FEDERAL COURT OF AUSTRALIA
Anderson v State of Western Australia [2003] FCA 1423
NATIVE TITLE – amendment of application – application to replace applicants – disagreement amongst named applicants concerning proposed amendments – whether authorisation of proposed replacement applicants – whether applicable decision-making process according to traditional law and custom exists – whether meetings of native title claim group members adequately advertised – whether attendance at meetings representative of native title claim group – evidence inadequate – whether members of native title claim group authorised to apply for replacement of applicants – whether amendment of application could proceed absent agreement of all named applicants – motion for amendment and replacement of applicants dismissed – springing order made for dismissal of native title determination application – conditions of springing order – motion to amend application to be agreed to by existing applicants – alternatively motion for programming orders to be agreed to by existing applicants – alternatively motion to replace applicants which complies with conditions under s 66B
Native Title Act 1993 (Cth) s 64, s 66B, s 251B
Federal Court Rules O 13 R 2, O 78 r 3, O 78 r 7
Strickland v State of Western Australia (1998) 89 FCR 117
State of Queensland v Hutchison (2001) 108 FCR 575
Wulgurukaba People # 1 v State of Queensland [2002] FCA 1555
Moran v Minister of Land & Water Conversation for the State of New South Wales [1999] FCA 1637
Duren v Kiama Council [2001] FCA 1363
Quandamooka People # 1 v State of Queensland [2002] FCA 259
Johnson, in the matter of Lawson v Lawson [2001] FCA 894
CEDRIC ANDERSON, DONALD COLLARD, SYLVIA RACHEL COLLARD AND OTHERS ON BEHALF OF THE BALLARDONG PEOPLE v THE STATE OF WESTERN AUSTRALIA
WG6181 OF 1998
FRENCH J
4 DECEMBER 2003
PERTH
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IN THE FEDERAL COURT OF AUSTRALIA |
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WESTERN AUSTRALIA DISTRICT REGISTRY |
W6181 OF 1998 |
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BETWEEN: |
CEDRIC ANDERSON, DONALD COLLARD, SYLVIA RACHAEL COLLARD AND OTHERS ON BEHALF OF THE BALLARDONG PEOPLE APPLICANTS
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AND: |
THE STATE OF WESTERN AUSTRALIA AND OTHERS RESPONDENTS
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FRENCH J |
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DATE OF ORDER: |
4 DECEMBER 2003 |
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WHERE MADE: |
PERTH |
THE COURT ORDERS THAT:
1. The motion filed 2 September 2003 is dismissed.
2. The Ballardong native title determination application is to stand dismissed unless on or before 31 March 2004 one of the following events occurs:
(a) a motion is filed, which is agreed to by all named applicants, to amend the application or to seek further programming orders in relation to it;
(b) an application is filed by members of the native title claim group pursuant to s 66B of the Native Title Act 1993 (Cth) seeking replacement of the applicants.
3. Liberty to apply to vary or revoke order number 2 provided such application is made on or before 31 March 2004.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
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IN THE FEDERAL COURT OF AUSTRALIA |
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WESTERN AUSTRALIA DISTRICT REGISTRY |
W6181 OF 1998 |
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BETWEEN: |
APPLICANTS
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AND: |
THE STATE OF WESTERN AUSTRALIA AND OTHERS RESPONDENTS
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JUDGE: |
FRENCH J |
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DATE: |
4 DECEMBER 2003 |
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PLACE: |
PERTH |
REASONS FOR JUDGMENT
Introduction
1 The Ballardong native title determination application is one of a number of applications which presently cover areas of land and water in the South West of Western Australia. In an endeavour to rationalise these claims and to provide a basis for negotiating on behalf of Noongar people of the region as a whole, the relevant Native Title Representative Body, the South West Aboriginal Land and Sea Council (SWALSC), has filed what it calls the Single Noongar Claim. This is a native title determination application in respect of areas already covered by a number of South West applications.
2 As part of the rationalisation process a motion has been filed in which amendments are sought to the Ballardong application by contracting its boundaries so that the balance of the area covered by it falls outside the area of the Single Noongar Claim. The contracted application would be called the Nulla Nulla application. The motion before the Court, which seeks to effect the boundary contraction and related amendments, also seeks an order replacing the existing sixteen named applicants (two of whom are now deceased) with four applicants who would be the authorised applicants for the reduced claim.
3 As appears from the evidence before the Court there are two dissenters within the ranks of the applicants. There are also serious inadequacies in the evidence going to the important question whether the application for replacement of the applicants is authorised by the native title claim group. In the result there is a potential stalemate in the ongoing progress of this application. For the reasons that follow, the motion to amend is dismissed. It also appears to me that unless the applicants can reach consensus between themselves or are properly replaced pursuant to an application authorised in accordance with s 66B of the Native Title Act 1993 (Cth) the application as a whole cannot progress and should be dismissed. In the event, I have decided that I should make springing orders to that effect.
Procedural Background and History
4 An application for a native title determination was lodged with the National Native Title Tribunal on behalf of the Ballardong People on 10 July 1997. The application named Cedric Anderson and others as applicants. The area of land which it covers is in excess of 114,000 square kilometres in wheat belt areas of Western Australia. The claim area extends from Dalwallinu in the north-west to Wagin in the south, Lake King in the east and Southern Cross and Koolyanobbing in the north-east.
5 On 30 September 1998 the application became a proceeding in the Federal Court pursuant to amendments to the Native Title Act. On 5 July 2000, the application was amended by combining it with five others. On 21 September 2000, the Bullenbuk-Noongar claim, WAG6097, was consolidated with the Ballardong claim, the Wom-Ber claim, WAG6130 of 1998, and the Ngadjunngarra claim , WAG6221 of 1998, to the extent of their geographic overlaps with the Bullenbuk-Noongar claim.
6 On 15 April 2002, a motion was filed on behalf of the applicants to remove Robin Yarran as a named applicant for the Ballardong native title determination application. That motion was dismissed by order made on 13 December 2002. The interlocutory history up to that point is set out in the judgment in Anderson v State of Western Australia [2002] FCA 1558. At the time it was accepted by the applicants that on the state of the evidence then before the Court the motion could not succeed.
7 On 2 September 2003, a motion was filed seeking orders in the following terms:
‘1. That native title determination application WAG 6181 of 1998 be amended pursuant to the provisions of section 64(1A) Native Title Act 1993 (Cth) in accordance with the Minute of Proposed Amendments as attached.
2. That service of the Motion and any amended Application upon parties other than the State of Western Australia be dispensed with.
3. That the Applicants together with overlapping applicants (being WAG 0002 of 1998, WAG 6216 of 1998 and WAG 0065 of 1998) be referred to the National Native Title Tribunal for the purpose of mediation to resolve the overlapping native title applications.
4. The overlapping Applicant parties in conjunction with the National Native Title Tribunal are to prepare a program to resolve through negotiation and mediation the overlapping applications over a period of three months commencing 28 October 2003.
5. That the National Native Title Tribunal lodge a copy of the program referred to in (4) with the Court by 28 October 2003.
6. That in the event that a program cannot be agreed by 28 October 2003 the matter is to be relisted for mention at a date to be fixed.
7. The National Native Title Tribunal be requested to provide a mediation report by 28 January 2004.
8. Any such further or other Order as this Honourable Court deems fit.’
8 The motion is brought against the background of the lodgment of a single Noongar native title determination application representing a combination of most of the active applications in the southwest region of Western Australia. The Single Noongar Claim wholly includes the geographical area of the Yued, Combined Metropolitan, Gnaala Karla Booja, Wagyl Kaip and Southern Noongar claims and also partly covers the geographical area of the Ballardong claim and the South West Boojarah claim. The amendment application presently before the Court would, inter alia, reduce the external area of the Ballardong application to the extent of its coverage by the single Noongar claim. That is to say the excluded area of the Ballardong application would be covered by the single Noongar claim and Ballardong applicants would be involved in the progress of that claim in accordance with protocols which have been negotiated and which were referred to in my reasons for judgment on 2 October 2003.
9 The proposed amendments are set out in Schedule S of the proposed further amended application filed on 29 October 2003. They are identified in that schedule by reference to the other schedules to the application and are as follows:
1. Schedule A – Native Title Claim Group. The Native Title Claim Group has been Amended.
2. Schedule B – Boundaries. The internal and external boundaries of the claim have been amended. A new map and description of the claim area are included. The claim does not expand to include land or waters that were not previously covered by the original applications.
3. Schedule C – Maps. A new map of the claim area is attached.
4. Schedule D – Searches. Due to the amended internal and external boundaries of the claim area it has not been possible to undertake any searches for the new area under claim. The searches conducted in relation to the existing claims may no longer be relevant to the current application.
5. Schedule E – NT rights and interests. This description has been changed.
6. Schedule F – Rights and Interests. Replacement material is attached.
7. Schedule G – Activities. These details have been changed.
8. Schedule H – Other applications. These details are amended.
9. Schedule I – Section 29 Notices. These details have been amended and up-dated.
10. Schedule K – Representative Body. Amended to South West Aboriginal Land and Sea Council.
11. Schedule L – Tenure and Land Use. Amended
12. Schedule M – Traditional physical connection. Replacement material is attached.
13. Schedule O – Membership of other groups. Amended to reflect current overlapping claims.
14. Schedule P – Claims for exclusive possession of offshore places. Amended to reflect new boundary.
15. Schedule Q – Claims to any resources owned by the Crown. Amended to accommodate current common law.
16. Schedule R - Certification. The Ballardong application was Certified. This amended application is authorised.
10 It is also to be noted that the named applicants would be changed under the proposed amendment. At present there are sixteen named applicants on the application. They are:
Cedric Anderson, Donald Collard, Sylvia Rachael Collard, Reg Hayden, Alan Jones, Winnie McHenry, Doug Nelson, Ricky Nelson, Robert Riley, Tim Riley, William Riley, Dianne Taylor, Alec Yarran, Reg Yarran, Robin Yarran and Saul Yarran.
Mr William Riley and Mr Alec Yarran are deceased. The proposed replacement applicants are Reg Hayden, Doug Nelson, Reg Yarran Snr and Dorcus Pickett. Reg Hayden, Doug Nelson and Reg Yarran Snr are existing applicants. Dorcus Pickett would be a new named applicant. The effect is that eleven of the existing living applicants would be removed, three retained and one new applicant included.
Meetings and Resolutions Relating to the Proposed Amendments
11 With a view to getting authorisation for the lodgment of the Single Noongar Claim, the SWALSC convened a number of meetings in the area of the proposed application. The attempt to secure authority for the amendments to the Ballardong claim was a part of that process. Advertisements were placed in various newspapers to advertise the meetings. In addition, between 31 January and 6 February 2003 advertisements for a meeting to be held in Quairading, relating to the Ballardong claim, were placed in two regional newspapers. These appeared in the Merredin Wheatbelt Mercury published on Wednesday, 5 February 2003 and the Narrogin Observer published on the same date.
12 Under the rules of the SWALSC, membership is open to ‘all Nyungah persons aged eighteen (18) years or over who make application to the Executive committee…”. All members on the SWALSC membership list were sent a special edition of the newsletter entitled ‘Noongar Country Claim’ which set out details of the SNC meetings and related processes. A map in the newsletter showed the boundary of existing claims in the South West which would be covered by the Single Noongar Claim. This map included the Ballardong claim. A list of the community meetings to be held in connection with the proposed Single Noongar Claim was contained in the newsletter including the meeting for the Ballardong community at Quairading on 13 February 2003.
13 The purpose of the Quairading meeting, according to the SWALSC anthropologist, Dr Shaw, and its Senior Project Officer, Ms Lund, was to give native title claimants in the area an opportunity to discuss and make decisions in relation to the lodgment of the Single Noongar Claim, to consider its impacts on the existing Ballardong claim and to authorise a number of individuals to bring the Single Noongar Claim.
14 A second Ballardong meeting was convened by the SWALSC at Merredin on 7 May 2003. The purpose of that meeting, as described by Dr Shaw, was to give native title claimants for the current Ballardong claim an opportunity to:
‘a. Discuss and consider proposed amendments of the Ballardong claim to enable the SNC to be filed, including:
. the amendment (reduction) of the boundary;
. the amendment of the claimant group description;
. the replacement of existing applicants;
. the change of name of the Ballardong claim; and
b. authorise the proposed Named Applicants for the amended Ballardong claim (to be referred to as the Nulla Nulla claim).
15 There was a number of affidavits sworn in support of the application. It is convenient first to refer to Dr Shaw’s affidavit. He is employed by the SWALSC. He holds a PhD in anthropology from the University of Western Australia. He has worked with the SWALSC and its predecessor Native Title Representative Body, the Noongar Land Council, since 1998. He consulted for the Aboriginal Legal Service in 1995. He says, and I accept, that he has conducted extensive field work with Noongar people and reviewed published and unpublished historical and current anthropological and genealogical materials in relation to the South West of Western Australia, including the area of the proposed Single Noongar Claim. By virtue of that experience he claims to have gained a sound understanding and knowledge of Noongar individuals and families, their inter-relationships and traditional connections with land throughout the South West of Western Australia, including the area covered by the Ballardong native title determination application. He does not claim, and I do not accept that he would have, a special detailed knowledge of the attitudes of members of the Ballardong native title claim group to the proposed Single Noongar Claim or the proposed amendments. Nor, in my opinion, is there evidence that he has knowledge of the attitude of all of the named applicants to the proposed claim or the amendments. Having said that, I accept his observation of what occurred at the meetings at which he attended in Quairading and Merredin in February and May 2003.
16 Dr Shaw attended the meeting held at Quairading on 13 February 2003. It was facilitated by the National Native Title Tribunal. It took place at the Quairading Town Hall which is within the Ballardong claim area and where previous meetings dealing with native title and related matters had been held. According to Dr Shaw those present at the meeting were Noongar people who represented the main families within the Ballardong Native Title Group. What was meant by the term ‘main families’ and who fell within and who outside that classification, was not specified.
17 As well as the distribution of information and guidelines concerning the proposed Single Noongar Claim and its impact on the existing Ballardong claim prior to the meeting presentations were given on these topics by various SWALSC staff. A decision-making process was discussed, agreed to and adopted by those present at the commencement of the meeting. The resolution in relation to the decision-making method which was passed at the meeting was in the following terms:
‘Resolution One: Decision-Making Process
The native title claimants at this community meeting acknowledge that we are members of the Noongar native title claim group and we adopt the following decision making process:
1. Each native title claimant attending this community meeting will have the right to vote upon any resolutions that are considered at the meeting.
2. The same resolutions will be considered at each of the community meetings.
3. The outcomes will be the result of a majority decision of all Noongar Native Title Claimants.’
Dr Shaw did not specify the precise manner in which this resolution was passed. Nor did he address the question whether there was any applicable traditional decision-making method.
18 A second resolution was passed, on a show of hands, in the following terms:
‘Resolution Two: Single Noongar Claim – instructions to SWALSC
The native title claimants agree and authorise the following:
That our rights and interests are to be represented by a single Noongar claim. The external boundary of which is broadly reflective of the traditional boundary of Noongar country and which does not extend beyond the Native Title Representative Body boundaries for the south-west Region.
Resolution Four: Authorisation of Named Applicants:
1. The native title claimants authorise the named applicants – whose names appear in the attached list - to do all things necessary to make application for a single Noongar claim on our behalf and to deal with all matters or things of that kind.
2. The native title claimants also authorise the named applicants who are nominated by the claimants in each of the other existing native title claim groups to do all things necessary to make application for a single Noongar claim on our behalf.’
A list of the proposed applicants in the Single Noongar Claim was attached to that resolution. The names included: Alan Jones, Donald Collard, Doug Nelson, Reg Hayden, Reg Yarran, Robert Riley, Saul Yarran and Winnie McHenry, all of whom are current named applicants in the Ballardong application. According to Ms Lund, seventy-two people voted for resolution two, one against and one abstained. Dr Shaw confirmed that the proposed applicants to represent the Ballardong people in the Single Noongar Claim are Noongar people and are members of the proposed claim group for the single Noongar claim.
19 Dr Shaw said that it was also resolved at the meeting that the Ballardong native title claim group agreed that those persons with an interest in the remaining North Eastern portion of the Ballardong claim area would continue to have their interests represented in a separate application for determination of native title over that area. This was to be discussed further at a later meeting.
20 Evidence of the meeting held on 13 February was also given by Lynette Lund, a Senior Project Officer with the SWALSC. She said that a separate notice of the community meetings in respect of the Single Noongar Claim had been sent to SWALSC members in January 2003. It outlined the purpose of those meetings generally and included a specific reference to the Ballardong community meeting on 13 February.
21 Ms Lund said that having worked with the SWALSC and its predecessor, the Noongar Land Council since 5 January 1998, she was able to conclude from her experience with Noongar people that the meeting was attended by members of the Noongar community with connections to the Ballardong claim area. Attendance was recorded by signing in at the entrance to the venue. Those who attended were provided with an information pack. SWALSC staff met people as they arrived and directed them to a registration table. Eighty- nine people signed in at the meeting. The meeting was chaired by Murray Jones, the Chairperson of the SWALSC and a member of the Ballardong claim group. Mr Tony Lee, a member of the National Native Title Tribunal, acted as facilitator. Her affidavit said nothing about the process otherwise adopted at the meeting or who was present beyond stating that resolution number two was passed with seventy-two people voting in favour, one against and one abstaining.
22 Both Dr Shaw and Ms Lund were in attendance at the meeting held on 7 May 2003 at Merredin. Advertisements for this meeting were placed in the Merredin Wheatbelt Mercury on 30 April 2003 and the West Australian Newspaper on 3 May 2003. Members of the SWALSC were sent a notice about the transition phase of merging individual claims associated with the creation of the Single Noongar Claim. A copy of the notice was exhibited to Dr Shaw’s affidavit. It listed the proposed Merredin meeting as one of a number of ‘community meetings’ but made no reference to its connection to the Ballardong application. Nor was there any evidence of the date or dates upon which the notice was sent out.
23 The meeting on 7 May 2003 was again, according to Dr Shaw, attended by ‘Noongar people who represented main families within the Ballardong native title claim’. According to Ms Lund, 26 people attended the meeting. The meeting was opened by a facilitator from the National Native Title Tribunal after which it was addressed by the SWALSC’s Chief Executive Officer and by a lawyer. The same resolution about the decision-making process was passed at the meeting of 7 May 2003 as had been passed at the meeting of 13 February. It was passed by a show of hands. The vote, according to Ms Lund, was fifteen in favour, none against and one abstaining.
24 Resolution two, dealing with the boundary change to the Ballardong application, was passed sixteen to nil. A resolution agreeing to nominate named applicants on that day was passed ten to six. A resolution nominating the four named Nulla Nulla applicants was passed nineteen nil. A resolution authorising the named applicants for the Single Noongar Claim to do all things necessary to make application for a native title claim on behalf of those at the meeting and ‘to deal with all matters and things of that kind’ was passed twenty to nil.
25 Common form affidavits in support of the motion to amend the application were sworn by the following:
Cedric Anderson, Donald Collard, Alan Jones, Winnie McHenry, Ricky Nelson, Tim Riley, Robert Riley, Dianne Taylor, and Saul Yarran.
Cedric Anderson, Donald Collard, Tim Riley, Dianne Taylor and Saul Yarran attended neither the meeting of 13 February nor the meeting of 7 May. Winnie McHenry, Ricky Nelson and Robert Riley attended only the meeting of 13 February. Alan Jones attended only the meeting of 7 May. Each of them said that he or she supported and agreed with the decisions that were made and said:
‘. As a result of these decisions I confirm that I am no longer authorized by the claim group to make the Ballardong application and to deal with matters arising in relation to it.
. My rights and interests will now be represented in the Single Noongar Claim.’
In particular, Mr Saul Yarran’s affidavit, in common with a number of the others, added that he was in favour of the Single Noongar Claim and the proposed amendments to the existing Ballardong claim.
26 Subsequently, on 21 November 2003, a further affidavit purporting to have been sworn by Saul Yarran was filed in which he expressed his opposition to the SWALSC, his support for the former Noongar Land Council Aboriginal Corporation and its Chief Officer, Mr Peter David and his opposition to the Single Noongar Claim. He also expressed his desire that the Ballardong claim, as lodged by the former Noongar Land Council, should proceed.
27 It will be noted from the preceding that nine of the fourteen living named applicants have filed affidavits acknowledging they are no longer authorised to make the Ballardong application. Three of the current applicants are to remain as named applicants in the amended application. They have sworn a joint affidavit, together with Dorcus Pickett, which is in support of the amended application and is annexed to the proposed amended application. Of the named applicants there are therefore two from whom consent to the amendment or to their removal has not been provided. One of those is Mr Robin Yarran who has appeared in Court from time to time indicating orally his opposition to the SWALSC and the amendment application. The other named applicant who has not filed an affidavit in support of the amendments is Sylvia Collard. This was evidently by oversight and I am informed by counsel that she supports the amendment, although no affidavit has yet been filed.
28 Reg Hayden, Doug Nelson and Reg Yarran Snr, together with Dorcus Pickett, have provided a joint affidavit in support of the application sworn pursuant to s 62(1)(a) of the Native Title Act. In that affidavit they say that all the persons in the native title claim group have authorised them to make the native title determination application and that this has been done through a process of decision-making agreed to and adopted by all persons in the native title claim group in relation to bringing the application and doing things of that kind. This was said to have been done at meetings convened by the SWALSC. They jointly depose that the meetings were advertised and notifications posted to community members. It may be noted that the native title claim group for the Nulla Nulla claim is identified as descendants of the apical ancestors identified as William (Buffalo Bill) Nelson and Julia Penny. It is said that the claim group may also include people incorporated into it through adoption, marriage or de facto marriage and in accordance with traditional laws and customs.
29 There is nothing in the affidavits of Dr Shaw or Ms Lund which gives any indication of the connection between the persons who attended either the Quairading or Merredin meetings and the class of persons identified in the proposed amended application as the native title claim group.
Statutory Framework
30 An application for a native title determination, being an application in the Federal Court, may be amended from time to time pursuant to Order 13 r 2 which provides:
‘2(1) Subject to the following provisions of this rule, the Court may, at any stage of any proceeding, on application by any party or of its own motion, order that any document in the proceeding be amended, or that any party have leave to amend any document in the proceeding, in either case in such manner as the Court thinks fit.’
Order 78, which deals with native title proceedings, provides in r 3:
‘3(1) This Order applies to a proceeding in the Court to which the Native Title Act applies.
(2) The other Orders of these rules apply, so far as they are relevant and not inconsistent with this Order, to a proceeding in the Court to which the Native Title Act applies.’
31 In respect of amendment of applications, O 78 r 7 deals specifically with applications under ss 64 or 66B of the Native Title Act to amend an application. This provides:
‘7(1) A person applying under section 64 or 66B of the Native Title Act to amend a main application must file 2 copies of the application and each map and other accompanying document with the Court.
(2) As soon as reasonably practicable after an application is filed, the Registrar must forward 1 copy of the application and each map and accompanying document to the Native Title Registrar.
(3) The Court may give the directions and make the orders it considers appropriate, including (but without limiting the generality of this power) an order that claimant applications be combined.’
32 It is to be noted that O 78 r 7 does not exclude the application of the general provisions relating to amendment in O 13. There are however certain classes of amendment which are constrained by the provisions of the Act and, in particular, ss 64 and 66B.
33 Section 64 of the Native Title Act provides, in the relevant parts:
‘64(1A) An application may at any time be amended to reduce the area of land or waters covered by the application. (This subsection does not, by implication, limit the amendment of applications in any other way.)
(1) An amendment of an application must not result in the inclusion of any area of land or waters that was not covered by the original application.
…
(5) If a claimant application, or a compensation application whose making was authorised by a compensation claim group, is amended so as to replace the applicant with a new applicant, the amended application must be accompanied by an affidavit sworn by the new applicant:
(a) that the new applicant is authorised by the other persons included in the native title group, or the compensation claim group, to deal with matters arising in relation to the application; and
(b) stating the basis on which the new applicant is authorised as mentioned in paragraph (a).’
34 Section 66B deals with the replacement of named applicants in a claimant application and relevantly provides:
‘66B(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.’
Subsections (3) and (4) are not material for present purposes.
35 The concept of authorisation for the purposes of s 66B is as defined in s 251B which provides:
‘251B For the purposes of this Act, all the persons in a native title claim group or compensation 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.’
Amendment of Native Title Determination Applications
36 An amendment of an application may be made pursuant to the general powers of the Court under O 13 r 2 subject to the constraints imposed by s 64 and s 66B. As to O 13 r 2 as a source of power of amendment of native title determination applications see Strickland v State of Western Australia (1998) 89 FCR 117 per RD Nicholson J. The subsistence of the general power derived from the Rules subject to the constraints imposed by ss 64 and 66B was pointed out by Kiefel J in State of Queensland v Hutchison (2001) 108 FCR 575 at 583 [22]:
‘I should add that s 64, which is expressed to deal with amendments, does not appear to me to be intended to limit the amendments which can be made to those specifically dealt with by the section (changes to area or applicants in group claims).’
And in Wulgurukaba People # 1 v State of Queensland [2002] FCA 1555 at [9], Drummond J said:
‘Amendment of a native title application is governed by the Federal Court Rules as qualified by s 64 of the Native Title Act. The Court has wide powers of amendment under O 13 r 2 the Federal Court Rules.’(sic)
37 There is no procedural requirement for any particular form of decision-making process by members of a native title claim group to authorise amendments to a claim outside the kind of amendment covered by s 66B. No doubt, properly authorised applicants have the authority to apply to the Court to amend an application from time to time. Section 64, which provides for amendments reducing the area of a native title claim, is both facultative and limiting in the sense that it prohibits amendment which would bring in new areas of land or waters.
38 Section 64(5) deals with the case in which an application is amended to replace the applicant with a new applicant. It imposes a condition that the amended application must be accompanied by an affidavit sworn by the new applicant that the new applicant is authorised by the native title claim group and stating the basis on which the new applicant is authorised. That is simply a procedural requirement incidental to the filing of an amended application. It does not deal with the manner in which authority for the replacement of an applicant may arise.
39 Section 66B authorises members of a native title claim group to seek an order from the Court that an applicant be replaced on the grounds of want or excess of authority by the claim group. The conditions under which such an order will be made were set out in Daniel v State of Western Australia [2002] FCA 1147 at [17]:
‘1. There is a claimant application.
2. Each applicant for an order under s 66B is a member of the native title group.
3. The person to be replaced is no longer authorised by the claim group to make the application and to deal with matters arising in relation to it.
4. Alternatively, the person to be replaced has exceeded the authority given to him or her by the claim group.
5. The persons making the application under s 66B are authorised by the claim group to make the application and to deal with the matters arising under it.’
40 As noted in Daniel, it is not necessary in order to prove the decision-making processes required by those conditions to prove the making of individual decisions by all or most members of the group. It is sufficient if there be a decision by a representative or other collective body exercising authority on behalf of the group under customary law – Moran v Minister of Land & Water Conservation for the State of New South Wales [1999] FCA 1637 at [34] (Wilcox J). His Honour said:
‘… a person who wishes to rely on a decision by a representative or other collective body needs to prove that such a body exists under customary law recognised by the members of the group, the nature and extent of the body’s authority to make decisions binding the members of the group and that the body has authorised the making of the application.’
See also Duren v Kiama Council [2001] FCA 1363 per Lindgren J at [5]. There must be evidence identifying the nature of the decision-making processes followed by a native title group resulting in one or more of their members being given authority to act in relation to the claim on behalf of the group – Quandamooka People # 1 v State of Queensland [2002] FCA 259 at [25] per Drummond J.
Whether the Amendments Should be Allowed
41 In so far as the present application seeks to reduce the number of applicants from the fourteen living applicants, to four by removing eleven, retaining three and adding one, it must satisfy the criteria set out in s 66B. As I observed in Daniel the definition of ‘authorise’ in s 251B defines the decision-making process by which authorisation may be withdrawn for the purposes of s 66B – see also Johnson, in the matter of Lawson v Lawson [2001] FCA 894 per Stone J.
42 To the extent that an applicant is unwilling to continue as such it could be taken that the want of authority condition under s 66B(1)(1) is satisfied. In my opinion, authorisation, of its very nature, is only able to be conferred upon a willing party. A party unwilling to continue as an applicant may therefore be replaced on the basis of an implied lack of authority. When a person who is an authorised applicant consents to being removed and replaced as an applicant that consent may be evidence that he or she, as a member of the native title claim group, recognises that authority has been withdrawn. That recognition may be probative of the fact of the withdrawal and may be sufficient, according to the circumstances of the case, to establish the condition under s 66B for the making of an order.
43 In the present case, however, there are those amongst the named applicants whose attitude to the application is not known. Mr Saul Yarran signed a second affidavit, no doubt procured by a representative of the Noongar Land Council, stating his opposition to the amendment. Mr Robin Yarran, previously successfully resisted an application to remove him as an applicant and has given no indication that he consents to the proposed orders. He did not attend at the hearing of the amendment application on 30 October 2003. He had been informed in Court, at a previous directions review hearing in which the Ballardong application came up for mention, that the amendment application was pending. He was invited to make any written submissions prior to the hearing of 30 October. No such submissions had been received. However, it appears he was never served with notice of the motion or supporting materials.
44 At the hearing on 30 October the State, which had apparently only received some of the affidavit material late in the piece, was given leave to put submissions on the authorisation question in writing. The State of Western Australia did file written submissions on 6 November 2003. The substance of those submissions went to the question whether the conditions under s 66B had been satisfied to support the replacement of the existing applicants. At the core of the State’s submissions was the proposition that the decision-making processes supporting the amendment were inadequate or inadequately evidenced before the Court. The following points were made:
1. Two different processes were utilised – one for the 13 February meeting and a different one for the 7 May meeting.
2. The meetings were inadequately notified.
3. The meetings were attended by only a small number of unidentified people and there was no evidence that they were sufficiently representative of all of the native title claim group.
4. The resolutions passed at the meetings were supported by only a bare majority of that small number of people, in one case by a minority and there were inconsistencies as to the positions taken by other people in relation to those resolutions.
5. The decision-making processes used at the meetings were themselves not separately ‘agreed to and adopted by the persons in the native title claim group’ but only by some of the attendees at the meetings; and
6. The resolutions passed at the meetings did not address the matters required by s 66B to support the replacement of the named applicants, namely that those applicants lacked authorisation or had exceeded their authority.
45 In my opinion, the submissions made on behalf of the State are in substance correct. I am not satisfied on the evidence that the meetings were attended by persons representative of the whole of the native title claim group. Nor am I satisfied that they were adequately notified with sufficient advance warning to provide a proper opportunity for members of the native title claim group to attend. I accept also that the resolutions passed at the meetings did not address the condition under s 66B that the named applicants lacked authorisation or had exceeded their authority.
46 The adoption by a native title claim group of a decision-making process by way of majority vote will be justifiable if there is no traditional decision-making method applicable to the processes of authorisation associated with the making and conduct of a native title determination application. And it may well be the case, in connection with the procedural aspects of native title litigation, that there is no relevantly applicable traditional decision-making method. Native title litigation is not exactly a traditional activity. However, the evidence, beyond reporting the fact of the resolutions about the decision-making process, did not address that anterior question.
47 In my opinion the conditions for replacement of the applicants under s 66B have not been made out and so they will not be allowed.
48 It is nevertheless submitted for the applicants that even if the Court is not satisfied on the question of replacement of the existing applicants, the other amendments sought should be allowed as there is no issue raised against them. Amendment of an application, other than replacement of applicants, may be dealt with by applicants named on behalf of the native title claim group. So much appears from s 62A of the Act. That extends to an authority to apply for an amendment to the application. Whether such an amendment should be allowed is always a discretionary issue. In this case I am satisfied that all applicants, save for Mr Saul Yarran and Mr Robin Yarran, support the present application for amendment of the application in the way proposed. Where a division arises between the applicants such that one or more of them is not prepared to support an amendment, it may be debatable whether the Court has authority to allow the amendment. It is not necessary for me to decide that question here. Where it is a major amendment that is proposed the dissent of some of the applicants to the proposed amendment is a powerful discretionary factor against allowing it. In such a case whether the bar be legal or discretionary the proper remedy for the majority applicants is to the proper remedy for the majority applicants is to go back to the native title claim group and obtain a decision that the group of applicants, in so far as it includes the dissentients, is no longer authorised by the claim group to deal with matters arising in relation to the application, and an authority for members of the native title claim group to apply to the Court under s 66B. Alternatively, it may be that the authority conferred upon the applicants is conferred in terms that enable it to be exercised according to a majority vote. That would, however, depend upon the terms of the authority. I express no concluded view on the efficacy of such a procedure.
49 On the evidence before me, two of the named applicants do not support the proposed amendments. The conditions for their removal have not been met. It follows that the application to replace the existing applicants should not be allowed. In so far as the motion seeks to otherwise amend the application, it should be dismissed on the basis that, in the proper exercise of my discretion, these major amendments should not be allowed over the opposition of two of the applicants.
Stalemate – A Springing Order
50 Unless there is a resolution of this matter between the majority applicants and the dissenters, or satisfaction of the conditions for an application under s 66B, then the Ballardong native title determination application is likely to be stalemated. If the applicants are unable to agree upon its future then no further steps can realistically be taken in relation to it unless and until they do. The dispute between Mr Robin Yarran and other applicants has been of long-standing and has surfaced in this Court on more than one occasion in directions hearings relating to this application. There is nothing to suggest that any resolution is likely in the near future.
51 In my opinion, the proper course in this case is to dismiss the motion. Having regard to the serious doubts which now arise about the ability or willingness of the applicants to cooperate to progress the application it is appropriate, in my opinion, to make a springing order that the application will stand dismissed unless by 31 March 2004 a motion for its amendment or for further programming directions, agreed to by all named applicants, has been filed in the Court. This will not preclude the filing of a further motion to replace the applicants on proper evidence that the conditions under s 66B have been complied with. If it be the case that the application is dismissed pursuant to the springing order this would not prevent a fresh application being filed covering the area which would have been covered by the proposed Nulla Nulla claim. I should add that nothing in these orders precludes any continued mediation of the differences between the applicants, at least until the springing order comes into effect.
52 There is no specific rule of court which covers the making of a springing order in a case such as the present. However the general power conferred upon the Court by s 23 of the Federal Court of Australia Act 1976 (Cth) is sufficient, in my opinion, to authorise an order in the form which I propose to make. As the possibility of a springing order was not canvassed in argument I will allow liberty to apply to vary or revoke the order which I have made provided such application is made on or before 31 March 2004.
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I certify that the preceding fifty two (52) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice French. |
Associate:
Dated: 4 December 2003
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Counsel for the Applicant: |
Mr MF Rynne |
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Solicitor for the Applicant: |
South West Aboriginal Land & Sea Council |
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Counsel for the First Respondent: |
Mr GJ Ranson |
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Solicitor for the First Respondent: |
Crown Solicitor for the State of Western Australia |
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Counsel for Pastoral Interests: |
Ms S Van Den Hoogen |
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Date of Hearing: Date of Last Submission By State: Date of Last Submission By the Applicants: |
30 October 2003 6 November 2003 17 November 2003 |
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Date of Judgment: |
4 December 2003 |
