Champion on behalf of the Marlinyu Ghoorlie Claim Group v State of Western Australia [2020] FCA 1175

Western Australia

Champion on behalf of the Marlinyu Ghoorlie Claim Group v State of Western Australia [2020] FCA 1175

Between: Brian Champion & Ors on behalf of the Marlinyu Ghoorlie Claim Group (Applicant) and State of Western Australia & Ors (Respondent).

Judge: Bromberg J

Judgment: The applicant's legal representatives were granted leave to inspect and copy (with conditions) certain documents filed in Graham on behalf of the Ngadju People v State of Western Australia [2012] FCA 1455 (the Ngadju proceeding).

Background

The applicant requested a native title determination in relation to lands and waters in Western Australia. In this proceeding, the applicant made an interlocutory application to inspect and copy anthropological reports from the native title determination in the Ngadju proceeding.

Reasons for the application

The land that was the subject of the native title determination in the Ngadju proceeding is next to the land in this proceeding. In its submission, the applicant explained the reasons for seeking access to the documents. These were:

1. to help the applicant's expert anthropologist to understand the findings of Ngadju proceeding and their relationship with the merits of this application
2. to enable the applicant to address claims made by Ms Dimer.

The application was resisted by Ms Sharon Dimer and the Ngadju Native Title Aboriginal Corporation RNTBC.

Ms Dimer's submission

Ms Dimer asserts that she holds rights in the Marlinyu Ghoorlie area and is a member of the Kalaako People.

Ms Dimer appeared to misunderstand the interlocutory application and resisted it on the grounds that she was opposed to the applicant's native title application, rather than opposed to the application to access documents. As a result, Bromberg J determined Ms Dimer's submissions to be 'of no assistance' [11].

Ngadju Native Title Aboriginal Corporation's submission

The Ngadju Native Title Aboriginal Corporation Registered Native Title Body Corporate (Ngadju NTAC) made two submissions in opposition to the application. The Ngadju NTAC's opposition related to three reports by Dr Kingsley Palmer.

1. They argued that those reports were commissioned by the Goldfields Land and Sea Council (GLSC) to the Ngadju People for the sole purpose of assisting their native title application. The Ngadju NTAC submitted that as these reports will be used for a different reason, the Ngadju People will need to provide consent for the reports to be used for a different reason. Consent was not provided, as the stories and history in the report are special and culturally sensitive to the Ngadju People and not for communication to other people.
   
2. It was alternatively argued that the GLSC owns Dr Palmer's reports and it is only they that can provide consent to use the documents in a manner different from the originally intended purpose.
   

Details of Judgment

Blomberg J granted the applicant's legal representatives leave to inspect and copy the documents from the Ngadju proceeding, subject to the following conditions:

• the contents of the documents are not to be communicated to any person, other than for the purpose of this proceeding
• the document is not to be copied or given to any person, other than for the purpose of this proceeding
• the document is not to be copied or given to any person, until after 7 days' written notice of each copy has been given to the Ngadju NTAC
• the document is not the be used for any other purpose, other than for the proceeding
• if the documents are reproduced, a copy of the extracts need to be provided to the Ngadju NTAC, at least 7 days prior to the distribution of the document.

Blomberg J did not grant leave sought by the applicant in relation to the 2003 Report of Dr Palmer. The reason for this is that the document was never received into evidence in the Ngadju proceeding.

In making the decision to grant access to the documents, Blomberg J struck a balance between the principle of open justice, the overarching safeguard of public interest and the need to protect confidential information to avoid harm or damage.

Blomberg J held that Ngadju NTAC's first submission was very general and did not specify any harm or the extent of harm that can be caused by granting access to the documents and it was not supported by evidence. The Ngadju NTAC's second submission was held to have no merit as the filing of the documents with the Court effectively gives control over the use and distribution of the documents to the Court, not to GLSC.

In weighing the utility of the disclosure of documents against the interest of preserving the confidential nature of the documents, Blomberg J held that the need to protect the interests of the Ngadju People from harm is outweighed by the legitimate forensic need of the applicant to access the documents for the purpose it seeks.