FEDERAL COURT OF AUSTRALIA

Booth v The State of Queensland [2003] FCA 418

NATIVE TITLE – motion to dismiss application for native title determination – requirement of authorisation by Native Title Claim Group – evidence as to authorisation of applicant to make an application for a determination of native title – whether applicant authorised – whether application should be dismissed

Native Title Act 1993 (Cth) ss 61, 84, 84C, 253

Bissett v Minister for Land and Water Conservation for the State of New South Wales [2002] FCA 365 cited

Lawson v Minister for Land and Water Conservation for the State of New South Wales [2002] FCA 1517 cited

Daniel v State of Western Australia [2002] FCA 1147 cited

Simms v Minister for Land and Water Conservation [2002] FCA 15 cited

Dieri People v State of South Australia [2003] FCA 187 cited

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

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

GEOFFREY BOOTH (“BUNTHAMARRA PEOPLE #2") v

THE STATE OF QUEENSLAND

Q6014 OF 2002

TAMBERLIN J

SYDNEY

9 MAY 2003

THE COURT ORDERS THAT:

The application is dismissed.

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

REASONS FOR JUDGMENT

1                     A Notice of Motion was filed on 29 November 2002 by Queensland South Representative Body Aboriginal Corporation (“Queensland South”) seeking orders that it be joined as a party to these proceedings pursuant to s 84(5) of the Native Title Act 1993 (Cth) (“the Act”).  A second and consequential order is sought by Queensland South that the proceedings be struck out pursuant to s 84C of the Act or otherwise dismissed pursuant to O 20 r 2(1) of the Federal Court Rules.

2                     I am satisfied that service of the Motion has been properly effected and I note that there has been no appearance for the applicant.

3                     Evidence has been filed by Mr Carter, the solicitor for Queensland South, which satisfies me that it has sufficient standing to make an application to be joined as a party to the proceedings and seek the orders in the Motion: see Bissett v Minister for Land and Water Conservation for the State of New South Wales [2002] FCA 365.

4                     Section 84C of the Act empowers the Court to strike out an application which fails to comply with requirements of the Act.  Under s 61(1) of the Act a person or persons authorised by all persons (the Native Title Claim Group) who, according to their traditional laws and customs, hold the common group rights and interests comprising the particular Native Title claimed, may make an application.

5                     By s 62 a claimant application must be accompanied by an affidavit sworn by the applicant, in this case Mr Booth, stating that the applicant is authorised by all persons in the Native Title Claim Group to make the application and to deal with matters arising in relation to it.

6                     The question for decision is whether Mr Geoffrey Booth, the named applicant, was authorised pursuant to the Act to bring the application.  Queensland South contends that he was not and that therefore the application should be struck out.

7                     Under s 253 of the Act, the expression “Native Title Claim Group” means the Native Title Claim Group named in relation to the application in the table found in s 61(1). 

8                     The applicant, based on the material which has been filed, relies for authority to make the application and deal with matters arising in relation to it on the following bases.  First, he says that he is the son of Clancy Booth, who is said to be a Bunthamarra elder.  Second, he states that he has authority on the basis that he is the Managing Director of Yundra Pty Limited and that he holds “authority” from that company as trustee of the Bunthamarra Native Title Group.  The third basis is that he has previously undertaken mining negotiations on behalf of the Bunthamarra Native Title Group.  Fourthly, Mr Booth says he has the authority to bring the application on the basis that members of each family had met and considered the grounds for the application.  He refers in general to meetings which had taken place between 1997 and 2000 at which decisions were made “on a majority vote”.  The material asserts that meetings were held in several towns in Queensland and that some members were consulted by telephone to ensure that the largest possible number of family members were able to participate but that no formal records of the meeting were kept by the families.

9                     The contention of Queensland South is that the bases which the applicant relies on are inconsistent and demonstrate that the applicant did not have any proper authorisation.  Queensland South points to the lack of any evidence as to the nature of any of the meetings or telephone calls or any specification as to who convened the meetings or made the calls.  It also points to the lack of evidence of notification of members of the Native Title Claim Group regarding the holdings of the meetings and as to whether those at the meetings or who had received the telephone calls were members of the Native Title Claim Group.  There is also reference to the lack of evidence as to whether the authorisation of Geoffrey Booth was specifically considered and also to the absence of detail as to the nature of decisions made at any of the meetings or during the telephone calls.  Nor, according to Queensland South, is there any evidence as to the process of decision-making by which the applicant claims to be authorised.  Furthermore, it is submitted that there is no evidence of any decisions as to authorisation at the meetings relied on as being still current when the application was lodged on 8 April 2002.  I am satisfied that the contention of Queensland South has been made out in relation to these matters.

Consideration of the application

10                  The applicant must be authorised by all members of the Native Title Claim Group.  In the present application the persons who compromise the Native Title Claim Group are not identified either by name or by reference or by any sufficient description. 

11                  There is also a lack of evidence that the Native Title Claim Group, which is alleged to have authorised Mr Booth, had any applicable traditional decision-making process or that any particular process was followed.  There is no evidence that the Native Title Claim Group agreed to and adopted some other decision-making process in relation to authorising the applicant to make the application.  Nor is there any evidence that the process has been recognised or that any process has been followed.  In so far as any reliance is placed on a majority “vote” there is no evidence, oral or written, as to the constitution of the group or the basis on which it is claimed that a majority vote would be sufficient.  Moreover, this begs the questions in relation to the majority vote as to who and how many persons are entitled to vote and precisely what is meant by the expression “majority vote”.

12                  The question of the requirements for authorisation of a Native Title application has been considered in detail in a numbers of recent cases: see Lawson v Minister for Land and Water Conservation for the State of New South Wales [2002] FCA 1517 at [25] ff; Daniel v State of Western Australia [2002] FCA 1147 at [11] –[18]; Simms v Minister for Land and Water Conservation [2002] FCA 15; Dieri People v State of South Australia [2003] FCA 187 at [54]-[58]; Ridgeway on behalf of the Worimi People, in the Matter of Russell v Bissett Ridgeway [2001] FCA 848; and Moran v Minister for Land and Water Conservation for the State of New South Wales [1999] FCA 1637 at [32] ff.

13                  In the present case having regard to the matters referred to above and the authorities cited, I am persuaded that the applicant in this matter has not complied with the requirements of the Act in relation to establishing authorisation to make or pursue the application and that therefore the application for Native Title Determination should be dismissed. 

14                  Accordingly, the order of the Court is the Native Title Determination application by Geoffrey Booth is dismissed.

Associate:

Dated:              9 May 2003