FEDERAL COURT OF AUSTRALIA
‘Pooncarie’ Barkandji (Paakantyi) People v NSW Minister for Land & Water Conservation
[2006] FCA 25
NATIVE TITLE – application to replace applicant in claimant application under s 66B of the Native Title Act 1993 (Cth) – whether applicant no longer authorised by native title claim group – whether persons bringing application authorised by claim group to make the application and to deal with matters arising under it
Native Title Act 1993 (Cth), ss 61, 64, 66B, 85, 251B
Adnyamathanha People No 1 v South Australia (2004) 208 ALR 91 referred to
Bolton on behalf of the Southern Noongar Families v State of Western Australia [2004] FCA 760 referred to
Daniel v Western Australia (2002) 194 ALR 278 applied
Harrington-Smith on behalf of the Wongatha People v State of Western Australia [2002] FCA 871 referred to
Holborow v State of Western Australia [2002] FCA 1428 referred to
Johnson, in the matter of Lawson v Lawson [2001] FCA 894 referred to
Johnson on behalf of the Barkandji (Paakantyi) People v Minister for Land and Water Conservation for the State of New South Wales [2003] FCA 981 referred to
Johnson on behalf of the Barkandji (Paakantyi) People v Minister for Land and Water Conservation for the State of New South Wales [2003] FCA 1411 referred to
Lawson on behalf of the ‘Pooncarie’ Barkandji (Paakantyi) People v Minister for Land and Water Conservation for the State of New South Wales [2002] FCA 1517 referred to
Melaleuca of Australia & New Zealand Pty Ltd v Duck [2005] FCA 1481 cited
Noble v Murgha [2005] FCAFC 211 referred to
Parsons v Martin (1984) 5 FCR 235 referred to
Ward v Northern Territory [2002] FCA 171 referred to
Ward v Northern Territory of Australia (2003) 196 ALR 32 referred to
ray lawson, noel johnson, jennifer whyman, patricia johnson, william CHARLES bates, maureen o’donnell, maRy-ann marton and cyril JAMES hunter on behalf of the ‘Pooncarie’ Barkandji (Paakantyi) People v NSW Minister for Land and Water Conservation AND OTHERS
NSD 6084 OF 1998
STONE J
2 FEBRUARY 2006
SYDNEY
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IN THE FEDERAL COURT OF AUSTRALIA |
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NEW SOUTH WALES DISTRICT REGISTRY |
NSD 6084 OF 1998 |
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BETWEEN: |
ray lawson, noel johnson, jennifer whyman, patricia johnson, william CHARLES bates, maureen o’donnell, maRy-ann marton and cyril JAMES hunter on behalf of the ‘Pooncarie’ Barkandji (Paakantyi) People APPLICANT
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AND: |
NSW MINISTER FOR LAND AND WATER CONSERVATION AND OTHERS (See Schedule) RESPONDENTS
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STONE J |
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DATE OF ORDER: |
2 FEBRUARY 2006 |
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WHERE MADE: |
SYDNEY |
THE COURT ORDERS THAT:
- Pursuant to s 66B of the Native Title Act 1993 (Cth) Murray Butcher, Derek Hardman, Jennifer Whyman, William Charles Bates, Maureen O’Donnell, Mary-Ann Marton and Cyril James Hunter replace Ray Lawson, Noel Johnson, Jennifer Whyman, Patricia Johnson, William Charles Bates, Maureen O’Donnell, Mary-Ann Marton and Cyril James Hunter as the applicant in this native title determination application.
- The District Registrar notify the Native Title Registrar of the name and address for service of the persons who, pursuant to order 1, comprise the applicant.
- The applicant circulate a draft amended application to the parties named in Schedule 1 on or before 23 February 2006.
- The matter be stood over for further directions at 9.30am on 16 March 2006.
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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NEW SOUTH WALES DISTRICT REGISTRY |
NSD 6084 OF 1998 |
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BETWEEN: |
ray lawson, noel johnson, jennifer whyman, patricia johnson, william CHARLES bates, maureen o’donnell, maRy-ann marton and cyril JAMES hunter on behalf of the ‘Pooncarie’ Barkandji (Paakantyi) People APPLICANT
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AND: |
NSW MINISTER FOR LAND AND WATER CONSERVATION AND OTHERS (See Schedule) RESPONDENTS
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JUDGE: |
STONE J |
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DATE: |
2 FEBRUARY 2006 |
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PLACE: |
SYDNEY |
REASONS FOR JUDGMENT
1 This proceeding concerns a claimant application for the determination of native title in respect of a large area of west and south-west New South Wales. The application was filed on 8 October 1997 with the National Native Title Tribunal (‘the NNTT’) by Dorothy and Phillip Lawson (‘the Lawsons’) on behalf of the ‘Pooncarie’ Barkandji (Paakantyi) people (‘the Claim Group’). The progress of the application has been hindered by a number of disputes within the Claim Group including, inter alia, disputes about which members of the Claim Group should represent it as the applicant in this proceeding and about the area that should be the subject of the claim.
2 On 13 July 2001, I rejected an application made under s 66B to remove the Lawsons as the applicant: Johnson, in the matter of Lawson v Lawson [2001] FCA 894. Although I accepted that the Lawsons had lost the confidence of some important members of the Claim Group I was not satisfied that the evidence was sufficient to show that the Claim Group, by appropriate decision-making processes, had revoked their authority to represent it or had authorised other members of the Claim Group to replace them.
3 Following unsuccessful attempts to mediate the issues within the Claim Group, a further application to replace the Lawsons was successful. On 9 December 2002, I ordered that Ray Lawson, Noel Johnson, Mary-Ann Marton, Jennifer Whyman and Patricia Johnson replace the Lawsons as the applicant: Lawson on behalf of the ‘Pooncarie’ Barkandji (Paakantyi) People v Minister for Land and Water Conservation for the State of New South Wales [2002] FCA 1517 (‘Lawson’). On 29 September 2004, the application was amended to add William Bates, Maureen O’Donnell and Cyril Hunter to the group comprising the applicant. These eight individuals presently comprise the applicant in this proceeding.
4 On 23 December 2004, the NNTT refused to accept the amended application for registration. Subsequently, a dispute about the future conduct of the proceeding arose between Ray Lawson and Noel Johnson and the other members of the applicant group. In essence, Mr Lawson and Mr Johnson believe that the area subject to the claim should be split between two claims, those of the people they regard as ‘pure’ Barkandji people and those of the other members of the Claim Group.
The notice of motion
5 Attempts to resolve the dispute referred to above have been unsuccessful and, pursuant to resolutions passed at a meeting of the Claim Group on 1 October 2005, culminated in the filing of a notice of motion on 14 October 2005. By this notice of motion, an amended version of which was filed in Court on 13 December 2005, members of the Claim Group seek an order under s 66B of the Native Title Act 1993 (Cth) (‘the NTA’) replacing the current applicant on grounds that 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. In effect the motion seeks: (a) to remove Mr Lawson and Mr Johnson from the applicant group as well as a third member, Mrs Patricia Johnson; and (b) to add two new members, Mr Murray Butcher and Mr Derek Hardman. Mr Lawson and Mr Johnson oppose the application to remove them; Mrs Johnson has not appeared or made any submissions however it is alleged that, because of her ill health, she no longer wishes to be part of the group that comprises the applicant or to be involved in the management of the proceeding.
Application for representation by a non-lawyer
6 On 30 November 2005, Mr Lawson and Mr Johnson applied for leave to be represented by Mr Mark Dengate who is neither a barrister nor a solicitor. At the directions hearing on 5 December, Mr Lawson and Mr Johnson appeared by telephone to press this application as did Mr Dengate, who currently has leave to appear in a related compensation matter.
7 In support of their application for leave to be represented by a non-lawyer, Messrs Lawson and Johnson contended that Mr Dengate understood their position and was willing to assist them. It was evident from their statements that they have a degree of confidence in Mr Dengate. For his part, Mr Dengate referred to the fact that neither Mr Lawson nor Mr Johnson could read or write sufficiently to cope with representing themselves and that without his assistance they would have no representation. He submitted that he has experience in these matters and is in a position to assist the Court.
8 Section 85 of the NTA provides that a ‘party may appear in person or may be represented by a barrister, a solicitor or, with the leave of the Federal Court, another person’. Although Messrs Lawson and Johnson are members of the applicant group they are not, as individuals, parties to this proceeding: see s 61(2) of the NTA. Nevertheless they are, effectively, the contradictors to the present motion. I am satisfied, therefore, that under the Court’s power to do that which is incidental or necessary to the exercise of the powers conferred on it, in this case by s 66B of the NTA, I have jurisdiction to entertain the application for leave for Mr Dengate to appear. In Melaleuca of Australia & New Zealand Pty Ltd v Duck [2005] FCA 1481, Bennett J helpfully summarised the Court’s ‘inherent’ power in this regard at [5]-[15]. While I would prefer to take the approach advocated in Parsons v Martin (1984) 5 FCR 235 at 241 and refer to this power as an ‘incidental and necessary power of a statutory court’ rather than as ‘inherent’, I respectfully accept her Honour’s statement of the generally applicable principles.
9 In particular, I see no reason why the Court’s incidental power to grant a person leave to appear by a non-lawyer and the power to do so under s 85 of the NTA should not involve similar considerations, particularly in the current context. In Harrington-Smith on behalf of the Wongatha People v State of Western Australia [2002] FCA 871, Lindgren J stated at [20] in relation to an application for leave under s 85:
‘What should be clearly understood is that leave is required because it is not to be taken for granted that a person who is not a solicitor or barrister will be allowed to represent a party. Perhaps Dolly Walker thinks that leave is granted as a matter of course, just for the asking. This is not so and for good reason. Solicitors and barristers are qualified by education and training to represent parties and are subject to professional and curial disciplines and responsibilities. The requirement of leave is imposed for the reason that the Court must be satisfied that it is in the interests of the administration of justice in all the circumstances that a party be represented by a person who is not a solicitor or barrister.’
See also, Adnyamathanha People No 1 v South Australia (2004) 208 ALR 91 at [9] et seq.
10 In opposing the application for leave for Mr Dengate to appear, Ms Phillips, who appeared for New South Wales Native Title Services (‘NTS’), pointed out that the application for leave (which was signed by Mr Dengate) sought to have him represent Mr Lawson and Mr Johnson not only in respect of the present motion but also in the substantive proceedings. The notion that there is any scope for members of the applicant group to be separately represented fundamentally misconceives the role of those comprising an applicant in native title proceedings. As I pointed out in Johnson on behalf of the Barkandji (Paakantyi) People v Minister for Land and Water Conservation for the State of New South Wales [2003] FCA 981 (‘Johnson’) at [8]:
‘Such applicants are representatives of the claimant group; they have no personal interest other than as members of the claimant group and for this reason their interests do not differ from each other or from the claimant group and separate representation is inappropriate and unacceptable.’
11 I am satisfied that, in the present circumstances, it is not in the interests of justice for Mr Dengate to be permitted to represent Mr Lawson and Mr Johnson. With the greatest respect to Mr Dengate, and despite his genuine commitment to his clients, I am convinced that he has neither the discipline nor the understanding to assist them or the Court. I am confirmed in this view by my previous experience of Mr Dengate as an advocate; see my comments in Johnson at [14]-[16] and Johnson on behalf of the Barkandji (Paakantyi) People v Minister for Land and Water Conservation for the State of New South Wales [2003] FCA 1411 at [4]-[6]. For these reasons I declined to grant leave for Mr Dengate to appear.
12 It is also relevant to note that Messrs Lawson and Johnson have some experience in native title proceedings in this Court and, as it transpired, their evidence and submissions at the motion hearing were cogent, relevant and explained the dispute between the parties clearly.
Objection to proposed date for hearing of the notice of motion
13 A further issue was raised at the directions hearing of 5 December 2005 in relation to the suitability or otherwise of the proposed hearing date; 13 December 2005. Mr Dengate contended that there had been delays in the service of the documents relating to the motion. He stated that Mr Lawson had not been served with all the documents until 21 November 2005. Consequently, he argued that it was not appropriate to hear the motion on 13 December 2005.
14 Ms Phillips conceded that there was some delay in formally serving all the material on Messrs Lawson and Johnson. However, she contended, and the evidence supports her contention, that they had been on notice of the motion seeking to replace them as part of the group comprising the applicant since early October. In particular, she referred to correspondence dated 7 October 2005 from NTS to both Mr Lawson and Mr Johnson advising them that the 1 October meeting had resolved to invite them to resign from the applicant group and had authorised other members of the Claim Group to replace them. It is plain that this correspondence was received as by letter dated 11 October 2005 a solicitor wrote on their behalf to NTS indicating that they did not intend to resign.
15 Following this refusal, NTS moved to replace them under s 66B of the NTA. Neither Mr Lawson nor Mr Johnson attended the directions hearing of 14 October 2005 at which the motion seeking orders under s 66B was filed and a timetable put in place. In these circumstances I was satisfied that the hearing date of 13 December 2005 should be retained.
16 It is also relevant to note that following the above discussions with Messrs Lawson, Johnson and Dengate, all of whom appeared by telephone from separate locations on 5 December, the Court was forced to terminate the telephone conference with these participants. Despite assurances that he would remain quiet, Mr Dengate (and other unidentified persons) continued to speak so close to his phone that it was impossible to continue the directions with this disturbance. While the transcript of the proceeding does not fully capture the resulting confusion, notwithstanding a short adjournment to remedy the problem, it was ultimately necessary to have the Court staff terminate the telephone conference.
The Claim Group meeting of October 1 2005
17 The purpose of this meeting was to resolve the dispute between Messrs Johnson and Lawson and the other members of the applicant group or, if this was not possible, to establish that they were no longer authorised by the Claim Group to conduct the proceeding on its behalf. If an application under s 66B is to succeed it is necessary that the evidence clearly demonstrate that the relevant persons no longer have that authority and, for this reason, it was necessary to make careful preparation for the 1 October meeting.
18 In an affidavit affirmed on 8 November 2005, Mishka Holt, a solicitor with NTS, gave evidence of the preparations for the 1 October meeting. On 13 and 14 September, letters were sent to all members of the Claim Group for whom NTS had postal addresses. The letter stated that the meeting was to discuss important matters in respect of the claim and to make decisions about its future conduct. The letter set out the proposed agenda and attached a map of the claim area. The letter also provided logistical information, including forms in respect of travel assistance, the provision of accommodation and a bus schedule. Ms Holt’s affidavit provides that NTS paid accommodation and breakfast costs of those attending who did not reside in Broken Hill; that NTS hired buses for persons travelling to Broken Hill from Dareton, Mildura and Wilcannia; that NTS reimbursed persons for their fuel costs in relation to travelling to the meeting; and that NTS provided lunch and refreshments and an allowance for an evening meal.
19 Ms Holt also gave evidence that on 12 September she wrote to all Local Aboriginal Land Councils within the claim area for the information of their members advising them of the 1 October meeting. In addition, NTS placed advertisements in a number of local newspapers advising of the 1 October meeting. These were published in the Mildura Midweek, the Barrier Daily Truth, the Koori Mail, and the Wilcannia News. In addition to numerous phone calls with members of the Claim Group, Ms Holt deposed that she had several telephone conversations with Mr Lawson, Mr Johnson and Ms Shelia Kirby, Mr Johnson’s wife. She gave evidence that two days prior to the meeting, Mr Lawson informed her that he would not be attending.
20 According to the attendance list of the meeting, 58 members of the Claim Group attended the meeting. Mr Lawson and Mr Johnson did not attend the meeting, although the evidence discloses that they were invited and were aware the meeting was to take place and neither Mr Lawson nor Mr Johnson sought to deny this. In addition to members of the Claim Group, the meeting was attended by:
§ Mr Danny Chapman, NTS Manager of Community Facilitation, who chaired the meeting;
§ Ms Holt and other officers of NTS;
§ Dr Kenneth Lum, anthropologist for NTS who has conducted research in relation to this native title claim since 2001;
§ Mr Frank Russo and Ms Michelle Mann, of the NNTT, as independent observers.
21 The minutes of the meeting, which were attested to be an accurate summary by Mr Chapman and Ms Holt, were tendered to the Court. They show that Ms Holt and Dr Lum summarised the current status of the claim for the attendees. In particular, Dr Lum discussed the different groups that together comprise the Claim Group and the meaning of the term ‘Barkandji’. He explained that the term can be used to describe a small sub-group of the Claim Group, the members of which are called Barkandji and who speak the Barkandji language; Mr Lawson and Mr Johnson are members of this sub-group. Dr Lum also explained that the other sub-groups of the Claim Group all speak various dialects of the Barkandji language. Because the area over which the claimant application is made includes the country from which these other sub-groups come, all the subgroups must be included in the Claim Group.
22 The minutes record that the meeting discussed decision-making methods in the context of the requirements of s 251B of the NTA. The meeting resolved that those present were sufficiently representative of the Claim Group. This is consistent with evidence given by Dr Lum on this point. In addition, those present at the meeting confirmed that when authorising amendments to the claim and dealing with matters arising in relation to the claim there is no particular process of decision-making under traditional laws and customs that must be complied with by the Claim Group. As such, they resolved that decisions at the meeting would be made in the following manner:
1. the decision to be made would be put in the form of a clearly worded written motion;
2. the motion would be read out to the meeting;
3. the motion must be moved and seconded by members of the group before being decided;
4. the group’s decision would then be made by a show of hands;
5. a decision of the majority in relation to the motion would be a decision of the meeting.
23 The meeting also discussed the future management of the claim, in particular whether it should be split into two separate claims respectively addressing the northern and southern claim areas. It was resolved that the Claim Group was united and to continue with the current structure of the claim. Further, the meeting resolved to invite those members of the applicant group who disagree with a united claim to resign and authorised Murray Butcher and Derek Hardman to replace them as members of the applicant group. If the invitation was declined, the meeting decided that those who had been authorised to become the applicant must take the necessary steps to replace the present applicant. The meeting then authorised the so-termed ‘new applicant’, in which Mr Butcher and Mr Hardman replaced Mr Lawson and Mr Johnson, to make the native title claim and to deal with matters arising in relation to it. The meeting also required the ‘new applicant’ to do all things necessary to replace the present applicant.
24 While Mr Russo and Ms Mann excused themselves from the meeting during the making of these resolutions because of their roles with the NNTT, they returned at the end of the meeting and verified the resolutions by reading them to the meeting and receiving no dissent.
Evidence of Mr Lawson and Mr Johnson
25 At the hearing of the motion on 13 December 2005, both Mr Lawson and Mr Johnson gave evidence and made submissions. In essence, their evidence disclosed their view that the term ‘Barkandji’ referred to a narrower group than the whole Claim Group: see [22] above. They believed that this narrower group, of which they were members, ought to make a separate native title claim over a smaller area of land, mainly in the southern part of the claim area, than that presently claimed.
The legislative scheme
26 Section 61(1) of the NTA states, inter alia, that the persons who may make a claimant application include:
‘A person or persons authorised by all the persons (the native title claim group) who, according to their traditional laws and customs, hold the common or group rights and interests comprising the particular native title claimed, provided the person or persons are also included in the native title claim group.’
27 Subsection 61(2) of the NTA provides that the persons authorised to make the claimant application by the native title claim group are jointly the ‘applicant’ and none of the other members of the native title claim group is the ‘applicant’. This leads to the somewhat awkward situation where the term ‘applicant’ is applied to a group of separately named individuals: see Noble v Murgha [2005] FCAFC 211 at [6]. Other provisions of the NTA relevant to the present application are:
‘66B Replacing the applicant
Application to replace applicant in claimant application
(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.
Court order
(2) The Court may make the order if it is satisfied that the grounds are established.’
‘251B Authorising the making of applications
For the purposes of this Act, all the persons in a native title claim group or compensation claim 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.’
28 In Daniel v Western Australia (2002) 194 ALR 278 (‘Daniel’) at [17], French J drew from s 66B the following conditions that must be met for an order under the section to be made:
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 matters arising under it.
See also, Holborow v State of Western Australia [2002] FCA 1428; Ward v Northern Territory of Australia (2003) 196 ALR 32; Lawson; and Bolton on behalf of the Southern Noongar Families v State of Western Australia [2004] FCA 760.
29 It is pertinent to note, however, that the Court retains a discretion not to make the orders sought under s 66B of the NTA: see Ward v Northern Territory [2002] FCA 171 (‘Ward’) at [16] and Daniel at [18].
Consideration
30 This proceeding plainly entails a claimant application and the evidence reveals that each of the persons seeking to comprise the applicant is a member of the Claim Group. As such, the issues in the present context revolve around whether the Claim Group no longer authorises Messrs Lawson and Johnson to make the application and to deal with matters arising in relation to it and whether those making the application under s 66B of the NTA are so authorised by the Claim Group in their stead.
31 On the basis of the evidence set out above at [19]-[20], I am satisfied that all reasonable steps were taken to advise members of the Claim Group of the 1 October meeting. In addition, adequate assistance was provided to permit members of the Claim Group to attend where they did not reside in Broken Hill. While neither Mr Lawson nor Mr Johnson attended the 1 October meeting, I am satisfied that they were aware it was taking place and voluntarily chose not to attend. As the resolutions made at the meeting and the expert evidence of Dr Lum demonstrate, those attending the meeting were representative of the Claim Group. In my view, none of the concerns expressed by O’Loughlin J in Ward at [24] are applicable in this context.
32 Further, I am satisfied as to the accuracy of the minutes of the meeting. In particular, I accept, on the basis of the independent verification, that those present made the resolutions recorded: see [25] above. The evidence reveals that the meeting resolved that there was not a process of decision-making under traditional laws and customs for decisions of this kind. This is supported by Dr Lum’s evidence that in his opinion the Claim Group’s traditional decision-making processes do not apply to the current circumstances. Those present at the meeting therefore adopted the decision-making process set out above at [23], by which they decided to revoke the authorisation of the applicant as presently constituted and authorised a new group to form the applicant in this proceeding. As such, I am satisfied that the requirements of s 66B(1) of the NTA are met.
33 For these reasons, I am satisfied that the orders sought, insofar as they relate to the removal of Mr Lawson and Mr Johnson from the applicant group and the inclusion of Mr Murray Butcher and Mr Derek Hardman, should be made.
Patricia Johnson
34 As noted above, the orders sought in the amended notice of motion would not only exclude Mr Lawson and Mr Johnson from the group comprising the applicant but also another current member, Ms Patricia Johnson. Although the issue of Ms Johnson’s continuing role was discussed at the 1 October meeting, there was no resolution to remove her from the applicant group. I am, however, satisfied by the evidence before me that Ms Johnson has clearly indicated that she does not wish to continue as a member of the applicant group and for this reason it is appropriate to make the orders sought.
35 The evidence to which I refer is to be found in the affidavits of Philippe Savidis and Mishka Holt, solicitors with NTS, affirmed respectively on 7 and 14 November 2005. Both solicitors attest to their repeated attempts to discuss the claim with Ms Johnson and her repeated assertions that, owing to illness, she is unable to carry out her responsibilities and no longer wishes to remain a member of the group comprising the applicant. Ms Johnson has not provided an affidavit in accordance with s 64(5) of the NTA despite requests from NTS and on this basis I am satisfied that her name should not be included as a person who comprises the applicant in this proceeding.
Conclusion
36 For the above reasons, I will make the orders sought in the amended notice filed on 13 December 2005. However, it is pertinent to note that in making these orders the Court is not adversely reflecting in any way on the conduct of Mr Lawson and Mr Johnson. There clearly has been a deeply held disagreement within the Claim Group and this has been resolved in accordance with the provisions of the NTA. As was discussed at the 1 October meeting, an order made under s 66B(2) of the NTA does not remove Mr Lawson and Mr Johnson from the Claim Group, nor does it affect their standing according to traditional law and custom. As members of the Claim Group both will continue to have the opportunity to participate in discussions as to the future conduct of the native title claim and it is to be hoped that they will avail themselves of the opportunity to do so.
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I certify that the preceding thirty-six (36) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Stone. |
Associate:
Dated: 2 February 2006
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Counsel for the Applicants on the motion and New South Wales Native Title Services: |
Ms S Phillips |
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Solicitor for the Applicants on the motion and New South Wales Native Title Services: |
New South Wales Native Title Services |
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Mr Ray Lawson and Mr Noel Johnson appeared in person |
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Solicitor for the NSW Minister for Land & Water Conservation: |
Ms S Illiadis |
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Solicitor for the NSW Farmers’ Association respondents: |
Mr R Gorczyca |
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Date of Hearing: |
12 December 2005 |
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Date of Judgment: |
2 February 2006 |
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‘Pooncarie’ Barkandji (Paakantyi) People v NSW Minister for Land & Water Conservation
[2006] FCA 25
Schedule
Respondents
NSW Minister for Land and Water Conservation
National Parks Association of NSW Inc
Avoca Vineyards Pty Ltd
Stephen George Alexander
Keith James Bell
Sam Costa
Darryn Robert Davies
Henry George Washington Davies
Maxwell Charles Gregg
Kenneth John Hearne
Paul Anthony Hyde
William Henry Lever
Peter James Middleton
William John Summers
Balranald Shire Council
Bourke Shire Council
Broken Hill City Council
Central Darling Shire Council
Cobar Shire Council
The Commonwealth of Australia
The Murray Darling Basin Commission
Wentworth Shire Council
Dareton Local Aboriginal Land Council
Mutawintji Local Aboriginal Land Council
NSW Native Title Services Limited
Keith William Allison
Christopher Kym Andrews
Ross David and Colleen Frances Andrews
Kenneth William and Rosemary Anne Barnes
Barry Frederick and Christione Phillis Barraclough
Walter John Barraclough and Vera May Douglas Barraclough
James Arthur Bartholomaeus
Robert Malcolm Bartlett and Eveline Alexis Bartlett
Bawarra Pty Ltd
Glen Gene Bell; Nyoli Merle Bell, Craig Andrew Bell
Peter Robert Beven
Randall William Beven
Phillip Peter Blore
Terry Francis Blore
Jeffrey Langdon Bonython and Clara Wendy Bonython
Cleveland Jay Bright
Dallas Jay Bright
Darran Jay Bright
Rex and Deana Brunsdon
Brywent Pty Ltd; Robin Owen York Jackson
Christopher Raymond Byrnes
Edward James Byrnes and Patricia Susan Byrnes
Gerald Byrnes
Calzic Pty Ltd
Allan Charles Charmichael and William James John Carmichael
Carstairs Holdings Family Trust
Church’s Plumbing Supplies Pty Ltd
Leighton Clark
Col Cullinan, Comarto Station
Ian Edward Crossing
Graeme Ross Crozier and Catherine Marie Petrina Crozier
Mark Hurtle Crozier
Terry William Crozier
Kim Desmond Cullen
Danny Ronald and Susan Marie Currran
Anthony Charles Dakis and Helen Kay Dakis
Dalmorino Props (NSW) Pty Ltd, William Lindsay Scott Crozier
Arthur Bernard Davies
Edward William Davies and Beatrice Mary Davies
Roger F Day
Walter Thomas Dell, Maxine Lorraine Dell and Walter John Dell
Hugh Robert William Dettmann and Jennifer Mary Dettmann
Donald John Cullinan, Cherry Denice Cullinan, DJ & CD Cullinan Pty Ltd
Donald Robert Poulton, Dale Phyllis Poulton, Single Oak Pty Ltd
Anthony Sholto Douglas
Brendon Douglas Duncan, Maureen Therese Duncan and Glen Esk Pastoral
Ian Charles Edson and Trudy Nadine Edson
Robert James Edwards and Barbara Anne Edwards
Clarence Lawrence Elliott and Christine Gaye Elliott
Eric Nitscuke, Eric Nitscuke Family Trust
Ian David Farnsworth and Delma Joy Farnsworth
Maxwell Henry Follett
Gary Gaiter
John Gall
Lachlan John Gall
Richard Gates and Joanne Gates
Neil Edward Gibbons
Brendan R Gorman
William Sydney Grace
James Graham
Garry James Griffiths
Gulthul Pty Ltd
Malcolm John Hammat
Garry Ross Hannigan
Frank Murray Hanns and Mary Patricia Hanns
Alan Harris and Annie Harris
Douglas Linton Harrison
Ronald Harvy and Marilyn Peta Harvy
Arthur O’Hara Hayes and Jennifer Margaret Hayes
Anne Daphne Headon
Michael John Healy
Patrick Joseph Healy
Raymond Gerard Healy
Cynthia Heasyman
Foster John Heatley
Frederick Herring
Homfray Family Partnership
Elaine Laura Huddleston
Phillip Hudson and Daphne Hudson
John Gwynne Hughes
Kevin David Ingram and Robyn Anne Ingram
Inkerman Pastoral Co Pty Ltd
David Henry Jackson and Mary Jill Jackson
Jeremy John McClure for TJL McClure Pty Ltd
John Smith, Marlene Smith, Ricky Howard, Susan Howard
Wesley Judd and Kathleen Judd
Gaye Constance Kelly
Mary Margaret Knight and David William Knight
Philip Anthony Larwood and Christine Grace Larwood
Andrew John Lawrence and Vivienne Jean Lawrence
John Joseph Lawrence
Mark Lawrence and Jann Lawrence
Peter Lawrence
William Norman Lawrence and Anne Dorothy Lawrence
Graham Leckie and Julie Leckie
Thomas Henry Lee; Dawn Lee; Helen Patricia Lee; Daniel Thomas Lee
Neill Robert Leigo and Debra Anne Leigo
Stuart LeLievre
Lema Props
Limbra Pastoral Company Pty Ltd
David John Linklater and Denise Cheryl Linklater
William George Looney and Shirley Ann Looney
David Anthony Lord
John Montgomery Lord
William Laurence Mahy and Fae Linda Mahy
Mallara Station Partnership – Frank, Florence, Richard and Jennifer Smith
Mannahill Pastoral Services
Mark Alexander Withers and Lindy Maree Smith-Withers
Mark Etheridge, Megan Davies, M&M Pastoral Pty Ltd
Marrapina Station Pty Ltd
Bruce Marshall and Wendy Marshall
Eric John Martin and Hazel Dorothy Martin
Anthony Aloyius McGinty and Heather Ann McGinty
Campbell Addison McGrath
Paul McPherson and Christine McPherson
Michael Joseph Maher and Jeanna Danielle Dettington
Bryan Milne and Bronwyn Kaye Milne
MK Lush, D Lush, G Lush, JO Lush and BD Lush
George V Morton
Mount Manara Pastoral Company
Murray Edward Cramp, Cramps Pastoral Co Pty Ltd
Neil Howard, Lynnette Zell Howard, Chad Lloyd Howard, Hayley Natika – Zell Howard
John Arthur Nelson and Gillian Mary Nelson
Nesbit Rural Holdings. Partners are James Alfred O’Hara Nesbit, Jennifer Faye Nesbit, Martin Edward Nesbit
James Markham O’Connor
Philip Hurtle Palmer and Patricia Mary Palmer
Kevin Payne
Penrose Park Recreation Reserve Trust
Petro Pastoral Co Pty Ltd
Brett Anthony Pickering
John Ernest Pippin
Gregory John Pollard; Dianne Mary Pollard (Warrananga Proprietors)
Vera Jean Pollard (Warrananga Proprietors)
Polocara Pastoral Company Pty Ltd
Alexander Peter Pulver and Noreen Joy Pulver
Gary Arnold Radford
Raymond Joseph Byrnes and Luke Anthony Byrnes
Grahame Ronald Rees
Reginald Edgar Stanmore, Patricia Mary Stanmore, Christopher John Stanmore, Jane Margaret Stanmore
Terrence Remmert
Robert Charles Duncan Fo “Dunedin Park” Proprietors
Ian and Evelyn Robertson
Lee Scott Robertson
William Geoffrey Rodda and Barbara Valmai Rodda
Rodoni Engineering
Phillip Albert Rogers
Max Oliphant Russell,
John Famers Scobie
Robert Seekamp and Hillary Seekamp
Silverlea Incorporated
James Malcolm Skinner and Dinah Helena Skinner
Edwin Smith
Geoffrey Kenneth Smith and Vanessa Smith
Patrick William Smith and Lynda James Smith
Thomas Smith
Andrew Charles Spinks
Stephen Alfred Stewart Withers, Maxine Stuart Withers, Alfred Andrew Stewart Withers
Steven Keith Marwood, Sandra Louise Marwood or Belmore Farms
Laurence Walter Strachan and Kayleen Frances Strachan
Peter Geoffery Sullivan
Swiss Australian Farm Holdings Pty Ltd
Thomas John Symes
Arnold Taylor and Frederick Joseph Taylor
John Robert Jeffrey Taylor
Milton Douglas Taylor
Raymond V Tesseyman
Brian Gaffney Thomas
David James Turner
Graham Holbrook Turner and Judith Mary Turner
Kenneth Turner
John Vernon
Ian Walter Wakefield
Andrew Samuel Wall; Edward Alfred Neindorf; Sharyn Edith Neindorf; Kathryn Anne Wall
Allan Frederick Wembridge; Lorna Florence Wembridge; James Raymond Wembridge
Wenda Johnson, John Johnson, Cheryl Johnson
Alan Whyte
Maxine Yvonne Wilkinson and Roger Graham Wilkinson
William Alfred Anderson, Helen Patricia Anderson, Michael Christian Anderson,
Richard John Anderson
Neil Geoffrey Williams
Richard James Williams
Robert Bates Wilson
Wirryilka Pastoral Co Pty Ltd
Peter Malcolm Withers and Helen Withers
Wokabity Pty Ltd
Wyona Pty Ltd
Christopher Forrest and Shelley Forrest
Richard Dale Chapman and Grant Allan Chapman
Dominic Alfonzi and Marlene Alfonzi
Omah (Peter) Amjah
AngloGold Shanti Australia Limited
Arumpo Bentonite Pty Ltd
Iris Jean Baldwin
Basin Minerals Holdings NL (Title Holder), Bemax Resources NL (farminee)
George Leslie Baynes; Russell James Hann; Geoffrey Logan
Robert John Crawford and Anita Margaret Crawford
George Diamantes, James Dimantes
Wayne Donehue
Graeme R Dowton & Helen M Dowton
Neville A Dowton
Ronald Arthur Dowton and Susan Erica Dowton
Brian Eakin
Ellen Francis
Golden Cross Operations Pty Ltd
Barbara Jean Golya
Clair Louise Inness
Beryl Eileen Ireland
Peter Bruce Kemp
Kenneth Joseph King
Leo Studman and Beryl Metcalf
Macapika Pty Ltd
Irvan Robert McRae
Minex (SA) Pty Ltd, Minotaur Resources Ltd
Murray Basin Titanium Pty Ltd
Newcrest Operations Limited (N.O.L.)
David Charles Prendergast
Morton Edward Ritchie
Valerie Jean Ritchie
Leigh-Anne Rogers
Dieter Ruhl
Dorothea Anne Ruhl
David George Seaton
Vincenzo Sferruzzi
Sheila Young and Karl Brunnenmeyer
Glenys Smiley
Susan Mary Spangler
Stephen Hoare and Kathryn Ward
Unimin Australia Limited formerly Normandy Industrial Minerals Limited
William Neave Young, Sheila Mary Young, Robyn Cecelia Young
Denis Young
Malcolm Grant Anderson
Birdwood Proprietors
Broken Hill Licenced Butchers
Neville John Crisp
Jane Ruby Evans
Filmink Pty Ltd
Hillston Rural Lands Protection Board
Kelleen Holdings
Peter John Kiely and Dorothy Anne Kiely
Cecil Robert Frederick Leckie
Michael George Martin
Jane McClure and Murray Churchill McClure
Milparinka Rural Lands Protection Board
Patrick Arthur Murphy and Moya Grace Murphy
Pastoralists’ Association of West Darling
Pooncarie Hospital Reserve Trust
Ian Lewis and Lisa Gay Roberts
James Barry Robinson and Judith Robinson
Gwen Rowe
Alfio OrazioSapuppo; Vince Sapuppo; Maria Sapuppo
Nicholas Siemer
Silverton Temporary Common Trust
Margaret Annette Smith
Robert Neil Smith
South Western Water Users Association
Anne May Strain
Ian Milton Strain
Tom Ferdinand Willem Gerald Wynen and Jennifer Olive Law
Wanaaring Rural Lands Protection Board
John Thompson Waters
Wentworth Rural Lands Protection Board
Willotia Station Pty Ltd
John Malcolm Caskey
Clive Maxwell Linnett
James Edward Manns
Wheepool Pty Ltd
Transgrid
Broken Hill Speed Boat Club Inc.
Telstra Corporation Limited
Mutawintji National Park Board of Management
Lance Hilliard and Samantha Jane Hilliard
Frank Misali
Ian William Alexander and Susan Anne Alexander
Alingh Grove Pty Ltd
Douglas John Alvey and Susan Margaret Alvey
Raymond George Alvey and Margaret Beatrice Alvey
Andriske Vineyards Pty Ltd (Formerly Andriske(Paringi) Nominees Pty Ltd)
Gary Charles Andriske and Lin Baddock
Peter Bezzina and Julie Bezzina
Robert Alexander Blake and Lynette Joy Blake
Boeill Creek Holdings Pty Ltd
Boeill Creek Nursery Pty Ltd, Raymond Peter and Samantha Maria Formosa; Salvatore B Pensini and Patricia J Pensini
Boeill Creek Packers Pty Ltd
David Ross Bottom
Giovanna Cesco
Terry William Channing
Stephen Clarke
David Griffin Cox and Andrea Cox
V and M Cricelli
Croftwood Vineyards Pty Ltd
Danielle Vineyards Pty Ltd
Ian James Dowton
Alwyn Elstone and Joan Irene Elstone
Eureka Concrete Holdings Pty Ltd
Ann Louise Evers
Robert Farnsworth
James Michael Gilmartin; Elaine Joy Perry
Gregg & Sons (Steel) Pty Ltd
Brian Gregg and Sandra Gregg
Rodney Harvey and Coral Harvey
HC & E Farnsworth Pty Ltd
Gloria Hucker
Ian Robert Mansell, Ruth Enid Nansell, Robert Jeffery Nansell, Kenneth Allan Mansell, Jeanette Ruth Mason, Denise Margaret Pragt
Janette Loveday and Andriske Loveday, Robin Harold Lloyd
Barrie Blair McMillan and Nola Joy MacMillan
Charles Anthony Mangan; Julie Ann Mangan; Peter Kotsoronis
Mansell Farms (Family Partnership), Ian Robert Mansell, Ruth Enid Mansell, Robert Jeffery Mansell, Julie Lorraine Mansell, Kenneth Allan Mansell, Anne Elizabeth Mansell
Vaughan Marshall
Anthony James McCarten
Stella Margaret McCarten
Allison McTaggart and Graham Richardson
Merbein Investments Pty Ltd
John Metcalf
Mildura Equity Chambers Management Pty Ltd (ACN 005 063 294)
Dennis Cameron Mills and Margot Barbara Mills
Frank Modica
Mourquong Co-op Rural Society Ltd
Richard Kevin Munro and Helen Jean Munro
Ian Murdoch and Robyn Joy Murdoch
Nakorn Pty Ltd
Rocco Panuccio
Pasminco Limited
Piave Sand & Earthmoving
Mario Carmelo Ralli
Ian Lewis Roberts
Orazia Sapuppo and Patricia Sapuppo
Janine Margaret Smith
Rodger McLeod Smith and Anne Maree Smith
Stanley Wine Co Pty Ltd
Kenneth Edward Stubbs and Nannette Mary Stubbs
Summer Gove Pty Ltd
Table Grape Growers of Australia Pty Ltd
Adam Thompson
Triako Resources Limited (ABN 46 008 498 119)
Gregory James Turner
Stanley John Webley and Jennifer Jean Webley
Western Murray Irrigation Limited
Pamela Janette White
Virginia Ann White
P and J Whitfield
Wilcannia Rural Lands Protection Board
Peter Geoffrey Wilson
Windtan Pty Ltd
Alanford Pty Ltd
Aljor Developments Pty ltd
Roderick Campbell Baird and Alice Anne Baird
Wayne Maxwell Barnfield and Delwyn Barnfield
Jane Angel Benson
Beven Pastoral
Joseph Alan Bunyan
Cantrade Pty Ltd
Brian Wayne Casey and Joan Maree Casey
Stephen Cresswell and Sophia Cresswell
Peter Crisp
Brian Patrick Michael Cullinan
Estate of the late Sydney George Maynard
Francis Fitzgerald, Michael James Fitzgerald, Peter Dennis Fitzgerald
Robin Gebert and Margaret Gebert
Diane Angel Gibson
Grazing Investments Pty Ltd, John Alex Elliott and Dianne June Elliott trading as Moira Plains Co.
Guiseppe Simonetta, Antony Simonetta, Mario Simonetta
Mitchell James Harrison
John Hederics
Beverley Howse
J. B Garde Nominees Pty Ltd (ACN 005 646 015), James Bruce Garde, Robert Bruce Garde
Robert William Jolley and Evelyn Marjorie Jolley
Steven James Kiel
Donald Bach Langford
Niki Lisandros and Konstatine Karanicolos
Peter John Lush and Beverley Anne Lush
Dudley Marrows
Malcolm James Maynard
Colin Michael Middleton
Minda Proprietors
Ian Morrison and Robyn Dianne Morrison
Peter Neate and Raelene Neate
Official Trustee in Bankruptcy of Estate of Kuzu (VIC 1910/1993)
Ormond Murdoch McLeod and Roderick Murray McLeod
Giuseppe Pagano and Elizabeth Pagano
Powercor Australia Ltd
Adrian Ribarits, Simon Ribarits, Anthony Ribarits
Richard Ernest Danson, Heather Danson, Terrence Norman Jones, Judith Ann Danson (formerly McLauchlan), Helen Jean Munro
Jeffrey Michael Smith and Susan Jane Smith
Margaret Jean Smith and Daryl Francis Smith
Tandou Limited
Gregory Phillip Taylor
John Gait Vagg
Kevin John Voullaire; Margaret Patricia Voullaire; Ernst Henry Voullaire, Rodney James Voullaire
Willaim Patrick Wilkes, Genevieve Katherine Wilkes, “Moornanyah” Pastoral Co P/L
Acutt Holdings Pty Ltd
Reginald James Hall; Thegoa Pastoral Co Pty Ltd
Nicola Argiro
Buronga Hill Pty Ltd
Simeon Wines Limited
Kevin Emmins and Glen Emmins
