FEDERAL COURT OF AUSTRALIA

Noble v Mundraby, Murgha, Harris and Garling [2005] FCAFC 212

NATIVE TITLE – application for leave to appeal, or alternatively 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 and 251B

Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 referred to

FREDERICK CHARLES NOBLE v VINCENT MUNDRABY, LESLIE MURGHA, STEWART HARRIS AND CHARLES THOMAS GARLING and STATE OF QUEENSLAND

QUD 4 OF 2005

NORTH, WEINBERG & GREENWOOD JJ

30 SEPTEMBER 2005

BRISBANE

THE COURT ORDERS THAT:

1.         If leave to appeal the order of Spender J, made on 16 December 2004, is required, such leave be refused.

2.         If leave to appeal the order of Spender J, made on 16 December 2004, is not required and the appeal be as of right, the appeal be dismissed.

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

REASONS FOR JUDGMENT

THE COURT:

1                     Mr Frederick Noble applies for leave to appeal, or alternatively, appeals against an order made by Spender J on the 16 December 2004, which read as follows:

‘The current applicant for the Native Title claim group, namely, the following group of persons acting jointly:  Vincent Mundraby, Les Murgha, Stewart Harris and Frederick (‘Ricko’) Noble, be replaced by a new applicant pursuant to s 66B(1) of the Native Title Act 1993 (Cth) consisting of the following group of persons acting jointly:  Vincent Mundraby, Les Murgha, Stewart Harris, Charles Thomas Garling.’

2                     The order determined an application by a motion filed by Vincent Mundraby, Les Murgha and Stewart Harris on 18 November 2004 against, inter alia, Mr Noble, which was brought under s 66B(1) of the Native Title Act 1993 (Cth) (the Act). 

statutory context

3                     Persons who may apply for a native title determination described in a table under s 61(1) of the Act which includes the following:

‘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.’ (emphasis in original)

4                     The way in which a person or persons might be authorised to make a native title determination application is provided in s 251B as follows:

‘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.’ (emphasis in original)

the issues

5                     Two issues were originally raised by Mr Noble.  Firstly he contended that the primary judge failed to apply s 251B correctly, and secondly he contended that there was a reasonable apprehension of bias in the conduct of the proceeding before the primary judge.  The second issue was abandoned in the course of the hearing. 

6                     Mr Noble now seeks leave to appeal from the order in the event that the order is an interlocutory order.  If leave is needed, one consideration for the Court is whether the decision is attended with sufficient doubt to warrant it being reconsidered by an appellate court: Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397.  This consideration requires some assessment for the chances of success on appeal if leave were granted.  Mr Noble has also filed a Notice of Appeal.  If leave is not required, the Court will need to consider the merits of the appeal in any event.   It is, therefore, convenient to turn to the merits of Mr Noble’s case at this point. 

the pROCEEDING BEFORE THE pRIMARY JUDGE

7                     The primary judge considered evidence of a meeting of all the members of the combined claim group held on 6 October 2004 at the Yarrabah Community Hall. His Honour concluded that the meeting voted to remove Mr Noble as part of the group of people constituting the applicant for the native title determination, and to replace him with Mr Charlie Garling.  He held that Mr Mundraby, Mr Murgha, Mr Harris and Mr Garling were authorised to constitute the group under s 251B of the Act.

8                     The meeting held on 6 October 2004 was chaired by Mr Beston, a solicitor independent of the parties.  The minutes of the meeting relevantly record the proceedings as follows:

‘Bernie [Beston] asked about the groups decision making process and noted that Vincent [Mundraby] said it was done traditionally and asked the floor if they concurred with that process.  Evelyn Noble spoke and noted that everyone in the clans speaks for their own area and not any other clans area. 

Eddie Murgha asked that before the meeting went further, and on behalf of the elders, could the meeting be opened with a word of prayer to acknowledge God as their ancestors had been doing for many years.  He proceeded to offer the prayer. 

Bernie again asked about the traditional decision making process and noted that white man's law required that when a decision was being made you either use a traditional process or white man's process.  Vincent noted that in their group they have their group of elders and would prefer to use their custom and tradition and would listen to what the elders have to say. 

Bernie reiterated the purpose of the meeting and noted that notices went out to everyone about the meeting requesting the removal of Ricko Noble [Frederick Charles Noble] as 1 of the 4 Applicants. 

Bernie asked if Ricko was present at the meeting for him to address the group and voice his views.  Ricko was not there at the time.  Evelyn said that Ricko was on his way and was having car troubles and asked why they had received a letter saying that Ricko doesn't speak for the claim any more and seemed to be under the impression that Ricko was being kicked out of the group.  Bernie explained that Ricko was still and always will be a member of the claim group but the meeting was just asking that the group remove Ricko as an Applicant to the claim.  Evelyn asked why that couldn’t be done in Court and Bernie further explained that it was not a decision for the Court to make. 

Bernie attempted to put forward the motion that Ricko Noble be removed as an Applicant and is no longer authorised by the group to be an Applicant. 

Jenny Martin disagreed that everyone had the right to vote as she was of the firm belief that Ricko could only be removed by family members of the ancestor George Christian and she asked Bobby Sam to confirm that to which he nodded his head in support.  Bernie asked if she was against the process of removing Ricko.  Jenny believed that only Gunggandji elders should have the right to remove Ricko.

She reiterated that descendants of George Christian’s group should have a meeting by themselves to discuss the removal of Ricko as an Applicant.  Bernie noted that the group had plenty of time, prior to today’s meeting, to meet with each other for that purpose and asked the people in the George Christian group of their opinion on the matter. 

Charlie Garling addressed the group as the elder for the George Christian group and noted that 146 descendants of that group who reside in Darwin had a meeting and agreed to remove Ricko as an Applicant.  He noted that if they wanted to abide by custom and tradition that he was the elder of the group and he would make the decision on behalf of the group and opposed their views.  Charlie said to everyone that he didn't want any fighting with one another and that everyone was related and should all stand united and not divided. 

Bobby Sam addressed the group and noted that native title was about traditional ownership of land that before the group goes down the process of recognition, it’s always been known that Gunggandji People are the traditional owners for Yarrabah.  He talked about a traditional process and noted that the Christian family needed to make a decision about who is to talk about the group.  He went on to say that the people who chose Ricko are the same people who should take Ricko off and that everyone with historical connection or otherwise, need to live together in the community.  He referred to something that was said by an elder who had passed on that anyone who was born in Yarrabah or had lived there for a certain amount of time is Gunggandji.  Other groups should be asked to leave the meeting and make a decision or they will have to decide by white man’s law. 

Vincent noted that he did not agree 100% with what Bobby had said.  He referred to the Information Kit and made particular reference to where it said “claimant group”.  He noted that the claimant group makes up every other group and that everyone needs to make a decision.  He asked Bernie to put forward the motion again.

Motion 1:        That Ricko Noble be removed as an Applicant and is no longer authorised by the group to be an Applicant. 

Moved:            Vincent Mundraby

Seconded:       Stewart Harris. 

Bernie asked the George Christian group if they accept what Charlie Garling had said earlier by following traditional processes.  He reiterated what Charlie had said that he has to go against the clan to get this determination through as its been going on for too long. 

Bernie asked if people were in favour of the motion and then asked if anyone was against. 

Motion was carried unanimously 

Bernie proceeded to put forward another motion.

Motion 2:        To appoint Charlie Garling as the replacement Applicant who will be authorised to make the claim application for native title arising in relation to the claim. 

Moved:            Stewart Harris

Seconded:       Fred Mundraby

Carried unanimously with no opposition

Bernie noted there were only 10 days left prior to the next Directions Hearing with the Federal Court to get the paperwork done for removing Ricko Noble and replacing him with Charlie Garling. 

Bernie put forward another motion to be passed.

Motion 3:  To fill out all the paper work to replace Ricko Noble with Charlie Garling as his replacement and to get that through to the Court within the next 10 days. 

Moved: Kathy Velapotkosky 

Seconded: Edgar Harris

Carried unanimously 

Bernie asked the group if everyone was happy with the three motions that were passed today and thanked everyone for attending the meeting.’ (emphasis in original)

9                     The primary judge included this extract from the minutes in his reasons for judgment.  The reasons must be viewed in light of the inclusion of this evidence. His Honour said at [14]:

‘The native title claim group here is not the Gunggandji People; it is not the Yidinji People; it is not the Mandingalbay People.  This is a joint claim, and the persons authorised are persons who are authorised by all the persons in the native title claim group.’ 

10                  And later at [16] he said:

‘That section [s 251B] speaks of all the persons in the native title claim group.  “All the persons in the native title claim group” are not simply all the Gunggandji People or all the Yidinji People or all the Mandingalbay People.   Mr Noble misunderstands the provision of the Act when he claims, “I was put on as an applicant by the elders of the Gunggandji People.  Only the elders of the Gunggandji People can take me off.”’ 

11                  And then at [17] he said:

‘This view is wrong.  The requirements of authorisation speak of an authorisation by all the members of the native title claim group.’

12                  Later in his reasons the primary judge turned to consider the question of authorisation.  He commenced the discussion at [41] as follows:

‘Whether the resolutions were authorised by the claim group requires consideration as to what was the appropriate decision-making process and whether it was followed.’

13                  He continued at [42] and [43] as follows:

‘The Act contemplates that if there is a traditional decision-making process, then it is that process which should be followed for the purposes of authorising claimant applications.  It is only when there is no such process that such decisions are to be made in accordance with the process agreed to and adopted by the members of the claim group.

The question of authorisation, whether by a traditional decision-making process or by a process agreed to and adopted by the members of the claim group, has to be in respect of the members of the claim group and not a sub-group of the members of the claim group.  In this case the conditions for the making of the order in my judgment have been met.  It follows that the Court has a discretion as to whether or not to make the order.’

mr noble’s argument

14                  Mr Noble contends that the primary judge erred by failing to identify the process of decision-making of the native title claim group and did not consider whether the process of decision-making had been agreed to or adopted by the native title claim group.  In the very clear and helpful written outline of submissions filed on his behalf, Mr Noble contends:

‘27.      It is submitted that his Honour’s approach to the operation of s.251B is wrong.  While he is correct in stating that there can only be one decision-making process for the native title claim group, it does not follow that that decision-making process can only be conducted through a single meeting of the entire claim group.

28.       It is entirely possible that a native title claim group may agree to an adopt a procedure of decision-making under which each constituent traditional clan group separately makes its own decisions, and that unanimity is require for any significant decisions.

29.       Those are the types of issues of fact his Honour was required to determine in satisfying itself of the requirement for authorisation under s 251B.  However, he failed to do so.’

15                  Mr Noble argues that there was evidence in the minutes of the meeting that there was a dispute about the authority of the meeting to authorise Mr Mundraby, Mr Murgha, Mr Harris and Mr Garling to constitute “the applicant” for the purpose of bringing the native title determination claim.  For instance, the minutes record “Evelyn Noble spoke and noted that everyone in the clans speaks for their own area and not any other clans area” and “Bobby Sam …  noted that the Christian family needed to make a decision about who is to talk about the group.  He went on to say that the people who chose Ricko are the same people who should take Ricko off …”.  It is submitted that the primary judge should have received evidence of the authorisation process and made findings of fact as to whether the process of consideration by a community meeting was one which had been agreed to and adopted by the native title claim group.  Mr O’Gorman, who appeared with Mr Harper, for Mr Noble, adopted the written submissions but elaborated upon them in one respect.  He contended that s 251B refers to “a process of decision-making”, and that this requires proof of some system of decision-making, and not merely evidence of the way in which a “one off” decision was made.

CONSIDERATION

16                  The primary judge appreciated the need to identify the appropriate decision-making process, and to determine whether that process had been followed.  He said so in the concluding sentence of [41] extracted at [12] of these reasons.  His Honour rejected the argument that individual sub-group processes governed authorisation for the combined claim.  Finally, his Honour stated that the conditions for the making the order had been met.  Against this background, the conclusion of the primary judge involved the finding that members of the claim group agreed that the vote of the community meeting was a process of decision-making for the purpose of authorising the applicant for the native title determination claim, and that the members of the claim group then adopted that process.

17                  The evidence supports these findings.  The minutes show that there was discussion about traditional methods of decision-making in the sub-groups of the people who made up the combined claim group.  At the end of that discussion Mr Mundraby made reference to the “claimant group”.  The minutes then record: 

            ‘He noted that the claimant group makes up every other group and that everyone needs to make a decision.’ (emphasis added)

18                  The matter was then put to the vote.  On the basis of this evidence, it was open to his Honour to conclude that by voting on the motions, those present agreed to a process of authorisation under s 251B(b) by a vote of all the members of the native title claim group.  Section 251B does not require proof of a system of decision-making beyond proof of the process used to arrive at the particular decision in question.  The section accommodates a situation where a native title claim group agrees to follow a particular procedure for a particular decision even if other procedures are normally used for other decisions.  Nor does s 251B require a formal agreement to the process adopted for the making of a particular decision.  Agreement within the contemplation of s 251B may be proved by the conduct of the parties.  There was evidence in this case that the claim group conducted itself at the meeting on the basis that it agreed to a vote by the members of the group to determine the question of authorisation.  All persons present voted in favour of the motion.  Nobody is recorded as leaving the meeting or refusing to vote or in any other way conducting to indicate dissent from the course adopted.  There was thus evidence from the conduct of the claim group on which the primary judge could base his conclusion that the requirements of s 251B were satisfied.  

19                  Consequently, Mr Noble could not succeed in an appeal on this ground, and, if leave is required, such leave should be refused.  If leave is not required, the appeal on this ground should be dismissed.

Associate:

Dated:              30 September 2005