FEDERAL COURT OF AUSTRALIA

Bidjara People #2 v State of Queensland [2003] FCA 324

BIDJARA PEOPLE #2  v  STATE OF QUEENSLAND & ORS

Q6133 of 1998

RYAN J

7 APRIL 2003

MELBOURNE (via Video-link to Brisbane and Conference Telephone to Rockhampton)

THE COURT ORDERS THAT:

Pursuant to s 84(5) of the Native Title Act 1993 Jo-ann Fraser be accepted as a party to the proceedings.

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

REASONS FOR JUDGMENT

1                     There is before the Court a motion by Ms Jo-ann Fraser for an order pursuant to s 84(5) of the Native Title Act 1993 (“the Act”).  That subsection provides:

‘The Federal Court may at any time join any person as a party to the proceedings, if the Court is satisfied that the person's interests may be affected by a determination in the proceedings.’

2                     The proceedings known as Bidjara People #2 have been brought by Edward Charles Lawton, Cedric Steven Lawton, William John Lawton, Neil John Fraser, and Patricia Fraser as applicants on their own behalf, and for and on behalf of the members of the Bidjara native title claim group.  The authority of the applicants to make the application was said to be derived from the following facts, set out in Schedule R to the application:

‘The native title claim group lodged an original application under the pre-amended Native Title Act 1993 (Cth) after a series of meetings through the Gurang Land Council (Aboriginal Corporation), which culminated in the authorisation of the original application on 11 July 1997. 

A meeting was held on 8 July 1998 at Roma, which was attended by members of the native title claim group, (including elders).  The native title claim group held a meeting in accordance with the traditional contemporary process (noted above) where it was agreed in accordance with the traditional contemporary process that the applicants in the Bidjara People #3 application (QG6156/98) [QC97/94] (namely Joseph Lawton, Bernard Mailman and Patricia Fraser, who also attended the meeting and participated in the traditional contemporary process) also be included as applicants in the Bidjara People #2 application (QG6133/98) [QC97/23] (who also attended the meeting and participated in the traditional contemporary process) and that the claim area of the Bidjara people #2 application be excluded from the claim area of the Bidjara people #3 application.

Members of both the Bidjara people #2 application (QG6133/98) [QC97/23]  and the Bidjara people #3 application (QG6156/98) [QC97/94] agreed through the traditional contemporary process (noted above) to authorise the named applicants (namely Ronald Thomas Fraser, Joseph Lawton, Edward Charles Lawton, Cedric Stephen Lawton, William John Lawton, Neil John Fraser, Bernard Mailman and Patricia Fraser since then Ronald Thomas Fraser, Joseph Lawton and Bernard Mailman are deceased) as representatives of lines of descent from the Bidjara ancestors to proceed with this application for a native title determination application and to deal with matters arising from the application on behalf of the native title claim group.

An amended native title determination application in accordance with the agreement reached on 8 July 1998 was filed in the Federal Court on 17 March 1999. 

The members of the Bidjara native title claim group were notified of the various meetings details by written invitations and were also contacted by telephone wherever possible and also by word of mouth amongst members of the native title claim group.’

3                     The applicant, Ms Fraser, has adduced evidence establishing that she is a direct descendant (as I understand it, a great grand-daughter) of Lucy and Harry Mailman.  The descent of Ms Fraser's mother, Georgina Lawton, from Lucy and Harry Mailman is corroborated by a preliminary connection report prepared by Mr Robert Graham, an anthropologist, and filed in the proceedings known as Bidjara People #4.  Lucy Mailman was born at Hoganthulla Station in 1867 and died at Augathella on 23 May 1937. 

4                     It appears that Ms Fraser is the sister of Neil John Fraser, who is one of the applicants in Bidjara People #2.  However, she has indicated that she no longer accepts, if she ever did, that Mr Fraser or any of the other applicants, has authority to bring and conduct these proceedings on her behalf.  There is no facility under the Act for proceedings to be constituted by applicants acting in different interests or claiming different authorisation to bring the proceedings.  Section 61 of the Act provides that the persons who may make native title determination applications 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;  … …’ (original emphasis)

5                     There are then provisions for other persons to make application, including the Commonwealth Minister and a State or Territory Minister.  There is no concept of a respondent to applications in this Court that are related to native title.  That is probably because the applications are not analogous to the initiation of litigation between parties.  However, s 84 governs who may be parties to proceedings.  I have already quoted s 84(5) and the remaining subsections of that section, as far as they are relevant, are:

‘(1)      This section applies to proceedings in relation to applications to which section 61 applies;

(2)       The applicant is a party to the proceedings;

(3)       Another person is a party to the proceedings if:

            (a)        any of the following applies:

                        (i)         the person is covered by paragraph 66(3)(a);

(ii)       the person claims to hold native title in relation to    land or waters in the area covered by the application;

(iii)      the person's interests may be affected by a     determination in the proceedings; and

(b)       the person notifies the Federal Court in writing within the   period specified in the notice under section 66, that the person wants to be a party to the proceeding.’

6                     In Kulkalgal People (Aureed Island) v State of Queensland (2003) FCA 163, Drummond J rejected an application to be made a party by a member of the claim group who had become dissatisfied with the way in which the named applicants were conducting the proceedings.  His Honour took that course after observing at [5]-[8];

‘Unfortunately, the scheme of the Act seems to me to be clear and designed to prevent an application of the kind before me on the motion succeeding.  By s 61(1) of the Act it is provided that persons who may make a native title application are persons authorised by all the native title claim group to make the application.  Section 61(2) provides that in the case of such a native title application, the named applicant or applicants are jointly "the applicant" and that "none of the other members of the native title group … is the applicant."  Section 62(1)(a)(iv) requires, as I have already alluded to, that before a claim can be accepted for filing, it must be accompanied by an affidavit sworn by the applicant deposing to have the authority of all persons in the native title claim group to make the application. 

It appears clear enough that a native title application can only be made by a person or persons with the authority of all persons in the claim group.  The Court will therefore necessarily have before it, on the applicant's side, an applicant who represents all members of the claim group.  By the statute in s 62A, such a representative applicant is given full authority to "deal with all matters arising under the Native Title Act in relation to the application". 

If, as appears to have occurred here, one of the members of the claim group, after the regular institution of a native title claim, becomes dissatisfied with the way his or her interests are being represented by the applicant on the claim, then the only avenue provided for by the Act is that contained in s 66B.  The dissatisfied claim group member can apply to the Court to have the applicant in the proceedings replaced.  But the section makes it clear that a member of a claim group who becomes dissatisfied after the institution of the proceedings, with the way the applicant is conducting the proceedings can only make such an application if the dissatisfied person has the authority of all the members of the claim group to seek the replacement of the named applicant. 

The statutory scheme leaves no room for the principle referred to in cases such as John v Rees [1970] Ch 345 at 371 that a person represented in an action by a representative applicant under O 6 r 13 of the Federal Court Rules can, if dissatisfied with the way the representative applicant is conducting the action, be joined as a respondent in the proceedings.’

7                     It is true that s 61(1) requires an applicant to be authorised by all the members of the native title claim group and s 66B enables an applicant to be replaced when he or she is no longer authorised by the claim group to make the application or to deal with the matters arising in relation to it.  However, that section does not accommodate the situation which has arisen here, where the applicants retain the authorisation, as I understand it, of the majority of the claimant group, but there are one or more dissentient members of the group.  In that event, it can hardly be contended that the claim should lapse.  However, it would also lead to injustice if the dissentient members were thereafter denied a voice in the determination of the claim.  They clearly remain persons whose interests may be affected by a determination in the proceedings within the meaning of s 84(3)(ii) or (iii).  It would unnecessarily multiply proceedings to require those persons to institute their own claims.  Accordingly, I consider, notwithstanding the views expressed by Drummond J in Kulkalgal People that such persons can be made parties pursuant to s 84(5). 

8                     I am satisfied in the circumstances attending Ms Jo-ann Fraser's motion that it is appropriate for her to be made a party to the proceedings in Bidjara People #2 and I shall accordingly make an order to that effect. 

Associate:

Dated:              7 April 2003