FEDERAL COURT OF AUSTRALIA

Ward v Northern Territory of Australia [2002] FCA 1477

NATIVE TITLE – application to replace applicants in claimant application – whether applicants no longer authorised by native title claim group – authorisation of proposed new applicants – whether decision-making process according to traditional law and custom – discretion to replace applicants.

Native Title Act 1993 (Cth), s 66B, 253, 61, 251B

Native Title Amendment Act 1998 (Cth), s 61(1)

Aboriginal Land Rights (Northern Territory) Act 1976 (Cth), s 77A

Aboriginal Land Rights (Northern Territory) Amendment Act 1987 (Cth)

Daniel v State of Western Australia [2002] FCA 1147 – followed

Holborow v State of Western Australia [2002] FCA 1428 – referred to

Western Australia v Strickland (2000) 99 FCR 33 – referred to

Moran v Minister of Land and Water Conservation for New South Wales [1999] FCA 1637 – referred to

Alderson v Northern Land Council (1983) 67 FLR 353, (1983) 29 NTR 1 – discussed

Ward v Western Australia (1998) 159 ALR 483 – referred to

State of Western Australia v Ward [2000] FCA 611 – referred to

West Australia v Ward [2002] HCA 28; (2002) 191 ALR 1 – referred to

BEN WARD, JOHN TOBY, RON CARLTON, JEFF JANAMA, DODGER CARLTON, KIM ALDUS, MURPHY SIMON, SHEBA DIGNARI, PETER NEWRY, TOBY BANMAR, RONNIE YUNDUN, BUTTON JONES, JUDY MENGIL, DORIS PANNIKIN, COLIN JAMES AND EILEEN HUDDLESTON v NORTHERN TERRITORY OF AUSTRALIA, BAINES RIVER CATTLE COMPANY PTY LTD, ROSEWOOD STATION PTY LTD & BULLOO RIVER PTY LTD

DG.6008 of 1998

MANSFIELD J

2 DECEMBER 2002

DARWIN

THE COURT ORDERS THAT:

1. Paddy Carlton, Murphy Simon, Peter Newry, David Newry, Kim Aldus, Button Jones, Ben Barney, Blanche Flying Fox, Maggie John, Katherine Yarrbi, Peggy Griffiths, Jessie Kumboi, Douglas Boombi, Alice Boombi and Herbert Anthony (the new applicants) do jointly replace all the current applicants as applicants in this application.

2. The new applicants file and serve within 28 days an amended application substituting for the current applicants the names of the new applicants.

3. The new applicants file and serve within 28 days an address for service of each of them.

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

REASONS FOR JUDGMENT

THE APPLICATION

1                     This matter concerns a claim under the Native Title Act 1993 (Cth) (the NT Act) for determination of native title. It was commenced by application filed with the National Native Title Tribunal on 3 January 1995 for determination of native title on behalf of the Miriuwung Gajerrong people (the native title claim group) in respect of certain land in the north western area of the Northern Territory immediately to the east of the border between the Northern Territory and Western Australia and bordered on its north by the Joseph Bonaparte Gulf (the claim area). It is not necessary to describe the claim area in detail.

2                     There were 22 persons named as applicants. They were Ben Ward, John Toby, Ronnie Carlton, Jeff Janama, Button Jones, Ben Barney, Dodger Carlton, Kim Aldus, Paddy Carlton, Murphy Simon, Sheba Dignari, Peter Newry, Toby Banmar, Ronnie Yundun, Judy Mengil, Doris Pannikin, Colin James, Blanche Flying Fox, Eileen Huddleston, and three further named persons who are now deceased.

3                     Pursuant to leave given on 21 October 1999 the native title determination application was amended to satisfy the registration test, introduced by the extensive amendments to the NT Act effected by the Native Title Amendment Act 1998 (Cth) (the NT Amendment Act) which came into force on 30 September 1998. The NT Amendment Act introduced, through s 61(1), the requirement that a native title determination application be made only by persons authorised by the native title claim group. It also introduced s 66B to the NT Act. The solicitor then acting for the named applicants was Paul Kennard (Mr Kennard), a solicitor employed by the Aboriginal Legal Service of WA (Inc) (ALSWA). The motion to amend the application, apparently under direction of the Principal Legal Officer of ALSWA, and the amended application, contained 17 named applicants only. The names of Ben Barney, Paddy Carlton and Blanche Flying Fox as well as two deceased persons were omitted from the title of the proceedings in the motion. The omission was not explained. I have omitted from the title to the proceedings the name of one of those persons who is now deceased. I will call the remaining 16 applicants “the named applicants”. They are the persons named in the title to these proceedings.

4                     This application of 27 May 2002 is made under s 66B of the NT Act to replace the named applicants with the following 15 persons: Paddy Carlton, Murphy Simon, Peter Newry, David Newry, Kim Aldus, Button Jones, Ben Barney, Blanche Flying Fox, Maggie John, Katherine Yarrbi, Peggy Griffiths, Jessie Kumboi, Douglas Boombi, Alice Boombi and Herbert Anthony. I will call those 15 persons “the proposed applicants”.

the applicable principles

5                     Section 66B of the NT Act provides:

“(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.

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

(3) If the Court makes the order, the Registrar of the Federal Court must, as soon as practicable, notify the Native Title Registrar of the name and address for service of the person who is, or persons who are, the new applicant.

(4)               If the claim contained in the application is on the Register of Native Title Claims, the Registrar must amend the Register to reflect the order.”

Section 66B received careful consideration by French J in Daniel v State of Western Australia [2002] FCA 1147 (Daniel). The submissions in this matter proceeded upon the basis that French J there laid down the appropriate principles for consideration of an application under s 66B of the NT Act. I respectfully agree with his Honour’s views. I can therefore proceed largely by adopting the approach his Honour took in Daniel. French J also followed those principles in Holborow v State of Western Australia [2002] FCA 1428.

6                     Daniel concerned the unwillingness in two separate instances of one of the registered claimants of a native title claim group to execute an agreement reached (as his Honour found) between that native title claim group and the State of Western Australia for the acquisition of certain native title rights and interests in exchange for benefits. The orders sought in each instance included the removal of the current registered applicants and their replacement with all the current registered applicants excluding in each instance the one dissident registered applicant (and certain deceased registered applicants), on the ground that the dissident applicant in each case was no longer authorised by the relevant native title claim group to make the application or to deal with matters arising in relation to it.

7                     French J at [11] said:

“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.”

His Honour’s observations in that regard echo observations approved by the Full Court in Western Australia v Strickland (2000) 99 FCR 33 at 52 and by Wilcox J in Moran v Minister of Land and Water Conservation for New South Wales [1999] FCA 1637.

8                     Hence, as s 66B recognises, a native title claim group which according to its traditional laws and customs has authorised particular persons as members of the native title claim group to make and deal with matters in relation to a native title determination application may also withdraw that authority, and to act where its authority has been exceeded.

9                     The term “native title claim group” is defined in s 253 of the NT Act relevantly in the following terms:

“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).”

The table in s 61(1) provides, in relation to a native title determination application, that those persons who may make the application are those 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 …”

Section 61(4) requires the native title claim group to name the persons authorised to make and conduct the native title determination application, or at least describe those persons so that it can be ascertained whether any particular person is one of those authorised persons.

10                  Section 251B deals with the concept of “authorisation” referred to in s 61(1) and, by inference, s 66B of the NT Act. It was introduced by the NT Amendment Act. It provides:

“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.”

I observe that s 251A, introduced at the same time, concerning the authorisation of Indigenous Land Use Agreements is in similar form.

11                  Counsel for the proposed applicants drew attention to s 77A of the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) (the Land Rights Act). It refers to the circumstances in which the consent of the traditional Aboriginal land owners of an area of land may be taken to have consented to a particular thing. It provides:

“Where, for the purposes of this Act, the traditional Aboriginal owners of an area of land are required to have consented, as a group, to a particular act or thing, the consent shall be taken to have been given if:

(a)               in a case where there is a particular process of decision making that, under the Aboriginal tradition of those traditional Aboriginal owners or of the group to which they belong, must be complied with in relation to decisions of that kind – the decision was made in accordance with that process; or

(b)               in a case where there is no such process of decision making – the decision was made in accordance with a process of decision making agreed to and adopted by those traditional Aboriginal owners in relation to the decision or in relation to decisions of that kind.”

12                  I note that, as its terms suggest, s 77A of the Land Rights Act appears to be the genesis of s 251B of the NT Act. Section 77A was introduced by the Aboriginal Land Rights (Northern Territory) Amendment Act 1987 (Cth). Prior to that amendment Muirhead J in Alderson v Northern Land Council (1983) 67 FLR 353, (1983) 29 NTR 1 was confronted with an issue about the authority of the Northern Land Council on behalf of traditional owners of certain Aboriginal land granted under the Land Rights Act to negotiate with certain mining interests to extend mining leases over the land. A majority of the traditional owners of the land, but not all of them, supported the Northern Land Council conducting those negotiations. Muirhead J refused to grant an interlocutory injunction restraining the Northern Land Council from conducting the negotiations.

13                  Section 23(3) of the Land Rights Act was the provision critically under consideration. It provides:

“In carrying out its functions with respect to any Aboriginal land in its area, a Land Council shall have regard to the interests of, and shall consult with, the traditional Aboriginal owners (if any) of the land and any other Aboriginals interested in the land and, in particular, shall not take any action, including, but not limited to, the giving of consent or the withholding of consent, in any matter in connexion with land held by a Land Trust, unless the Land Council is satisfied that –

(a)               the traditional Aboriginal owners (if any) of that land understand the nature and purpose of the proposed action and, as a group, consent to it; and

(b)               any Aboriginal community or group that may be affected by the proposed action has been consulted and has had adequate opportunity to express its view to the Land Council.”

Muirhead J did not consider that the dissenting traditional owners had made out an arguable case as he regarded s 23(3) in the context of the Land Rights Act as a whole as authorising the relevant land council to determine whether consent under s 23(3) had been given, including whether a majority decision should be accepted or rejected as a consent.

14                  Both s 77A of the Land Rights Act, and s 251B of the NT Act, appear to respond to the observations of his Honour at 8 to the following effect:

“References have been made to the decision of the majority, to the circumstances when a person may achieve the status of a “primary spokesperson” or “number one man”. It is a delicate and complex area as is the task of finally determining who are traditional Aboriginal owners. It may be a long process, especially in the face of competing claims or conflicting anthropological advice, but it is a task the law vests in the Land Council, being as I have said an Aboriginal body with access to expert advice and recognized by the Act as the only determinative body. By reason of the very complexity of the problems and the necessity of consultation the Land Council cannot make quick decisions which may go to the future user of Aboriginal land. The nature of its relationship with Aboriginals, Land Trusts and the like are matters which cannot be sharply defined by the statute. Inevitably, especially in the consultative area, understanding and consideration of Aboriginal lore, traditions, observances, customs and beliefs is required.”

15                  The following propositions may be extracted from Daniel:

(1) Although the definition of “authorise” in s 251B does not in terms cover withdrawal of authorisation, s 251B is an appropriate means of identifying the decision making processes by which authorisation may be withdrawn for the purposes of s 66B.

(2) The cessation of the authority conferred to make and deal with matters in relation to a native title determination application must therefore be effected by some further decision by the native title claim group, unless the original authority was limited so as to cease upon the happening of some event without any further decision of the native title claim group.

(3) The authority conferred to make and deal with matters related to a native title determination application will be exceeded only if:

(a)                the authority so conferred was subject to some expressed limitation or restriction which has been exceeded; or

(b)               the authority so conferred was subject to the continuing supervision and direction of the native title claim group and there is some resolution or direction of the native title claim group which has not been complied with; or

(c)                the authority so conferred has, by some further decision of the native title claim group, been made subject to some expressed limitation or restriction which has been exceeded, or has been made subject to the continuing supervision and direction of the native title claim group and there is some resolution or direction of the native title claim group which has not been complied with.

Thus, as French J said at [16], the “ultimate authority of the native title claim group” can be maintained.

(4) The conditions which must be satisfied by those making an application under s 66B of the NT Act are:

(a)                there is a claimant application;

(b)               each applicant for an order under s 66B is a member of the native title claim group;

(c) the persons to be replaced are no longer authorised by the claim group to make the application and to deal with matters arising in relation to it;

(d) alternatively, the persons to be replaced have exceeded the authority given to them by the native title claim group; and

(e) the persons making the application under s 66B are authorised by the native title claim group to make or maintain the native title determination application and to deal with matters arising under it.

(5) The decision making processes required by those conditions are those provided for by s 251B of the NT Act, namely relevantly the decision by the native title claim group as recognised under Aboriginal law and custom as constituting the group and its members in the manner provided for by its customary law.

the way the application emerged

16                  The first inkling of some issue as to whether the named applicants have the continuing authority of the native title claim group to maintain and deal with the native title determination application arose in May 2001. On 1 May 2001, Ron Levy (Mr Levy) as Principal Legal Officer of the Northern Land Council purported to file a notice of change of solicitor on the basis that he was then acting for the named applicants. Ultimately the Court rejected that notice of change of solicitor by order of the District Registrar on 1 March 2002 following the decision of O’Loughlin J given on 8 February 2002 referred to in [19] below.

17                  On 8 May 2001 there was filed on behalf of 11 of the named applicants a notice of objection to the notice of change of solicitor. That document was filed by Robert K Hannan (Mr Hannan) as “Executive Coordinator” of the Miriuwung and Gajerrong Families Heritage and Land Council (the Heritage Council). It appeared to acknowledge that the ALSWA (and by inference Mr Kennard) was no longer acting for the named applicants as it referred to a resolution of the named applicants of 23 October 2000 that the Heritage Council should be their agent. It did not explain, nor was any explanation subsequently presented to the Court, why there were 11 and not 17 names on the document. The attitude of six of the named applicants was not explained. Subsequently, 10 of the 11 persons named in that document (one being deceased) filed affidavits confirming that they had not instructed Mr Levy and that they had appointed the Heritage Council as their agent. On 15 August 2001, a notice appointing the Heritage Council as agent for “the applicants” pursuant to s 84B of the NT Act was filed. It was signed apparently by 12 persons, being the 10 previously referred to and Eileen Huddleston and Doris Pannikin.

18                  O’Loughlin J listed for hearing an inquiry into whether the applicants had appointed Mr Levy as solicitor for the applicants in the proceeding. On 20 November 2001 Mr Kennard (not as an employee of ALSWA) informed the Court he was acting for “most of the applicants”. Before the hearing, Mr Levy apparently acting for 14 named persons by motion filed on 6 February 2002 sought an order under s 66B of the NT Act to replace the named applicants. The 14 named persons included the four of the six persons of the then currently named applicants who had not signed the document of 15 August 2001, namely Murphy Simon, Peter Newry, Kim Aldus and Button Jones and the three persons who were named as some of the original 22 applicants and who were not on the named applicants in the amended application: Blanche Flying Fox, Ben Barney and Paddy Carlton. The new names were David Newry, Katherine Yarrbi, Peggy Griffiths, Jessie Kumboi, Douglas Boombi, Alice Boombi and Herbert Anthony.

19                  On 8 February 2002, O’Loughlin J gave judgment on the issues which he identified as:

(1)               who properly are to be regarded as the applicants in the native title determination application; and

(2)               who, if any person, is the solicitor on the record for the applicants.

His Honour dismissed the application made under s 66B filed on 6 February 2000 on the ground that the supporting affidavits did not establish to his satisfaction that the persons seeking to be substituted as applicants had been authorised by the native title claim group to be, or to be substituted as, the applicants in the native title determination application. It is not necessary to refer in detail to the evidence his Honour considered. O’Loughlin J then referred the matter to the National Native Title Tribunal for mediation under s 63 of the NT Act as to who, on behalf of the native title claim group, are or are to be the applicants in the native title determination application. The mediation was not successful.

20                  His Honour also directed the Principal Legal Officer of ALSWA and Mr Kennard to give notice whether they or either of them were still acting as solicitors for the named applicants. The Principal Legal Officer of ALSWA promptly on 11 March 2002 filed notice that he had ceased to act as solicitor for the named applicants. Mr Kennard filed a notice of acting on 21 March 2002 for 12 only of the named applicants: Ben Ward, John Toby, Ron Carlton, Jeff Janama, Dodger Carlton, Sheba Dignari, Toby Banmar, Ronnie Yundun, Judy Mengil, Doris Pannikin, Colin James and Eileen Huddlestone.

21                  The next step in the proceedings was the new application under s 66B made on 27 May 2002. It has been supported by affidavits from 11 of the proposed applicants (excluding Jessie Kumboi, Douglas Boombi, Alice Boombi and Herbert Anthony), three affidavits of Kim Barber (Mr Barber) an anthropologist, and affidavits from Teddy Carlton, Martha Laurie (Ms Laurie) and Mr Levy.

22                  On 9 August 2002 Mr Kennard forwarded to the Court a joint affidavit of Ronnie Yundun, Dodger Carlton, Ronnie Carlton, Judy Mengil, Toby Banmar, Jeff Janama, Colin James and John Toby. Those eight persons are some of his 12 clients, according to his notice of acting dated 21 March 2002. The joint affidavit was apparently sworn before Ms Laurie, Justice of the Peace, on 5 August 2002. It is a brief affidavit which asserts:

(1)               that the eight persons were not present at any meeting on 9 May 2002 in relation to this matter;

(2)               that decisions of the native title claim group in relation to communal matters including about the native title determination application are made on the basis of consensus, and that in relation to decisions about the claim area for which those eight persons are primary traditional owners, they cannot under traditional law and custom defer to other persons outside the native title claim group;

(3)               that the evidence of Mr Barber in his affidavit of 16 July 2002 to the contrary of (2) above is “wrong in fact and in traditional law”.

At a directions hearing on the application under s 66B, orders were made for cross-examination of the various deponents so the Court could resolve the conflicting factual issues. It was proposed then, for the convenience of the parties, that the motion be heard at Kununurra, the township nearest to the claim area with adequate facilities. Mr Kennard appeared on that directions hearing for his 12 clients. Those 12 persons are some of the named applicants. There are four of the named applicants in the proposed applicants. Of the other persons in the 22 original applicants, three are in the proposed applicants and the others are deceased. It was unclear whether Mr Kennard’s clients intended to oppose the s 66B application. To ensure that the parties were duly prepared for the hearing of the s 66B application, on 24 September 2002 the Court directed that any named applicant who wished to oppose the motion should give formal notice of the intention to do so and that any named applicant whose affidavit was to be relied upon should be available for cross-examination. Orders were also made to secure for cross-examination any deponent relied upon by the proposed applicants. The Court then indicated that, if there was no notice of opposition given to the application, it would be heard in Darwin.

23                  No notice was given of any opposition to the application. The matter was therefore listed for hearing in Darwin. The named applicants and the proposed applicants (as well as the other parties to the native title determination application) were notified of the hearing date.

24                  On 15 October 2002, Mr Kennard filed notice in accordance with O 45 r 7 of the Federal Court Rules that he had ceased to act for the 12 persons who are some of the named applicants. He provided an address for service of those persons at C/- the Heritage Council and his affidavit confirmed that, as required by the Rules, each of those persons had been given seven days notice of his intention to cease acting for them.

25                  On 10 October 2002, the Heritage Council under the hand of Mr Hannan, forwarded to the Court by facsimile a copy of a letter to Mr Levy “setting out our position in relation to his attempts to assume representation”. The accompanying letter indicated that “the present Named Claimants” did not instruct Mr Levy, and that its members have their own legal representation. It said its members are “simply withdrawing from this particular matter”. I assume that refers to the current application under s 66B of the NT Act. At the hearing, none of the named applicants (other than the four who are among the proposed applicants) appeared. Nor, despite Mr Hannan’s letter, has any solicitor filed a notice of acting for those 12 persons.

26                  In the circumstances, I have placed little weight on the joint affidavit referred to in [22]. It is largely assertive, rather than detailed. It does not address much of the material advanced by the proposed applicants. It does not, for instance, give any detailed description of facts or matters upon which Mr Barber’s views might be tested either because the primary material relied upon is erroneous or incomplete or for other reasons. Moreover, none of the joint deponents attended for cross-examination even though each was on notice that the proposed applicants challenged both the accuracy of the asserted conclusions, and that there was an issue as to whether the affidavit was duly sworn. The affidavits of Mr Levy and of Ms Laurie provide reason to doubt that the joint affidavit was duly sworn by all the deponents.

FINDINGS

27                  The proposed applicants contend that, on the material before the Court:

(2)               each of the proposed applicants is a member of the native title claim group;

(3)               each of the named applicants (excluding the four persons who are named applicants and also part of the proposed applicants) is no longer authorised by the native title claim group to maintain the native title determination application and to deal with matters arising in relation to it, and each has exceeded the authority given to them by the native title claim group to deal with matters arising in relation to it (it is not asserted that they did not initially have authority to make the claim); and

(4)               the discretion available to the Court, if those matters are made out, should be exercised in favour of the present application.

28                  The native title claim group has also sought a determination of native title in respect of two substantial areas of land adjoining the present claim area. Both are to the west of the present claim area, and just to the west of the border between Western Australia and the Northern Territory, save for one part of one claim also including the Keep River National Park in the Northern Territory. The claim, involving in part the Keep River National Park, has been heard and determined: see Ward v Western Australia (1998) 159 ALR 483 per Lee J; on appeal to the Full Court of this Court (Beaumont, von Doussa and North JJ): see State of Western Australia v Ward [2000] FCA 611; and on appeal to the High Court: see West Australia v Ward [2002] HCA 28; (2002) 191 ALR 1. As a result of the High Court decision, further consideration is required to be given to that claim by the Full Court of this Court.

29                  During the hearing of that claim, members of the native title claim group whose country is in the Northern Territory, that is the Keep River National Park area, were joined as separate (second) applicants and were separately represented by solicitors and counsel engaged by the Northern Land Council. Other members of the native title claim group with particular land in Western Australia were also separately joined as applicants and separately represented.

30                  Mr Barber is a qualified anthropologist. He has had considerable experience in anthropological research concerning the native title claim group since 1983. His research has included consideration of the process whereby, under traditional laws and customs, the native title claim group make decisions. Mr Barber provided anthropological and genealogical evidence to Lee J during that hearing, including concerning the Aboriginal traditional interests in the Keep River National Park. He attended most of the hearing during which traditional evidence was given. Based upon his qualifications and experience, I generally accept the evidence of Mr Barber.

31                  I find, on the material presently before me, that the native title claim group is organised on the basis that responsibility for, and control of, the land the subject of the native title determination application is exercised by various estate or local groups or clans. Members of the local groups refer to their local areas as their “Dawang” or country. The members of the local groups responsible for speaking for, and looking after, the local areas are called “Dawawang” or traditional owners. The local groups make decisions in relation to particular land under the traditional law and custom of the native title claim group and not by some consensual or democratic process. Traditionally, it is the responsibility of senior persons to look after sacred sites and to preserve and conduct ritual. Those persons have acquired the appropriate knowledge to adopt or take on such responsibilities. Such responsibilities also include secular matters such as the authorisation of persons to make and maintain the native title determination application, and to make decisions concerning it including instructing solicitors to conduct it.

32                  The senior persons charged with those responsibilities make decisions only after consultation with other senior persons of the other local groups whose Dawang or country comprises part of the native title determination application and who are senior members of the native title claim group, but also with those who share a common system of traditional law and ceremonial life with the native title claim group. The subgroups or clans whose Dawang or country comprises the land the subject of the native title determination application include the Wardenybeng, Bindjen, Gurrbidjim, Damperal and Nyawanyawam subgroups. The Dawang or country of those subgroups includes various parts of the claim area occupied by Spirit Hills Station, Newry Station, Bullo River Station and Legune Station or parts of them. Each of the subgroups was represented at the meeting on 9 May 2002 referred to below by a number of Dawawang or senior traditional owners for those several areas, including the proposed applicants, together with senior Law men or women for those areas.

33                  I find that decisions made about the claim area, including concerning the native title determination application, were required to be made by consultations between the Dawawang for the particular areas comprising the claim area and other senior Aboriginal persons who are knowledgeable about the claim area or parts of it and have custodial responsibility for it. The individual members of the native title claim group who do not agree with the decisions reached by the “elders” by the process described do not have a veto right. Nor are decisions reached in that manner invalid or ineffective because some individual members of the native title claim group do not agree with them. Those conclusions reflect acceptance of the evidence of the members of the proposed applicants whose affidavits were relied upon and the evidence of Mr Barber. As noted earlier in these reasons, there was no contradictory evidence of any real weight.

34                  Mr Barber was present at the meetings on 26 January 2002 and 9 May 2002 at which the native title claim group considered whether to vary the persons authorised to be named as applicants in the native title determination application and to make decisions with respect to its conduct, including the selection of the solicitors who should represent the applicants.

35                  Mr Barber confirms, and I accept, that the meeting held on 9 May 2002 was attended by representatives of the relevant Dawawang or traditional owners and by senior ceremonial or Law persons (Madjang) of the groups of the native title claim group whose Dawang or country was within the native title determination application. It is not necessary in the light of that finding to address the means by which such persons came to know of the meeting. I also find that the named applicants, including the four persons who also are part of the proposed applicants, were aware of the proposed meeting. I note that the eight deponents to the joint affidavit of 5 August 2002 (assuming it to have been duly sworn) do not assert that they were unaware of the meeting of 9 May 2002.

36                  I accept that those present at the meeting of 9 May 2002 decided that the named applicants in the native title determination application be replaced by the proposed applicants.

37                  I also find that those present at the meeting of 9 May 2002 decided that any solicitors to be retained for the further conduct of the native title determination application be the Northern Land Council solicitors, including in particular Mr Levy. To that extent, the authority of the named applicants (and the proposed applicants) to continue to retain other solicitors to conduct the native title determination application was expressly limited or restricted.

38                  In the light of all the evidence, I find further that the decisions taken at that meeting were made in accordance with Aboriginal law and with the traditional decision-making processes required by the traditional laws and customs of the native title claim group.

39                  In the light of those findings, it is not necessary to make specific findings about whether the 12 named applicants who are not among the proposed applicants are all persons who are Dawawang or traditional owners of country within the claim area of the native title determination application, or are persons with senior ceremonial responsibilities for sites or ritual in respect of that country or parts of it. Clearly at least seven of those 12 persons have Dawang or country in the claim area, and some are Dawawang for parts of that area. However, to the extent that some are Dawawang for parts of that area – and I refer in particular to Ronnie Carlton, Dodger Carlton, Sheba Dignari, Toby Banmar, Ronnie Yundun, Judy Mengil and Colin James – there were other Dawawang for the particular parts of the claim area who attended the meeting and supported the decisions referred to. The support of other Dawawang for those particular parts of the claim area for the decisions referred to on the evidence means, according to Aboriginal law and according to the traditional laws and customs of the native title claim group, that the opposition of those persons to the decisions referred to would not have affected the status of those decisions. The decisions would still be authorised by the native title claim group, in terms of s 251B of the NT Act.

40                  I have for those reasons, reached the view that the named applicants are no longer authorised by the native title claim group to maintain the native title determination application or to deal with matters arising in relation to it. Their authorisation to do so came to an end following the decisions of the native title claim group made on 9 May 2002. I further conclude that the proposed applicants are members of the native title claim group and were, and are, authorised by the native title claim group by reasons of decisions made on that occasion to maintain the native title determination application and to deal with matters arising in relation to it. That authorisation is subject to the expressed limitation that any solicitors to be engaged by the proposed applicants to act in the conduct of the native title determination application are to be the Northern Land Council solicitors, including in particular Mr Levy.

41                  In view of those conclusions it would not be logical to find that, by reason of the decisions referred to, the authority of the named applicants to make and maintain the native title determination application from 9 May 2002 was subject to the expressed restriction or direction that the named applicants should retain as solicitors in the conduct of the native title determination application the Northern Land Council solicitors. That is simply because I have found that the authorisation of the named applicants after 9 May 2002 to make and maintain the native title determination application had been withdrawn. If I had not found that to be the case, I would have concluded that the named applicants by not engaging the Northern Land Council solicitors to act in the matter (at least to the extent that any solicitors were so engaged) had exceeded the authority given to them by the native title claim group.

orders

42                  In the light of those conclusions, I propose to order under s 66B of the NT Act that the named applicants in the native title determination application be replaced by the proposed applicants. I see no reason why I should not make that order. It will give effect to the ultimate authority of the native title claim group.

43                  I direct the proposed applicants to file and serve within 28 days an address for service for each of them. I direct the proposed applicants to file and serve an amended application, amended to the extent necessary to give effect to the order made under s 66B of the NT Act.

44                  The Northern Territory of Australia and the Northern Territory Land Corporation attended the hearing. Counsel for the Northern Territory properly drew to the Court’s attention the possibility that the named applicants may not have taken part in the hearing of the present application due to financial constraints. He therefore urged care in accepting the evidence adduced by the proposed applicants. I have had regard to that possible circumstance. The directions given, and the preparedness of the Court to sit at the town most convenient to the named applicants, reflect an endeavour by the Court to ensure the named applicants could participate in the hearing if they wished. Ultimately, however, the Court had to address the application under s 66B of the NT Act and to do so on the material properly presented in evidence. The evidence was effectively uncontradicted, and was cogent and consistent. The nature of the decision making process of the native title claim group which I have accepted is a reflection of that adverted to by Muirhead J in Alderson referred to in [12]-[14] above. The orders now made will be forwarded to the named applicants at their address for service.

Associate:

Dated: 29 November 2002