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Court and Tribunal Decisions - Australia
Federal Court of Australia (French J)
[2002] FCA 1147; (2002) 194 ALR 278
Native title — application to replace applicants in claimant application — whether certain applicants no longer authorised by native title claimant groups — failure to execute future act agreement with state notwithstanding resolutions of native title claim group — authorisation of proposed replacement applicants — whether decision making process according to traditional law and custom — whether other decision making process — discretion to replace applicant
The applicant sought orders under s 66B of the Native Title Act 1993 (Cth) (NTA) to replace applicants in a consolidated claimant application formed from three different native title claims: these of the Ngarluma and Yindjibarndi claim (WAG 6017 of 1996), part of the Yaburara and Mardudhunera People claim (WAG 127 of 1997) and part of the Wong-Goo-tt-oo People claim (WAG 6256 of 1998).
David Daniel and a number of other persons representing the Ngarluma People and the Yindjibarndi People were the applicants for a native title determination in the Pilbara region of Western Australia. The State of Western Australia had for some time been seeking to acquire various pieces of land in the Pilbara region on the Burrup Peninsula, the Maitland Estate, the Intercourse Island areas, Hearson Cove and Karratha, for the purpose of industrial developments and residential developments in the region. The areas to be acquired were within the land and waters covered by the claim.
Negotiations had been ongoing between the State and the Ngarluma and Yindjibarndi peoples to enter into an agreement for the acquisition of their native title rights and interests in exchange for benefits. There had been a large number of Ngarluma Yindjibarndi community meetings concerning these proposed acquisitions since December 2001.
An agreement proposed between the applicants, the Premier of Western Australia and the Western Australian Land Authority, for the compulsory acquisition of native title had been drawn up. Evidence was that at two meetings on 10 July 2002, the Ngarluma Yindjibarndi community resolved to enter into the agreement and authorised the registered applicants to enter into it on their behalf. However, one of the registered applicants, Mr David Walker, a Ngarluma man, declined to execute it.
A motion was brought for orders under s 66B of the NTA which would have the effect of removing Mr Walker as a registered applicant.
The stated ground for the replacement of Mr Walker was that he was no longer authorised by the claim group to make the application or to deal with matters arising in relation to it since a meeting on 12 August 2002.
The motion was brought on as a matter of urgency as, the agreement not having been signed, the State had instituted arbitral proceedings in the National Native Title Tribunal seeking orders that the proposed acquisitions could proceed unconditionally.
A similar situation arose in respect of the Yaburara and Mardudhunera application, whereby one of the registered applicants, Patricia Cooper, had declined to sign an agreement with the State in respect of its proposed acquisitions in an area covered by the application. A motion was brought by members of the claim group for the removal of Ms Cooper based on a meeting that took place on 3 September 2002.
One set of reasons for the orders to be made on the two motions was published for convenience.
1. The obtaining of proper authorisation of a claimant application is a fundamental requirement of the NTA. The authorisation requirement acknowledges the communal character of traditional law and custom which grounds native title. It is not a condition to be met by formulaic statements: [12]. Western Australia v Strickland [2000] FCA 652; (2000) 99 FCR 33 cited, Strickland v Native Title Registrar [1999] FCA 1530; (1999) 168 ALR 242 cited, Moran v Minister of Land & Water Conservation for NSW [1999] FCA 1637 discussed.
2. The definition of ‘authorise’ in s 251B of the NTA defines the decision making processes by which authorisation may be withdrawn for the purposes of s 66B: [14]. In Johnson, in the matter of Lawson v Lawson [2001] FCA 894 cited.
3. It may be that it is sufficient for the purposes of s 251B to identify traditional decision making applicable to the land or waters generally, rather than decision making specifically applicable to a native title claim: [14].
4. In order for an order to be made under s 66B of the NTA, the applicants had to demonstrate the following.
A. There is a claimant application.
B. Each applicant for an order under s 66B is a member of the native title group.
C. The person to be replaced is no longer authorised by the claim group to make the application and to deal with matters arising in relation to it.
D. Alternatively, the person to be replaced has exceeded the authority given to him or her by the claim group.
E. The persons making the application under s 66B are authorised by the claim group to make the application and to deal with matters arising under it: [17].
5. It is not necessary to prove the making of individual decisions by all or most members of the group: [18]. Moran v Minister of Land & Water Conservation for NSW [1999] FCA 1637 discussed.
6. The power to remove an applicant under s 66B(1) depends upon a cessation of the authority conferred upon the person to be removed or alternatively some action by that person in excess of the authority conferred by the claim group. The cessation of authority conferred upon an applicant requires decision making on the part of the native title claimant group unless it can be said that the authority originally conferred was limited in such a way that it ceased upon the happening of some event without any separate decision being required; for example, when the original authority is subject to the continuing direction of the native title claim group and an applicant does not comply with such a direction: [15], [16].
7. A person who wishes to rely on a decision by a representative or other collective body needs to prove that such a body exists under customary law recognised by the members of the group, the nature and extent of the body’s authority and that the decision of the body followed the customary decision making processes: [18]. Moran v Minister of Land & Water Conservation for NSW [1999] FCA 1637 discussed, Duren v Kiama Council [2001] FCA 1363 cited, Quandamooka People # 1 v State of Queensland [2002] FCA 259 cited.
8. Even if the conditions for the exercise of the power under s 66B are satisfied, there remains a discretion for the Court not to make the orders sought: [18]. Ward v Northern Territory [2002] FCA 171 cited.
9. There is a relevant claimant application. The applicants are all, for the purposes of s 66B, members of the native title claim group as defined in s 253 of the NTA: [22], [23].
10. The process of decision making of the Ngarluma and Yindjibarndi people under s 251B cannot be described as under the traditional laws and customs of the group. Decisions in relation to the claim are taken in accordance with a process of decision making which has been adopted by the native title claim group by inference over a period of time. On matters of major concern in connection with the native title determination application, that process involves conducting community meetings of the kind convened on 10 July 2002 and 12 August 2002: [51].
11. The process of decision making undertaken on 12 August 2002 involved emphatic advice from the groups’ lawyers who overstated the risk that the State would renege on the agreement. The proposed resolutions were overly formal. However, members of the claim group had been engaged in processes associated with their native title determination application and with the negotiation of the State agreement for a long time and were capable of making an informed decision reflected in the resolutions which were eventually passed: [37], [52].
12. As a result of the decisions taken at the meeting of 12 August 2002, Mr David Walker is no longer authorised by the claim group to make the application or to deal with matters arising in relation to it: [52].
13. At the meeting of 12 August 2002, the members of the claim group who now bring the s 66B application were authorised to make it and to deal with matters in relation to the native title determination application: [53].
14. The Court should use its discretion to make the orders requested including removing the names of deceased persons from the named applicants. This is a case in which one of a large number of registered applicants is holding up the execution of an agreement which has been authorised by the native title claim group and which is of substantial importance to its members: [54].
15. There is a relevant claimant application. Those said to be moving for the order under s 66B are members of the native title claim group as defined in s 253: [59].
16. The hearing of the motion to withdraw the authority of Ms Cooper as an applicant on 3 September 2002 was conducted in unsatisfactory circumstances. It was brought on at short notice. Documents were served at short notice. Ms Cooper was participating by telephone link without any legal representation. There are persons named as being in favour of the motion who say that they did not authorise it. Moreover the material does not disclose whether there is a relevant process of decision making according to traditional law and custom which requires consideration: [76], [77].
17. The motion should be adjourned: [78].
...
12. In Western Australia v Strickland [2000] FCA 652; (2000) 99 FCR 33 at 52, the Full Court approved a passage from the judgment in Strickland v Native Title Registrar [1999] FCA 1530; (1999) 168 ALR 242 at 259-260, including the observation that:
The authorisation requirement acknowledges the communal character of traditional law and custom which grounds native title. It is not a condition to be met by formulaic statements in or in support of applications.
Wilcox J in Moran v Minister of Land & Water Conservation for NSW [1999] FCA 1637 described the obtaining of proper authorisation of a claimant application as a ‘fundamental requirement of the Native Title Act’ at [48].
His Honour said:
It is important that those who come to the Court asserting a native title right, with all this involves in terms of effort and expense to other parties and the Court itself, should be properly authorised to make the claim. As I have explained, this does not necessarily mean the applicant must be individually authorised by each member of the claimant group. It will be enough that the applicant has been authorised to make the claim in accordance with a process of decision-making recognised under the traditional laws and customs of the claimant group. In meritorious cases, that is unlikely to be an onerous requirement. Traditional laws and customs are likely to exist in cases where the claimant group still maintains a vigorous communal life.
...
14. The definition of ‘authorise’ in s 251B, referred to in the preceding paragraph, does not in terms cover withdrawal of authorisation. Nevertheless it may be accepted that it defines the decision-making processes by which authorisation may be withdrawn for the purposes of s 66B. In Johnson, in the matter of Lawson v Lawson [2001] FCA 894, Stone J observed, with respect to s 66B, that the relevant questions of authorisation are governed by s 251B ...
...
16. If the original authority conferred upon an applicant for the purpose of making and dealing with matters in relation to a native title determination is subject to the continuing supervision and direction of the native title claim group, then it may be that an applicant whose authority is so limited is not authorised to act inconsistently with a resolution or direction of the claim group. In a case where an applicant does not comply with such a resolution or direction, it is reasonable to say that the applicant has exceeded the authority given to him or her by acting in contravention of the claim group decision. The criterion of excess of authority as a condition of the power under s 66B may be less onerous than the criterion of cessation of authority. It does not require a separate decision-making process in order to establish it. It is also consistent with a beneficial construction of s 66B as a facultative provision directed to maintaining the ultimate authority of the native title claim group.
17. Notwithstanding the beneficial character of s 66B in supporting the continuing authority of the claim group, those who bring applications under that section must satisfy the conditions which it imposes. Those conditions can be enumerated as follows:
18. It is not necessary, in order to prove the decision-making processes required by these conditions, to prove the making of individual decisions by all or most members of the group (Moran at [34] per Wilcox J): ‘... it would be enough if there was a decision by a representative or other collective body, that exercises authority on behalf of the group under customary law.’
However, as his Honour went on to say (at [34]):
... a person who wishes to rely on a decision by a representative or other collective body needs to prove that such a body exists under customary law recognised by the members of the group, the nature and extent of the body’s authority to make decisions binding the members of the group and that the body has authorised the making of the application.
So in Duren v Kiama Council [2001] FCA 1363, Lindgren J described the starting point, in an application under s 66B, thus (at [5]):
... to identify the members of the native title claim group and to establish whether or not there is a process of decision-making under the traditional laws and customs of the persons in the native title claim group.
In that case the evidence before his Honour referred to a meeting at which individuals expressed a wish and signed a document expressing the wish that Mr Duren be removed as an applicant and another be substituted. The affidavits, however, failed to establish ‘... any of the formalities touching the due convening and decision-making at the meeting’ at [6]. In Quandamooka People No 1 v State of Queensland [2002] FCA 259, Drummond J referred to ‘the importance of there being evidence identifying the nature of the decision-making processes followed by a native title group that result in one or more of their members being given authority to act in relation to the claim on behalf of the group’ at [25]. It is also to be noted that even if the conditions for the exercise of the power under s 66B are satisfied there remains a discretion in the Court not to make the orders sought: Ward v Northern Territory [2002] FCA 171 at [16] per O’Loughlin J.
...
25. ... According to David Daniel’s affidavit of 1 August 2002, the first group of applicants was chosen by the Ngarluma Yindjibarndi People at a community meeting in 1996. They were chosen by the community to bring the application on its behalf because they are people who have authority under the traditional law to speak for Ngarluma and Yindjibarndi country. He said they were chosen in the traditional way by the community as a whole. ... Mr Daniel said that many of these new applicants were chosen to help some of the older people understand the processes involved in native title and to represent a range of different Ngarluma and Yindjibarndi family groups. Their authorisation took place at a community meeting held in the bush.
26. The applicants instructed the Pilbara Native Title Service (PNTS) to be their lawyers at a community meeting held on 19 September 2001. David Daniel said in his affidavit that the meetings which have since been held by the PNTS are Ngarluma Yindjibarndi community meetings. Written notices of the meetings are sent several days before they take place. They are posted to people or hand delivered to their houses. News of the meetings are also spread by word of mouth. The meetings are usually held in Roebourne or Point Sampson.
27. The nature of the community meetings was described by Roger Barker, another applicant, in his affidavit sworn 21 August 2002. He said there is always discussion and consultation between members of the claim group both before and during the meeting. He said it is always a group decision. Young people help the old people by explaining ‘white fella’ laws to them. This, he said, is the way of making decisions under their traditional laws and customs. It is not just up to individual applicants to go their own way and make a separate decision. They must do what the group decides. Community meetings, he said, are accepted by the Ngarluma and Yindjibarndi People as the proper way to make decisions. ...
28. ... Mr Daniel said that at two meetings on 10 July, the Ngarluma Yindjibarndi community resolved to enter into the agreement and authorised the registered applicants to enter into it on their behalf. There were two meetings convened so that every Ngarluma and Yindjibarndi person would be able to attend a meeting, whether they worked or not. Notices were given out in the usual way. A total of over 100 people attended the two meetings. This, he said, is a good attendance for a community meeting. The resolution to enter into the agreement was unanimous and was made in accordance with their traditional laws and customs.
...
30. Frances Flanagan, a solicitor working with the Yamatji Barna Baba Maaja Aboriginal Corporation operating as the Pilbara Native Title Service, caused a notice of the meeting to be sent to the Ngarluma and Yindjibarndi community. It was sent to some 94 addressees. The text of the notice was in the following terms:
PILBARA NATIVE TITLE SERVICE
A SERVICE DIVISION OF THE YAMATJI BARNA BABA MAAJA ABORIGINAL CORPORATION NATIVE TITLE REPRESENTATIVE BODY
NOTICE OF NGARLUMA AND YINDJIBARNDI COMMUNITY MEETING
Time: Monday, 12 August, 6pm
Venue: PNTS Office, Roebourne
AGENDA: Removal/Replacement of Applicants.
At meetings on the 10 July 2002, the Ngarluma and Yindjibarndi community resolved to enter into an agreement with the State for the extinguishment of native title on the Burrup and Maitland Estates and some land in Karratha. In return, the agreement provided for benefits to go to the Ngarluma and Yindjibarndi people and other registered claimant groups. The benefits include money, freehold land on the Burrup, freehold blocks in Karratha, employment and training and education.
At those meetings, the Ngarluma and Yindjibarndi community authorised the Registered Applicants to sign the agreement on their behalf.
All of the Ngarluma Yindjibarndi Applicants, except Mr David Walker, have signed the Agreement.
The agreement cannot go ahead without Mr Walker’s signature.
Since 13 July 2002, the State may withdraw the agreement at any time while Mr Walker does not sign the Agreement. If this occurs, all of the benefits to the Ngarluma Yindjibarndi people will be lost. It is likely that the State will then be able to acquire the land without the consent of the Ngarluma Yindjibarndi people.
Mr Walker has obtained his own separate legal advice about the agreement. He has had a reasonable opportunity (since 11 July 2002) to read the agreement and to have it explained to him. He has not told anyone when he will make a decision to sign the agreement or not. He has not explained why he will not follow the community’s resolution to sign the agreement.
The meeting on 12 August 2002 will be to discuss and make decisions about the removal and replacement of Mr Walker as an Applicant to the claim.
Dinner will be provided at the meeting.
TRAVEL ASSISTANCE WILL BE PAID ACCORDING TO PNTS’S USUAL POLICIES. NO ADDITIONAL TRAVEL ALLOWANCE WILL BE PAID. PLEASE CONTACT SANDY MEDBURY AT THE PERTH OFFICE OF THE YLSC ON 08 9225 4644 IF YOU HAVE ANY QUERIES.
...
32. The meeting was attended by some 80 Ngarluma and Yindjibarndi people. There were considerably more Yindjibarndi people than Ngarluma people. A video film of the meeting was taken and exhibited to the affidavit of Ms Flanagan. I have viewed the film.
...
34. ... The resolutions were passed on the voices without any expressed dissent. Mr Fitzgerald called for people to call ‘aye’ if they supported the resolutions. He called for them to say ‘nay’ if they were against the resolutions. A number of people called out ‘aye’. Nobody called out ‘nay’.
35. After this vote, the Yindjibarndi people in attendance at the meeting were requested to leave and the resolutions put to the remaining Ngarluma people only. A dinner had been provided in a building adjacent to the open area in which the meeting was conducted and the Yindjibarndi people left the immediate vicinity of the meeting to have their meal.
36. According to Ms Flanagan, there followed some discussion about involving Ngarluma people who resided outside Roebourne in the decision. Those present then expressed their support for the resolutions by voting with a show of hands. Nobody voted against the resolutions. ...
...
38. In addition to the affidavits of Messrs Daniel and Barker and Ms Flanagan, there were a number of affidavits in common form sworn by the applicants moving for the removal of Mr Walker. ... They deposed to their attendance at the meeting of 12 August 2002 and the terms of the resolutions passed at that meeting. Each affidavit ended with the paragraph:
I confirm that community meetings are accepted by the Ngarluma and Yindjibarndi people as the proper way to make these decisions. We have done it this way ever since our claim was lodged back in 1996. We still make decisions this way today.
...
39. The conduct of community meetings in relation to the proposed compulsory acquisition is also the subject of an affidavit sworn by Alum Cheedy. He is an Aboriginal Liaison Officer employed by the Pilbara Native Title Service. ... He confirmed that community meetings are accepted by the Ngarluma and Yindjibarndi as the proper way to make such decisions. He said they have done it that way ever since their claim was lodged back in 1996 and they continue to make decisions that way today.
40 There was also an affidavit sworn by Michael Vere Robinson, an anthropologist who has been involved with the research in relation to the claim. Mr Robinson is a Senior Research Fellow and Deputy Director of the Centre for Anthropological Research at the University of Western Australia.
...
44. ... Mr Robinson believes it is accepted that Roebourne is the appropriate place for meetings to be held about matters relating to the claim area and that it is appropriate for decisions to be made by people who can attend meetings in the Roebourne area. The process of making decisions through meetings has been employed by the Ngarluma and Yindjibarndi claim group as an appropriate process for making decisions on behalf of the native title claim group.
...
51. ... In my opinion the evidence does not disclose a process of decision-making of the Ngarluma and Yindjibarndi people that could be described as a process of decision-making under the traditional laws and customs of the native title claim group. Indeed, although there has been a close association between the Ngarluma and Yindjibarndi people over the last fifty years or so, the evidence, particularly that of Mr Robinson, suggests that they have developed no form of common or joint decision-making applicable to native title determination applications which could be called decision-making under traditional law and custom. It may well be that within each group there are internal mechanisms of traditional law and custom which inform the process of joint decision-making in relation to matters connected with the native title determination application. But, in my opinion there is on the balance of probability no process of the kind contemplated in s 251B(a) of the Native Title Act. The evidence does support the inference that decisions of that kind are taken in accordance with a process of decision-making which has been adopted by the persons in the native title claim group and by inference agreed to by them over a period of time. That process involves the conduct of community meetings of the kind convened on 10 July 2002 and 12 August 2002 on matters of major concern in connection with the native title determination application.
52. The process of decision-making undertaken on 12 August 2002 may be criticised as pressured by reason of the matters to which the decisions related, the magnitude of their impact on the lands of the claim group, the magnitude of the benefits that might flow under the State agreement, the limited time frame which persons there present were advised was available for finalising the State agreement, the input of the lawyers and the formal character of the resolutions which were eventually passed at the meeting. These factors have to be seen however in the context of the much longer period of negotiation which led up to the meeting of 10 July 2002 at which the claim group authorised execution of the State agreement. They received advice from their lawyers on 12 August. That advice may have been emphatic. However, it is not to be supposed that members of the claim group which had been for so long engaged in processes associated with their native title determination application and with the negotiation of the State agreement were not capable of making an informed decision reflected in the resolutions which were eventually passed. In my opinion, the applicant, Mr David Walker, is as a result of the decisions taken at the meeting of 12 August 2002, no longer authorised by the claim group to make the application or to deal with matters arising in relation to it.
...
54. The conditions for the exercise of the power under s 66B having been satisfied, the question that then arises is whether, in its discretion, the Court should make the orders which are sought. In my opinion it should. This is a case in which one of a large number of registered applicants is holding up the execution of an agreement which has been authorised by the native title claim group and which is of substantial importance to its members. To decline to make the order in these circumstances would be to undermine the authority of the claim group and to frustrate its legitimate decisions. ...
55. I should add that submissions were also made in opposition to the motion by Mr RI Viner QC representing the Wong-goo-tt-oo People. The Wong-goo-tt-oo people have no direct interest in this motion as it does not concern their application. It appears that there may be a desire on the part of all or some of those applicants to oppose the execution of the agreement. However, an important aspect of the submissions made by Mr Viner was that it was not appropriate that I should on the hearing of this motion make findings which might involve determination of the issues to be determined by Nicholson J who is the trial judge in the consolidated proceedings. I should note in that respect that I have made orders that the affidavits filed in these proceedings are, unless otherwise directed, only to be used for the purposes of the removal motions.
56. In my opinion, the concerns advanced by senior counsel for the Wong-goo-tt-oo People are unfounded. The issues before me do not involve any determination of issues going to questions of connection or the subsistence of native title rights and interests. And to the extent that they do they are findings made for the purposes of the s 66B motions only.
...
76. The hearing of the motion relating to Ms Cooper was conducted in unsatisfactory circumstances. It was brought on at short notice. Documents were served at short notice. Ms Cooper was participating by telephone link from Geraldton without any legal representation although she had the aid of Mr Papertalk who spoke on her behalf. I indicated at the time of the hearing that I would reserve on the question whether, as a matter of procedural fairness, I should make a judgment on the motion at all, or adjourn it for further hearing.
77. Having reviewed the materials, I do not think that I am in a position safely to proceed to make a decision on the matters raised in the motion. There are persons named in the motion who say that they did not authorise it. Moreover the material before me does not disclose whether there is a relevant process of decision-making according to traditional law and custom which requires consideration. There is no equivalent of the anthropological evidence which was given by Mr Robinson in support of the Ngarluma and Yindjibarndi motion.
78. In the circumstances, I propose to adjourn the motion for further hearing at a time convenient to the parties. It would be highly desirable if Ms Cooper could be separately represented and the contending parties be in Court in person. The venue of the adjourned hearing is a matter upon which the Court will be open to suggestions from the parties and their representatives.
... ?
Counsel for the Applicants in WAG 6017 of 1996:
Ms CL Tan and Mr M O’Dell
Solicitor for the Applicants in WAG 6017 of 1996:
Dwyer Durack
Counsel for the Applicants in WAG 127 of 1997:
Mr PT Williams
Solicitors for the Applicants in WAG 127 of 1997:
Williams & Co
Counsel for the Applicants in WAG 6256 of 1998:
Mr RI Viner QC
Counsel for the First Respondent
Mr SJ Wright
Solicitor for the First Respondent:
State Crown Solicitor
Counsel for Dwyer Durak:
Mr R Le Miere QC
Solicitor for Dwyer Durak:
Minter Ellison
Counsel for the Eleventh Respondents and the West Australian Fishing Industry Council:
Mr MT McKenna
Solicitors for the Eleventh Respondents and the West Australian Fishing Industry Council:
Hunt & Humphry
Counsel for Mr David Walker:
Mr AP Rumsley
Solicitor for Mr David Walker:
Mr McKie & Associates
Counsel for Ms P Cooper:
Ms Cooper represented herself assisted by Mr Papertalk
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