FEDERAL COURT OF AUSTRALIA

Wiradjuri Wellington v NSW Minister for Land & Water Conservation

[2004] FCA 1127

NATIVE TITLE – application to replace a member of a claim group as a current applicant in the proceedings – where the claim group was co-extensive with an Aboriginal corporation – whether the member was previously removed as an applicant to the proceedings by that corporation – whether to exercise Court’s discretion – where applicants on behalf of a claim group should be speaking with one voice – application granted.

ROSE CHOWN, GLENDA BELL, SANDRA AH-SEE, DENISE KELLY, MATILDA HILL ON BEHALF OF WIRADJURI WELLINGTON v NSW MINISTER FOR LAND AND WATER CONSERVATION & ANOR

NG6001 of 1996

MADGWICK J

2 JULY 2004

WELLINGTON

THE COURT ORDERS THAT:

1.         The applicants in the proceedings be renamed as Rose Chown, Glenda Bell, Sandra Ah-see and Matilda Hill on behalf of Wiradjuri Wellington & Ors.

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

REASONS FOR JUDGMENT

HIS HONOUR:

1                     This is an application brought by four of the five named applicants in a proceeding seeking native title to remove the fifth named applicant, Mrs Denise Kelly. 

2                     In substance, the grounds upon which the four applicants seek to be substituted as the applicants instead of the previously five named applicants appear to bring the matter within the circumstances contemplated by s 66B of the Native Title Act 1993 (Cth).  Section 66B applies at least in relation to ‘new Act’ applications where one or more members of the native title claim group wish to ‘replace the current applicant’ on the grounds that either 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 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.  In such circumstances, s 66B requires that the member or members of the Native Title Claim Group making the application for replacement be ‘authorised by the claim group to make the application and to deal with matters arising in relation to it’. 

3                     Neither the applicants in the present application nor the respondent to it, Mrs Kelly, are legally represented.  The applicants have mainly spoken to the court through Mrs Chown, one of their number, and through Mrs Griffen a member of the wider claim group.  Mrs Kelly has spoken for herself and also has asked that Mr Wayne Carr be heard.  Mr Carr appears to have grievances of his own, though he supports Mrs Kelly’s position. 

4                     The background of the matter, of which the Court is well aware, is that the applicants and various other parties arrived at a lengthy agreement providing for the future use and control of the Wellington Town Common (‘the Common’), the land the subject of the native title application. The agreement was years in the making and had the support of, among other parties, the New South Wales State Government and the Wellington Local Government Council.

5                     Mrs Kelly has the view that the present applicants, as she sees it, led by Mrs Chown, have ‘taken over’ the claim group to the exclusion of some families; have usurped what Mrs Kelly sees as the proper position of the people apparently regarded on all hands as the elders, and, without consultation with the elders, have de facto agreed to various works on the Common designed to give purported effect to the underlying agreement.  This, in Mrs Kelly’s view, is not respectful of Aboriginal laws and/or customs.  Mrs Chown and the other applicants assert that they have been proceeding in good faith.

6                     In accordance with the statutory framework, occasion arose for the applicants to seek to register the agreement they had made as an indigenous land use agreement (‘ILUA’) with the Native Title Tribunal.  There were various objectors to this and Ms Kelly was one of them.  Ms Kelly’s position actually is that there is nothing wrong with the ILUA as such.  Her complaint is about what Ms Chown and others are doing in purported reliance on, or preparation for the implementation of, that agreement.  Ms Kelly says she would be quite happy for that agreement to go ahead and be registered, provided that, as she understands the customs and undertakings on the part of the claim group, Ms Chown and the others properly carry out their roles in accordance with such customs and understandings.

7                     The evidence establishes that the claim group is coextensive with an organisation known as the Wiradjuri Wellington Aboriginal Town Common (Aboriginal Corporation), which I will refer to as ‘the corporation’.  Ms Chown has given uncontested evidence that on 5 July 2003 an extraordinary meeting of the corporation was held to consider and vote upon the possible removal of Mrs Kelly as an applicant in the native title application.

8                     Ms Chown says the meeting was advertised in the following newspapers:  the Koori Mail, the Wellington Times and the Dubbo Liberal.  The advertisement in those papers indicated that the agenda would be:

‘1.   Issues relating to Native Title and issues raised by objector/s.

2.    WWATC(AC)[the corporation] applicant/objector.

3.      Possible expulsion of applicant/objector and member of WWATC(AC).’

9                     In addition, it is common ground that Mrs Chown gave Mrs Kelly’s aunt, Mrs Peachey, a letter which made it clear that Mrs Kelly was the ‘applicant/objector’ whose position would be considered.  Mrs Kelly admits that, a week before the meeting, she realised that the meeting would consider, among other things, her removal as one of the applicants in the native title application.  Indeed, Mrs Kelly’s understanding was that she was going to be altogether removed from membership of the corporation if the meeting agreed with Mrs Chown, and her understanding has been that that had happened.  In fact that did not happen.  The meeting merely removed her as an executive board member. 

10                  Some only of the rules of the corporation are before me.  Rule 9.3 says:

‘A member of the governing committee shall cease to hold office if he or she ceases to be a member of the Association, or if he or she resigns his office, or if by reason of infirmity, absence or any other reason the association is of the opinion that he or she has ceased to be an effective member of the Governing Committee.’

11                  So far as I am aware, there is no particular provision which requires the giving of any particular amount of notice of such a resolution by the association.  By contrast, rule 8.7 provides:

‘Written notice of a proposed resolution to expel a member [that is an ordinary member] shall be forwarded to the member not less than twenty one days before the date of the General Meeting at which the resolution is to be moved, and s/he shall be given an opportunity of being heard at the meeting.’

12                  The rules would, of course, nevertheless be construed to require that reasonable notice be given to a member of the Governing Committee sought to be removed from office and that that person be given an opportunity to be heard which, in all the circumstances, would be a reasonable opportunity.

13                  Mrs Kelly did not attend the meeting.  She is an articulate person, well capable of speaking up for herself on a political matter of this kind and I infer that she did not attend because she did not think that she could persuade the meeting to support her continuance as a member of the Governing Committee or as an applicant in the native title proceedings.

14                  In my opinion, in all the circumstances, she had reasonable notice of the meeting and she had a reasonable opportunity to be heard. 

15                  The evidence before me permits and requires the conclusion that the meeting of the corporation finally decided, among other things, that Mrs Kelly should no longer be an applicant in the native title proceedings.  On that basis, it seems to me that if s 66B applies to this case, one of an ‘old Act’ application, then the applicants have complied with that section. 

16                  There is, in any event, a discretion as to whether the Court should grant the application.  It is not for me to enter into the debate as to which sub-group or groups within the claim group are or are not authentically acting in accordance with traditional custom or in the best interests of the claim group as a whole.  The claim group have chosen to regulate their affairs in relation to this application by their membership of the corporation and by proceeding according to the rules of the corporation.  Where, as appears to be the case here, those rules have been apparently obeyed and validly acted on, respect should ordinarily be given by a court to the decisions arrived at.  The dispute between Ms Kelly (and those who support her) and Ms Chown (and those who support her) does not relate to the terms of the agreement as such.  If Ms Chown has not acted lawfully according to the rules of the corporation, then other proceedings might be taken elsewhere to compel her to do so.  If the matter lies beyond the law and in the realm of political propriety, or in the realm of cultural acceptability, then Ms Kelly’s remedies must lie in the political and/or cultural area.  Provided no laws are broken (including contractual laws such as the rules of an organisation), such matters ordinarily do not warrant the intrusion of any court.

17                  I see no discretionary reason not to grant Mrs Chown’s application, and a positive discretionary reason to do so, namely that, so far as possible, named applicants on behalf of the claim group should be speaking with one voice and not be divided between themselves. 

18                  Accordingly, I will grant the application.

19                  The order that I will make is that the current applicants, Rose Chown, Glenda Bell, Sandra Ah-See, Denise Kelly and Matilda Hill be replaced as applicants by Rose Chown, Glenda Bell, Sandra Ah-See and Matilda Hill.

Associate:        

Dated:              15 September 2004