North J
In this matter, North J granted leave to amend the native title claim groups in the Kariyarra and Kariyarra–Pippingarra applications.
Background
Both the Kariyarra and Kariyarra–Pippingarra applications were brought on behalf of the Kariyarra People. The Kariyarra claim was first filed in 1997 and related to a large area south of Port Hedland. The claim group was defined by 78 named individuals. The Kariyarra–Pippingarra claim was lodged in December 2009 over a smaller area, adjacent and East of the main Kariyarra application area. This claim group was defined by apical ancestors.
In December 2013, the applicants sought leave to identically change their group composition to the descendants of eleven apical ancestors. This expanded those included in the claim group. To authorise the amendment, the applicants held a widely advertised meeting in October 2013. The existing claim groups in the Kariyarra and Kariyarra-Pippingarra applications and the members of the proposed claim group consented to the group amendment through majority family voting.
The change was opposed by six siblings: Gene Smith, Robert Dann, Mary Attwood, George Dann, Patricia Mason, and Shirley Lockyer. Three of these individuals were part of the Kariyarra main application, but all would be included in the proposed group if it was changed. Before the meeting, the opponents sent a letter stating that the majority voting process was inconsistent with traditional decision-making custom. At the meeting, an opponent referred to the letter, but it was otherwise unobjected to until their submissions.
Submissions
The applicants contended there was no traditional authorising process as described in s 251B(a) of the Native Title Act 1993 (Cth) (NTA), and so amendments were validly approved by an authorisation process under NTA s 251B(b). The applicants sought for the amendments to be allowed if authorised by the proposed group, even if later the Court found that the proposed apical ancestors did not qualify as Kariyarra People.
The opposing individuals contended that the amendments:
(1) were not authorised by the traditional consensus decision making process, which requires unanimity, and therefore invalid under s 251B(a) of the NTA;
(2) would capture people who were not Kariyarra, with particular concerns over ancestors who were related through adoption, incorporation or regency. The opponents hence submitted that these descendants were not entitled to native title rights and interests and thereby could not give valid consent within the meaning of s 61(1);
(3) would cause prejudice, explaining they had been excluded from land negotiations and all related benefits for years.
Western Australia consented to the applications to amend.
Decision
North J began by discussing whether authorisation to amend the Kariyarra main application was required. His Honour found that, under s 61(1) NTA, amending an application group requires the proposed group to consent to the amendment. The means for obtaining consent is provided in s 251B NTA, which states authorisation is validly given by the claim group through traditional decision-making process. If there is no traditional process, other processes can be used.
Conflicting evidence was submitted, both supporting and disputing a Kariyarra traditional consensus-based process for all decisions. His Honour found that the evidence favoured the applicants. It was accepted that traditional laws preferred consensus but were open when this could not be reached. At [47] North J stated that ‘there is an inherent improbability’ in requiring unanimity for every decision. Followingly, it was held that there was no traditional decision-making process for Kariyarra native title decisions, and the authorisation given by a majority of the family group voting was valid.
Regarding the contention that non-Kariyarra people would be included in the amended group, His Honour found no clear grounds for this contention. He also held that s 61(1) of the NTA concerned persons making the native title claim, rather than those ultimately entitled to native title.
Finally, North J found no prejudice in allowing the amendment. Rather, he found it advanced the opponents’ interest as it acted to capture them in the claim and allowing greater say in, and benefits from, land discussions. Followingly, North J allowed both native title applications to amend the description of who comprises the native title claim group.
The opponents’ potential lack of standing in the Kariyarra main application was noted, given they were neither respondents nor applicants. However, this was not discussed further given the applications were upheld.