Mortimer J
This matter concerned a request by Ms Sue Boyd to access evidence materials filed in a native title proceeding which was finalised by consent on 20 November 2017. See Hughes on behalf of the Eastern Guruma People v State of Western Australia [2007] FCA 365 and Hughes on behalf of the Eastern Guruma People v State of Western Australia (No 2) [2012] FCA 1267.
Background
The consent determinations included orders that the Wintawari Guruma Aboriginal Corporation (WGAC), as the prescribed body corporate, was to hold the native title rights and interests in trust for the common law holders.
The request was received in the form of a "Party Access to Files" document under rule 2.32 of the Federal Court Rules 2011 (Cth) (Rules). Ms Boyd identified herself as representing the ‘Eastern Guruma people’ and stated that she wished to inspect and photocopy a all anthropological evidence submitted on behalf of the Eastern Guruma native title claim, including affidavit evidence, video and audio recordings and expert witness evidence on the Court file.
The Rules operate differently on access requests by a party to a proceeding, and access requests by a non-party. Despite, Ms Boyd being identified as a director of WGAC and an Eastern Guruma elder, her request must be treated as a non-party request.
Given the breadth of the request and the likelihood it would include personal and family information the Court wrote to the parties to the proceedings and advised that, subject to submissions made, the Court proposed to allow access, provided Ms Boyd could establish the common law native title holders consented to her being granted access.
The Court also advised the parties that if it was satisfied that the common law native title holders had been consulted about the request in accordance with the requirements of the WGAC Rule Book, the Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth) and the Corporations (Aboriginal and Torres Strait Islander) Regulations 2017 (Cth), and provided there were no orders precluding access to the materials on the grounds of confidentiality or gender, the Court proposed that Ms Boyd’s request for access should be allowed.
Reasoning
No objections were received. However, the Court did have regard to a submission of Yamatji Marlpa Aboriginal Corporation (YMAC), the relevant representative body for the land and waters included in the Eastern Guruma determinations. YMAC's submissions emphasised the need for the Court to be satisfied that the common law holders had consented to the grant of access as mere consultation with WGAC would not be sufficient.
Ms Boyd provided the Court with a letter from the Chairman of the WGAC enclosing an extract of Board meeting minutes confirming a resolution was passed to support Ms Boyd being granted access. Ms Boyd was also identified in the minutes as a director of WGAC and an Eastern Guruma elder.
The Court noted that Ms Boyd was entitled to inspect certain documents after paying a fee and would need to make arrangements with the relevant transcript provider and pay any fees to obtain copies of transcripts rather than simply inspect them.
The bulk of the documents required leave and the Court was prepared to make such orders. In relation to the affidavit material, it was not possible to sort out which affidavits had been read given the native title claims were determined by consent.
Provided there were no confidentiality orders the Court was willing to allow inspection of and copying of the Eastern Guruma applicant affidavits. This was based on the principles set out in Nicholls on behalf of the Bundjalung People of Byron Bay and Attorney General of New South Wales (No 2) [2019] FCA 1797, WAGC's agreement, Ms Boyd's status as a common law native title holder and a director of the WGAC and the agreed arrangements for handling of the released documents as set out in the WAGC's Board resolution.
The Court recognised: “it is important, that going forward, the Court not place undue restrictions on claim group, who secure a determination of native title, ultimately being able to reclaim their own evidence, and evidence about them and their connection to their country, which was placed on the Court Record” [at 27].
Gender restricted evidence
The Court noted that a category of documents is subject to orders that it can only be viewed by people of a particular gender. WAGC's agreement included a term that WAGC “should develop appropriate access protocols to respect cultural sensitivities”. The Court was satisfied that this was an appropriate approach, with the details of the protocols to be developed by the common law holders and WAGC.
Accordingly, the Court did not propose to grant access to this category of documents until the Court was satisfied that the protocols are consistent with the gender restricted evidence orders. On this basis the Court decided to issue a direction that if access is still sought, Ms Boyd must file an affidavit deposing to the arrangements which will be made by her, and by the Board of the WGAC, to ensure that any access to the gender restricted material is consistent with the terms of the Court’s existing orders. The affidavit should be made by a director of the WGAC.
Orders
Ms Boyd was granted leave to inspect and make copies of the following material on the Court file:
copies of affidavits filed by the applicant in the proceeding;
any anthropological reports or materials;
preservation evidence which is not gender restricted; and
any maps of the claim area.
Directions
If Ms Boyd seeks access to the gender restricted material on the Court file, she is to file an affidavit from a director of the Wintawari Guruma Aboriginal Corporation (WGAC) deposing to the arrangements which will be made by Ms Boyd and the Board of the WGAC to ensure that access to the gender restricted material is consistent with the terms of paragraph 4 of the Court’s orders of 29 April 2004.
A copy of the Court’s orders of 29 April 2004 be provided to Ms Boyd by the Perth Registry.