother's name was Mary Carmen.
Ms Rubinich’s field notes of an interview with Kay McKenzie recorded that "some say my mother's surname is Chatmann but she wouldn't tell us”. Ms Rubinich said that she could not recall the name Chatmann coming up at any other time in her interviews in relation to Sophie McKenzie.
Ms Rubinich said that she had not come across the suggestion that Mary Carmen was the mother of Sophie and that she would have referred to it if she had come across it. She agreed that the marriage certificate was an important piece of evidence.
Mr Roe submits that the marriage certificate contradicts the central tenet of the case on this issue as contended for by the applicant on the motion.
He submits that the applicant on the motion has not discharged the burden of proving that William McKenzie Jnr is a descendant of the apical ancestors William Wallai and/or Mary Nelagumia through Sophie McKenzie. The additional consequence, if that is correct, is that there were 19 persons present at the 3 August 2010 authorisation meeting, including William McKenzie Jnr, who were not eligible to participate in the decision making process. Moreover Mr Roe has, since 1999, accepted the McKenzie family as part of the GJJ claim group.
A number of matters arise from a consideration of the marriage certificate. First, Ms Rubinich saw it for the first time whilst giving evidence. It was put to her that the husband, Paul McKenzie, disclosed in the marriage certificate, is the father of "the William Senior". I take this to refer to Mr William McKenzie Senior. Her answer was: "I assume so".
Second, there is no explanation as to why the first name of the wife in the certificate is "Sophia" when she is asserted by Mr Roe to be the person known as "Sophie" McKenzie. Moreover, Mr Roe's expert anthropologist, Professor Trigger, was not briefed with this marriage certificate. His opinion as to what, if anything, followed from the content of the certificate on the issue of William McKenzie's ancestry through Sophie McKenzie was not sought. Further, William McKenzie had already given his evidence by then. He was not asked in cross-examination to comment on the information contained in this marriage certificate.
I do not regard the evidence of the marriage certificate as displacing Ms Rubinich's opinion that Sophie McKenzie is descended from Mary Nelagumia and William Wallai. Counsel for Mr Roe did not put to her that she should alter her opinion in this respect by reason of the content of the marriage certificate. Ms Rubinich's acknowledgment that the marriage certificate is an important piece of evidence did not amount to a surrender of her relevant opinion.
Even were I to have found that the evidence did not establish this link that would not be fatal to the contention of the applicant on the motion. Strict biological descent is not required to be a member of the GJJ claim group. In De Rose v South Australia [2003] FCAFC 286; (2003) 133 FCR 325 the Full Court found that native title claimants need not have to establish strict biological descent. They must demonstrate a commonality of interest, based upon traditional laws and customs, and a connection with the land or waters of a relevant kind. Further, "biological descent" was discussed by Brennan J in Mabo v Queensland [No. 2] [1992] HCA 23; (1992) 175 CLR 1 and it appears in a summary of conclusions at [70] where his Honour said:

Membership of the indigenous people depends on biological descent from the indigenous people and on mutual recognition of a particular person's membership by that person and by the elders or other persons enjoying traditional authority among those people.

There was evidence of that kind before me. In an affidavit by Ms Rubinich, she stated that, based on interviews with GJJ native title claim group members and her consideration of secondary resources, in her opinion, Sophie McKenzie and her descendants "are likely descendants" of Mary Nelagumia and/or William Wallai. Although she did not refer to any further primary or secondary material to support her opinion Ms Rubinich stated that she had "given consideration and weight to Jabirr Jabirr laws and customs relating to group acknowledgement and the value and authority of senior claimants...".
An affidavit by Cissy Djiagween affirmed on 25 November 2010 stated that she was the most senior person of the Jabirr Jabirr people and that “it is a Jabirr Jabirr rule that you speak to an elder in your family about your family's connections and about country, and ask them about their knowledge". She stated that William McKenzie Jnr’s grandmother Sophie McKenzie is a descendant of Frank Walmandu, also known as ‘14 Dogs’, who Ms Rubinich considers is a sibling of Sernanus. She then stated that “I knew... Sophie McKenzie and her mother Dorothy who was also known as Liddy” and that Liddy was a daughter of Frank Walmandu.
In cross-examination Mrs Djiagween said that she never saw or met Sophie McKenzie's mother and it was Mrs Djiagween's mother who had told her that Sophie's mother was Dorothy or Liddy. Mrs Djiagween was asked whether it was possible that Sophie's mother was also known as Mary, to which she replied: “Well, I didn't hear that Mary come out; I only knew she was Sophie (sic) known as Liddy”.
William McKenzie Jnr’s affidavit filed on 26 November 2010 stated that sometime last year his Aunty Cissy (Cecilia Djiagween) had told him that her mother's parents were William Wallai and Mary Nelagumia and since that time had told him that his grandmother, Sophie, was “the daughter of a Jabirr Jabirr woman named Liddy who was also called Dorothy by whitefellas” and that Liddy's father was Frank Walmandu. He also said that at a claim group meeting in December 2009, when he was filling out a family history sheets, he asked his uncle Donald McKenzie if he knew who Sophie McKenzie's mother was and was told that it was Liddy.
In cross-examination Mr McKenzie confirmed that apart from what his Aunty Cissy told him he had no knowledge of who was the mother or father of his grandmother, Sophie McKenzie.
I find on balance, for present purposes, that Sophie McKenzie was accepted by Mrs Djiagween as a member of her family. That is sufficient to establish the necessary familial connection. This is no barrier to this issue or other genealogical issues being revisited, if necessary, at a final hearing of the claimants’ application: Dann v State of Western Australia [2011] FCA 99. It follows that I reject Mr Roe's submission that the applicant on the motion has failed in an evidentiary sense on this issue.

Patricia Torres and persons claiming to be descendants of Keleregado and/or Milare through Matilda

The evidence of the applicant on the motion on this issue comprised:

(a) an affidavit by Patricia Torres sworn on 10 September 2010 to the effect that she was a descendant of Keleregado and Milare through their daughter Matilda;

(b) Ms Rubinich’s first affidavit sworn on 10 September 2010 to the same effect.

Ms Rubinich's hand drawn genealogies which she provided to Mr Holmes in late February 2010 to assist him to prepare the KLC’s genealogical database depict Matilda as the child of Keleregado and Millare and that her siblings included, amongst others, Flora, Louisa, Gabriel and Remi. A note on the right-hand side of sheet G states: "NB alternate Matilda offspring contested".
Ms Rubinich explained that there were three children who were reasonably consistently attributed as the offspring of Matilda and two that were not. She did not identify which offspring were contested. Although she sought to suggest that “contested” might have been too strong a word she agreed that the note was one that she had prepared for her own benefit and that she would have made an accurate note to herself.
The notes on Ms Rubinich's hand drawn genealogies prepared by Mr Holmes, which Ms Rubinich corrected before the notes were provided to the KLC as a record of decisions made by Ms Rubinich and Mr Holmes contained the following statement in relation to Sheet G: "due to inconsistencies in the record it is unclear whether all the people in the second line of siblings descended from the same parent (Milare and Keleregado). For the purposes of Rubinich's diagram and the database it is assumed that Milare and Keleregado are the parents of all the children on the second line, however this may need to be changed in the future".
In cross-examination Ms Rubinich:

(a) agreed that her research had involved looking at Remi Balgai’s firsthand account in Nailon & Huegel’s ‘This is Your Place’ in which he identified his sisters as Flora, Matilda, Djauradjaura and Louisa and his father and mother as Wallamara and Kilibin;

(b) in response to the suggestion that the information concerning who were the parents of Matilda was inconsistent, said that “this is a big argument among two different claim groups”;

(c) the statements on this subject that appear in Exhibit F at page 8 and 9 were a fair summary of what she had said at the Jabirr Jabirr claim group meeting on 30 April 2010 which were to the following effect:

(i) “... we have gone down a generation so there are a couple of reasons, I can tell you about anthropological reasons, example of Milare and Keleregado, the reason we've gone down one generation is because there are differing opinions about parents of children...”;

(ii) “I have evidence to show they parents of Matilda, Remi, I've got baptismal certificates, will be writing that in the report, all info will be there, safer to go with lower generation, also legal reasons, might have to do with Nuyl Nuyl”;

(iii) “I have to describe apical ancestors in a way that if somebody was picking up a piece of paper to understand who they were, a lot of people say Matilda [may have different parents to Remi].

Ms Rubinich agreed that neither Milare nor Keleregado are listed as apical ancestors in the new Jabirr Jabirr claim. This is confirmed by the Jabirr Jabirr Form 1 claimant application in WAD 124 of 2010.
Mr Roe submits that the applicant on the motion has not discharged the burden of proving that Patricia Torres is a descendant of the apical ancestors Keleregado and/or Milare through Matilda. The additional consequence, if this is correct, is that there were 55 persons present at the 3 August 2010 authorisation meeting, including Patricia Torres, who claim to be descended from Milare and Keleregado through Matilda, six of whom also claim to be descended from Frank Dixon. Accordingly, he submits that the applicant has not discharged the onus of establishing that the remaining 49 persons, including Patricia Torres, were eligible to participate in the decision making process at the meeting on 3 August 2010.
I accept, for present purposes, the opinion of Ms Rubinich that Patricia Torres is a descendant of Keleregado and Milare through their daughter Matilda for the reasons expressed in her affidavit evidence. I am aided in this conclusion by the absence of any contrary opinion expressed by Professor Trigger. Whilst counsel for Mr Roe put certain apparent inconsistencies in the evidence concerning the ancestry of Patricia Torres he did not put to Ms Rubinich that, in light of those matters, her opinion in this respect was wrong or should be qualified in any way. It is not uncommon upon these anthropological questions for there to be inconsistencies to some extent. Anthropology is not a precise science.

Persons claiming to be descendants of Frank Dixon

Ms Rubinich’s notes record the following in relation to Frank Dixon:

It cannot be determined whether Frank Dixon/Bullingi/Jimmy Bulangi is the child of Frank Dixon (on the first level) or Mary Nelagumia. In the database Frank Dixon/Bullingi/Jimmy Bulangi has been entered as Mary's son as per Rubinich's field notes, but this is contradicted by K. Barrett and therefore is not totally certain.

Mr Holmes agreed that there could potentially be two Frank Dixons.
The death certificate of Francis Xavier Dixon was tendered in evidence by counsel for Mr Roe during his cross-examination of Ms Rubinich. The certificate shows that he was married to Patricia Maud Roe and that his mother and father were Winnie and Banjo Dixon.
Ms Rubinich said she could not assume that this Dixon was the father of Philomena just because he was married to Patricia Roe and she cautioned that when reading death certificates one has to be mindful about who the informant was because, as in this case, it was not someone close to the person who has died. She frankly acknowledged that this was not to say that what was in the death certificate was not correct. However, she agreed that the death certificate was a piece of evidence that suggests either that there’s another Frank Dixon or that Frank Dixon is perhaps not one of the people she had considered to date. She explained, however, that this was so because she did not recognise the names Banjo Dixon and Winnie, referring to Winnie Dixon.
There were 29 persons present at the 3 August 2010 authorisation meeting who claim to be descended from Frank Dixon, six of whom also claim to be descended from Keleregado and Milare through Matilda. Mr Roe submits that the applicant on the motion has not discharged the onus of establishing that those 29 persons were eligible to participate in the decision making process at the meeting on 3 August 2010.
I accept the submission of the applicant on the motion that there is a degree of unfairness in permitting Mr Roe to raise doubts about the Dixon family at such a late stage of the hearing and to then expect the applicant on the motion to provide further extensive genealogical evidence about the Dixon family. Nonetheless, the evidence was admitted and no adjournment was sought by the applicant on the motion in order to enable them to deal with it.
In cross-examination Ms Rubinich identified that her research had uncovered that Frank Dixon could also have been identified in the records as Frank Diggy and Jimmy Balanji. Ms Rubinich considers that there may be 2 Frank Dixons in 2 different generations. She said there was conflicting evidence about whether Frank Dixon was a son of Wallai William or Bornal but either way she considered him to be a member of the claim group. Mr Roe’s counsel showed Ms Rubinich a copy of a death certificate for a man named Francis Dixon who had been married to Patricia Roe. The certificate indicates that Banjo Dixon and Winnie had been Francis Dixon’s parents.
As senior counsel for the applicant on the motion put it, there is no way of knowing whether these names are also the European names sometimes used for Kordang and Bornal who, on one interpretation, are the parents of Frank Dixon. Ms Rubinich did note that the informant on the death certificate was the funeral director and she had to be careful because the informant was not close to the person who had died.
I accept that the most reliable evidence in relation to Frank Dixon is that of Ms Rubinich’s informants and how they say their parents referred and related to Frank Dixon. As a result of making an expert evaluation, Ms Rubinich opined that Frank Dixon was the same generation as Sernanus and was part of the GJJ claim group. As Ms Rubinich said, the reliability of genealogical data is a matter of anthropological opinion where the expert weighs up the reliability of available sources.
Mr Roe has, since 1999, accepted the Dixon family as part of the GJJ claim group. Moreover, as with Sophie McKenzie's marriage certificate, Professor Trigger was not briefed with the Dixon death certificate nor was his opinion sought as to its relevance to the issues before the Court. Again, counsel for Mr Roe did not put to Ms Rubinich that any of the evidence to which he had referred her should cause her to alter her opinion in any way. I accept the opinion evidence of Ms Rubinich for present purposes in relation to those at the meeting claiming to be descendants of Frank Dixon.

Conclusion

It follows for all these reasons that I am satisfied that those who attended the 3 August 2010 meeting and voted were members of the GJJ claim group for the purposes of s 66B of the NTA. This necessarily includes both William McKenzie and Patricia Torres who are two of the six persons who are the applicant on the motion. I am also satisfied that the other requirements of these provisions have been established. There is a discretion in the Court not to make the orders sought under s 66B of the NTA: Ward v Northern Territory [2002] FCA 171 at [16]; Daniel at [18]. I now turn to that question.

Discretion under s 66B(2)

The Jabirr Jabirr people have brought a separate native title determination claimant application WAD124/2010 asserting that a differently constituted claim group comprising only biological descendants of twenty two Jabirr Jabirr ancestors, which does not include any descendants of Paddy Roe, Chimbere Sitocay or Nyobing Babere, hold native title in the WAD6002/98 application area in accordance with the traditional laws and customs of Jabirr Jabirr people.
The Goolarabooloo people have now authorised Mr Roe and three other persons to make a native title determination application on their behalf claiming native title over part of the WAD6002/98 application area.
Mr Roe argues that the proposed applicant on the motion has a conflict of interest and that a duty arises in relation to the applicant’s fiduciary obligations as they are the same six persons who are the joint applicant for the Jabirr Jabirr claim. The Jabirr Jabirr applicant, on 30 April 2010 at a Jabirr Jabirr claim group meeting was authorised by the Jabirr Jabirr claim group to do all that they could to have the GJJ claim dismissed. Despite this, it seems that this is a course which they have determined not to follow. The applicant on the motion did not accept Mr Roe’s open offer to dismiss the GJJ claim on 1 December 2010 or on 6 December 2010. It is important to remember that the Jabirr Jabirr claim is unregistered.
As I mentioned earlier, Mr Roe's counsel sought, at the adjourned hearing on 14 December 2010, to have the Court resolve the motion in his favour, even if only on discretionary grounds, by dismissing the substantive application by 22 December 2010 in order to give the Jabirr Jabirr claim group and the prospective Goolarabooloo claim group time to file their respective native title claimant applications in this Court by 22 December 2010 which is the relevant date for the purposes of s 30(1)(a) NTA.
The background to this proposal is that the recent Jabirr Jabirr claim is not registered and cannot be registered under s 190C(3) of the NTA, as it covers the same claim area and has in common some of the same native title claimants. As the Jabirr Jabirr claim is unregistered the Jabirr Jabirr claimants currently have no procedural rights under the NTA. If the Goolarabooloo family lodges a claim it is likely that it would not obtain registration as the claim will embrace part of the same claim area and some of the same claimants as the GJJ claim. Thus, both the Jabirr Jabirr claim and the Goolarabooloo claim would be unregistered.
Although Mr Roe accepted the position that dismissal of the substantive application necessarily would result in loss of procedural rights under NTA s 24MD(6B) and (6A), he submitted that other avenues were available to protect the interests of the respective claimant groups. In particular, Mr Roe submitted that any person whose interests would be affected by the compulsory acquisition had standing to challenge the validity of the notices.
It was simply impossible, as I advised counsel for Mr Roe during the hearing, to consider the evidence and the parties' submissions in such a way as to do justice to them in a period of 6 working days. It is to be remembered that the GJJ claim and the related procedural rights are for the benefit of the entire claim group which is constituted by both Jabirr Jabirr and Goolarabooloo people.
I will now consider Mr Roe’s submission, which I referred to earlier, that, in the exercise of the s 66B discretion, not only should the Court refuse the motion but it should dismiss the substantive application. And this for the reason on Mr Roe’s submission that there is now no commonality of interest as between the Goolarabooloo peoples and the Jabirr Jabirr peoples in vindicating the common or group rights and interests claimed in the substantive application on behalf of the descendants of the apical ancestors listed in the GJJ Form 1 application.
It is instructive to consider the following history of the GJJ claim.
The original Goolarabooloo application for determination of native title was lodged on 27 June 1994 and was subsequently amended on several occasions. The application was made on behalf of the Goolarabooloo only, although Mr Roe said that the gate was “left open” for other people to come in.
On 28 June 1995 the KLC wrote to the National Native Title Tribunal (NNTT) on behalf of Jabirr Jabirr people requesting to be registered as an interested party in the Goolarabooloo native title claim. The letter stated that: “The Jabirr Jabirr people are traditional owners for part of the country that is included in this claim. We do not wish to claim exclusive ownership of any part of this claim and are happy to work cooperatively with Goolarabooloo in this claim, but we do want our rights in the country recognised.” A process of mediation was foreshadowed.
Following successful mediation between Goolarabooloo and Jabirr Jabirr people the KLC wrote to the NNTT on 7 October 1995 requesting the withdrawal of Jabirr Jabirr people as an interested party to the Goolarabooloo application and seeking leave to amend the application so as to include Jabirr Jabirr claimants.
An amended application was filed on 7 October 1995 by Mr Roe as applicant “on his own behalf; on behalf of his family group; on behalf of Paddy Roe, Phillip Roe, Ronald Roe, Teresa Roe, Richard Hunter, Joseph (Duju) Benedict, Rita Augustine, Gordon Dixon, Mary Tarran, Cyril Shaw and Warren Greatorex and their respective family groups; and on behalf of all other Aboriginal people who are connected to the claim area according to their acknowledged laws and customs.”.
Following amendments to the Native Title Act it became necessary to file an Amended Native Title Determination Application (the current Form 1 application in WAD6002/98) for reasons explained in the minutes of the GJJ authorisation meeting on 2 August 1999. The minutes record that Ms Krysti Guest, a KLC legal officer, gave an historical overview of the claim: “Goolarabooloo started the claim. Jabirr Jabirr went in as an interested party and then joined the application. Walmun Yawuru agreed that Goolarabooloo would represent their interests.” Mr Roe was not present at the meeting according to the minutes but other members of his family were present, as were Jabirr Jabirr representatives including Cissy Djiagween and Rita Augustine among others and Michael Corpus, representing Walmun Yawuru people. The minutes record that decisions were made as to the joint named applicant, Mr Roe and Mr Shaw, the claim group description and amalgamation of the existing claims into a single claim. The minutes do not record that any person dissented from these decisions.
On 9 September 2008 Mr Robert Powrie, the KLC’s principal legal officer, wrote to Mr Marcus Holmes of Taylor Linfoot & Holmes in relation to the GJJ native title claim group. Mr Powrie was, at that time, the solicitor on the record for WAD6002/98 and Mr Roe and Mr Shaw were his clients in their capacity as the applicant in that claim. The reason for Mr Holmes’ involvement was explained by Mr Roe: “Why I got Marcus – because I couldn’t trust the – my rep body wouldn’t even give me a piece of paper that I asked for” with the result that he “had to get separate advice”.
Mr Powrie’s letter stated:

Please note that on Wednesday, 27 August 2008 a Jabirr Jabirr meeting was held at the Broome Recreation and Aquatic Centre (BRACs) for the registered Goolarabooloo and Jabirr Jabirr and Djabera Djabera native title claim groups. At that meeting the Kimberly Land Council (KLC) was instructed to progress a Jabirr Jabirr Country Claim and to raise the following with your client:

On what basis does your client claim Native Title? We are concerned, given the Rubibi determination and the high bar for connection set in the High Court in the Yorta Yorta case, that your client does not have a Native Title interest.
The Jabirr Jabirr Native Title group have authorised surveys in relation to Gas development and your client has interfered with their instructions. Your client directed the consultants engaged on the process, independently of the group, to stop environmental studies.
The KLC has been advised that your Client has met with both the State of Western Australia and the relevant gas companies independently from the Goolarabooloo and Jabirr Jabirr Native Title Claim Group.
The Jabirr Jabirr claim group indicated that your Client is not representing the best interests of the Claim Group. The KLC is instructed to arrange for the necessary processes for your Client and Mr Cyril Shaw to be removed as named applicants from the Goolarabooloo and Jabirr Jabirr Native Title Claim Group (the Claim Group).
The attendance list for the Jabirr Jabirr meeting on 27 August 2008 was produced by the KLC in response to a subpoena and records that 17 persons attended that meeting. A number of those persons including Frank Sebastian and Rita Augustine had attended the GJJ claim group authorisation meeting on 2 August 1999.
Mr Roe found out about the meeting from Mr Powrie’s letter. No Goolarabooloo people were present at the meeting on 27 August 2008.
On the same day Mr Holmes replied to Mr Powrie’s letter as follows:

In the interim, I confirm the following:

This firm acts for the Goolarabooloo people, taking instructions through Joseph Roe.
The Jabirr Jabirr (only) meeting to which you refer was clearly not a Goolarabooloo Jabirr Jabirr Native Title Claim Group meeting and therefore could not provide valid instructions to KLC to have Mr Roe removed as an “applicant”. I remind you that in addition to being appointed by the Goolarabooloo and Jabirr Jabirr at an authorised claim group meeting as a claim group applicant, Mr Roe is an acknowledged and respected Law Boss of the Northern Tradition of the Song Cycle.
The Goolarabooloo, through Joseph Roe’s Grandfather, Joseph himself, his brothers and others (including of course senior Jabirr Jabirr who are part of Goolarabooloo), are critical to proof of native title in the Goolarabooloo Jabirr Jabirr claim, and Goolarabooloo lodged the initial claim, always acknowledging the importance, and inclusion, of the Jabirr Jabirr as part of the claim group with them.
The Goolarabooloo have previously accepted the KLC’s offer of KLC funded Goolarabooloo Jabirr Jabirr native title claim mediation meetings (to be held over a 5 day period).

We had been awaiting the KLC progressing that mediation. However, you confirmed yesterday that you had overlooked that, assuming for some reason that the mediation proposal had been unilaterally withdrawn by the KLC, but would now check to see if the KLC was still going to honour this commitment.

Based on:

- the past and current approach of the KLC to Goolarabooloo;

- the KLC’s subjective siding with some elements of the Jabirr Jabirr against the Goolarabooloo (this when the KLC is the native title claim lawyer for the Goolarabooloo Jabirr Jabirr native title claim group, with a legal obligation to act solely in that group’s best interests and when key Jabirr Jabirr support, and are in fact part of, Goolarabooloo);

- the text of the 8 September letter; and

- your comments to me today,

it seems that this mediation proposal has in fact now been withdrawn unilaterally by the KLC, when the KLC had itself proposed it and when it had then been embraced by Goolarabooloo. In addition, there has been a complete rejection by the KLC of the Goolarabooloo’s hoped for cooperative approach as between Goolarabooloo and the KLC. This approach by the KLC is clearly at variance with its statutory obligations as a native title representative body under the NTA and the facilitative, unifying function that it is supposed to have in the gas hub consultations. Instead, the KLC seems intent on fomenting disunity as amongst the native title claim group members at a time when they need to be unified to get their claim determined through a consent determination and to effectively give an informed consent to any West Kimberly gas hub location.

I summarised Mr Roe’s allegations concerning the circumstances that contributed to the breakdown of relations with the KLC and Jabirr Jabirr claimants in Roe v Kimberly Land Council Aboriginal Corporation at [31]. The truth or otherwise of those allegations is not an issue in these proceedings. However, as I have already said, the relationship between the Goolarabooloo and Jabirr Jabirr people has to an extent broken down.
Mr Roe relies upon the evidence of two witnesses, Ms Djiagween and Ms Torres, to support his contention that Jabirr Jabirr claimants assert that the Goolarabooloo people do not have rights in the claim area. However, Ms Torres did not state unequivocally that the Goolaraboolooo had no rights in the claim area. She did accept however that the Jabirr Jabirr Native Title claim, whilst unregistered, does not recognise the Goolarabooloo people in it. Ms Djiagween’s evidence was somewhat difficult to understand. There is room to conclude, as the applicants on the motion submit that her evidence indicates that she understood that the rights of the Goolarabooloo, Walman Yawuru and Jabirr Jabirr were independent of each other and would be dealt with in Court just as the various claimant groups had been in the “Yawuru Court”; meaning before Merkel J in Rubibi Community v State of Western Australia (No 5) [2005] FCA 1025. In Rubibi Ms Djiagween and Mr Roe had been 2 of the persons who comprised the applicant. For example, she said of the two groups represented respectively by Mr Roe (Goolarabooloo) and Mr Shaw (Jabirr Jabirr) “...come here to join together but we were saying that they should sit like this not one”. On the other hand Ms Djiagween answered “No” to a question “... well you say that it was always your position that Goolarabooloo had no rights in this country”. This may, in context, be equivocal. As a whole I considered that she was asserting a view that the Goolarabooloo had no interest in the country but she was quick to state that this might lead to fights with her family presumably on the basis that they disagreed with her view.
The applicants on the motion do not seek to downplay the fact that the motion reflects a contest between competing groups within the claim group for the native title application. Such divisions are not uncommon in such applications. ‘Pooncarie’ Barkandji (Paakantyi) People v NSW Minister for Land & Water Conservation [2006] FCA 25 was such as case. There Stone J made orders pursuant to s 66B(2) NTA. This was in the face of a deeply held disagreement within the claim group where some believed that the area subject to the claim should be split between two claims, those of the people said to be ‘pure’ Barkandji and those of the other members of the claim group.
Ms Rubinich was engaged by the KLC as a consultant anthropologist to carry out research and provide advice in relation to the WAD 6002/98 application area in about February 2005. In about mid 2009 she was again engaged with Dr Daniel Vachon by the KLC to carry out anthropological research to identify all of the persons who, according to their traditional laws and customs, hold the common or group rights and interests within the GJJ (WAD 6002/98) and Djabera Djabera (WAD 6124/98) application areas and to identify the land and waters in relation to which those persons had native title interests under the traditional laws and customs.
Mr Roe contends that as a result of that research Ms Rubinich and Dr Vachon have substantially concluded that the Goolarabooloo people have no native title interest in the area of the claim, and that this is relevant to the exercise of discretion.
It is the case that, in July 2009, following their anthropological research Ms Rubinich and Dr Vachon came to the view that the general region of the GJJ claim and Djabera Djabera claim application areas was Jabirr Jabirr country. Importantly however, this view was tempered by the qualification that further research was required in relation to people who asserted connection in the very south of the GJJ claim area and others who asserted connection to the very north of the Djabera Djabera claim area. They also considered that further research was required as there may be members of the Goolarabooloo family who may have interests through rayi or through incorporation
It is also of note that, as Ms Rubinich testified, she had been refused interviews by the Walmun Yawuru. Counsel for Mr Roe submits that in light of her and Dr Vachon’s opinions, however they may have been qualified, it is not surprising that Goolarabooloo and Walman Yawuru people would not wish to divulge confidential information to Ms Rubinich or Dr Vachon or assist them in their further research without adequate safeguards to protect their own interests, as appears from Mr Roe’s letter dated 11 February 2010 responding to Dr Vachon’s request that he make himself available for interview.
Be that as it may, her objective and independent expert evidence demonstrates that more anthropological research needs to be carried out. There is no barrier to additional anthropological opinion evidence being obtained from another expert. Any determination of native title is complex and will involve questions of fact and degree at the substantive hearing and, in my opinion, should not be determined finally in the context of a s 66B application: Daniel at [56]. It would be premature to conclude that there is no commonality of interest as submitted by Mr Roe. The rights and interests of all of the Goolarabooloo and Jabirr Jabirr claimants will be dealt with by way of evidence in the substantive native title proceedings. Ultimately it is a legal question for determination by the Court whatever present partisan views may have been expressed by some of those who are Goolarabooloo people or Jabirr Jabrr people. This is particularly so in respect to the identification of the relevant society or societies. The authorisation meeting of 3 August was attended by members of both Goolarabooloo and Jabirr Jabirr people. I do not know the precise make up. The resolutions that the present applicant was no longer authorised and that the applicant on the motion be authorised were passed by 112 votes in favour and 37 votes against. It was the vote of both peoples and should be so regarded. At the same meeting the vote against Mr Roe becoming a member of the replacement applicant was overwhelming: 7 votes for and 109 against. Nonetheless he remains a member of the GJJ Native Title Claim Group and as such has a voice in its affairs as do all Goolarabooloo members.
The following factors further limit the likelihood of a conflict of interest materialising:

(i) under s 190C(3) of the NTA the Jabirr Jabirr claim cannot be registered, so long as the GJJ claim is extant and registered itself. Therefore, the Jabirr Jabirr claim applicants will not be negotiation parties with respect to any compulsory acquisition dealing with land covered by the GJJ claim, and will not be necessary signatories to any indigenous land use agreements relating to land covered by the GJJ claim; and

(ii) it is usual for agreements between native title claim groups and third parties to include a clause that any compensation package is subject to a determination of native title which can be determined by the Court at a future time.

It is also relevant to the exercise of discretion under s 66B that the resolutions passed at the 3 August 2010 meeting included a resolution that if an agreement is reached with third parties then the applicant on the motion must not enter into “any agreement that affects the land and waters covered by the GJJ claim unless authorised to do so by the GJJ claim group”. Accordingly, Mr Roe and his family have an opportunity to be heard and authorise an agreement, or not, at that time.
Subject to what I propose to say about the composition of the applicant, I generally accept the submissions of the applicant on the motion that the discretion under s 66B(2) should be exercised in its favour for the following reasons:

(a) the authorisation meeting under s 251B of the NTA was duly notified and validly held on 3 August 2010;

(b) Cyril Shaw no longer wants to be an applicant on the GJJ claim;

(c) the claim group resolved on 3 August 2010 that the current GJJ applicant is no longer authorised to be the applicant;

(d) the claim group resolved on 3 August 2010 that the applicant on the motion should deal with all matters arising in relation to the GJJ claim;

(e) the claim group resolved on 3 August 2010 that the applicant on the motion must act in good faith at all times and use their best endeavours to reach agreement amongst the persons comprising the applicant on all matters arising in relation to the GJJ claim for the benefit of the GJJ claim group as a whole; and

(f) the NTA is beneficial legislation and should be construed as such to enable the GJJ native title claim group to maintain their very important and significant procedural rights as the GJJ claim is registered: North Ganalanja Aboriginal Corporation & Waanyi v Queensland (1996) 185 CLR 595 (“Waanyi”).

Alternative applicants

The applicant on the motion is prepared individually and collectively to make the following undertaking and concession:

(a) that William McKenzie, Cecilia Djiagween and Patricia Torres are no longer willing to act, in respect of the GJJ claim in the future, to be the applicant; and

(b) that Rita Augustine, Anthony Watson and Ignatius Paddy are no longer willing to act in respect of the Jabirr Jabirr claim in the future, to be the applicant.

This raises the question whether the authorisation conferred upon the six persons to be the replacement applicant either as a matter of construction of the resolution or as a matter of law means that either all six or none at all may become the substituted applicant.

The proper construction of resolution 5

Resolution 5 which was passed at the 3 August 2010 meeting authorised the six named individuals "or such of them who remain willing and able to act in respect of the GJJ Claim in the future" to be the applicant and to deal with all matters arising in relation to the GJJ claim under the NTA.
Mr Roe contends on the following grounds, in effect, that it is an all or nothing proposition:

(a) It is implicit in the choice of the word “remain” that it was a requirement that at the time of authorisation each person should be eligible and willing and able at that time to act as one of the named applicants and that they should remain willing and able in the future.

(b) The terms of the resolution address the circumstance where a person who is eligible and willing and able to act as part of the named applicant at the time of authorisation, subsequently ceases to be willing and able to do so.

(c) The resolution does not address, expressly or by implication, the circumstance where one or more persons was ineligible to act as the applicant at the time of authorisation.

(d) The sense in which the expression ‘remain willing and able’ is employed in resolution 5 is supplied by the terms of resolution 6 which provides that in the event that one of the authorised persons becomes mentally or physically incapacitated or dies, the remaining persons are authorised to continue to act as the applicant provided they convene a meeting as soon as practicable to consider whether a person or persons should be authorised to replace the incapacitated or deceased person. Resolution 6 ensures that the remaining persons can continue to function as the applicant on an interim basis until a further s 66B meeting can be convened in circumstances where one or more of them ceases to “remain willing and able”.

(e) Resolution 5 does not provide any basis for concluding that if some but not all of the persons authorised to be the applicant are not eligible, that the remaining eligible persons are authorised to continue to act as the applicant. The fact that resolution 6 makes no provision for what should happen in that event reinforces that conclusion.

(f) In Anderson v State of Western Australia [2007] FCA 1733 French J considered the effect of a resolution authorising certain named persons "or such of them as are willing and able to act in respect of the application in the future” to be the applicant in circumstances where one of the individuals had died since authorisation was given. French J found at [37] that authorisation was subject, in the case of each individual, to his or her continuing willingness or capacity to act. The death of one of the authorised persons meant that the balance of the named applicants were authorised by the meeting. There was no suggestion that the deceased person was ineligible to act as part of the named applicant at the time of authorisation.

(g) In Coyne v State of Western Australia Siopis J considered the effect of a resolution authorising certain named person "or such of them as are eligible to act as an applicant and who remain willing and able to act in respect of the application in the future" to be the applicant in circumstances where, as in Anderson, one of the persons had died since authorisation was given. His Honour concluded that the remaining persons were authorised by the meeting. Again there was no suggestion that the deceased person was ineligible to act as an applicant. However, if that had been the case the phrase “or such of them as are eligible to act as applicant” would have resulted in the remaining persons were properly authorised.

(h) Anderson and Coyne are distinguishable and do not assist the applicants on the notice of motion in this case.

(i) It is submitted that on the proper construction of resolution 5, a finding that any one of the six individuals authorised to be the applicant was ineligible because it has not been proven that he or she is a descendant of at least one of the relevant apical ancestors, means that the remaining individuals were not authorised to be the applicant.

The result, in that event, Mr Roe submits, is that both the s 66B application and the WAD 6002/98 claimant application should be dismissed.
This submission falls away in light of my conclusion that all six persons who constitute the applicant on the motion are members of the GJJ claim group. Each was, to employ the language of Mr Roe, “eligible” as at the 3 August meeting in that they were members of the GJJ claim group. It is unnecessary then to consider further Mr Roe’s submissions as to the construction of resolution 5 predicated upon a different factual premise.
I am satisfied that what was intended was that if any member authorised to act in respect of the GJJ claim became, for whatever reason, unable or unwilling to act then the remaining members would then constitute the duly authorised applicant without the need for further authorisation by the claim group. I do not understand Mr Roe to contend otherwise assuming each was a member of the GJJ claim group.
The Commonwealth filed written submissions after the hearing in response to the amended submissions of the applicant on the motion. However, these raise a different point. They are to the effect that the terms of the authorisation, contained in resolution 5, permit replacement of the present applicant on the motion under s 66B of the NTA such that Rita Augustine, Ignatius ("Iga"), Paddy and Anthony Watson could be appointed, temporarily or otherwise, an applicant in respect of the GJJ claim in circumstances where the Court was satisfied that William McKenzie, Cecilia Djiagween and Patricia Torres were no longer willing to act in that capacity.
This result, the Commonwealth says, is because of the express terms of the authorisation from the claim group, and submits that the reasoning of Spender J in Doolan v Native Title Register (2007) 158 CLR 56 which preceded the 2007 amendments to s 66B, ought not be followed. In Doolan at [57] Spender J stated:

I think that an appointment of a group of persons jointly to be an ‘applicant’ by a meeting of a native title claim group is an authorisation for the named persons to act, or so many of them as remain willing and able to act. It is these persons who constitute the ‘applicant’. There is, in my opinion, an implication in an authorisation of a group to act collectively in a representative capacity that that authorisation has to be understood as recognising the vicissitudes that accompany joint action, particularly where (as is frequently the case) the persons authorised to make an application for a native title determination are elderly, and subject to the possible incidents of old age.

The 2007 amendments to s 66B(1) expanded the circumstances in which s 66B(1)(a) would apply to include death and incapacity of a member of the applicant, or a member consenting to his or her removal.
As Siopis J correctly observed in Sambo v Western Australia [2008] FCA 1575; (2008) 172 FCR 271 at [25]- [29] the 2007 amendments are inconsistent with the premise that underlies, amongst others, the decision in Doolan.
In particular, the Commonwealth does not consider that there is 'an implication in an authorisation of a group to act collectively in a representative capacity that that authorisation has to be understood as recognising the vicissitudes that accompany joint action' which would allow the Court to change the composition of the applicant without the necessity for an authorisation of the applicant as comprised by remaining previously authorised individuals. The Commonwealth submits that even where, under s 66B(1)(a)(i), a person consents to their removal, it is still a requirement of s 66B that the claim group has authorised the new collection of persons comprising the new applicant to make the claimant application and deal with matters arising thereunder: s 66B(1)(b). That is, it is only in circumstances such as in the present case where the authorisation itself makes express provision for the consequences of 'the vicissitudes that accompany joint action' that the previous authorisation from the claim group can be used to found a replacement applicant: see for example, Anderson v Western Australia, Coyne v Western Australia and Bullen v Western Australia [2010] FCA 900; cf Lennon v South Australia [2010] FCA 743.
It is unnecessary, given the view to which I have come as to the construction of resolution 5, with which the Commonwealth agrees, to resolve these further questions.
I consider it preferable that the joint applicant in each of the GJJ and Jabirr Jabirr claims should not overlap. This will avoid even the semblance of a conflict of interest. Upon the respective undertakings of the 6 members of the applicant on the motion made through their counsel to the Court and set out under [143] above there will be an order that Rita Augustine, Anthony Watson and Ignatius Paddy do jointly replace the current GJJ applicant.
I will hear the parties on the question of costs.

I certify that the preceding one hundred and fifty-seven (157) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gilmour.

Associate:

Dated: 15 February 2011

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