FEDERAL COURT OF AUSTRALIA

Violet Carr and Others on Behalf of the Wellington Valley Wiradjuri People v Premier of New South Wales [2013] FCA 200

THE COURT ORDERS THAT:

1.    Pursuant to s 84C of the Native Title Act 1993 (Cth) the proceeding be dismissed.

2.    Each party bear its own costs of the interlocutory application filed 8 October 2012.

Note:    Settlement and entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

THE INTERLOCUTORY APPLICATION

1    These reasons for judgment relate to an interlocutory application by North East Wiradjuri Co Ltd (NEW Co), a respondent to the proceeding, seeking orders that the proceeding be dismissed pursuant to s 84C of the Native Title Act 1993 (Cth) or r 26.01 of the Federal Court Rules 2011. NTSCORP Limited (NTSCORP) and two other respondents, Diane Stewart and Dorothy Stewart, support NEW Co’s interlocutory application. The applicants, Violet Carr, Elizabeth Ferguson and Joyce Williams, on behalf of the Wellington Valley Wiradjuri People, oppose the interlocutory application.

2    The basis upon which it is said that the proceeding should be dismissed is that the applicants lacked the required authority to file the native title determination application (NEW Co’s main point) and/or that the group on behalf of which the applicants filed the native title determination application is unclear (NTSCORP’s main point).

STATUTORY PROVISIONS

3    By s 13(1) of the Native Title Act an application may be made to the Federal Court under Pt 3 for a determination of native title in relation to an area for which there is no approved determination of native title.

4    Section 61(1), which is in Pt 3 of the Native Title Act, provides that a native title determination application may be made by (relevantly):

A person or persons authorised by all the persons (the native title claim group) who, according to their traditional laws and customs, hold the common or group rights and interests comprising the particular native title claimed, provided the person or persons are also included in the native title claim group.

5    Section 61 otherwise provides as follows:

(2)    In the case of:

(a)    a native title determination application made by a person or persons authorised to make the application by a native title claim group; or

(b)    a compensation application made by a person or persons authorised to make the application by a compensation claim group;

the following apply:

(c)    the person is, or the persons are jointly, the applicant ; and

(d)    none of the other members of the native title claim group or compensation claim group is the applicant .

(3)    An application must state the name and address for service of the person who is, or persons who are, the applicant.

(4)    A native title determination application, or a compensation application, that persons in a native title claim group or a compensation claim group authorise the applicant to make must:

(a)    name the persons; or

(b)    otherwise describe the persons sufficiently clearly so that it can be ascertained whether any particular person is one of those persons.

(5)    An application must:

(a)    be in the prescribed form; and

(b)    be filed in the Federal Court; and

(c)    contain such information in relation to the matters sought to be determined as is prescribed; and

(d)    be accompanied by any prescribed documents and any prescribed fee.

6    Section 62 includes the following:

(1)    A claimant application (see section 253):

(a)    must be accompanied by an affidavit sworn by the applicant:

(i)    that the applicant believes that the native title rights and interests claimed by the native title claim group have not been extinguished in relation to any part of the area covered by the application; and

(ii)    that the applicant believes that none of the area covered by the application is also covered by an approved determination of native title; and

(iii)    that the applicant believes that all of the statements made in the application are true; and

(iv)    that the applicant is authorised by all the persons in the native title claim group to make the application and to deal with matters arising in relation to it; and

(b)    must contain the details specified in subsection (2); and

...

(2)    For the purposes of paragraph (1)(b), the details required are as follows:

(a)    information, whether by physical description or otherwise, that enables the boundaries of:

(i)    the area covered by the application; and

(ii)    any areas within those boundaries that are not covered by the application;

to be identified;

…

(d)    a description of the native title rights and interests claimed in relation to particular land or waters (including any activities in exercise of those rights and interests), but not merely consisting of a statement to the effect that the native title rights and interests are all native title rights and interests that may exist, or that have not been extinguished, at law;

(e)    a general description of the factual basis on which it is asserted that the native title rights and interests claimed exist and in particular that:

(i)    the native title claim group have, and the predecessors of those persons had, an association with the area; and

(ii)    there exist traditional laws and customs that give rise to the claimed native title; and

(iii)    the native title claim group have continued to hold the native title in accordance with those traditional laws and customs;

(f)    if the native title claim group currently carry on any activities in relation to the land or waters - details of those activities;

…

7    By s 62A, in the case of a claimant application, the applicant may deal with all matters arising under the Native Title Act in relation to the application.

8    Section 84C contains provisions in these terms:

(1)    If an application (the main application) does not comply with section 61 (which deals with the basic requirements for applications), 61A (which provides that certain applications must not be made) or 62 (which requires applications to be accompanied by affidavits and to contain certain details), a party to the proceedings may at any time apply to the Federal Court to strike out the application.

(2)    The Court must, before any further proceedings take place in relation to the main application, consider the application made under subsection (1).

…

(4)    This section does not prevent the making of any other application to strike out the main application.

9    Section 84D includes the following:

(3)    Subsection (4) applies if:

(a)    an application does not comply with section 61 (which deals with the basic requirements for applications) because it was made by a person or persons who were not authorised by the native title claim group to do so; or

(b)    a person who is or was, or one of the persons who are or were, the applicant in relation to the application has dealt with, or deals with, a matter arising in relation to the application in circumstances where the person was not authorised to do so.

(4)    The Federal Court may, after balancing the need for due prosecution of the application and the interests of justice:

(a)    hear and determine the application, despite the defect in authorisation; or

(b)    make such other orders as the court considers appropriate.

10    Section 251B provides that:

For the purposes of this Act, all the persons in a native title claim group or compensation claim group authorise a person or persons to make a native title determination application or a compensation application, and to deal with matters arising in relation to it, if:

(a)    where there is a process of decision-making that, under the traditional laws and customs of the persons in the native title claim group or compensation claim group, must be complied with in relation to authorising things of that kind--the persons in the native title claim group or compensation claim group authorise the person or persons to make the application and to deal with the matters in accordance with that process; or

(b)    where there is no such process--the persons in the native title claim group or compensation claim group authorise the other person or persons to make the application and to deal with the matters in accordance with a process of decision-making agreed to and adopted, by the persons in the native title claim group or compensation claim group, in relation to authorising the making of the application and dealing with the matters, or in relation to doing things of that kind.

PRINCIPLES

11    In Daniel v Western Australia (2002) 194 ALR 278; [2002] FCA 1147 French J (as he was) at [11] – [12] said:

[11] It is of central importance to the conduct of native title determination applications and the exercise of the rights that flow from their registration, that those who purport to bring such applications and to exercise such rights on behalf of a group of asserted native title holders have the authority of that group to do so. Prior to the 1998 amendments there was no requirement under the Native Title Act that an applicant have such authority. The absence of that requirement led, in some cases, to conflicting and overlapping claims all carrying with them the statutory right to negotiate in respect of the grant of mineral tenements and the compulsory acquisition by Commonwealth or State Governments of native title rights and interests. Although many aspects of the 1998 amendments were the subject of controversy in the public and parliamentary debates that preceded their enactment, the need for communal authorisation of claims was largely a matter of common ground.

[12] In Western Australia v Strickland (2000) 99 FCR 33 [[2000] FCA 652] at 52, the Full Court approved a passage from the judgment in Strickland v Native Title Registrar (1999) 168 ALR 242 [[1999] FCA 1530] 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."

12    In dealing with an application for summary dismissal, including on the basis of the power in s 84C of the Native Title Act, Mansfield J in Landers v State of South Australia (2003) 128 FCR 495; [2003] FCA 264 at [7] said:

Whichever power is relied upon on the motion, it is accepted that the principles applicable to consideration of a summary dismissal application should be applied. The Court should only dismiss the application if the case for its dismissal is very clear: Dey v Victorian Railways Commissioners (1949) 78 CLR 62 at 91; General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 at 128-130. Consequently, the power summarily to dismiss an application should be exercised only where the claim as expressed is untenable, and upon the version of the evidence favourable to the applicant. The Court should not, upon such an application, generally undertake any weighing of conflicting evidence or of the inferences which might be drawn from such evidence: Webster v Lampard (1993) 177 CLR 598 at 602-603.

13    At [32] – [36] Mansfield J said:

[32] I consider the Edward Landers' application does not comply with s 61(4) of the NT Act. It is required either to name the persons making up the native title claim group or to describe them sufficiently clearly so that it can be ascertained whether any particular person is one of those persons. It adopts the latter of those alternatives. It does not however do so in a way which properly complies with s 61(4). That is because it does not describe the native title claim group, the Dieri People. It describes a smaller group of people namely the Dieri People but excluding those persons referred to in para 5 of Schedule A to the application. They are the persons for whom the Dieri Mitha application is brought. According to the amended particulars of claim in the Dieri Mitha application, that application is brought on behalf of 87 named persons. The Edward Landers group acknowledged that they, or most of them, are part of the Dieri People. The smaller group is not the group of people who should exclusively enjoy the communal native title if it is granted. Yet that is the purport of the Edward Landers' application. It seeks, and if it is successful will result in, a determination of native title on behalf of some only of the Dieri People.

[33] The Edward Landers group accepts that it is of central importance to the conduct of native title determination applications, and the exercise of the rights that flow from their registration, that those who bring such applications and who exercise such rights on behalf of a group of persons claiming to hold native title rights have the authority of the group to do so: see per French J in Daniel [Daniel v Western Australia (2002) 194 ALR 278; [2002] FCA 1147] at [11]. In Quall v Risk [[2001] FCA 378] O'Loughlin J at [67] described the proper identification of the native title claim group as going to the heart of a native title determination application. I have rejected the submission that the Edward Landers' application should be summarily dismissed because it is clear that it was not authorised by the Dieri People under s 251B of the NT Act. But, in my view, it also follows from the need for such authorisation that s 61(4) requires the application to be on behalf of the people who have authorised it. It does not permit the making of a claim by a native title determination application by a subgroup of the native title claim group, or the grant of native title to a subgroup of the real native title claim group: see Ward v State of Western Australia (1998) 159 ALR 483 at 541, Risk v National Native Title Tribunal [2000] FCA 1589 at [60], Tilmouth v Northern Territory of Australia (2001) 109 FCR 240. By excluding from the authorising group, namely the Dieri People, the 87 persons named as the applicant group (or even merely the Dieri Mitha group) in the Dieri Mitha application, that is what the Edward Landers' group has done. The smaller group, as expressed, is not the group of people who should exclusively enjoy the communal native title.

…

[35] I do not accept those contentions. The significance of the requirement introduced by s 251B is clear: Daniel, and also see Moran v Minister of Land & Water Conservation for New South Wales [1999] FCA 1637 per Wilcox J at [48]. The proper identification of the native title claim group is the central or focal issue of a native title determination application. It is the native title claim group which provides the authorisation under s 251B, and it is the group on whose behalf the claim is then pursued and, if successful, in whose favour a determination of native title is then made. I do not consider the registration procedures as introduced in Pt 7 of the NT Act in 1998 were intended to detract from that focus. Nor do I consider there is any tension between those procedures and s 61 of the NT Act.

[36] The term "native title claim group" in s 253 is referred to as meaning the group mentioned in relation to the native title determination application in s 61(1). It refers to "all the persons" who authorised the particular applicants to make the claim. In this instance, it is the claim of the Edward Landers' group that they were authorised by the Dieri People. But the application does not then identify the Dieri People as the persons on whose behalf the claim is made, but some only of the Dieri People. I think the requirements of s 61(1) and s (4) are clear.

14    In Davidson v Fesl [2005] FCAFC 183 at [25] it was noted that:

As already noted the definition of the claim group is of great importance. The definition in the application is curiously constrained. While the identification of the claim group is so constrained and contentious it is difficult to see how the question of authorisation, which is dependent upon that definition, can ever satisfactorily be resolved.

15    In Starkey v State of South Australia (2011) 193 FCR 450; [2011] FCA 456 at [64] Mansfield J said:

Of course, it is necessary for the applicant to make out the due authorisation of the making of the claim by the applicant. That is required in the application itself, and may be (as here) supported by certification of the relevant native title representative body. If a respondent puts authorisation in issue, further evidence may be required, and s 84D(1) empowers the court to require such evidence. It is significant, even in this context, that s 84D(3) and (4) empower the court to hear and make a determination of native title notwithstanding that the application was not properly authorised to make it, to secure due prosecution of the application and the interests of justice. Section 84D was introduced by the Native Title Amendment (Technical Amendments) Act 2007 (Cth) in part to enable the court to avoid the consequences of some defect in the authorisation process if the interests of justice require it, so that form should not conquer substance.

EVIDENCE

Documentary

16    The application as filed and thereafter amended dated 12 October 2009 is in the prescribed form, Form 1, as required by s 61(5) of the Native Title Act. The application identifies the three applicants as Joyce Williams, Violet Carr and Elizabeth Ferguson. In item 2 of the form under the heading “authorisation” it is stated that:

The persons authorized by the native title claim group have authority to make this application on behalf of the people in the native title claim group and to deal with matters arising from such claim: See section R2.

17    As part of the hearing of the interlocutory application for summary dismissal of the proceeding, the applicants sought leave to amend this statement to add the words “and the affidavits of Wayne Carr, Joyce Williams, and Philip Teitzel filed by the applicants on 15 October 2012”. The reason for this will be apparent from the subsequent observations.

18    Schedule A to the Form 1 refers to the native title claim group as consisting of the people known as the Wellington Valley Wiradjuri People being the Aboriginal people whose traditional land and waters are situated generally in the Wellington Valley in the State of NSW and that:

The Wellington Valley Wiradjuri Claim Group comprises those people who hold in common the body of Traditional Law and Customs governing the area being the subject of the claim and more particularly described in Attachment “A”.

19    Schedule R includes this statement:

1.    Each Applicant is a member of the Wellington Valley Wiradjuri native title claim group and are authorised to make this application and deal with the matters arising in relation to it, by all the other persons in the native title claim group. This is confirmed in the Applicants’ affidavits and attachment “R2” hereof.

2.    The Authorisation Meeting of 1.8.09 adopted a traditional decision making process and each of the persons included as an Applicant in this application is authorised by all persons in the native title claim group to make this application and deal with all matters in relation to it.

20    An affidavit included in the Form 1 from each applicant contains the following statement:

I was authorised by the Wellington Valley Wiradjuri native title claim group to make this application and to deal with all matters arising in relation to it in accordance with the decision making process under the traditional laws and customs of the claim group at a meeting of the native title claim group held at the Wellington Senior Citizens Hall, Swift Street, Wellington on the 1st Day of August 2009. The decision making process resulted in my being authorised to act as an Applicant by all the persons in the claim group.

21    Attachment “A” to the Form 1 is in these terms:

“ATTACHMENT A”

The Wellington Valley Wiradjuri native title claim group comprises those people who hold in common the body of traditional law and custom governing the area the subject of the claim and who:

1.    Are related by means of the principle of biological descent from the below listed Apical Ancestors:

1.1    (a)    Charlotte Riley

    (b)    Samuel and Jane May

    (c)    Ellen Plummer

    (d)    William John King and Margaret (Holland) Dawkins

    (e)    Jemmy Buckley and Poll

        (including Thomas Hartley and Clara Buckley)

(f)    Arthur Stewart, Alexander Stewart and Charles Stewart

(g)    Bessie Macdonald and Lily Macdonald

(h)    Ellen Baird/Beard, James and (W) Dolly Beard

(i)    George Drew and (Z) Agnes Drew

(j)    Michael Mitchell Mickey and Mary Bloomfield

(k)    Benjamin Holland and Sarah Hill (Steel)

(including Jock Stanley and Emma Holland, James Wighton and Mary Holland)

(l)    Edward Williams and Kate Carr

(including George Daley and Johanna Williams)

(m)    Edward Carr and Sophie Ryan

(n)    Bridget Carr

(o)    John Button

(p)    Ann Daley, mother of George Daley

22    Attachment “R2” to the Form 1, being the document referred to in item 2 of the form under the heading “authorisation”, is the notice of the meeting for 1 August 2009 and is as follows:

TAKE NOTE ON SATURDAY 1ST AUGUST 2009 the WELLINGTON WIRADJURI NATIVE TITLE CLAIMANTS will be holding a meeting of all claimants who are the descendants of the following:

Charlotte Riley, Samuel and Jane May, Ellen Plummer, William John King, Jemmy Buckley and Poll (including Thomas Hartley and Clara Buckley), Arthur Stewart and Agnes Drew, Charles Stewart and Bessie Macdonald, George Drew and Lily Macdonald, Alexander Stewart, Baird, Michael Mitchell Mickey and Mary Bloomfield, Benjamin Holland and Sarah Hill (Steel, (including Jock Stanley and Emma Holland, James Wighton and Mary Holland), Edward Williams and Catherine Carr, (including George Daley and Johanna Williams), Edward Carr and Sophie Ryan, Bridget Carr, John Button, Elizabeth Jane Watson, Ann Daley, mother of George Daley;

for the purposes of authorizing Applicants under the Native Title Act (as amended) to make a new native title determination application for the claim area (as appearing in the map above) on their behalf.

WHERE:     Wellington Senior Citizens Hall, Swift Street, Wellington NSW.

        Commencing 10:15am

23    Attachment T3 to the form 1 is an anthropological report dated August 2009 prepared by Dr Gaynor McDonald.

24    In section 3.1 of the anthropological report it is stated that:

Definition of the Claimant Group and Apical Ancestors:

The native title claim group (NTA s.61(4) comprises the descendants of the following apical ancestors:

Charlotte [Riley]

Samuel and Jane May

Ellen Plummer

William John King and Margaret (Holland) Dawkins

Jemmy Buckley and (W) Poll (and including Thomas Hartley and Clara Buckley)

Arthur Stewart, Alexander Stewart and Charles Stewart

Bessie Macdonald and (Z) Lily Macdonald

Ellen Baird/Beard, James and (W) Dolly Beard

George Drew and (Z) Agnes Drew

Michael Mitchell Mickey (W: Mary Bloomfield)

Benjamin Holland and Sarah Hill [Steel] (and including Jack Stanley and Emma Holland; James Wighton and Mary Holland)

Edward Williams and Catherine ‘Kate’ Carr (and including George Daley and Johanna Williams)

Edward Carr and Sophie Ryan

Bridget Carr

John Button

Ann [Daley], mother of George Daley

I am of the opinion that this is a genuinely inclusive definition of the claimant group and one that allows for the confirmation of any individual claimant, irrespective of their personal histories. I make this point mindful that previous applications have suffered from local tensions and have either not been inclusive or have included ancestors who are not of Wellington Wiradjuri descent.

25    In section 3.2 the anthropological report includes a table of all verifiable apical ancestors for the native title claim group. The names in the table (table 3.1) are these:

Table 3.1: Wellington Wiradjuri Apical Ancestors

Charlotte [Riley]

Samuel and Jane May

Ellen Plummer

Benjamin Holland and Sarah Hill (Steel?)

William John King and Margaret Dawkins

Jemmy and Poll Buckley

Charles Stewart & Bessie Macdonald

George Drew & Lily Macdonald

Agnes Drew

Alexander Stewart

Michael Mitchell Mickey (c.1830)

Mary Ann Peck (1842-1932)

Jack Stanley (1830-1914)

Edward Carr (1862-1942)

Catherine (Kitty) Carr (c1840s - )

Ellen Baird (also known as Beard or Antill)

Bessie, Lily and Ada/Alice Macdonald

26    Attachment “T4” to the Form 1 is an unsigned copy of the minutes of meeting of 1 August 2009. The minutes include the following statements:

Gaynor Macdonald

Gaynor discussed the following issues with the meeting.

Who are the Claimants and how is the claim description derived?

An Apical Ancestor is the person who is the earliest ancestor you can locate (and is used in most of the native title claims).

Which descendants or ancestors can claim?

A person who is identified from years back, but has no history in connection with the land, can not be used as an apical ancestor.

Gaynor shows in her Anthropology Report that customs from past still survive today.

Each generation has to prove a connection to Wellington Valley region.

If an ancestor has not been involved with the Wellington Valley, then under new legal interpretation under the Native Title Act (the Noongyar case), that ancestor can’t be used as an apical ancestor.

Gaynor then showed on a Powerpoint presentation, a list of the apical ancestors. She discussed each family’s representative and their ancestors who were related to attendees at the meeting. The Powerpoint presentation displayed the following Attachment “A” of the Form 1.

ATTACHMENT “A” – Claim Group Description

The Wellington Wiradjuri native title claim group comprises those people who hold in common the body of traditional law and custom governing the area the subject of the claim and who:

1.    Are related by means of the principle of biological descent from the below listed Apical Ancestors:

“ATTACHMENT A”

The Wellington Valley Wiradjuri native title claim group comprises those people who hold in common the body of traditional law and custom governing the area the subject of the claim and who:

1.    Are related by means of the principle of biological descent from the below listed Apical Ancestors:

(a)    Charlotte Riley

(b)    Samuel and Jane May

(c)    Ellen Plummer

(d)    William John King and Margaret (Holland) Dawkins

(e)    Jemmy Buckley and Poll

    (including Thomas Hartley and Clara Buckley)

(f)    Arthur Stewart, Alexander Stewart and Charles Stewart

(g)    Bessie Macdonald and Lily Macdonald

(h)    Ellen Baird/Beard, James and (W) Dolly Beard

(i)    George Drew and (Z) Agnes Drew

(j)    Michael Mitchell Mickey and Mary Bloomfield

(k)    Benjamin Holland and Sarah Hill (Steel)

(including Jock Stanley and Emma Holland, James Wighton and Mary Holland)

(l)    Edward Williams and Kate Carr

(including George Daley and Johanna Williams)

(m)    Edward Carr and Sophie Ryan

(n)    Bridget Carr

(o)    John Button

The meeting was opened to questions. No questions from the floor were raised with the Chair in respect of other Apical Ancestors.

…

Break for Lunch 1:15pm

Lunch discussion: Elders (Three proposed Applicants, Joyce Williams, VioletCarr and Betty Ferguson, and Steve Parkes, Neville Brown, John Riley and Wayne Carr) met in the lunch room during the break and all agreed that the claim should proceed for the claim area (see Attachment “B”) as shown in the Powerpoint presentation and that the three Applicants are authorised by those senior Elders to proceed with all aspects of the claim. The Elders suggested through Wayne Carr that as they had not consulted all of the people at the meeting prior to today, the meeting should be asked for its views on the claim and on the proposed Resolutions as soon as possible after the lunch break as all of the Elders expressed their view that the claim appeared to be fully supported and the Applicants authorized, not only by the Elders but all those present.

Meeting resumed at 2:00pm

Mr Brown resumed the Chair.

Mr Teitzel discussed authorization of the claim and the Applicants and stated that the Elders wished to have the meeting consider the authorisation of the claim in accordance with the Resolutions which are Annexure “C” hereof.

…

It was moved that the Resolutions appearing at Annexure “C” be accepted by this meeting.

Moved – Wayne Carr

Seconded – Janny Ely

Passed – Unanimously

…

Meeting closed at 2.20pm

27    The resolutions, attached as “C”, include the following material:

WELLINGTON VALLEY WIRADJURI NATIVE TITLE CLAIM

Community Authorisation Meeting

1st August 2009

Wellington Senior Citizens’ Hall, Swift Street, Wellington NSW

RESOLUTIONS

…

3.    The persons at this meeting agree that a new native title claim should be filed over the area shown in the notice (advertisement) and it should be filed on behalf of the persons listed in the notice (the “native title claim group”).

…

5.    Those persons present at the meeting agree that there should be three (3) people authorised to make the new native title claim as Applicant and to make decisions in relation to the new native title claim on behalf of the native title claim group.

6.    Those persons present at the meeting authorise Joyce Williams, Violet Carr and Elizabeth (“Betty”) Ferguson to make the new native title claim application as Applicant on their behalf and to do all things necessary to achieve a native title determination for the native title claim group.

28    It will be apparent from the above that: - (i) Attachment A in the Form 1 does not include Elisabeth Jane Watson, (ii) Attachment R2 in the Form 1 includes Elisabeth Jane Watson, (iii) the minutes of the authorisation meeting, which are unsigned, include a claim group description which does not include Elisabeth Jane Watson, and (iv) the resolutions which the minutes say were passed at the authorisation meeting refer to the document which is Attachment R2 in the Form 1 which includes Elisabeth Jane Watson.

Affidavits

29    Julia Bennison’s ancestor is Elisabeth Jane Watson. According to Ms Bennison, although she knew that there was an issue about the inclusion of her ancestor she did not know until after the claim was filed that Elisabeth Jane Watson had been excluded. Ms Bennison could not attend the meeting on 1 August 2009 and her husband, Scott Bennison, attended on her behalf.

30    Scott Bennison attended the meeting on 1 August 2009 on behalf of his wife. According to Mr Bennison he saw a list of ancestors which had the name William Watson but not Elisabeth Jane Watson. This list was projected onto a screen. He asked Dr McDonald and Mr Teitzel about the omission of Elisabeth Jane Watson and was told Elisabeth Jane Watson had been excluded but that Dr McDonald would discuss it with Mr Teitzel. After lunch, Dr McDonald displayed another list of apical ancestors described as attachment “A” and Elisabeth Jane Watson’s name was included near the bottom of this list. Mr Teitzel then read out the resolutions which were also displayed and identified this “Attachment A” as the list of apical ancestors to which the resolutions referred. After the meeting Mr Bennison asked Mr Teitzel what he should do about the fact that Dr McDonald had said Elisabeth Jane Watson was to be excluded. Mr Teitzel responded that the Form 1 would not be lodged until he had discussed the issue with Dr McDonald and spoken to Mr and Mrs Bennison. However, the Form 1 was lodged excluding Elisabeth Jane Watson without Mr Bennison’s knowledge. After the meeting, on a date he cannot now recall, Mr Bennision was sent by Mr Thurlow, the person responsible for taking minutes at he meeting, two documents. The first is an agenda style document for the meeting on 1 August 2009. The second is a document headed “Attachment A” which includes, near the bottom of the list, the name Elisabeth Jane Watson. Mr Bennison was cross-examined about his recollection but maintained that what he recalled was accurate. When asked about a list which did not include Elisabeth Jane Watson Mr Bennison said that this was the list of genealogies initially presented. However, the list described as “Attachment A” as shown was the list of apical ancestors which included Elisabeth Jane Watson.

31    Wayne Carr attended the meeting on 1 August 2009. Mr Carr said:

…

9.    I recall that as part of that presentation, Dr MacDonald provided a list of apical ancestors which was projected onto the wall of the meeting venue. This list was discussed, and considered and I remember that Elizabeth Jane Watson was not included in that list. The elders with whom I consulted at the meeting were all in agreement that those persons who were listed were to be accepted as the apical ancestors in the WVW native title claim.

10.    I understand that there are some differences between the notice of meeting, the minutes of the meeting and the claim group description as they appear in the WVW registered Form 1 and I have now been shown a copy of the claim group description which is attachment “A” in that Form 1. I believe that attachment which is annexed and marked “WC1” is the correct description as authorised by the claim group and is the same as the claim group description displayed at the meeting by Dr MacDonald.

32    The attachment to Mr Carr’s affidavit is headed “Attachment A”. It does not include the name Elisabeth Jane Watson. It is not the same document identified as “Attachment A” included in the Form 1. The names are the same apart from minor differences but the document attached to Mr Carr’s affidavit contains the statement “List presented at meeting in powerpoint presentation”. Mr Carr was not cross-examined.

33    Joyce Williams, one of the applicants, also attended the meeting on 1 August 2009. In her affidavit, Ms Williams, who also provided an affidavit included as part of the Form 1, said:

…

12.    At the community meeting of 1 August 2009, I remember viewing the projection on the wall which showed our claim area and a list of names which were proposed for inclusion as apical ancestors in the Wellington Valley Wiradjuri claim. While I do not specifically remember all of the names individually on the wall I do remember that the name of Elizabeth Jane Watson, being Julia Bennison’s ancestor, was not on the list.

13.    I also remember that when the elders were asked by the meeting to consider the list of names that were projected on the wall, the elders all approved all of those names as being the correct apical ancestors for the Wellington Valley Wiradjuri claim.

14.    I also remember that there was no objection or dissent raised by any person present at the meting and the meeting appeared to be concluded to the satisfaction of all those persons present.

I have seen the minutes of the meeting. I have not been asked to confirm those minutes. I have seen the notice which appeared in the paper, and the minutes ought not to have referred to that notice. The minutes should have referred to the Powerpoint slides that Dr MacDonald showed on the wall.

34    Philip Teitzel, the applicants’ solicitor, provided an affidavit. In his affidavit Mr Teitzel said:

…

6.    At that meeting Dr MacDonald provided a powerpoint presentation in relation to certain aspects of the claim and in particular, the Apical Ancestors and the claim area. The powerpoint presentation on Apical Ancestors was in accordance with Table 3.1 of the Wellington Valley Anthropological Report 2009 authored by Dr MacDonald (being Attachment T3 to the Wellington Valley Wiradjuri Form 1).

7.    The name “Elizabeth Jane Watson” was not on the powerpoint list of Apical Ancestors displayed at the authorisation meeting and viewed by all attendees.

8.    The name of “Ann (Daley) mother of George Daley” was included in Dr MacDonald’s powerpoint presentation in the list of Apical Ancestors displayed on the wall at the meeting but was typographically omitted from the minutes of the meeting, possibly due to the fact that neither the deponent nor the principal minute secretary, Mr Lee Thurlow, were in possession of either a soft or hard copy of the powerpoint presentation.

…

14.    It was unanimously agreed by the authorisation meeting that:

(a)    the decision making process be in accordance with the WVW traditional laws and customs and be adopted by everyone present in respect of all decisions made at the community meeting;

(b)    those persons displayed on the powerpoint list of the proposed Apical Ancestors were adopted as representing the Apical Ancestors of the claim group. Annexed and marked “PJT2” is the list of Apical Ancestors displayed at the authorisation meeting.

15.    I prepared draft resolutions for the meeting to consider. Included in the draft resolutions was the proposed Resolution 3. I drafted that proposed resolution prior to the presentation of the powerpoint list by Dr MacDonald at the community meeting and at that time I had not consulted with Dr MacDonald concerning her final powerpoint presentation listing of apical ancestors.

16.    I did not amend the form of the proposed resolution 3 in the light of Dr MacDonald’s presentation at the meeting because of an oversight. I had intended to add the word “amended” before the word “notice” in the resolution. I had intended that the reference to the notice would enable a compendious form of reference for both the claim area and its apical ancestors for the benefit of the meeting.

35    The document Mr Teitzel described as the list of apical ancestors displayed at the meeting is the same document as Mr Carr annexed to his affidavit, that is, a list not including the name Elisabeth Jane Watson and containing the statement the statement “List presented at meeting in powerpoint presentation”. Mr Teitzel was not cross-examined.

DISCUSSION

36    Nothing in the evidence of Mr Bennison suggested that he was giving other than truthful evidence as he recollected it. The same can be said of Mrs Bennison to the extent that her evidence was relevant given that she did not attend the meeting due to illness.

37    Joyce Williams was not cross-examined. The problem with Ms Williams’ affidavits is that they are inconsistent. In her affidavit forming part of the application Ms Williams swore that all statements made in the application are true and she was authorised by the native title claim group to make the application. In her affidavit in respect of the interlocutory application Ms Williams said the minutes contained an error in that they referred to the notice rather than the list Dr McDonald had displayed at the meeting. The notice must mean the advertisement of the meeting which included the name Elisabeth Jane Watson. According to Ms Williams the minutes should have referred to the list Dr McDonald displayed at the meeting which did not include Elisabeth Jane Watson. If it is assumed that this resolves the inconsistency on the face of the affidavits, another problem emerges, as now explained.

38    According to Mr Bennison the proposed resolutions were also displayed and read out by Mr Teitzel and the meeting voted on those resolutions which were unanimously passed. Mr Teitzel said he prepared draft resolutions for the meeting to consider. These can only be the resolutions which are included in the Form 1. In contrast to Mr Bennison’s direct evidence about what happened with the proposed resolutions, Mr Teitzel gave indirect evidence by way of conclusion about what the meeting agreed. Nevertheless, Mr Teitzel did not suggest in his affidavit that Mr Bennison was wrong about his recollection of Mr Teitzel having read out the proposed resolutions which he, Mr Teitzel had prepared for that purpose, and the meeting having agreed on those resolutions as read out by Mr Teitzel. What Mr Teitzel did say was that the version of the proposed resolutions which he prepared for the meeting had not been amended to change the reference to the notice of the advertisement of the meeting to the list as presented at the meeting.

39    What is to be made of this evidence? I am satisfied that Mr Teitzel did read out to the meeting the resolutions he had prepared for that purpose and that the meeting resolved to adopt the resolutions as read out. Mr Bennison said he did and Mr Teitzel and the other persons who provided affidavits who had an opportunity to assert to the contrary did not suggest otherwise. Moreover, the minutes, although not signed by any person as an accurate record of the meeting, were taken by a person present at the meeting (Mr Thurlow) who had been appointed as the Minute Secretary. The minutes thus constitute admissions by Mr Thurlow with authority of the applicants and are admissible under s 89 of the Evidence Act 1995 (Cth) for the truth of their contents. Further, the applicants each adopted the minutes as an accurate record of the meeting through their affidavits which they included in the Form 1 which attested to the truth of all statements made in the Form 1. The minutes therefore are also direct admissions by the applicants. The minutes record that Mr Teitzel said that the elders (that is, the applicants) wanted the meeting to consider the authorisation of the claim in accordance with the resolutions at Annexure C. The Chairman then tabled those resolutions for consideration. Apart from an amendment being moved and adopted to include the word “Valley” before the word “Wiradjuri” in the title of the claim:

It was moved that the Resolutions appearing at Annexure “C” be accepted by this meeting.

40    The minutes record that the resolutions were passed unanimously. The resolutions, of course, refer to the claim group as the group of persons listed in the notice, being the notice advertising the meeting, which notice included Elisabeth Jane Watson.

41    In these circumstances, the thrust of the applicants’ response to the interlocutory application by NEW Co cannot be accepted. The applicants’ response is that the resolutions are nothing more than a record of the decision made at the meeting; they are not the decision itself. Hence, the only error is a mere technicality or oversight in that Mr Teitzel forgot to amend the resolutions to reflect the list of apical ancestors as shown to the meeting by Dr McDonald. The consequence, the argument goes, is simply that the manner in which the authorisation has been recorded does not “reflect the actual decision of the meeting”. Given that the power to summarily dismiss a proceeding must be exercised with caution a technical error of the kind identified, it is said, is immaterial. It should thus be accepted that the meeting authorised a claim by a native title claim group by reference to a list of apical ancestors that did not include Elisabeth Jane Watson, being the list that Dr McDonald had displayed to the meeting as referred to by Mr Carr, Ms Williams and Mr Teitzel.

42    The problem with this is that it does not grapple with the fact that Mr Teitzel read the proposed resolutions to the meeting, which expressly referred to the native title claim group as the persons listed in the notice, the notice being the notice advertising the meeting, and the meeting thereafter adopted those resolutions. Mr Bennison said this is what happened and so do the minutes. The affidavits on which the applicant relied did not give direct or cogent evidence about the actual passing of the resolutions but instead focussed on what they thought they were doing at the meeting. Accordingly, I accept Mr Bennison’s evidence that Mr Teitzel read out the resolutions and the meeting unanimously passed those resolutions.

43    On this basis, there is no error in the minutes. The minutes accurately record that the meeting authorised the applicants to file a claim on behalf of the persons listed in the notice advertising the meeting which included the descendants of Elisabeth Jane Watson. Once all of the evidence is considered, it is apparent that the applicants’ real submission cannot properly be that the manner of recording of the decision does not reflect the actual decision of the meeting. The applicants’ submission can only be that the actual decision made at the meeting does not reflect the intention of those who were at the meeting.

44    A recording of a decision which does not accurately record that which it purports to record is one thing. The making of a decision which does not reflect the intention of the persons making it is another. In the first case, a decision has been made as intended and a mere error in the recording would be immaterial; the decision intended to be made was made and that decision ordinarily be given force and effect. In the second case, a decision has been made but not as intended. The consequence of this state of affairs may well be that the decision as made is ineffectual. The consequence, however, cannot extend to deeming a decision to have been made which was not in fact ever made. In other words, even if I were satisfied that the meeting intended to decide to authorise the applicants to file a claim on behalf of the native title claim group as set out in Attachment A to the Form 1, the fact remains that no such decision was made. At its highest, the applicants’ case is not a mere matter of the recording of the decision. It is that the decision made was a different decision from that intended to be made. I have not been pointed to any authority supporting the notion that the unintended decision can be transformed into the intended decision. The result is clear – the applicants were not authorised to file the application as filed.

45    Apart from these conclusions, there are other reasons to doubt aspects of the evidence the applicants adduced. For example, Mr Carr and Mr Teitzel annex to their affidavits a version of Attachment A which: - (i) purports to be Attachment A to the Form 1 but plainly is not, (ii) contains a statement on it “List presented at meeting in powerpoint presentation” which suggests subsequent amendment, it being inherently unlikely that the list as actually presented at the meeting had that statement on it, and (iii) is identified by Mr Teitzel as being in accordance with Table 3.1 of Dr McDonald’s anthropological report when this is also plainly not the case. The list annexed to the affidavits of Mr Carr and Mr Teitzel most closely resembles the list in Dr McDonald’s anthropological report which preceded Table 3.1 but Table 3.1 itself is different from that list. The problems these inconsistencies create do not involve, as the applicants submitted, a failure to distinguish between the substantive requirements of the Native Title Act and the information in the Form 1 supporting the assertions in the application. The problems go directly to the question of authorisation because of the evidence the applicants adduced. Hence:

(1)    Mr Carr identified a document marked “Attachment A” as showing the claim group which Dr McDonald displayed at the meeting. He did not say it was a copy of the document as displayed and it is unlikely to have been so given it contains the statement “List presented at meeting in powerpoint presentation” on it. Nor did he address how the meeting dealt with the resolutions.

(2)    Mr Teitzel identified a document as “Attachment A” to the Form 1 when it is not the same document. Mr Teitzel said also that the powerpoint presentation displayed at the meeting was in accordance with Table 3.1 of Dr McDonald’s anthropological report when that table is different from the document Mr Teitzel identified as “Attachment A” to the Form 1. The document Mr Teitzel annexed as purportedly being the document “Attachment A” to the Form 1 is different again from the document annexed to Mr Carr’s affidavit in that, although it too contains the statement “List presented at meeting in powerpoint presentation” which suggests amendment after the meeting, it does not have “Attachment A” as its heading. Mr Teitzel said he prepared the resolutions for the meeting but did not address how the meeting dealt with the resolutions.

(3)    Ms Williams believes the minutes refer to the incorrect notice but also does not address how the meeting dealt with the resolutions.

(4)    In addition, Mr Bennison agreed that a list without the name of Elisabeth Jane Watson was presented to the meeting, being a list concerning genealogies, but that another list of apical ancestors was also presented which included the name Elisabeth Jane Watson and it was that list which was considered at the time Mr Teitzel read the proposed resolutions and the meeting unanimously resolved to pass those resolutions. Mr Bennison also indicated that he had seen or was otherwise aware of various versions of the minutes.

46    On this basis, the problem for the applicants is that there is an insufficient evidentiary foundation to infer that the meeting intended to authorise the applicants to file a claim on behalf of the group which is “Attachment A” to the Form 1.

47    For these reasons I am satisfied that the applicants were not authorised to make a claim on behalf of the native title claim group as described in “Attachment A” to the Form 1. It follows that the application does not comply with s 61(2) of the Native Title Act. It is not necessary, therefore, to consider NTSCORP’s submissions about lack of clarity, although it will be apparent from the above that they too have force.

48    After balancing the need for due prosecution of the application and the interests of justice as required by s 84D of that Act it is apparent that this is not an appropriate case to proceed to do other than summarily dismiss the application despite the caution with which such a power must be exercised. In the present case, it is not possible to be satisfied that the meeting intended to authorise the applicants to file a claim excluding the descendants of Elisabeth Jane Watson as an apical ancestor. The evidence is bedevilled by far too many inconsistencies, as set out above, to draw that inference. Moreover, the only decision which the meeting did in fact make, to authorise the applicants to file a claim on behalf of a group including the descendants of Elisabeth Jane Watson, also may not have been intended. Accordingly, this is a case where there is no mere technical deficiency in the authorisation of the applicants. Given the importance of authorisation, this application must be summarily dismissed.

49    As to costs, NEW Co sought to invoke s 85A(2) of the Native Title Act. Section 85A is as follows:

(1)    Unless the Federal Court orders otherwise, each party to a proceeding must bear his or her own costs.

(2)    Without limiting the Court's power to make orders under subsection (1), if the Federal Court is satisfied that a party to a proceeding has, by any unreasonable act or omission, caused another party to incur costs in connection with the institution or conduct of the proceeding, the Court may order the first-mentioned party to pay some or all of those costs.

50    NEW Co’s position was that the applicants had conducted themselves unreasonably in failing to address the problems with authorisation disclosed by the evidence filed in October 2012. I disagree. There is no circumstance in the present case which would make it appropriate to otherwise order as contemplated by s 85A(1). In the face of that general proposition all parties should pay their own costs of the interlocutory application. Orders will be made accordingly.

Associate:

Dated:    11 March 2013