FEDERAL COURT OF AUSTRALIA

Wharton on behalf of the Kooma People v State of Queensland

[2003] FCA 790

NATIVE TITLE – native title determination application – authorisation – whether process of decision-making agreed to or adopted by native title claim group – whether application authorised

Native Title Act 1993 (Cth) ss 61, 62, 63,  66, 84C, 251B, Table A items 6, 36, 43

Aboriginal Councils and Associations Act 1976 (Cth)

Lawson on behalf of the ‘Pooncarie’ Barkandji (Paakantyi) People v Minister for Land & Water Conservation for the State of New South Wales [2002] FCA 1517 cited

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

WAYNE WHARTON ON BEHALF OF THE KOOMA PEOPLE v STATE OF QUEENSLAND & ORS

QG 6031 OF 1998

EMMETT J

18 JUNE 2003

SYDNEY

THE COURT ORDERS THAT:

1.         the motion and the proceeding be stood over to 5 August 2003 before Emmett J.

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

REASONS FOR JUDGMENT

1                     I have before me an application under s 84C of the Native Title Act 1993 (Cth) (‘the Act’) to strike out a native title determination application made under the Act by Wayne Morris Wharton (‘Wayne Wharton’).  The present application appears to arise out of a sterile and unfortunate dispute among members of a native title claim group as to who should have the conduct of an application for a native title determination under the Act on behalf of the Kooma People in respect of land in the vicinity of Cunnamulla in south-west Queensland.

2                     The application arose as a consequence of the amendments made to the Act in 1998.  I shall refer to the Act prior to the amendment as the ‘Old Act’, and to the Act following the amendment as the ‘New Act’. 

3                     Under s 61(1) of the Old Act, a native title determination application could be made by:

·        a person or persons claiming to hold the native title either alone or with others;

·        a person who holds an interest in relation to the whole of the area in relation to which the determination is sought;

·        the Commonwealth Minister (as defined);

·        the State Minister (as defined).

4                     Under s 62(1) of the Old Act, a native title determination application by a person or persons claiming to hold the native title in relation to an area was required to comply with the requirements of that section.  Section 62(1)(d) required that the application state the name and address of the person who is to be taken to be the claimant, who then became the registered native title claimant under the Act.  Section 63(1) then provided that, subject to exceptions not presently relevant, if the requirements of s 62 were complied with, the Registrar of the National Native Title Tribunal (‘the Registrar’) must accept the application.   

5                     On 4 June 1996, an application was lodged under the Old Act with the Registrar.  The applicant named was Kooma Aboriginal Corporation for Land (‘Kooma Corporation’).  However, the form of the application stated that the application was made ‘on behalf of the applicant Wayne Morris Wharton and others identified as Kooma People’.  On 2 October 1996, an amended application was lodged, apparently in order to comply with s 62.  The amended application named the applicant as ‘Wayne Morris Wharton on behalf of all Kooma People’.  It also stated that it was lodged ‘on behalf of the applicant Wayne Morris Wharton and others identified as Kooma People’.

6                     Under s 66(1) of the Old Act, if an application was accepted under s 63, the Registrar was required to give notice of the application to all persons whose interests may be affected by a determination in relation to the application and then record details of the application in the register of native title claims.  Under s 66(3), the notice was required to state that any person who wanted to be a party must notify the Registrar within a period of two months starting the day the notice was given. 

7                     The notification commencement date in respect of the present application was 28 March 1997.  Accordingly, when the Act was amended in 1998, the s 66 period was completed.  However, clearly enough, the application had not been finalised.

8                     Accordingly, the proceeding falls within Case 3 in item 6 of Table A of the New Act, which contains transitional provisions in connection with the amendments of 1998.  The application is, therefore, taken to have been made to the Federal Court.  Under item 36, that means that the application is to be treated as if it were made to the Federal Court under the relevant provisions of the New Act.  The Registrar was required to give the application to the Federal Court.  Clearly, that step has been taken.

9                     In addition, under item 6 of Table A, any notification is to be taken to be for the application taken to have been made to the Federal Court, and the same people are the parties to the application.  Under item 43, that means that any people who are parties to an application that was made to the Registrar under s 61 of the Old Act are taken to be the parties to the application that is taken to have been made to the Federal Court under the relevant provisions of the New Act.

10                  However, those transitional provisions do not provide that an application that was made to the Registrar under s 61 of the Old Act is to be taken to comply with the requirements of the New Act.  Thus, even if an application satisfied the requirements of s 61 of the Old Act, it will still be required to satisfy the requirements of s 61 of the New Act.

11                  Under s 61(1) of the New Act, a native title determination application may be made by a person authorised by all the persons who, according to their traditional laws and customs, hold the common or group rights and interests comprising the particular native title claim.  Those persons are defined as the native title claim group.  Under s 61(4), a native title determination application that persons in the native title claim group authorise the applicant to make must either name those persons or describe them sufficiently clearly so that it can be ascertained whether any particular person is one of those persons. 

12                  Unless the person who makes a native title determination application is authorised to make it, the native title determination application will not comply with s 61(1) of the New Act.  Section 84C(1) of the New Act provides that, if an application does not comply with s 61 of the New Act, a party to the proceeding may, at any time, apply to the Federal Court to strike out the application.  Under s 84C(2), the Court must, before any further proceedings take place in relation to the application for determination, consider the application made under s 84C(1).

13                  On 28 May 1999, a further amended application was lodged with the Federal Court (‘the Wharton Application’).  The Wharton Application named Wayne Morris Wharton as the applicant, and specified that the claim was made on behalf of the following family groups and their descendants:

·        Lucy Sheridan, born on the Nebine about 1850, and her descendants; 

·        Kitty of Bollon, born about 1850, and her descendants; 

·        Coombra Jack and Fanny and their descendants; 

·        Peter of the Maranoa, born about 1850, and Angelina, and their descendants; 

·        Susan Mitchell, born on the Nebine about 1865, and her descendants; 

·        Maggie of Bendee Downs, born on the Nebine about 1862, and her descendants; 

·        Mary Button of Murra Murra born about 1869 and her descendants.

14                  On 21 March 2002, a second native title determination application (‘the Branfield Application’) was lodged with the Federal Court in respect of the same parcels of land as were the subject of the Wharton Application.  The applicants named in the Branfield Application were:

·        Una Branfield (Ponjydufljydu);

·        Bill Chapman;

·        Clarence Collis;

·        Angus Mitchell;

·        Ross Mitchell;

·        Aileen Orcher;

·        Mick Speedy;

·        Grace Weatherall

(together ‘the Branfield Applicants’).

15                  The Branfield Application related to exactly the same parcels of land as the Wharton Application.  It states that it is made ‘on behalf of the Kooma People’ and that the Kooma People are all those persons descended from several Aboriginal apical ancestors as follows:

·        Lucy Sheridan;

·        Kitty of Bollon;

·        Coombra Jack and Mary;

·        Peter of Maranoa and Angela;

·        Susan Mitchell and Jennie Murray;

·        Maggie of Bendee Downs;

·        Maggie Tambo of Bendeena (Station);

·        Mary Button of Murra Murra;

·        Dick and Caroline Saunders. 

Those ancestors are similar to but not precisely identical with the persons named in the Wharton Application.  It is common ground, however, that the Branfield Applicants are descendants of one or other of the persons named as the native title claim groups in both the Wharton Application and the Branfield Application.

16                  On 28 August 2002, I ordered that the Branfield Applicants be joined as parties to this proceeding, being the Wharton Application.  Pursuant to leave that I gave on 10 December 2002, the Branfield Applicants have moved pursuant to s 84C(1) for the proceeding to be struck out on the ground that it does not comply with s 61 because the applicant, Wayne Wharton, is not authorised by the persons on whose behalf he purports to bring the proceeding.

17                  Section 251B of the New Act deals with the question of whether the persons in a native title claim group have authorised a person to make a native title determination application.  Under that section, there are two circumstances that would satisfy the requirements of the section as follows:

·        the first is where there is a process of decision-making that, under the traditional laws and customs of the persons in the native title claim group, must be complied with in relation to authorising things of the kind that include making native title determination applications.  In such a case, a person will be authorised for the purposes of s 61 if the persons in the native title claim group have authorised that person in accordance with that process. 

·        the second is where there is no process of decision-making that, under the traditional laws and customs of the persons in the native title claim group, must be complied with in relation to authorising things of the relevant kind.  In such a case, the persons in the native title claim group must authorise the person making the application in accordance with a process of decision-making agreed to and adopted by the persons in the native title claim group in relation to authorising the making of an application.

18                  Neither of the parties suggests that there is a process of decision-making that, under the traditional laws and customs of the persons in the native title claim group, must be complied with in relation to authorising things of the kind that include making native title determination applications.  Wayne Wharton contends, however, that he has been authorised in accordance with the second limb of s 251B.  He relies on an authorisation arising out of the following circumstances. 

19                  On 22 January 1994, a meeting of 34 individuals was held at the shire hall in Cunnamulla to consider the formation of the Kooma Corporation.  Motions were passed for the establishment of the Kooma Corporation and for the lodging of a land claim.  The Kooma Corporation was subsequently formed on 7 February 1994 as an incorporated Aboriginal Association under the Aboriginal Councils and Associations Act 1976 (Cth).  The objects for which the Kooma Corporation was established include the following: 

‘(a)      To act as a body through which the Koomi tribe can meet their responsibilities for our traditional country.

 (b)      To obtain secure tribal tenure over as much as possible of the Koomi Tribes’ traditional land.

…

 (e)       To maximise the involvement of Koomi tribe in all issues pertaining to our heritage, our land and our people in our country including:-

·                     Land Claims in Koomi country;

·                     Land Tenure changes in Koomi country;

·                     Mining in Koomi country;

·                     Tourism in Koomi country;

·                     National Parks in Koomi country;

·                     all other issues affecting our heritage, our land and our people.

(f)        To co-ordinate and organise the re-settlement of Koomi country by the Koomi people.’

20                  In 1996, a meeting of aboriginal tribes was held at Mitchell.  A video recording of a meeting is in evidence.  However, the purpose of the meeting is by no means clear from the video recording.  It appears to have been a meeting of members of several aboriginal groups.  Those present included Wayne Wharton.  There was no evidence as to the identity of most of the others present at the meeting.  There is certainly no evidence from which the Court could conclude that it was a meeting of the native title claim group described in the Wharton Application.  Further, there is nothing in the video recording to suggest that any authorisation was given to Wayne Wharton to make an application under the Act. 

21                  On 7 June 1997, a meeting of the members of the Kooma Corporation was held.  Eighteen people were present at the meeting.  Notes of the meeting record that Wayne Wharton read and discussed his ‘Manager / Co-ordinator’s Report’.  The notes record that the Kooma Corporation had ‘submitted a Land Claim’ and that ‘little information is needed to file a Native Land Title claim’.  After referring to a three stage procedure, the notes record: ‘[t]he Native Title Land Claim was lodged by Wayne Morris Wharton on behalf of all Kooma people.  The first claim was then revised and re-submitted to the tribunal on 25 September 1996’.  The notes finish by recording thanks to Wayne Wharton ‘for all the hard work that he has put in and the things he has accomplished for the Kooma people’. 

22                  A board meeting of the Kooma Corporation was held on 5 September 1997.  Notes of that meeting record the presence of ten persons and refer to a Kooma research consultancy project involving Hazel McKellar.  The notes record agreement to employ Hazel McKellar as consultant on that project. 

23                  A report of Hazel McKellar dated 28 October 1997, which states that it had been commissioned by the Kooma Corporation for their native title claim, contains a foreword that says: ‘We hope the Kooma people’s Native Title Claim will become a landmark in the south west of Queensland’.

24                  By a notice dated 28 January 1999, a meeting of the members of the Kooma Corporation was convened to be held at the Cunnamulla Shire Hall on 27 and 28 February 1999.  The notice was apparently signed on 4 February 1999 by David Carline.  It appears that a meeting was then held at the Old Picture Theatre, Cunnamulla, on those dates.  There has been no explanation of the discrepancy as to the place of the meeting between Cunnamulla Shire Hall and Old Picture Theatre, Cunnamulla, although nothing seems to turn on that question.

25                  The notice of meeting was sent to each of the persons whose names appear in the list of members of the Kooma Corporation. There are over 180 names on that list.  In addition, announcements were made on local radio station 4TOF FM, Murri Radio 4AAA, which broadcasts in Brisbane and Toowoomba and the National Indigenous Radio Service, which broadcasts nationally.  The announcements were broadcast each day for approximately three weeks prior to the meeting held on 27 and 28 February 1999, every hour on the hour, between the hours of 6.00 am and 9.00 am, during the announcement of the community notices of the breakfast show.  The content of the announcements closely reflected the content of the written notice of meeting of 28 January 1999. 

26                  The evidence enables me to conclude that Radio 4AAA reaches about 60 percent of Brisbane's indigenous audience and that the advertisement touching on the matters referred to in the notice of meeting was more likely to reach a wider audience of indigenous people if played on Radio 4AAA in 1999 than if advertised in daily newspapers at that time.  There is also evidence before me that indicates that the majority of people who claim to be Kooma people reside in the Brisbane, Toowoomba and Cunnamulla areas. 

27                  The notice of 28 January 1999 said that the agenda items were to be six in number.  They include the following items:

‘(B)      The creation of the [native title] working groups and the creation of the mens and womens business Councils.

…

(F)       Presentation of all materials associated with the [native title] claim by authors and researchers for completion.’

Something in excess of 40 persons are recorded as having attended the meeting. 

28                  At the meeting, an agenda document was apparently presented to those attending.  It contains a list of items as follows:

‘Welcome from the Kunya representative

Chairperson Address & Welcome

General manager Opening Report

The appointment of trustees of the homelands and Murra-Murra and Bendee Native Title Working Group

Peter Kilduff (Barrister) & Anne Eckermann (Anthropologist)

Mens and Womens Business (Councils)

Federal Court action – Outcome’.

29                  According to minutes of the meeting held on 27 and 28 February 1999, the meeting was opened by Mr William Wharton, acting as chairperson of the Kooma Corporation.  The minutes record that Wayne Wharton, as administrator of the Kooma Corporation, defined the purposes of the meeting in terms of the agenda document.  After referring to the role of Peter Kilduff and Anne Eckermann, the minutes record the following under the heading ‘Funding’:

‘Overall funding allocated for this process is $283,000

            Timeframe 3-6 months to achieve:

            *     Registration Test done

            *     formal process

            *     procedural matter

The basis on which the applicant is authorised and decisions made:

            a)         by traditional law & customs

b)         is/no process under traditional law & custom then in accordance with process of decision making agreed by everybody.’

Resolutions were then recorded as having been passed as follows:

‘1.        That the applicant Wayne Morris Wharton is authorised by all people in attendance at the Kooma Native Title Meeting to deal with the Native Title Claim for Kooma and matters arising in relation to it.

            …

2.         That the process that all Kooma people agree to use a consensus decision making process on all Native Title issues.’

30                  The syntax of the second resolution is slightly awry but its meaning is clear enough.  It is clear that the meeting of 27 and 28 February 1999 authorised Wayne Wharton to make a native title determination application under the New Act.  However, the question is whether any such authorisation was in accordance with a process of decision-making agreed to and adopted by the persons in the native title claim group described in the Wharton Application.

31                  The Branfield Applicants point out that the notice of meeting of 28 January 1999 did not refer to any proposed authorisation to make an application under the New Act.  No mention was made of authorising a native title determination application in either the notice of meeting or the agenda document.  Further, the Branfield Applicants say the evidence does not support a conclusion that notice of the meeting was given to the members of the native title claim group, as distinct from the members of the Kooma Corporation. 

32                  It is common ground that the native title claim group described in the Wharton Application includes persons who are not members of the Kooma Corporation.  Genealogical research carried out on behalf of the Kooma Corporation by Anne Eckermann indicates that there are in excess of 40 persons who are descendants of one or other of the persons named as the apical ancestors of the native title claim group and who are not members of the Kooma Corporation.

33                  It is important that proper processes, consistent with Aboriginal laws, traditions and practice, are implemented in making a decision to remove and replace an applicant in a native title claimant application, just as it is important that those laws, traditions and practices are implemented in relation to the making of an application in the first place.  The authorisation of Wayne Wharton must be shown to have been in accordance with a process of decision-making agreed to and adopted by the native title claim group: see, for example, Ridgeway on behalf of the Worimi People, in the matter of Russell v Bissett-Ridgeway [2001] FCA 848 at [33]-[36].

34                  Section 251B(b) of the New Act does not require that all the members of a relevant claim group be involved in making the decision.  Still less does it require that the vote be a unanimous vote of every member.  It is sufficient if a decision is made once the members of the claim group are given every reasonable opportunity to participate in the decision-making process: see Lawson on behalf of the ‘Pooncarie’ Barkandji (Paakantyi) People v Minister for Land & Water Conservation for the State of New South Wales [2002] FCA 1517 at [25].

35                  There is considerable substance in the contentions of the Branfield Applicants.  However, as I have said, Wayne Wharton relies on the prior circumstances that I have summarised as constituting an agreement to, and adoption of, a process by the relevant native title claim group.  Nevertheless, that raises questions as to what the process of decision-making is and whether the circumstances that I have described constitute agreeing to and adopting that process by the relevant native title claim group.

36                  It is common ground that there is no process of decision-making that, under the traditional laws and customs of the persons in the native title claim group, must be complied with in relation to authorising things of the kind that include making an application.  There is certainly no evidence that Wayne Wharton has been authorised in accordance with any such process.

37                  In essence, as I understand the submissions on behalf of Wayne Wharton, it is that, by the formation of the Kooma Corporation and its activities down to the convening of the meeting of 27 and 28 February 1999, the members of the native title claim group, being the descendants of the apical ancestors described in the Wharton Application, agreed to and adopted a process of decision-making.  It might have been possible to establish that the persons in the native title claim group, being those descendants, agreed to and adopted a process of decision-making by reference to the affairs of the Kooma Corporation.  For example, it would have been possible for the persons in the native title claim group to agree to and adopt a process of decision-making consisting of resolutions of members of the Kooma Corporation.    However, that would entail establishing that all the members of the native title claim group were given the opportunity of attending the meeting held on 22 January 1994 and, at least, of becoming members of the Kooma Corporation.  However, as I have said, there are at least 40 members of the claim group who are not members of the Kooma Corporation. 

38                  I have no evidence before me concerning the circumstances surrounding the convening of the meeting held on 22 January 1994.  I would draw the inference that those present were members of the native title claim group described in the Wharton Application.  However, I have no way of knowing who was informed of the proposal to convene the meeting.  Further, there is nothing in the minutes of the meeting of 22 January 1994 that suggests that those present were agreeing to, and adopting, the procedures of the proposed Kooma Corporation as a means of decision-making on behalf of the native title claim group, being the descendants of the named apical ancestors.

39                  I consider that the evidence is inconclusive as to those matters.  Accordingly, on the evidence presently before the Court, I would not be satisfied that Wayne Wharton has been authorised, within the meaning of s 251B(b), to make the native title determination application that was lodged by him on 28 May 1999. 

40                  No question was raised concerning the adequacy of the description of the native title claim group.  As I have said, s 61(4) requires that an application that has been authorised by the persons in a native title claim group, must describe the person sufficiently clearly so that it can be ascertained whether any particular person is one of those persons.  In the Wharton Application and, indeed, in the Branfield Application, the native title claim group is described by reference to descendants of named apical ancestors.  It may be that there will be considerable difficulty in establishing all of the persons who comprise the native title claim group at any given time.  Since, however, no question has been raised as to the matter I have proceeded on the basis that it is possible to ascertain whether any particular person is descended from one of the apical ancestors.

41                  In that regard, I have before me a connection report in relation to Kooma native title prepared by Dr Anne Eckermann in June 2000.  That report attaches genealogies indicating that a number of family groups have been identified as descended from the named apical ancestors.  Dr Eckermann records that:

·        Coombra Jack and Mary’s descendants include the Daisy, Armstrong and Roberts families and those associated with them;

·        Kitty of Bollon’s descendants include the Evans, Gadds and Bloomfields and associated families;

·        Lucy Sheridan’s descendants include the Moore, Foster, Whitford, Pender and Hooper families and those associated with them;

·        Susan Mitchell and Jennie Murray’s descendants include the Mitchells, Hagans, Collins, Browns, Whartons, Martins, Griffins, Lucas, Roses, Weatheralls and associated families;

·        Maggie of Bendee Downs’ (also known as Mary Hutkeeper) descendants include the Stewart, Carline and Branfield families and those associated with them;

·        Mary Button’s descendants include the Whitfords, Mitchells, Hagans, Peacocks, Speedies, Crollicks, Skewthorps, Collins, Buttons, Moores, Carius and associated families.

Many of those names appear in the lists of names comprising members of the Kooma Corporation and those attending the various meetings to which I have referred already.

42                  I mention these names only by way of emphasising the difficulties that exist, in relation to applications of this nature, in determining who comprise the relevant native title claim group.  However, the terms of s 251B, coupled with s 61(4), are such that there will only be compliance with s 61 in circumstances such as the present where it can be established that the persons in the relevant native title claim group have first agreed to and adopted a process of decision-making and, secondly, authorised an application in accordance with that process.

43                  As I have said, I would be satisfied that Wayne Wharton was authorised by the meeting of 27 and 28 February 1999 to make the Wharton Application.  I am not satisfied, however, that an authorisation by that process satisfies s 251B(b), because the evidence does not enable me to conclude that a process consisting of a resolution of the members of the Kooma Corporation was a process of decision-making agreed to and adopted by the current descendants of the named apical ancestors.  It follows from my conclusions that the application does not comply with s 61 and therefore should be struck out pursuant to s 84C of the New Act. 

44                  However, before making any orders, I consider that it is appropriate that the parties have the opportunity of considering my conclusions and the reasons for them.  I will list the Branfield Application for further directions to determine the future course of that matter.  I propose to take that course because it has been suggested, in the course of argument on behalf of Wayne Wharton, that similar difficulties as those which I have adverted to in the course of these reasons may arise in relation to the Branfield Application.  Of course, that question has simply not been raised at this stage and I am not intending to pre-empt any question about that, one way or the other.

Associate:

Dated:              30 July 2003