Editors --- "Butchulla People v State of Queensland [2006] FCA 1063 - Case Summary" [2006] AUIndigLawRpr 73; (2006) 10(4) Australian Indigenous Law Reporter 70

• Butchulla People v State of Queensland
• Facts:
• Held, granting the motion and amending the title to the native title proceedings:

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Butchulla People v State of Queensland

Federal Court of Australia

[2006] FCA 1063

23 August 2006

Native Title — whether applicant’s replacement was in accordance with s 251B — whether removal and replacement is authorised by all persons in the native title claim group — whether claim group is obliged to use a customary process of decision-making of a sub-group in a larger native title group or could adopt a contemporary process — whether the inability of one applicant to continue affects the authorisation of the other applicants

Facts:

On 28 August 1998, a claim for native title determination was filed in the Federal Court on behalf of the Butchulla People. The application claimed that the persons bringing the application were authorised by a combination of consent of senior members of the native title claim group, seniority based on duration of connection with the area claimed by the application, and consensus, through debate and dialogue through all members of the native title claim group.

At a directions hearing in April 2004, the Gurang Land Council, on behalf of the applicant, produced a plan proposing that a connection report be completed by mid-December and provided to the State of Queensland. That report was completed by a consultant anthropologist but, in a January 2005 meeting, the Gurang Land Council was instructed that the report was not to be released. The Council received several requests to appoint a new applicant. At a meeting on 9 April 2005 the Butchulla People’s decision-making process for native title claims was discussed, and a motion was passed to remove the people currently acting as applicants. New applicants were selected without opposition.

In the current proceeding, the new applicants moved to have the previous applicants to the native title claim (the respondents) removed on the basis that, following the April 2005 meeting, they were no longer authorised under s 65B of the Native Title Act 1993 (Cth) (‘NTA’). The respondents denied that the proper procedure for the removal of their authorisation had been followed under s 251B.

Held, granting the motion and amending the title to the native title proceedings:

1. Section 251B(a) does not refer to the custom of a sub-group in a larger native title group. Its only concern is with the laws or customs of the whole group. Where the group as a whole has no law or custom which must apply, as is here the case, par (b) applies: [30], Combined Gunggandji Claim v State of Queensland [2005] FCA 575 applied.

2. A contemporary process of decision-making does not become an immutable law or custom and could be changed by the process of agreement again: [31]. There is no requirement that notification be given of a proposal to use a different decision-making procedure under s 251B(b): [32].

3. ‘Consensus’ and ‘mutual agreement’ do not require unanimity. A majority view prevailed at the April 2005 meeting. Therefore, the resolutions passed at the meeting validly authorised the new persons to be applicants: [33]–[34], Lawson on behalf of the ‘Pooncarie’, Barkandji (Paakantyi) People v Minister for Land and Water Conservation for the State of New South Wales [2002] FCAFC 1517 followed; Moran v Minister of Land and Water Conservation for New South Wales [1999] FCA 1637 followed.

4. The NTA assumes that all persons authorised to make up the ‘applicant’ in native title claims have the same interest; that is, it does not recognise any sub-groups within the wider group having a different interest. Therefore, authorised persons are authorised individually, not collectively. The presumptions usually applied to personal appointments would operate. That is to say, their authorisation will continue until revoked and while they are willing and able to act in their representative capacity: [40]–[42].

5. Sections 66B(1) and 64(5), dealing with replacement and appointment respectively, should be read in a way consistent with this approach. The reference to the ‘current applicant’ being no longer authorised would be taken to refer only to those persons whose authority has in fact been revoked: [45].