FEDERAL COURT OF AUSTRALIA

Ridgeway on behalf of the Worimi People, in the matter of Russell v Bissett-Ridgeway[2001] FCA 848

NATIVE TITLE – application to replace applicant in claimant application – whether current applicant is no longer authorised by the native title claim group – whether the members of the claim group seeking to replace the applicant are authorised by the claim group – where the claim group is not adequately identified – consideration of the process of authorising replacement applicants

Native Title Act 1993 (Cth) s 61(1), s 61(4), s 66B, s 251B

Moran v Minister for Land & Water Conservation for the State of New South Wales [1999] FCA 1637 applied

The Ngalakan People v Northern Territory of Australia [2001] FCA 654 considered

Strickland v Native Title Registrar [1999] FCA 1530 considered

Quall v Risk [2001] FCA 378 considered

Johnson, in the matter of Lawson v Lawson [2001] FCA 894 considered

IN THE MATTER OF:

ALEXANDER RUSSELL, IRIS RUSSELL and CAROL BISSETT-RIDGEWAY on behalf of the WORIMI PEOPLE and

MINISTER FOR LAND & WATER CONSERVATION FOR THE STATE OF NEW SOUTH WALES, STATE MEMBER UNDER THE NATIVE TITLE ACT 1993 (CTH) & ORS

LESLIE ARTHUR RIDGEWAY and KELVIN DATES

on behalf of the WORIMI PEOPLE and

CAROL BISSETT-RIDGEWAY and MINISTER FOR LAND & WATER CONSERVATION FOR THE STATE OF NEW SOUTH WALES, STATE MEMBER UNDER THE NATIVE TITLE ACT 1993 (CTH) & ORS

NG 6067 of 1998

TAMBERLIN J

SYDNEY

19 JULY 2001

THE COURT ORDERS THAT:

The Notice of Motion is dismissed.

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

REASONS FOR JUDGMENT

1                     On 16 February 2001, a Notice of Motion was filed by Leslie Arthur Ridgeway (“Ridgeway”) and Kelvin Dates (“Dates”), said to be acting on behalf of the Worimi people, seeking the removal of Carol Bissett-Ridgeway (“Bissett-Ridgeway’) as one of the applicants in the native title claimant application and the substitution as applicants of Ridgeway and Dates.  I have referred to the parties by their surnames only for the sake of brevity.

2                     This application is brought pursuant to s 66B of the Native Title Act 1993 (Cth) (“the Act”) which relevantly provides:

“66B Replacing the applicant

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.” (Emphasis added)

3                     Members of a claim group who seek to replace an existing applicant must therefore establish that they are each a member of the native title claim group, that the applicant being replaced is no longer authorised by the claim group to make the application and to deal with matters arising in relation to it or has exceeded the authority given to him or her by the claim group, and that they are each authorised by the claim group to make the application and to deal with matters arising in relation to it. In order for the Court to grant the orders sought under s 66B, it must be satisfied that, amongst other things, the applicants have provided an ascertainable description of the native title claim group and the method by which the replacement applicants are authorised.

4                     The expressions “claimant application” and the “native title claim group” are defined in s 253 of the Act as follows:

“claimant application means a native title determination application that a native title claim group has authorised to be made, and, unless the contrary intention appears, includes such an application that has been amended.

…

native title claim group means:

(a)       in relation to a claim in an application for a determination of native title made to the Federal Court – the native title claim group mentioned in relation to the application in the table in subsection 61(1); or

(b)       in relation to a claim in an application for an approved determination of native title made to a recognised State/Territory body – the person or persons making the claim, or on whose behalf the claim is made.”

5                     Section 61(1) of the Act provides, in relation to a “[n]ative title determination application”, that the persons who may make the application are:

“(1)     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; or …”

6                     Section 61(4) provides:

“(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.”

7                     The authorisation requirement in s 61(1) is defined in s 251B, as follows:

“251B  Authorising the making of applications

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.”

Outline of submissions

8                     The case advanced by Ms Phillips of Counsel on behalf of Ridegway and Dates is that Bissett-Ridegway is not authorised by the claim group to make the application and to deal with matters arising in relation to it.  It is submitted that, on 15 February 2001, a meeting of the Worimi people who comprised the claim group was held.  This meeting is said to have adopted a method of decision-making enabling those present to move to replace Bissett-Ridgeway with the applicants.  Ms Phillips contends that the meeting allowed the claim group to identify its members and authorise its representatives in a manner which fulfils the requirements of the Act.  As part of the process, the meeting purported to nominate persons to represent seven families from whom those people at the meeting who identified as Worimi claimed descent.  It is submitted for the applicants that “through the nomination of the seven representatives of the original Worimi families the group has identified the authorising individuals through whom the native title claim group conveys valid decisions about who is and is not authorised”.  It is said that the outcome of the process adopted at the meeting was that the representatives of the families were in favour of the removal and substitution in issue.

9                     Mr Dunn, Solicitor, who appears for Bissett-Ridgeway, contends in response that the meeting held on 15 February 2001 was defective and that the processes purported to be agreed upon and adopted at that meeting did not establish the identity of the relevant native title claim group, and did not satisfy the requirements of s 251B of the Act.  His client denies that Mrs Merrick or any of the representatives nominated at the meeting on 15 February, or their family, are Worimi. 

10                  The native title claim group, as nominated in the application made on 6 June 1997, prior to the amendment of the Act in September 1998, was described generally, as follows:

“Those members of the Worimi people who are affiliated with the area which includes the land which is the subject of this application.  Full genealogical material will be provided at a later date.”

11                  This description falls far short of identifying specific members of the group, particularly in the absence of full genealogical data.

12                  The following matters are pointed to by Dunn in relation to the meeting of 15 February 2001:

“(a)     it is a meeting of persons who are not identified in any way except by an attendance sheet in which certain persons claim to be Worimi.

(b)       the method of calling the meeting is inadequate.  The method is described in the affidavit of Leslie Arthur Ridgeway at paragraph 7:

‘7.           It is my understanding and belief that notice of this meeting was widely circulated by being published in our local press the Newcastle Herald, the Australian and the Koori Mail.  I received a notice informing me of the meeting via post.  Annexed and marked B is a copy of the notice I received.’

            It seeks to identify the members of the native title claim group by publishing a notice at unspecified times.  The notice itself describes the purpose and business of the meeting as:

‘The Native Title Unit of NSWALC is assisting members of the Worimi Nation to progress the native title claim to Bagnalls Beach.

A meeting to resolve the question of authorisation of the group and other matters arising will be held on…’

(c)        there is no evidence (and probably can be none) that all the members of the Worimi people received the notice of the meeting.

(d)       there is no evidence that all those members of the Worimi people who received the notice attended the meeting.

(e)        there has been no enquiry as to who are the members of the Worimi people.

(f)        there has been no enquiry as to which members of the Worimi people ‘are affiliated with the area which includes the land the subject of the’ Claim Application.

(g)       there is no evidence that the persons who attended the meeting on 15 February 2001 were all or any of the persons who would be identified by the enquiries described in (f) and (g).

(h)       the First Respondent [Bissett-Ridgeway] claims that the persons referred to in paragraph 21 of Valerie Rose Merrick’s affidavit and paragraph 24 of Leonard James Anderson’s affidavit are not the native title claim group in respect of the subject land (see paragraph 18 of her affidavit).

(i)        the First Respondent claims that the persons referred to in paragraph 19 of the Statement of Facts as identifying with the Worimi are not Worimi nor are they Maaiangal (see paragraph 19 of her Affidavit).

(j)        no genealogical material contemplated by A5 of the Claim Application has been provided.

(k)       there are no minutes of the meeting.

(l)        the meeting on 15 February 2001 purported to appoint representatives clothed with the authority required by section 66B but the representatives then purport to prepare a list of those who constitute the claim group which gives the representatives the necessary authority.

(m)      paragraphs 19 to 22 of Valerie Rose Merrick’s affidavit and paragraphs 22 to 25 of Leonard James Anderson’s affidavit described the authorisation process which may be summarised as:

(1)       the meeting on 15 February 2201 (sic) decided that each family group would nominate someone to represent it,

(2)       at the meeting each family group nominated a representative,

(3)       each family group authorised its representative for the purposes of section 66B.

(n)       there is no evidence that each family group was present at the meeting.

            Paragraph 12 of the Applicants’ Submissions recognises that ‘the seven lists comprise an effort by each authorised family representative to name and present known members of their family, whose native title rights and interests as Worimi people, the families’ nominees represent’.

(o)       the lists were prepared after the meeting on 15 February 2001.

(p)       there is no evidence of the process of authorisation used or adopted by each family group to satisfy section 251B.”

13                  The respondent contends that, for these reasons, the Motion for replacement and substitution should be dismissed.

Authorities

14                  The operation of s 66B has been the subject of some judicial consideration, to which I will briefly refer. In Moran v Minister for Land & Water Conservation for the State of New South Wales [1999] FCA 1637, at par 32, Wilcox J said:

“One of the matters that Mr Allen needs to establish, in order to obtain an order under s66B of the Act, is that he is ‘authorised by the claim group to make the application and to deal with matters arising in relation to it’: see ss66B(1)(b).  In order to decide whether that requirement is satisfied, it is first necessary for the Court to determine who constitutes the ‘claim group’.  This must be done by reference to the document or documents making the claim.”

15                  His Honour, at par 34, accepted that it may be possible to satisfy the requirement of authorisation by the claim group “otherwise than by proving the making of individual decisions by all or most of the members of the group”.  His Honour thought that it would be sufficient if there was a decision by a representative or other collective body that exercised authority on behalf of the group under traditional customary law.  He observed that “a person who wishes to rely on a decision by a representative or other collective body needs to prove that such a body exists under customary law recognised by the members of the group, the nature and extent of the body’s authority to make decisions binding the members of the group and that the body has authorised the making of the application”.

16                  His Honour was not satisfied that Mr Allen, who purported to have the necessary authority, had been authorised to make any application under s 66B and, therefore, his Honour considered that Mr Allen’s application for replacement, failed.  After reviewing the evidence, his Honour went on to say, at par 49:

“The present cases illustrate the importance of proper authorisation.  In order to establish proper authorisation, Ms Moran would have had to identify by name all the people within the claimant group, or a collective body able to speak for the group as a whole.  If she had done either of these things, Mr Allen could have explored, and, possibly, ultimately demonstrated, the extent of his support as a replacement applicant.  However, because the membership and/or leadership of the group was not properly defined, he has been unable to do this.  The Court is left in the position of finding that Ms Moran and Mr Allen each apparently enjoy a measure of support from people who claim to fall within the group, but being unable to say which (if either) of them is entitled to act for the group as a whole.”

17                  These remarks are apposite in the present case.  His Honour, in that case, decided to exercise his discretion under O 20 r 2 to strike out the application and stated that he was influenced by the practical advantages that would result from tidying up the matter of authorisation and by the knowledge that dismissing the proceeding would not prevent the making of one or more fresh applications that complied with the requirements of the Act.

18                  In a recent decision of O’Loughlin J in The Ngalakan People v Northern Territory of Australia [2001] FCA 654, his Honour, at par 53, after considering the authorities, said:

“In my view, although it is not necessary for the Court to name each individual member of the claimant group … it is necessary for the Court, if the evidence permits, to identify the claimants as a group or as a community.”

19                  It will, of course, be necessary at some stage to be able to identify the members of that group or community in order to properly consider the claim.  His Honour referred, in pars 48 and following, to the fact that a person could achieve a classification as a member of the Aboriginal community through social recognition and discussed the concepts of “adoption” and “incorporation”.  “Adoption” is the term said to be “used when someone has been ‘grown up’ by a member of the group”.  In such a case, “the adult who is doing the ‘growing up’ is regarded as a social parent”.  The concept of “incorporation” is a broader concept which occurs “where a person who, although not ‘grown up’ by a member of the group, has nevertheless come to be regarded as a member of the group”.  In either case, the person who is subject to the growing up becomes part of the group as a result of the process.  These concepts illustrate the importance of bearing in mind that there is no clear or fixed definition to apply in determining how a particular claimant group is constituted.

20                  This approach is reinforced by the judgment in Strickland v Native Title Registrar [1999] FCA 1530, where French J said, at par 57:

“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.” (Emphasis added)

21                  The use of the word “all” in s 61 of the Act was adverted to by O’Loughlin J in Quall v Risk [2001] FCA 378, at par 33, where his Honour said: 

“I have some difficulty with the use of the word all.  It cannot mean every person in the group for there may be members of the group who are infants or mental defectives and, as such, incapable of giving their authorisation.  The whereabouts of other members of the group may not be known.  I cannot see how the failure to obtain authorisation from members whose whereabouts are unknown could prevent an otherwise legitimate claim for native title from proceeding.”

22                  That particular problem does not arise in this case.

THE ISSUES

23                  The principal questions raised on this application are whether Bissett-Ridgeway is no longer authorised by the claim group to make the application or deal with matters arising in relation to it and whether Ridgeway and Dates, in addition to Alexander Russell and Iris Russell, are authorised to replace her.  In particular, the determination of this application depends on whether the removal and substitution were authorised at the meeting of 15 February 2001.  There are no minutes which record the meeting and there is no written record made at the meeting of any resolutions passed.  There are assertions in the affidavit evidence as to what occurred at the meeting, but these are largely nothing more than assertions of fact and law as to the effect of what was decided.

24                  Ridgeway attached to his affidavit a notice which is relied on and which is to the effect that the Native Title Unit of NSWALC is assisting the members of the Worimi nation to progress the native title claim to Bagnalls Beach.  This notice states that “[a] meeting to resolve the question of authorisation of the group and other matters” would be held on Thursday 15 February 2001 at the Soldiers Point Bowling Club.  Dates, one of the applicants seeking to be substituted, states that it was his understanding that notice of the meeting was circulated by being published in the local press; namely, The Newcastle Herald, The Australian and The Koori Mail.  He attaches to his affidavit a copy of an attendance sheet, which has the name, signature and address of those in attendance at the meeting and which asks the question “Are you Worimi” and records various answers “Yes” or “No”.  With the exception of about six responses, the answers of the more than forty people who attended the meeting are in the affirmative. 

25                  Tear sheets of several copies of the published notices were tendered.  In one of them, in The Newcastle Herald, the notice appears under the heading “Positions Vacant” in alphabetical order.  It appears after advertisements relating to welders.   The notice refers to the Worimi Native Title meeting to take place on 15 February 2001 and, in substance, is identical to the notice attached to the affidavit of Ridgeway.  The notice appearing in The Newcastle Herald is in similarly generalised terms and does not refer to the specific question posed at the meeting as to the authorisation of Ridgeway and Dates and their substitution in place of the applicant.  There is also in evidence a notice in the Weekend Australian of 3-4 February 2001 which is substantially the same as that referred to earlier, and a notice in The Koori Mail.  It is not apparent, from the extracts tendered, in which part of the papers the notices appeared, but I am prepared to assume that it was in the Public Notices section.  It is not appropriate to approach these notices as if they were legal notices required under some statutory regime.  Nevertheless, they do not specifically address the precise issue for consideration.

26                  There is evidence from Mr Anderson (“Anderson”), who is the Chief Executive Officer of the Worimi Local Aboriginal Land Council, in support of the Notice of Motion to replace Bissett-Ridgeway.  He gives evidence about playing with the Ridgeways as a boy at Soldiers Point and being told that Bagnalls Beach was a special place and that the area had always been reserved for Aboriginal people.  He understood from stories he had heard that there were a number of Worimi families who lived in the Port Stephens area when he was growing up.  He refers to seven families and these include the Dates and the Ridgeways, which I assume refers to the families of the applicants on the Motion.  The material is generalised in relation to the affiliation of the two applicants with the land in question.  Anderson says that the meeting of 15 February 2001 discussed the manner by which binding decisions would be made about the progress of the claim and about Worimi native title business generally.  He says that consideration was given to the question of how to demonstrate that the replacement applicants were authorised to deal with matters arising in the application and that those present sought a way of doing this “consistent with the way in which Worimi people have always made decisions about Worimi business”.  That is to say, by reaching agreement and working together where there is a difference of opinion.  He says it was agreed by those present that the native title decisions on behalf of “each family group from the original Worimi families” would be carried through each family’s representatives.

27                  Anderson says that each of the “original” Worimi families nominated a representative to indicate that each family authorised the applicants for substitution to replace Bisset-Ridgeway, and he names the seven representatives which include himself and Dates.  A verbatim account of the process in precisely the same terms is to be found in the affidavit of Valerie Merrick (“Merrick”) which was also filed in this matter.

28                  The broad description of the claim group in the native title application itself indicates that not all members of the Worimi are claimants.  The claim group is limited to those Worimi who are affiliated with the land which is the subject of the application.  The attendance sheet filled out at the meeting simply records whether persons are Worimi or not.  There is no indication of whether or not they are affiliated with the land in question or in what way they claim to be affiliated.

29                  The removal of the respondent and substitution of the applicants under s 66B is, as Wilcox J observed in Moran, a course of action which calls for careful examination of the authorisation process to ensure that it has been implemented in a proper manner. Section 66B(2) makes it clear that the Court, before making an order under that provision, must be satisfied that Bissett-Ridgeway is no longer authorised.  This means that the Court must be satisfied both that the meeting of 15 February 2001 was convened in such a way as to notify those members of the Worimi people affiliated with the subject land of the meeting, and that the meeting was properly conducted. 

30                  In Johnson, in the matter of Lawson v Lawson [2001] FCA 894, Stone J examined the decision making process said to have been adopted by the claim group in seeking to remove the respondents (“Lawsons”) as applicants.  In that case, it was not disputed that the persons seeking to replace the Lawsons were members of the claim group.  The issue was whether the Lawsons were no longer authorised by the claim group and whether the applicants on the Notice of Motion had been authorised in their stead. The applicants relied on a statement describing the customary decision-making process of the claim group, particularly the authority of “family group headpersons” to “speak for the tribe”. The Motion was dismissed on the basis that the applicants had failed to show that the decision to remove the Lawsons as applicants on the claim was made according to customary law, as set out in the “authorisation statement”.

31                  In this case, no evidence has been relied upon to submit that the 15 February meeting adopted a traditional or customary process of decision-making. The affidavits of Merrick and Anderson both state, in the same words, that the meeting,

“sought a way of [authorising the removal and replacement of Bissett-Ridgeway] … which was consistent with the way in which Worimi people have always made decisions about Worimi business. We prefer to reach agreement where possible about matters affecting us. We do not avoid disagreement but try to work together even where there is a difference of opinion.”

32                  This statement, in itself, is not sufficient to establish the adoption of customary or traditional processes at the 15 February meeting, and it was not relied upon by Ms Phillips to that effect.

33                 It is important that proper processes consistent with Aboriginal laws, traditions and practice are implemented in making a decision to remove and replace an applicant in a native title claimant application. Section 251B(b), however, provides that where there is no traditional or customary decision-making process, the replacement applicants must be authorised through “a process of decision-making agreed to and adopted, by the persons in the native title claim group….” The question in this case, therefore, is whether those members of the Worimi affiliated with the community have, in fact, decided that Bissett-Ridgeway should no longer be authorised to make the application and to deal with matters arising in relation to it. The question is not simply whether some members of the community have reached such a decision.

34                  It is not necessary on this application to decide whether the applicants on the Motion are members of the claim group affiliated with the land.  The limited amount of evidence before me indicates that they are more likely than not within that description.  On the material before me, however, I am not satisfied that the members of the claim group have been sufficiently identified to determine whether there has been a proper decision taken to authorise the Motion.  Nor am I satisfied, given the limited and unsatisfactory notification of the meeting, that adequate notice was given of the specific purpose of the meeting or that those Worimi people affiliated with the land were put on notice of the holding of the meeting.  In the case of the notice published in The Newcastle Herald, for example, it was not prominently placed in any Public Notice section, but rather appeared in the Positions Vacant column, which is not a location which would appear immediately relevant to those persons interested in looking at Public Notices.  In relation to The Koori Herald, it is not apparent where and on which page the advertisement was located.  In the case of The Australian, the notice was in the Public Notices section, but there is no evidence or indication that members of the Worimi claim group would be likely to read The Australian, or indeed The Newcastle Herald, on a daily basis.  I am satisfied that there is substantial force in the submissions advanced for Bissett-Ridgeway in relation to the failure to adequately identify members of the claim group and the manner in which the meeting was convened.

35                  In addition to the unsatisfactory nature of the identification of the claim group and the way in which the meeting was called, there are further considerations in relation to the decision-making process followed at the meeting.  The process appears to have been agreed upon at the meeting on an ad hoc basis by those present as an expedient course to adopt for the purposes of that particular meeting.  The evidence does not establish that the decision-making process of nominating representatives of seven families was in accordance with any accepted or pre-existing traditional method of decision-making.  It has not been shown that the seven families who adopted the procedure at the meeting constitute all or even a significant proportion of the persons comprised in the claim group.  Nor is there any documentary record of the meeting which would enable the Court to consider the precise terms of the decision actually made

36                  Taking into account the above considerations, I am not satisfied that authorisation was given for the taking of the action to remove Bissett-Ridgeway and substitute the applicants.  Accordingly, I dismiss the Motion.  I make no order as to costs. 

37                  It should be pointed out that it is highly undesirable to have internal divisions which adversely affect the efficiently and timely advancement of the substantive claim which is made in the interests of all members of the claim group.  I urge the parties to this application to take every step they reasonably can to attempt to conciliate their differences and move forward together on the merits of this claim.

38                  I wish to record that both before and after the hearing there was delivered to my Chambers a great deal of material on behalf of the respondent to the motion. On its face, it appears to be genealogical in nature.  I have not examined this material.  In view of the conclusion I have reached as to the notification of the meeting and the uncertainty as to what were the terms of the decision reached, it is not appropriate or necessary, at this point, to embark on an examination of this detailed genealogical material.

Associate:

Dated:              19 July 2001