FEDERAL COURT OF AUSTRALIA

Noble v Murgha [2005] FCAFC 211

NATIVE TITLE – application for leave to appeal from primary judge’s decision under s 66B of Native Title Act 1993 (Cth) removing applicant in claimant application – whether removal authorised pursuant to s 251B – whether decision made by native title claim group in accordance with a “process of decision-making agreed to and adopted”

Native Title Act 1993 (Cth), ss 61(1), 66B, 251B and 253

Combined Mandingalbay Yidinji-Gunggandji Claim v State of Queensland [2004] FCA 1703 referred to

Daniel v Western Australia (2002) 194 ALR 278 referred to

FREDERICK CHARLES NOBLE v LESLIE MURGHA AND STEWART HARRIS and STATE OF QUEENSLAND

QUD 96 OF 2005

NORTH, WEINBERG & GREENWOOD JJ

30 SEPTEMBER 2005

BRISBANE

THE COURT ORDERS THAT:

1. Leave to appeal from the judgment of Dowsett J, given on 31 March 2005, be refused.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

THE COURT:

1                     This is an application for leave to appeal from what the applicant regards as an interlocutory judgment, given by Dowsett J on 31 March 2005. His Honour ordered, pursuant to s 66B of the Native Title Act 1993 (Cth) (“the Act”), that Mr Frederick (Ricko) Noble be removed from the three individuals who, together, made up the “applicant” in a native title claim. That claim is described as the Combined Gunggandji claim. The members of the native title claim group consist of three clans, each associated with one of the three individuals in question.

2                     Although the matter before this Court is, in form, an application for leave to appeal, the Court has heard full argument on the merits of the appeal. Whether, in truth, his Honour’s judgment was interlocutory, or whether it was actually final in character, is by no means an easy question to resolve. Fortunately, we are able to determine this application without any elaborate discussion of that question.

the relevant legislative scheme

3                     In order to understand the issues raised, it is necessary to refer to several provisions of the Act.

4                     The starting point is the term “native title claim group”. Section 253 of the Act provides that, in relation to a claim in an application for a determination of native title made to this Court, the term means:

“the native title claim group mentioned in relation to the application in the table in subsection 61(1)”.

5                     The table in s 61(1), to which s 253 refers, sets out the persons capable of making a native title determination application. It provides that they include:

“[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 claim” provided that the person or persons are also included in the native title claim group.” (emphasis in original)

6                     Note 1, which follows immediately below this definition of “native title claim group”, provides that the person or persons who make up that group “will be the applicant”. This explains why the somewhat awkward designation “the applicant” is applied to a group of individuals, each of whom is separately named.

7                     Section 251B of the Act is pivotal. It makes provision for the authorisation of a person or persons to make a “native title determination application” on behalf of a “native title claim group”. Relevantly, it provides that all the persons in such a group can authorise a person or persons to make such an application, and to deal with matters arising in relation to it, provided that one or other of the following conditions is satisfied:

“(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.”

8                     Section 66B, which is the section that Dowsett J invoked to remove Mr Noble, relevantly provides as follows:

“Application to replace applicant in claimant application

(1) One or more members of the native title claim group (the claim group) in relation to a claimant application, or of the compensation claim group (also the claim group) in relation to a compensation application, may apply to the Federal Court for an order that the member, or the members jointly, replace the current applicant for the application on the grounds that:

(a) either:

(i) the current applicant is no longer authorised by the claim group to make the application and to deal with matters arising in relation to it; or

(ii) the current applicant has exceeded the authority given to him or her by the claim group to make the application and to deal with matters arising in relation to it; and

(b)   the member or members are authorised by the claim group to make the application and to deal with matters arising in relation to it.

Court order

(2) The Court may make the order if it is satisfied that the grounds are established.”

the background to the section 66b application

9                     Mr Noble is a member of the native title claim group for the Combined Gunggangji claim. He is also a member of a sub-group of the Combined Gunggangji claim known as the George Christian clan. Two other clans, associated with Stewart Eric Harris and Leslie Vivian Murgha, are also sub-groups within the Combined Gunggangji claim.

10                  The Gunggangji people are involved in both this claim, and in a broader claim involving two other indigenous groups. That broader claim is designated the Mandingalbay Yidinji-Gunngandji claim. In that matter, Spender J ordered that Mr Noble be removed as an applicant, pursuant to s 66B, on 16 December 2004. See Combined Mandingalbay Yidinji-Gunggandji Claim v State of Queensland [2004] FCA 1703. His Honour’s decision is the subject of an application for leave to appeal or, alternatively, an appeal to this Court that was heard at the same time as the present application.

11                  The evidence that led Dowsett J to order Mr Noble’s removal is in short compass. The Gunngandji claim has been running for many years. The State of Queensland has offered to settle that claim, together with the Mandingalbay Yidinji-Gunngandji claim, and both Mr Murgha and Mr Harris favour accepting that offer. Mr Noble, however, has a different view. He refuses to accept the offer, and declined to sign the necessary documentation.

12                  Eventually, a meeting of the Combined Gunggandji claim group was held at Yarrabah on 23 November 2004 to resolve the impasse. The meeting was publicised. It was advertised in the newspapers, and notices were sent well in advance to all Gunggandji people.

13                  The meeting was held at the Yarrabah community hall. Those who attended were provided with a proposed agenda, two proposed resolutions, and reasons why the meeting was necessary. Dr Gaye Sculthorpe, a member of the National Native Title Tribunal, and Mr Murgha, chaired the meeting. During the course of the meeting, s 251B of the Act was discussed.

14                  According to an affidavit sworn by Mr Murgha on 4 March 2005, all those present at the meeting agreed that there was a decision-making process under Gunggandji traditional law and custom that was applicable to the decision whether Mr Noble should be removed. Mr Murgha described that process as “the elders meet and decide”. He said that Gunggandji traditional law and custom required Gunggandji people to accept and respect decisions of the elders.

15                  Mr Murgha said that when the resolutions set out in the agenda were put to the meeting “it was agreed by all present that the elders must decide the outcome”. He said that though there was no agreement, at that stage, about Mr Noble’s position, there was no dispute or disagreement that it must be up to the elders to make the decision.

16                  According to Mr Murgha, all those who were not Gunggandji elders were then asked to leave the meeting. The people who remained were some nine individuals, all of whom were elders. He claimed that no one at the meeting raised any concerns about the process that was being followed.

17                  Once the elders had discussed the matter, the other members of the group were called back in. Mr Noble and his family had left the meeting by that time. The elders then advised the meeting that Mr Noble should be removed as an applicant, and that Mr Murgha and Mr Harris should, in future, be “the applicant”. Mr Murgha said that the meeting “accepted and respected” that decision.

18                  Mr Murgha’s evidence as to what occurred at the meeting was supported by the evidence of four other Gunggandji elders, Mr Edgar Harris, Mr Stewart Harris, Mr Robert Patterson, and Ms Alice Yeatman, all of whom had participated in the meeting of the elders on 23 November 2004.

19                  Mr Murgha’s evidence was further supported by the minutes of the meeting prepared by Dr Sculthorpe. The minutes record that the meeting was designated “Section 66B Meeting Yarrabah Community Hall 23 November 2004”. They further record that Dr Sculthorpe provided the Gunggandji people present with an information kit, and went through a set of notes explaining the s 66B process. She explained that, under s 251B, proper authorisation was critical.

20                  The minutes record that Mr Murgha asked those present whether there was a proper way for making the decision under traditional law and custom. Various people spoke, and confirmed that the elders had authority to speak for country, and must decide that issue. There was no opposition to that course.

21                  It was on the basis of this evidence that the application under s 66B came before the primary judge.

The primary judge’s decision

22                  It must be said that his Honour’s reasons for decision were brief in the extreme. He noted that he had before him an application under s 66B to remove Mr Noble as an applicant in the native title determination application. He referred to the process by which the decision had been taken to remove Mr Noble by the members Combined Gunggandji claim group as being that set out in s 251B(a), though, as will be seen, he subsequently appeared to proceed instead under s 251B(b).

23                  His Honour referred specifically to the affidavits mentioned in [18] of these reasons for judgment.

24                  His Honour then outlined his conclusions. He said:

“2 At a meeting of the claim group, the proposed removal of Mr Noble was considered. Allegedly in accordance with traditional law and custom, the claim group decided to refer the matter to the elders for their decision and to abide by that decision. Mr Noble disputes that the laws and customs of the claim group so provide. However the basis of his dispute seems to be that there are two claim groups with different laws and customs. Clearly enough, that is not possible, as Spender J found in Combined Mandingalbay Yidinji-Gunggandji Claim v State of Queensland [2004] FCA 1703. If there is no accepted law or custom within the claim group (because there are conflicting practices within that group), then par 251B(b) would apply. In effect the claim group agreed to refer the matter to the elders for decision and chose to abide by the resulting decision.

3 It is asserted that the elders unanimously agreed that Mr Noble should be removed and advised the meeting of the claim group accordingly. The claim group then adopted that resolution. There is, however, a dispute as to the elders’ decision. Mr Garling, who is one of the elders, agrees that he concurred in the proposal to remove Mr Noble but says that his agreement was conditional upon his being appointed as an applicant. Other affidavits assert to the contrary. I am inclined to the view that Mr Garling’s evidence has, to some extent, been influenced by events which have occurred since the meeting, which events have caused him to be very concerned and excited about the matter. In any event I prefer the evidence of the other four deponents to that of Mr Garling on this score. There was probably room for misunderstanding as to what actually happened on the day in question.

4 All of the requirements of s 66B have been satisfied. There will be an order in accordance with pars 4 and 5 of the notice of motion.”

25                  Apart from a short introductory paragraph, these passages are the entirety of his Honours reasons for judgment.

the draft supplementary notice of appeal

26                  By a draft supplementary notice of appeal, Mr Noble seeks leave to appeal from the judgment of Dowsett J. The grounds in support of that application are as follows:

“(c) The decision of the learned judge was wrong in fact and law, in that the First Respondents did not have grounds to satisfy Section 251B of the Native Title Act 1993 (Cth), because:

(i)                 the First Respondents were not authorised in accordance with a process of decision making which had been agreed to, and adopted, by the persons in the Native Title Claim Group.

(d) The learned judge failed to correctly apply Section 251B in that he:

(i)                 did not identify the process of decision making of the Native Title Claim Group;

(ii)               did not consider whether the process of decision making had been agreed to and adopted, by the persons in the Native Title Claim Group.”

the applicant’s submissions

27                  The applicant’s submissions can be briefly summarised. It was Mr Noble’s contention that although the primary judge had alluded to s 251B(a) in the introductory part of his reasons for judgement, it was implicit from his Honour’s reasons that he had ultimately relied upon s 251B(b) as the basis for ordering his removal.

28                  The applicant submitted that s 251B(b) required evidence of the existence of a systemic decision-making process that had been agreed to, and adopted, before the ultimate decision was taken to support Mr Noble’s removal. He submitted that the mere fact that the meeting had agreed to allow the elders to determine the matter, and accepted the elders’ decision, did not demonstrate the existence of such a process. He called in aid, in particular, the observations of French J in Daniel v Western Australia (2002) 194 ALR 278, and the elaborate analysis of s 251B in that case, in support of his contention that the somewhat sparse reasoning of Dowsett J did not meet the requirements of that section.

29                  Albeit in a somewhat different factual context, the applicant’s submissions in this regard were essentially the same as those that he advanced in the appeal from Spender J’s decision in the s 66B application arising out of the Mandingalbay Yidinji-Gunngandji claim.

the respondents’ submissions

30                  It was submitted on behalf of Mr Murgha and Mr Harris, that there was nothing in the language of s 251B(b) that supported any need for an anterior systemic process to have been agreed, or adopted, as a condition of the operation of the section. A court could infer that a process of decision-making of the type contemplated by the section had been agreed, or adopted, from the conduct of a meeting that voted on a resolution to have an applicant removed, particularly when it appeared that the vote was unanimous. In the present case, the elders had unanimously determined that Mr Noble should be removed, and their decision had been accepted, apparently without dissent. In those circumstances, the primary judge had been entitled to find, as he did, that the requirements of the section were met, and that removal under s 66B was warranted.

conclusion

31                  The primary judge found, as a fact, that at the meeting on 23 November 2004, the Combined Gunngandji claim group decided to refer the possible removal of Mr Noble to the elders for their decision, and to abide by that decision. He noted that Mr Noble did not accept that the laws and customs of that group provided for that course to be followed. However, he rejected Mr Noble’s complaint regarding that matter, basing his decision upon the reasoning of Spender J in the earlier decision in Combined Mandingalbay Yidinji-Gunggandji Claim v State of Queensland [2004] FCA 1703.

32                  His Honour found, as a fact, that the elders unanimously agreed that Mr Noble should be removed, and advised the meeting accordingly. He said, in terms, that he arrived at that conclusion in the face of a claim by one of the elders, Mr Garling, that he had given only conditional approval to Mr Noble’s removal. Mr Garling apparently claimed that his agreement had been conditional upon his being appointed as an applicant. There does not appear to be any affidavit material in support of Mr Garling’s claim, and Dowsett J correctly observed that affidavits sworn by others asserted to the contrary.

33                  Ultimately, Dowsett J concluded that the evidence of “the other four deponents” should be preferred to that of Mr Garling. That finding was open to his Honour, as was the conclusion that there was probably room for misunderstanding as to what actually happened on the day in question. In any event, Mr Noble does not seek to challenge that finding, and nothing further need be said about it.

34                  We are not persuaded that the primary judge erred in concluding that the requirements of s 251B(b) were met. We are unable to accept the submission that there must be a system of decision-making, separately agreed and adopted, before the members of the native title claim group can validly resolve to remove a person from the group that is “the applicant” in a native title determination application.

35                  Dowsett J found that all of the requirements of s 66B had been satisfied. His conclusion was stated without elaboration, and without any detailed reasons for his findings of fact. However, that, of itself, does not evince any appealable error. We are not persuaded that any such error has been shown. Accordingly, leave to appeal will be refused. We add that if leave to appeal were not, in fact, required and there were an appeal as of right, the appeal would be dismissed.

Associate:

Dated: 30 September 2005