FEDERAL COURT OF AUSTRALIA

Simpson on behalf of the Wajarri Elders v State of Western Australia

[2004] FCA 1752

NATIVE TITLE – application to remove applicant – conditions satisfied – legitimate reasons for removal of applicant – application granted

Native Title Act 1973 (Cth) s 66B

IKE SIMPSON AND OTHERS ON BEHALF OF THE WAJARRI ELDERS v STATE OF WESTERN AUSTRALIA AND OTHERS

WAD6042 OF 1999

FRENCH J

17 DECEMBER 2004

PERTH

THE COURT ORDERS THAT:

1.         Ike Simpson, Colin Hamlett, Charlie Snowball, Bill Pearce, Monty Walgar, Mack Mourambine, Robin Boddington, Gavin Egan, Ron Simpson, David Jones and Timothy Simpson (‘the Replacement Applicants’) do jointly replace all the current Applicants, (the current Applicants being all the aforementioned Replacement Applicants with the exception of Timothy Simpson plus Lena Merritt)

            on the grounds that:

            Lena Merritt is no longer authorised by the claim group to make the application and to deal with matters arising in relation to it;  and

            The Replacement Applicants continue to be and are authorised by the claim group to make the application and deal with matters arising in relation to it.

2.         The application be amended by the removal of the words ‘Lena Merritt’ from the title of the action and by the addition of the words ‘Timothy Simpson’ to the title of the action.

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

REASONS FOR JUDGMENT

ON MOTION TO REPLACE APPLICANT

1                     The grounds for replacement of an applicant set out in s 66B of the Native  Title Act 1973 (Cth) are satisfied.  The application is brought by members of the relevant native title claim group.  It is brought in relation to a claimant application.  The ground upon which it is brought is that the current applicants insofar as they include Lena Merritt are no longer authorised by the claim group to make the application and to deal with matters arising in relation to it.

2                     The evidence before the Court makes clear that a meeting was convened on 17 March 2003 at which a number of resolutions were passed by members of the Wajarri claim group.  There is evidence of their membership albeit there were a few non-members in attendance who appear to have been spouses of group members.  The resolutions demonstrate that Ms Merritt is not authorised and that insofar as the current applicants include Ms Merritt as an applicant, they are not authorised to  make the application and to deal with matters arising in relation to it.

3                     Given the process of notification and the anthropological evidence about the kinds of discussions that precede meetings of this kind and the evidence of the agreed and conventional nature of the decision-making which took place in this case, I am satisfied that the resolutions were properly made by or on behalf of the native title claim group and that the replacement applicants who are named in the motion have been authorised by the claim group to make this application to replace the existing applicants pursuant to s 66B.

4                     Subsection 66B(2) provides that the Court may make the order if it is satisfied that the grounds are established.  I am satisfied that the grounds are established.  That is a necessary condition for the making of an order.  It does not mean that an order must be made.  The Court still has a discretion under that subsection.  In this case, however, the basis for what amounts to the removal of Ms Merritt appears to be entirely reasonable.  Her delay in signing an important agreement generated concerns within the group about the capacity of the named applicants, if they continued to include Ms Merritt, to respond in a timely way to agreements that might be seen as being for the benefit of the native title claim group and supported by the group as a whole.

5                     There is a legitimate basis for the removal.  It is clear, of course, that Ms Merritt remains a member of the native title claim group and is entitled to participate in meetings of the group relevant to the conduct of the application.

6                     I will make the orders set out in par 2 of the motion, that is, that Ike Simpson, Colin Hamlett, Charlie Snowball, Bill Pearce, Monty Walgar, Mack Mourambine, Robin Boddington, Gavin Egan, Ron Simpson, David Jones and Timothy Simpson do jointly replace all the current applicants on the grounds that Lena Merritt is no longer authorised by the claim group to make the application and to deal with matters arising in relation to it and that the replacement applicants continue to be and are authorised by the claim group to make the application and to deal with the matters arising in relation to it.  I order that the application be amended by the removal of the words ‘Lena Merritt’ from the title of the action and by the addition of the words ‘Timothy Simpson’ to the title of the action.

Associate:

Dated:              11 January 2005