Following years of unsuccessful mediation attempts by the National Native Title Tribunal, orders were made on 22 Sept 2017 dividing remaining claim areas into three parts. The Nyamal People’s claim area, the Palyku People’s claim area, and the remaining overlap area which surrounded the town of Nullagine. In 2018, the authorised applicant of the Palyku People filed a new claim (Palyku #2 claim) which overlapped further into the Nyamal claim.
In this judgment Reeves J considered two interlocutory applications. The first, an application from the Palyku People for leave to withdraw certain admissions made in a statement of agreed facts signed and filed in December 2017 (December 2017 SAF) 7. And second, the authorised applicant of the Nyamal People filed an application to have the Palyku #2 claim dismissed as an abuse of process.
Palyku application to withdraw admissions
At [62], Reeves J noted ‘the fact that the orders of 21 September 2017 were subsequently set aside by the orders of 17 May 2018 does not, in my view, affect the continuing existence and effect of the admissions made under them.’ He goes on the say ‘I consider the admissions were made for the purposes of the separate question proceeding relating to the Nullagine Overlap Area and their effect is limited to that proceeding.’ First, the general rule is that formal admissions are only binding for the purposes of the particular proceeding in which they are made. Secondly, it is clear from the terms of the 22 September 2017 orders that they were expressly confined to the separate question proceeding relating to the Nullagine Overlap Area. Thirdly, the December 2017 SAF is expressed to apply only for the purposes of the separate question relating to the Nullagine Overlap Area. For these reasons, his honour found that the admissions contained in the December 2017 SAF document were confined to the Nullagine Overlap and not Palyku #2 claim.
Even if it were concluded that the admissions were binding for the purposes of Palyku #2 claim, Reeves J concludes that it was in the interests of justice that the Palyku applicant would be given leave to withdraw them for the following reasons:
Firstly, while it was common ground that Mr Meegan and Mr Young did not have specific instructions to make the admissions, in their respective capacity as the Principal Legal Officer of YMAC and the lawyer on the record representing Palyku applicant in Palyku #1 claim, they had the implied authority to make admissions for the purposes of the proceeding.
Secondly, given the assertions the Palyku People had made to YMAC over the years, his honour did not consider it just to fix the Palyku People with the admission YMAC made on their behalf.
At [69]; ‘if the admissions were to continue to have effect they would effectively deprive the Palyku People of the opportunity to pursue the Palyku #2 claim and obtain a determination in respect of those native title rights and interests if they do, indeed, hold them. In this respect, in addition to their constant affirmation of those rights and interests since at least 2005, there is the affidavit of Dr Martin which attests to their existence, at least on a preliminary or prima facie basis. Finally at [70], his honour held ‘I consider the further delay, additional costs and the continuing stress of litigation advanced as prejudice by the Nyamal People is outweighed by the prejudice that would be suffered by the Palyku People…’ His honour concluded that the admissions were only binding for the confined purposes of the Nullagine Overlap Area, and even if they were binding with respect to Palyku #2 claim he would have given leave for the Palyku applicant to withdraw them.
Nyamal applicaion to dsmiss Palyku #2 Claim
The Nyamal Applicant contended that the native title claims that the Palyku People lodged in the late 1990s (Palyku #1 claim) were considered claims by them to the whole of their traditional country. Against this background the Nyamal Applicant contended that the use of the court’s processes involved in filing of the Palyku #2 claim in 2018, 20 years after lodging such a well-considered claim was an abuse of process. Further the pursuit of the Palyku #2 claim was unjustifiably oppressive to the Nyamal People and/or brings the administration of justice into disrepute.
Three key questions were considered:
Was an agreement made between the Palyku and Nyamal Peoples during the 2001 field trip and endorsed by the Palyku People binding on the Palyku People to the extent that their current pursuit of the Palyku #2 claim is an abuse of process (the Binding Agreement Question)?
Were the claims the Palyku People lodged with the Tribunal in 1998 claims in respect of the whole of their traditional country such that pursuing the Palyku #2 claim in 2018 constituted an abuse of process (the Whole of Country Question)?
Have the Palyku People unreasonably delayed in filing the Palyku #2 claim and/or otherwise conducted themselves in the pursuit of that claim such as to cause unjustifiable oppression to the Nyamal People (the Unreasonable Delay Question)?
The Binding Agreement Question
While there was evidence that there was a Nyamal working group meeting in May 2001, there was no reliable evidence as to what occurred at that meeting. The minutes of further meetings refer only to the Nyamal People agreeing to pull back their claim boundary to remove the overlap, with no mention of the Palyku having to do anything in return, and much less an agreement being made. His honour at [226] also referred to a lack of any attempt by the Nyamal People to enforce the alleged agreement with the Palyku People. At [229] he continues; ‘First, that the particular purpose and focus of the 2001 field trip was the southern boundary of the Nyamal #1 claim, not the Nullagine Overlap Area, nor the areas north of Nullagine including Corunna Downs.
There was also doubt about the accuracy of report provided about the May 2001 meeting including concerns raised by Mr Charlie Coppin and, the ambivalence in Mr Gallagher’s written and oral evidence about whether an agreement was reached during the field trip. Further, the ambiguities in the minutes of the post-field trip meetings, including the 4 May 2001 meeting of the Palyku Working Group and the three Nyamal claim group meetings. In the months and years after April/May 2001, neither the Palyku People, nor the Nyamal People acted in a way that was consistent with an agreement having been reached.’ For the above reasons, there was found to be no binding agreement between the Palyku and Nyamal People.
The Whole of Country Question
At [236] his honour states; ‘As well as requiring claimant applications to be brought by an authorised applicant, the 1998 amendments to the Native Title Act 1993 (Cth) (NTA) required that such an application should contain a raft of details about the application. In particular, s 62(1)(b) required a claimant application to contain the details specified in s 62(2).’ Continuing at [237] ‘It can, therefore, be readily inferred that it was these provisions that caused the Palyku Applicant to obtain the assistance of the surveyor, Mr Green, in the course of preparing the application it filed in April 1999 to amend WAD 2047/1998.’
Further, his honour found that it could be ‘readily inferred’ that the provisions in ss 62(2)(d) to (f) of the NTA caused the Palyku Applicant to obtain affidavits from Palyku elders which the Nyamal Applicant has referred to in support of this contention. His honour concluded that it was these aspects of the new Native Title regime that motivated the Palyku Applicant to take the above steps with respect to their claim, and not a desire to file a claim which described the whole of the Palyku People’s traditional country. Even if that had been the desire that would not have prevented the Palyku people from authorising an applicant to file a later claim to a different or more expanded area provided they genuinely believed they held native title rights and interests in that new area. For these reasons, this question was answered in the negative.
The Unreasonable Delay Question
His honour begins by dismissing the claim that allowing the Palyku People to pursue the Palyku #2 claim, in the circumstances, will bring the administration of justice into disrepute. The contention on this aspect could not be accepted because it ultimately depended on who was correct in their claims to hold native title rights and interests, which could not be determined in this interlocutory hearing.
His honour frames the second issue at [244] as ‘unreasonable delay on the part of the Palyku People in pursuing their claims to hold native title rights and interests in the claim area of Palyku #2 claim makes their filing of that claim… unjustifiably oppressive to the Nyamal People.’ The Nyamal case rested on the unavailability of witnesses who had passed away in the intervening period whose evidence would be key in defeating the Palyku claim. Their case also relied on the disappointment and distress the Nyamal people will suffer for having their native title rights and interests delayed further. His honour concluded this also rested on who actually held the native title rights.
The critical question was whether, in all the relevant circumstances, the Palyku People, or certain of their members, or YMAC and/or the lawyers employed by it, by their conduct, should be held responsible for that delay such that the Palyku #2 claim should be summarily dismissed as an abuse of process. His honour concluded that YMAC and/or the lawyers employed by it were responsible for most of the delay in this matter, and denied that the Palyku People should be visited with some or all of the delay because they did not use their resources to retain private lawyers soon after they became dissatisfied with YMAC. Additionally, his honour found the non-involvement of the Stream brothers in pursuing the Palyku claims prior to 2005 didn’t contribute in any way to the 20 year delay in filing the claim. He also found that non-participation of some members of the Palyku claim group was not effectual to the delay. And an alleged two-year delay that occurred between 2014 and 2016 was not found to have been a significant delay. For the reasons above this question was answered in the negative.
Conclusion
The Palyku application filed on 10 April 2019 is dismissed.
The Nyamal application filed on 20 February 2019 is dismissed.