FEDERAL COURT OF AUSTRALIA

Duren v Kiama Council [2001] FCA 1363

NATIVE TITLE – motion for removal of applicant and replacement of applicant with another person as person authorised by native title claim group – evidence failing to establish membership of native title claim group – evidence failing to establish whether there is a process of decision-making under traditional laws and customs of native title claim group

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

ERNEST WILLIAM DUREN ON BEHALF OF THE ELOUERA ABORIGINAL PEOPLE v KIAMA COUNCIL & ORS

NG 6006 OF 1998

LINDGREN J

7 DECEMBER 2001

SYDNEY

THE COURT ORDERS THAT:

1.         The motion brought by notice of motion filed on 5 October 2001 by Gwendoline Laura Brown be dismissed.

2.         The proceeding be stood over to 7 May 2002 at 9.30am for directions.

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

REASONS FOR JUDGMENT

1                     By notice of motion filed on 5 October 2001, Gwendoline Laura Brown moves for an order under s 66B of the Native Title Act 1993 (Cth) (“the Act”) removing the current applicant, Ernest William Duren, and replacing him with herself as the person authorised by the Elouera Aboriginal People to make the application which Mr Duren makes in the proceeding. 

2                     Section 66B authorises me to grant the relief sought in the motion if Mr Duren is no longer authorised by the native title claim group to make the application and to deal with matters arising in relation to it, or if he has exceeded the authority to do so given to him by the claim group, and Mrs Brown is authorised by the claim group to make the application and to deal with matters arising in relation to it.

3                     I granted leave to Mr Stanley Reuben Brown, the husband of the applicant on the motion, to represent her this afternoon.

4                     Several affidavits have been filed in support of the motion but most of them were filed outside the time fixed for that purpose.  The fourth respondent, the New South Wales Aboriginal Land Council, and the applicant in the proceeding, Mr Duren, in each case through counsel, objected to Mrs Brown’s relying on the late affidavits.  However, I grant leave to Mrs Brown to do so.  In the result, the affidavits relied on in support of the motion are as follows:

·        An affidavit of Gwendoline Laura Brown sworn 27 September 2001;

·        An affidavit of Stanley Reuben Brown sworn 29 August 2001;

·        An affidavit of Gwendoline Laura Brown sworn 2 December 2001;

·        An affidavit of Stanley Reuben Brown sworn 2 December 2001;

·        A declaration of Bart Reuben Brown dated 3 December 2001;

·        An affidavit of Norma Simms sworn 3 December 2001;

·        An affidavit of Dulce Simms sworn 3 December 2001; and

·        An affidavit of Yvonne Simms sworn 3 December 2001.

5                     The matter of the authorising of a person to make an application is dealt with in s 251B of the Act.  The starting point is to identify the members of the native title claim group and to establish whether or not there is a process of decision-making under the traditional laws and customs of the persons in the native title claim group.  It is clear beyond question that the affidavits here do not even begin to address either of those questions.  They do not establish who the members of the native title claim group are and therefore it is not possible to know whether any particular individual is or is not within that group.  Further, the affidavits do not address the question whether there is, or is not, a decision-making process under the traditional laws and customs of the Elouera Aboriginal People.  For each of these two reasons alone the present motion must be dismissed.

6                     I note that the affidavits do refer to a meeting which was held at which individuals expressed a wish, and indeed signed a document expressing the wish, that Mr Duren be removed as applicant in this proceeding and that Gwendoline Laura Brown be substituted for him.  The affidavits, however, do not establish any of the formalities touching the due convening and decision-making at the meeting.  This is a third reason why the motion should be dismissed.

7                     In dismissing the motion, I do not imply that Mr Duren has been authorised to make this present application according to a decision-making process recognised under the Act.  I have been informed from the bar table that the New South Wales Aboriginal Land Council is seeking to assist those concerned to ensure that the question of membership of the native title claim group and the authorisation of an applicant on that group’s behalf and other matters are resolved.  I can only express the hope that this happens sooner rather than later in view of the long period during which this proceeding has been on foot without any progress whatever.

8                     Accordingly the Court orders that:

1.         The motion brought by notice of motion filed on 5 October 2001 by Gwendoline Laura Brown be dismissed.

2.         The proceeding be stood over to 7 May 2002 at 9.30am for directions.

Associate:

Dated:              14 December 2001