FEDERAL COURT OF AUSTRALIA

Grant v Minister for Land & Water Conservation for the State of

New South Wales [2003] FCA 621

NATIVE TITLE – Claimant application for determination of the existence of native title – Application amended to add additional claimants – Competing applications in respect of same area of land – Application to strike out one application – Whether applicant was properly authorised to make claim – Evidence as to consultations in accordance with traditional method of decision-making – Strike out application rejected.

Native Title Act 1993 ss 29, 61, 62A, 64, 84C, 251B

FLORENCE CATHERINE EUNICE GRANT and ORS v MINISTER FOR LAND AND WATER CONSERVATION FOR THE STATE OF NEW SOUTH WALES and NEVILLE WILLIAMS

N 6002 of 2002

WILCOX J

20 JUNE 2003

SYDNEY

THE COURT ORDERS THAT:

1.         The notice of motion filed on 2 August 2002 be dismissed.

2.         The costs of the motion be reserved.

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

REASONS FOR JUDGMENT

WILCOX J:

1                     These reasons for judgment concern an application to strike out a native title claim.

The native title claim

2                     On 27 February 2002, Florence Catherine Eunice Grant filed in this Court a Claimant Application for a native title determination in relation to land at Lake Cowal (or “Cowel”), in the Central West of New South Wales.  The claim was filed in response to a notice, under s 29 of the Native Title Act 1993 (“the Act”), relating to an area of land proposed to be the subject of a mining lease to be granted by the New South Wales Minister for Mineral Resources to Homestake Australia Limited (now Barrick Australia Limited, “Barrick”).  Ms Grant stated in her application that she was “authorized by the Wiradjuri Council of Elders to lodge this claim on its behalf representing Wiradjuri People and is entitled to make this application as an authorized representative of the Wiradjuri Council of Elders”.

3                     The New South Wales Minister for Land and Water Conservation (“the Minister”) became a respondent to the application.  At a later stage, and on his own application, Neville Williams, also became a respondent.  Mr Williams is the applicant in another native title claim, presently before the Court, in respect of the same land.  He makes that application on behalf of a group of people that he describes as the “Mooka People”, this being a sub-group of the Wiradjuri People.

4                     The application for determination filed by Ms Grant has been twice amended, most recently on 5 September 2002.  That amended application named a total of five applicants: Ms Grant, Mrs Valerie Daley, Mrs Pauline Martin, Mr Percy Knight and Mrs Bonnie May Merritt (“the applicants”).  I will refer later to the terms of the document.

The strike out application

5                     Prior to the second amendment, on 2 August 2002, Mr Williams filed a Notice of Motion seeking an order, pursuant to s 84C of the Act, that the principal proceeding be struck out.  When the motion came on for hearing, I thought there might be a possibility of the two groups reaching an agreement as to the carriage of any native title claim.  To allow an opportunity for that possibility to be explored, I adjourned the further hearing of the motion and gave directions for a settlement conference to be conducted, at Condobolin, by a Registrar.  The conference was held but, unfortunately, no agreement was reached.  So the motion was relisted for hearing on 11 June 2003.  On that occasion, Mr Williams was represented by Mr Alan Oshlack, a non-lawyer appearing by leave, and the applicants by Mr Peter Poynton of counsel.  Ms Michelle Sultana, solicitor, appeared for the Minister but took no part in the argument.

The statutory background

6                     Section 84C(1) of the Act provides that, if an application does not comply with s 61 of the Act (amongst other provisions), “a party to the proceedings may at any time apply to the Federal Court to strike out the application”.  Mr Oshlack relies on this provision.  He contends the applicants are not persons falling within the third column in the table to s 61.  That column is headed “Persons who may make application”.  Paragraph (1) in the column (the only paragraph relied on by Mr Poynton) reads:

“(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 highlighting)

7                     A note under this paragraph refers to s 251B of the Act.  That section reads:

“For the purposes of this Act, all the persons in a native title claim group or

compensation claim group authorisea 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.”  (Original highlighting)

The further amended Claimant Application

8                     Schedule A of the further amended application identifies in the following way the persons on whose behalf the claim is made:

“Yvonne Gilchrist & family, Mathlda Hill & Family, Rose Chown and family, Violet Lousick and family, Terry Bell and family, Stephen Ryan and family, Bill Allen and family, Wynn Allen & family, Russell Dunn (Jamalong) and family, Ramsay Freeman & family, Sec Grant (Wongamar) & family, Val & Reed Keed & family, Elva Sec & family,  Levenia Howey & family, Val Welden & family, Jenny Munao & family, Joyce and Tony Peachey & family, Cathy Peachey & family, Bill Rutter & family, Val White & family, Agnes Coe & Family, Stan Grant & Family, James Morgan & family, Margaret Saunders & Family, Michael McDaniel and all other Wiradjuri People identifying and accepted in accordance with our customs and traditions as understood by us and handed down by our Elders.  In this context, ‘family’ principally means blood lineage but can include children adopted into a ‘family’ in accordance with Wiradjuri custom and tradition.

I am not allowed to say what the rules for adoption may be, but they are clearly understood by the Wiradjuri Elders and it is easy to ascertain whether such an adopted person is Wiradjuri or not – simply ask the the [sic] Council of Elders.

The Wiradjuri People also include the descendants of apical ancestors: Judy Johnson, Jack Moolbong & siblings, Sam Sloane, Cubby Woolf, Old Burrawong Murray, Wilfred Johnson, Old Goolagong from the Condoblin region.”

9                     The further amended application asserts that the “applicants are authorised by the Wiradjuri People convened by the Wiradjuri Council of Elders to file this claim on behalf of the Wiradjuri People and the Council of Elders”.  It refers to various meetings, about which evidence has been adduced.  The document goes on:

“The Wiradjuri Council of Elders was formed by a very large gathering of Wiradjuri people in Wagga Wagga NSW in 1993.  At that meeting many of the existing Elders were endorsed by their specific regional communities.

Since then the Elders are taking on and have Wiradjuri People to become involved in Wiradjuri issues and culture as they need to learn from today’s elders so that they can pass on the knowledge and information to the next generation.

Identification as Wiradjuri occurs through genealogy and the Council of Elders regularly deals with applications from Aboriginal people seeking acceptance of their status as Wiradjuri.

The Decision [sic] making process remains traditional but exists in a contemporary context.  Major decisions are made by voting by Elders present at Council of Elders meetings, but an acceptable majority is usually a very large majority and is only reached after consultation with Elders, who are usually heads of extended families, who may be unable to attend a particular meeting by reason of distance, infirmity or other causes.  In this way the decision making process is seen to be by consensus and although members might disagree in the discussion stages it is Wiradjuri tradition in this kind of matter that decisions of the Council of Elders are not made subject to public debate or dissent outside of the Council’s meetings or closed Wiradjuri circles.  The views of those unable to attend are made known to members of the Council of Elders present prior to any decision being taken.  The majority voting process is mitigated by Wiradjuri customs and traditions of consensus.

Consultation and discussion are an important part of the process.  The Wiradjuri Council of Elders is a decision making body for Wiradjuri People.  Its processes follow our traditions and customs and acknowledge all Wiradjuri People who can identify through genealogies.

Authority of the group may be delegated and exercised only in accordance with traditional authority given.”

The affidavit evidence

10                  At the hearing of the strike out application, both Mr Oshlack and Mr Poynton read numerous affidavits.  The affidavits indicated widespread agreement about three matters.  First, the traditional Country of the Wiradjuri People extends over a considerable portion of what is now the State of New South Wales; on some estimates about a third of the State.  The land was said to range from Dubbo and Mudgee in the north, to the Murray River in the south, running to the Great Dividing Range in the east and extending well across the Western Plains.  Second, and perhaps not surprisingly in those circumstances, there was a tradition of local autonomy in relation to the management of Country.  However, on one view at least, the local people were seen to be managing on behalf of the Wiradjuri People as a whole, not as a separate group.  Third, it was accepted that the local group responsible for Lake Cowal was the Condobolin (or “Condo”) Aborigines.

11                  The affidavits also demonstrated a division between Ms Grant and her supporters, on the one hand, and Mr Williams and his supporters, on the other.  Although Mr Williams’ deponents tended to present themselves as the authentic local people, the division was not clear-cut.  Many “Condo people” indicated support for Ms Grant’s application.  Some people have changed sides, in each direction, over the last 12 months.

12                  None of the deponents to affidavits was cross-examined.

The meetings

(i)         15 December 2001

13                  Documents relating to four formal meetings were put into evidence.  The first of these meetings was billed as a meeting of the Wiradjuri Council of Elders.  It was held at the Wiradjuri Regional Land Council Office in Wagga Wagga on Saturday, 15 December 2001.  The evidence includes a minute of the meeting but this does not reveal the number of participants.  Several items of business were addressed.  One item was acceptance of new members of the Elders Council.  Three new members were appointed.  They included Mr Williams. 

14                  There was discussion at this meeting about Lake Cowal.  A lawyer named Kim Wilson attended the meeting.  According to the minute, he gave advice about the significance of a s 29 notification.  The minute records this summary of his advice:

“Sec 29 means that claimants have three months to put the claim together.  Limited time to get people of the region together as it is over Christmas and the claim has to be in by the end of Feb.  Time limit of 6 months then ask for extension of negotiation?  Need an urgent meeting of the relevant Wiradjuri claimants from the relevant areas of Forbs [sic], Condobolin and West Wyalong for representation by families of the region to become claimants to have the documentation by the end of Feb 2002.  Work out a way to get together circulate information as wide as possible in the allocated time.  Try to get proxy votes if possible.  Need to set up a management group for discussions and to organise meeting of authorisation as there are many groups connected with the NT rights in the area.”

15                  After discussion, it was agreed “to have a committee to work together to develop the claim rather than all be separate”.  Five committee members were appointed.  They included Ms Grant.

(ii)        3 February 2002

16                  The second meeting was held at Cowra Community Centre on Saturday, 3 February 2002.  This meeting was also described as a meeting of the Wiradjuri Council of Elders.  An attendance sheet lists 32 participants (including Mr Williams and Ms Grant), but at least a couple of the participants seem to have been advisers, rather than Wiradjuri people.  According to the minute, there was discussion regarding the gathering of information about the Wiradjuri People and their stories.  There was discussion about a native title claim over a large area of land and about a meeting to resolve overlaps between that claim and claims made by the Gundungurra and Ngunawal People.  Under the heading “Lake Cowel”, the following is recorded:

“Neville Williams said that he had put an injunction on Lake Cowel to have the mining stopped and that it was lost in the Courts.  It was moved by Ramsey Freeman that Neville Williams get an independent Archeological survey done on Lake Cowel.  Sec Val Weldon – carried

Bill Allan is to get reports and maps from National Parks and Wildlife on the Cowel region.

Cec Grant moved that Flo Grant and Neville Williams be claimants for the Wiradjuri Council of Elders and if possible get Charlie, Lindsey Coe and Bonnie Wighton to join the claim if possible.  Sec Tony Peachey – carried Land claim to be endorsed by the Wiradjuri people of the area.  See James Morgan?

Neville Williams was going to Condobolin after the Elders meeting for meetings with Charlie Coe and others.”

(iii)       22 and 23 June 2002

17                  The third meeting was held at the Colonial Motor Inn, West Wyalong, on Saturday, 22 June and Sunday, 23 June 2002.  It seems the meeting was funded by Barrick, the prospective mining lessee.  One of the purposes of the meeting, undoubtedly, was to discuss the mining project.  No doubt Barrick wished the meeting to appoint representatives with whom it could negotiate.

18                  The evidence contains photocopies of an advertisement that was published in several regional newspapers, including “The Condobolin Argus”, during the week before the meeting.  It is headed “Mining Lease Application Lake Cowel”.  It goes on:

“Information Briefing & Project Visit Hosted by

Barrick Gold of Australia Limited

The Wiradjuri Council of Elders

&

Barrick Gold of Australia Limited

Invite all names claimants of Native Title Determination Application N6002/02 and all Wiradjuri people with an interest to an information meeting at West Wyalong on the weekend of 22 – 23 June.”  (Original highlighting)

Application N6002/02 is the present principal proceeding.

19                  The advertisement set out details of arrangements for the meeting: venue, times, accommodation and transport arrangements.

20                  A copy of the notice that formed the advertisement was sent directly to a number of people, including 13 individuals or couples resident in Condobolin.

21                  The attendance sheet for this meeting records 30 participants on 22 June and 43 on 23 June, including Mr Williams on both days; but apparently not including advisers or representatives of Barrick and the Department of Mineral Resources, who were present to talk about the mine. 

22                  During the afternoon of the first day, there was a reference to membership of the Council of Elders and the native title claim.  The minute concerning these items reads:

“The meeting was informed that at the recent Council of Elders meeting in Condobolin Val Daley, Bonnie Merritt and Pauline Martin were nominated by Ramsey Freeman to become members on WCofE and were endorsed as Elders.  These appointments were confirmed by the meeting.  Pauline Martin, Bonnie Merritt, Val Daley along with Lois Goolagong are the Condobolin Elders on the Wiradjuri Council of Elders.

The people were also informed that at the Condo WCofE meeting at Condobolin the need for members of the Condo community were needed to be included by name on the section 29 Native Title Claim on Lake Cowel along with Flo Grant on behalf of the WCofE.

It was endorsed by the Condobolin people that they would have their community reps named on the NT claim along with Flo Grant.  The people selected by Condo people were:  Val Daley, Bonnie Merritt, Lois Goolagong and Pauline Martin.

Pauline declined in favour of Percy Knight.  Lois Goolagong then said she didn’t want to be named on the NT claim so Pauline Martin said she would stay on the claim and Percy Knight would replace Lois Goolagong.  Moved by Ramsey Freeman and seconded by Noel Stanley.”

23                  On the second day of the meeting, a team of five people was appointed to negotiate with Barrick.  They included Ms Grant, but not Mr Williams.

24                  Thereafter a motion was moved “that the meeting confirm Percy Knight, Pauline Martin, Bonnie Merritt and Val Daley be included on the Lake Cowel NT Claim along with Flo Grant”.  The minute records this motion as having been “carried unanimously”; although Mr Williams has asserted he did not vote – I gather either way – on the resolution.

(iv)       27 and 28 September 2002

25                  The evidence also includes a minute of a meeting held on 27 and 28 September 2002.  This meeting was primarily concerned with the negotiations between the appointed negotiating team and Barrick.  It does not appear relevant to the present proceeding.

The parties’ submissions

26                  In presenting Mr Williams’ case, Mr Oshlack went through the documents relating to each of the four meetings.  He sought to demonstrate that they failed to indicate, in relation to any one of the meetings, that notice of the meeting had been given to every individual who was a member of the group described in the application as the “Wiradjuri People”.  He also suggested the inadequacy, in form, of those resolutions that referred to the native title claim.  He argued none of the resolutions identified the area that was to be the subject of the native title claim; none of them specified the claim group or the native title rights that were to be asserted in the claim.

27                  Mr Poynton did not accept all these criticisms but he did not debate them at length.  Rather, he sought to outflank Mr Oshlack by saying none of the meetings was the source of Ms Grant’s authority to bring the claim.  Mr Poynton said he did not rely upon para (b) of s 251B, but upon para (a).  He drew attention to a passage in an affidavit of Ms Grant sworn on 29 May 2003:

“13.     Under Wiradjuri custom and tradition there is a decision making process that must be complied with when land issues are involved.  The Elders and heads of families discuss the land business and decide these matters.  Amongst the Condobolin Wiradjuri People our Elders include Gwen Knight (now deceased), Charlie Coe, Joyce Newman, Rose Newman, Isabel Coe and Guy Wighton.

14.       Before I filed the original Wiradjuri People application I discussed it with all these Elders and other Wiradjuri People and they agreed that the claim be lodged and the issues surrounding the mine at Lake Cowal be looked into for the Wiradjuri People and the Condobolin Wiradjuri People in particular.

15.       Under Wiradjuri custom and tradition the decision making process that must be complied with when land issues are involved was followed when I lodged the Wiradjuri People native title application with the assistance of the Wiradjuri Council of Elders.  The Council of Elders never sought to control the claim, they supported the claim being authorised and assisted in organising the meeting 22 and 23 June to see that the appropriate Condobolin Wiradjuri People took control of the claim for the Condobolin Wiradjuri People.  This centering of control on the correct local group is Wiradjuri business and we have processes to settle these matters amongst ourselves at the Wiradjuri People and the Condobolin Wiradjuri People levels.

16.       The meeting of 22 – 23 June 2002, settled the issues of the Condobolin Wiradjuri People taking control of this claim.”

28                  Earlier in her affidavit, Ms Grant said:

“10.     At the meeting [of 22-23 June] Agnes Coe was Chairperson and we discussed the Lake Cowal Native Title Application that was filed on behalf of the Wiradjuri People.  Mrs Coe made it clear to the meeting that as Lake Cowal was in the Condobolin Wiradjuri region the Condobolin Wiradjuri People should have management of the claim.  She called upon the Condobolin Wiradjuri People to authorise applicants from amongst themselves on the claim and to take control of running the application.

11.       The meeting chose Valery Daley, Pauline Martin, Percy Knight, Bonnie Meritt and myself as applicants and authorised us to amend the claim and take control of running on the application.

12.       After the meeting I met with a number of Condobolin Wiradjuri People in Condobolin and elsewhere working on informing people and gaining a consensus about the claim.  The claim was widely discussed and supported in the Wiradjuri community.”

Conclusion

29                  There was no challenge to Ms Grant’s affidavit evidence, either by cross-examination or by evidence in rebuttal.  Accordingly, I am bound to accept and act upon the evidence.  It is not inherently improbable.

30                  It seems to me the quoted evidence establishes the following propositions:

(i)                  Under the traditional laws and customs of the Wiradjuri People (the persons who comprise the native title claim group) there is a process of decision-making that must be complied with in relation to land issues.

(ii)                That process is one of discussion by and between Elders and heads of families.

(iii)               Ms Grant, who is an Elder, initiated, and participated in, such discussions.

(iv)              The outcome of the discussions was that Ms Grant was authorised to lodge a native title claim on behalf of the Wiradjuri People in general, and the Condobolin Wiradjuri in particular.  This was done in the context of a s 29 notice over the land that was proposed to be leased to Barrick; so the land to be claimed was that land.

(v)                At the meeting of 22 and 23 June 2002, it was agreed that additional claimants should be added, three of them (Pauline Martin, Val Daley and Bonnie May Merritt) being Condobolin Elders.

31                  Propositions (i), (ii), (iii) and (iv), read together, lead to the conclusion that Ms Grant was authorised, in accordance with s 251B(a) of the Act, to make the subject native title claim.  Paragraph (1) of the third column of s 61 was satisfied.

32                  Section 62A of the Act empowers an applicant, in the case of a claimant application, to “deal with all matters arising under this Act in relation to the application”.  That must include amendment of a claim, so as to add other applicants and/or vary the claimed native title rights and interests: see s 64 of the Act.

Disposition

33                  The notice of motion should be dismissed.  I will reserve the matter of costs.

Associate:

Dated:              20 June 2003