The access and control of documents produced in the course of native title negotiations and proceedings bring with them important considerations of copyright, confidentiality and legal professional privilege.
More information on these issues can be found here.
More generally however, the management of these documents raises a significant question as to the rights of native title holders and claimants in relation to native title documents. This issue was addressed in the Federal Court Case Tommy on behalf of the Yinhawangka Gobawarrah v State of Western Australia (No 2)  FCA 1551.
On 23 May 2019, the Jurruru Applicant (‘the Applicant’) was granted leave to issue two subpoenas to the Yamatji Marlpa Aboriginal Corporation (YMAC) in connection to the trial of a a disputed overlap area in the Pilbara, Western Australia, between the Yinhawangka Gobawarrah native title claim (WAD490/2016), the Jurruru #1 native title claim (WAD6007/2000) and the Jurruru #2 native title claim (WAD327/2012).
It had been identified that YMAC held anthropological reports relevant to the overlap area that were not made available to the Applicant. The Applicant therefore issued the two subpoenas to compel production of those materials. The first subpoena sought a draft anthropological report prepared by Dr Anna Kenny and dated May 2011 (‘the Dr Kenny Report’). The second subpoena sought two reports: an overlap report and a connection report, both prepared by Dr Lee Sackett and dated 2010 (‘the Dr Sackett Reports’).
YMAC made objections to the production of documents under the two subpoenas. Although at hearing YMAC withdrew its objection to the production of the Dr Kenny Report, it maintained its objection to the production of the Dr Sackett Reports on the basis that legal professional privilege and without prejudice privilege attached to both reports.
Justice Mortimer considered:
1. Can the claims of privilege be made and maintained in respect to the documents over which the second subpoena was filed?
2. In the context of the Native Title Act 1993 (Cth) (NTA), who holds the asserted privilege?
Can a claim of legal professional privilege be made and sustained for the documents?
Legal professional privilege (LPP) is a legal principle that protects from disclosure the confidentiality of communications between clients and their legal representative made for the dominant purpose of legal advice and services, or made for use in current or anticipated litigation. The dominant purpose is to be assessed at the time of a document’s creation.  LPP can be impliedly waived by the privilege holder through any action that is inconsistent with the confidentiality of the communication between lawyer and client. 
Her Honour found that the connection report did not attract LPP, as the report was produced for the purpose of negotiating a favourable consent determination, rather than for the dominant purpose of use in legal proceedings. As part of any consent determination, the State would have had to provide the report to the Federal Court to satisfy the Court of the basis on which the determination were to be made. Therefore, the creation of the report had not contemplated that it would remain undisclosed, and even were LPP to be implied, it would have been waived once the report was provided to the State in the course of negotiating a consent determination.
Her Honour further found that LPP did not apply to the overlap report. Importantly, YMAC had refused to provide access to the reports to particular clients. YMAC furthermore took no reasonable steps to inform the clients of the report’s contents. This behaviour suggested that the report had not been created for the dominant purpose of providing legal advice to a client.
Can a claim of without prejudice privilege be made and sustained for the documents?
Without prejudice privilege (WPP) is a legal principle that protects from disclosure statements made between parties in the course of genuinely attempting to resolve a dispute before it goes to trial. The privilege encourages parties to settle their disputes without resort to litigation by ensuring that what is said in the course of negotiations will not later be used to one’s detriment in the course of proceedings.
Her Honour found that the creation of the connection report had contemplated uses other than for the negotiation of a determination of native title. In particular, it would have been reasonably contemplated that the State may have used the material in the report to seek advice from its experts on the overlap issue. Therefore, WPP would not have applied.
Her Honour further found that the overlap report had been created for multiple purposes, including purposes inconsistent with the maintenance of privilege. The report did not form part of any communications attempting to resolve the overlap proceedings, and therefore was not subject to WPP. Importantly, if WPP were to apply, it would have been waived by the fact that pre-existing anthropological reports and other connected materials had already been exchanged between the parties.
Who holds the asserted privilege in Native Title proceedings?
In relation to the second issue, her Honour found that the question of who holds the privilege is a question of fact, where LPP ‘is a privilege which exists between lawyer and client’ and ‘exists to protect the interests of the client.’ In light of the structure and purpose of the NTA, her Honour concluded that the relationship of lawyer and client in native title proceedings exists as that between those persons who jointly form the applicant and their legal representative. As the party to the proceedings, it is moreover the applicant who holds any WPP.
The applicant to a native title proceeding is the person or group of people who has been authorised by a native title claim group to make a native title application. The applicant is empowered by the NTA to deal with all matters arising under the NTA in relation to that application.
Who holds the asserted privilege after the determination of Native Title?
Looking to the post-determination context, her Honour concluded that a registered native title prescribed body corporate (RNTBC) holds the asserted privilege. This is based in part on the fact that the NTA contemplates that native title be held by a legal person (i.e. a corporate entity), either on trust or as an agent for the common law holders.
As a consequence of her findings in the present judgment, her Honour overruled YMAC’s objections to the production and inspection of the documents under the second subpoena. As such, the Jurruru applicant was granted leave to inspect and copy the reports.
The role of the Applicant and PBC in holding privilege
Privilege is held between the persons jointly comprising the applicant and the lawyer. Once native title is determined, privilege is transferred to the PBC as the ‘successor’ and the identifiable ‘client’ for the purposes of the maintenance of the privilege or its waiver. These findings should inform how native title documents are held and managed, giving consideration to the rights of applicants and PBCs in relation to those documents.
Risks attached to negotiations with the State
Parties entering into negotiations for a consent determination face the risk of losing privilege that may attach to connection materials when those materials are lodged to the State. In the present case, her Honour found that the connection report did not attract LPP as it was created for the dominant purpose of achieving a favourable consent determination with the State. The dominant purpose was not for use in legal proceedings proper, nor for the provision of legal advice. Instead, the document was created for purposes that would anticipate its provision to the Court to sufficiently satisfy the basis upon which a determination is to be made. A party to consent determination negotiations may therefore need to be satisfied that there is a reasonable prospect of a favourable outcome in the consent determination negotiations, unless the privilege to such reports need be claimed later.
Communications with clients
The findings in the present case demonstrate the importance of communicating legally-pertinent findings with the clients of native title proceedings. In particular, YMAC’s lack of communications with the clients about the contents of the Dr Sacket Reports, as well as YMAC’s refusal to allow access to the reports, demonstrated that the reports formed no part of any confidential communication endeavouring to resolve the overlapping claims. This in turn informed her Honour’s finding that LPP did not apply.
Such an implication may be significant in the context of the general practice in native title proceedings not to give clients access to reports. This leaves open the question of what level and kind of communication as to the contents of a report will be required to satisfy the dominant purpose of giving legal advice, and thereby to maintain privilege.
For further information, contact Michael Pagsanjan (email@example.com).
 Evidence Act 1995 (Cth), s 118.
 Yinhawangka Gobawarrah v WA  FCA 1551 , citing Grant v Downs, Barwick CJ 677.
 Yinhawangka Gobawarrah v WA  FCA 1551 , citing DSE (Holdings) Pty Ltd v Intertan Inc  FCA 384; 127 FCR 499, Allsop J .
 Evidence Act 1995 (Cth), s 131.
 Yinhawangka Gobawarrah v WA  FCA 1551 .
 Yinhawangka Gobawarrah v WA  FCA 1551 –, citing Commissioner of Australian Federal Police v Propend Finance Pty Ltd  HCA 3; 188 CLR 501, Gummow J .
 Yinhawangka Gobawarrah v WA  FCA 1551 .
 Yinhawangka Gobawarrah v WA  FCA 1551 . See Native Title Act 1993 (Cth) s 84(2) (‘NTA’).
 NTA, s 62A.
 Yinhawangka Gobawarrah v WA  FCA 1551 . See NTA s 56.