Bennett + Co Successful in Oppression Action Brought by Members Against Yindjibarndi Aboriginal Corporation RNTBC

By Bennett

13 June 2018

n 20 April 2018, Justice Pritchard in the Supreme Court of Western Australia delivered lengthy reasons for decision upholding Bennett + Co’s clients Aileen Sandy and Sylvia Allan’s long running oppression action against the Yindjibarndi Aboriginal Corporation RNTBC (YAC) (Sandy v Yindjibarndi Aboriginal Corporation RNTBC [No 4] [2018] WASC 124). Her Honour gave formal judgment on 4 May 2018.

The case involves a third success for Bennett + Co acting for a group of Yindjibarndi members in the Karratha/Roebourne area in Western Australia.

In earlier decisions Sandy v Yindjibarndi Aboriginal Corporation RNTBC [No 2] [2016] WASC 75 (9 March 2016) and Sandy v Yindjibarndi Aboriginal Corporation RNTBC [No 2] [2016] WASC 75 (S) (23 March 2016), the Court held that it was appropriate to appoint a receiver for an interim period over the Yindjibarndi Aboriginal Corporation, the conduct of a general meeting being such that there were no validly appointed directors. The Court held that the meeting of directors had purported to exercise powers for an improper purpose.

In 2014, Justice Kenneth Martin found in favour of Bennett + Co’s clients, Charmaine Adams and Ken and John Sandy in Adams v Yindjibarndi Aboriginal Corporation RNTBC [2014] WASC 467. That case established the validity of a general meeting requisitioned by Ms Adams and another director of YAC, Ms Tucker.

In the backdrop to these proceedings, since 2011, Aileen Sandy and Sylvia Allan prosecuted an oppression action. Effectively the oppression action centred on the conduct of YAC, whose directors and executive officers over a period of some 7 or 8 years attempted to restrict the membership of YAC, excluding members of a group known as the Wirlu-murra Yindjibarndi Aboriginal Corporation, principally because the Wirlu-murra members supported entering into an immediate agreement with FMG to obtain compensation for native title rights as opposed to the executives and board of YAC who sought to prosecute proceedings in the Federal Court against FMG.

Bennett + Co took over the oppression action in 2016 prior to a 10 day trial before Her Honour Justice Pritchard. The trial was conducted in December 2016 with closing submissions in February 2017. The trial was enormous. The trial bundles comprised 29 volumes (635 documents). Some 33 Affidavits were tendered at trial. 24 witnesses gave evidence, 9 of whom were cross-examined. 2 experts gave evidence on the financial accounts of YAC. The Court documents on the file exceed 264 and the number of court hearings (not including the trial) was some 53 hearings.

The judgment was an important vindication for the Yindjibarndi people associated with Wirlu-murra. Her Honour held that there had been significant acts of oppression over a number of years culminating in the adoption by the Board of YAC of policies which were intended to exclude Wirlu-murra members who were otherwise entitled to be considered members of YAC.

The significance of membership was very important. Only members of YAC were given access to financial benefits from Native Title payments received by YAC.

Her Honour found that the accounts of YAC were not drawn in accordance with the Corporations (Aboriginal and Torres Strait Islander) Act 2006 and the regulations made under that Act. YAC had failed to consolidate the accounts of various trusts and controlled entities.

The most significant issue arising from the judgment is how Her Honour formulated relief. Given the principal oppression was excluding people from membership, the Court considered whether or not to appoint a receiver to administer the affairs of YAC. Ultimately, Her Honour concluded that a series of injunctions, remaining in place for a year, would provide a workable solution.

Whilst this is not the first successful oppression action run against a Native Title corporation, it is a very significant decision involving an analysis of the obligations upon directors of Native Title bodies and highlights the problems that arise when tensions within Aboriginal communities lead to schisms that translate into membership battles within these important corporations.

Disclaimer: The information published in this article is of a general nature and should not be construed as legal advice. Whilst we aim to provide timely, relevant and accurate information, the law may change and circumstances may differ. You should not therefore act in reliance on it without first obtaining specific legal advice.