FEDERAL COURT OF AUSTRALIA

GORDON CHARLIE v CAPE YORK LAND COUNCIL [2006] FCA 1418

NATIVE TITLE – application for an interim injunction to restrain the conduct of an authorisation meeting at Hope Vale convened by the Cape York Land Council in connection with a Native Title Determination Application by the Dingaal claim group.

Native Title Act 1993 (Cth), ss 66B, 203B, 203BA, 203BB, 203AI, 203BC, 203BJ, 203BI, 251B

GORDON CHARLIE v CAPE YORK LAND COUNCIL

QUD426 OF 2006

GREENWOOD J

31 OCTOBER 2006

BRISBANE

THE COURT ORDERS THAT:

1. The Notice of Motion filed by the Applicant on 30 October 2006 is dismissed.

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

REASONS FOR JUDGMENT

1 I have before me an Application for an Interim Injunction to restrain the Cape York Land Council (‘CYLC’) from holding an authorisation meeting at 11.00am at Hope Vale this morning or at any other time for the purpose of varying Dingaal Native Title Application 6004/98 to include other identified groups as proposed in the Notice of Meeting despatched by the Respondent enclosed with a letter dated 17 October 2006, until further order.

2 The Application for the Interim Injunction was heard at 8.30am today.

3 The interim order is sought in aid of final relief sought in these terms:

‘Final Relief

2. A declaration that the Respondent has failed to comply with its statutory duty pursuant to Section 203BB(1) of the Native Title Act 1993 as representative body to facilitate and assist the Brim Family in and around Kuranda being persons who may hold native title to participate in Native Title Application 6004/98 despite requests to do so.’

4 Other consequential orders sought by the Applicant include orders directing the Respondent to facilitate preparation of an anthropological report by a Court appointed expert to examine the connection, if any, which the Brim Family Group has with the Dingaal native title claim group and an order to ensure that in the event that such a group is part of the Dingaal native title claim group that the Brim Family Group is treated in a fair manner in the provision of appropriate notice of proposed native title meetings and in the timing and location of such meetings having regard to the size of the Brim Family Group and its remoteness from Hope Vale (including the provision of transport where reasonably required).

5 The Applicant in the present proceedings is Gordon Charlie. In support of the Application for the Interim Order, Gordon Charlie swore an affidavit in which he deposes to these factual contentions:

(a) Gordon Charlie is the most senior elder of the Dingaal People. The Dingaal People are the traditional owners of lands and islands at and around Cape Flattery which is approximately 60 kilometres north of Cooktown in far North Queensland.

(b) On 8 December 1997, Justice Beaumont made a native title consent determination which recognised the common law native title of various clans in connection with lands at Hope Vale of which the Dingaal People were one. Gordon Charlie was an applicant in that proceeding (QC94/6).

(c) The Charlie Family has a very close connection with the lands at and around Cape Flattery and the off‑shore islands from Cape Flattery. The original Aboriginal name of the Charlie Family is Dingaal.

(d) The Charlie Family incorporates a sub‑group described as the Brims. The Brims have resided in the Northern Tablelands in and around Kuranda for a significant period however they trace their genealogy to a Charlie ancestor who was transferred to that area by way of the Mission system from Cape Flattery/Cape Bedford in the late 1800s.

(e) A Genealogy Chart (attached to the affidavit) is said to demonstrate a connection between the Charlie and Brim families which was agreed upon by Gordon Charlie’s late uncle, Dan Charlie and a researcher from James Cook University, Mr Henry Baru, in or about 1994. Henry Baru, now deceased, was the elder of the Baru/Yoren family who now make up the majority of the Applicants progressing the native title claim in connection with Lizard Island and off‑shore islands from Cape Flattery (QUD6004/98).

(f) For many years the Charlies and Brims have visited each other and interacted as a close community. Over the years, the Brims have become established in and around the Kuranda area and visited Hope Vale from time to time and their traditional land. The Brims have resisted moving to Hope Vale due to tension with the Baru and Yoren families, the presence of a large silica mine at Cape Flattery and by reason of the presence of a massacre site on the traditional lands disturbed by silica mining. Gordon Charlie says that it was his intention to ensure that the Brims were included in any native title claim made by the Dingaal or Yoren families although the traditional owners in and around Cape Flattery do not bear the Dingaal name but rather the name Biddi Baru. The Brims, however, are sub‑group members of the Charlie family. The Biddi Baru Group has usurped the Dingaal name.

(g) At all times, Gordon Charlie made anthropologists who contacted him about connection issues aware of the connection between the Charlies and the Brims.

(h) The mainland portion of the claim made by Gordon Charlie as Applicant on behalf of the Dingaal People (QC94/6) was excised from the Lizard Island claim. The claim in respect of Lizard Island and the remaining islands was not progressed. A fresh Dingaal claim (QC6004/98) was filed. The Applicants on behalf of the Dingaal claim group included Gordon Charlie and Jonathon Charlie.

(i) On 14 April 2003, at a meeting held at Hope Vale of claim group members, resolutions were passed that had the effect of removing the authority of Gordon Charlie and Jonathon Charlie to make a claim for and act as applicants in connection with the native title claim on behalf of the claim group. These resolutions represent a renunciation of traditional Dingaal law and custom in removing the senior elder as the individual entitled to make such a claim.

(j) Approximately 70 members of the Charlie and Brim family groups from the Kuranda area have signed a mandate which recognises Gordon Charlie as senior Elder and spokesperson for the signatories and indicates that at least 70 members of the Dingaal clan oppose other clans being joined as clan group members in QUD6004/98. At least 180 people in and around Kuranda area are said to have a family connection to the Charlie/Brim line. The signatories to the mandate have expressed views to Gordon Charlie that the introduction of other clans who do no have an affiliation with Lizard Island into the claim group will cause difficulties in satisfying the registration test for the purposes of the Native Title Act 1993 (Cth) (‘the Act’).

(k) On 28 February 2006 and 1 March 2006, a meeting took place at Hope Vale of claim group members who resolved to include within the claim group members of the Thanil, Nguuruumungu, Gulaal, Ngaatha and Thittaar groups. Gordon Charlie and other Dingaal People from the Northern Tablelands were not able to attend the meeting as Marlene Thompson failed to arrive so as to drive those individuals to the meeting.

(l) On 17 October 2006, the Cape York Land Council sent Gordon Charlie a letter attaching a notice of meeting to be held on Tuesday, 31 October 2006. By that notice, the Land Council invited all Dingaal, Ngaathawarra, Thittaar, Nguuruumungu, Thanil and Gulaal Peoples to attend an authorisation meeting to discuss amending the native title application on behalf of the Dingaal People to include other identified groups in the Dingaal native title claim. The purpose of the meeting was also to discuss any other variations to the Native Title application. The Land Council encouraged all members of the claimant groups to attend and in the covering letter said, ‘Please contact us as soon as possible if you require transport or will not be available to attend the meeting. If you would like to know more about the meeting please contact Simon Downing or Kathrine Scott on free call 1800 623 548’.

(m) On 20 October 2006, Gordon Charlie wrote to the Land Council advising that approximately 85 people would need to travel to the meeting and because of an apprehension about fights and threats, those attendees would require a security guard for the two days whilst those members were present at Hope Vale for the meeting. Gordon Charlie has not received a response to that letter.

(n) Gordon Charlie says that he has spoken to a number of the Brims about the meeting. They are concerned that other clans will be added to the Dingaal claim for Lizard Island; that there has been insufficient notice given to them about the meeting, that the Brims have not been directly notified of the meeting; that the meeting will take place in the Hope Vale community centre and other clans will be present; that they will be subjected to threats and intimidation; that the meeting is to take place on a work day and therefore clan members will be disadvantaged and that a significant number of the Dingaal People will thus be excluded from the authorisation process and not have a representative from their family on the Applicant group.

6 The Application is made pursuant to s 69(2) of Division 1A of the Act on the footing that the Application is one ‘in relation to a matter arising under this Act’. Since the interim relief is sought in aid of a declaration (and consequential orders) that the CYLC has failed to discharge obligations cast upon it by s 203BB(1) of the Act, I accept for interlocutory purposes that the Application relates to a matter under the Act.

7 On 14 April 2003, a meeting of clan group members took place at Hope Vale. Those members attending the meeting voted unanimously to continue with the meeting notwithstanding objections in writing by Gordon Charlie which were read to the meeting. Resolutions were passed at that meeting withdrawing the continuing authority of Gordon Charlie and Jonathon Charlie to continue to act as applicants. Resolutions were passed authorising Gary Yoren, Ned Yoren and Elaine Baru to act as applicants on behalf of the claim group in lieu of Gordon Charlie and Jonathon Charlie. An application was then made to the Court for an order pursuant to s 66B(1) of the Act that Gordon Charlie and Jonathon Charlie be replaced as ‘current applicants’ on behalf of the claim group by Gary Yoren, Ned Yoren and Elaine Baru.

8 On 17 September 2003, Cooper J considered that application and found that notwithstanding Gordon Charlie’s contention that the traditional law and custom of the Dingaal People meant that only Gordon Charlie was entitled and thereby authorised to make a claim for native title on behalf of the claim group, there was no acceptable evidence of any such traditional law and custom and Cooper J was not prepared to find the existence of such a law or custom; and that the applicants on the motion were authorised by the meeting on 14 April 2003 for the purposes of s 251B(b) of the Act to make the application and be appointed as applicants on behalf of the claim group in lieu of Gordon Charlie and Jonathon Charlie. Cooper J made an order pursuant to s 66B(1) of the Act replacing Gordon Charlie and Jonathon Charlie as authorised applicants and made an order granting leave to the applicants to amend the Native Title Claimant Application.

9 On 28 February 2006 and 1 March 2006 at the Church Hall in Hope Vale, Dingaal clan group members met to consider, the registration test to be applied by the National Native Title Tribunal (‘NNTT’) on 1 May 2006, the current state of the native title claim, a presentation by the NNTT, a report and presentation by Dr Fiona Powell, a Consultant Anthropologist, proposed changes to the native title claim and future tasks to be undertaken by the Cape York Land Council. The meeting was attended by the applicants on behalf of the claim group, family representatives of the claim group, CYLC representatives, NNTT representatives and Dr Fiona Powell.

10 Based upon the presentation by NNTT representatives and a presentation concerning an anthropological overview of research conducted in the claim area by Dr Powell, the claim group, having considered those matters overnight on 28 February 2006, unanimously resolved to amend the Dingaal native title claim and include other groups, namely, Thanil, Nguuruumungu, Gulaal, Ngaatha and Thittaar. The tasks to be discharged by the CYLC included amendment of the applicant’s list to include Amanda Baru as a replacement applicant in the light of the death of one of the applicants, an application to the NNTT for an extension of the date for the registration test to be applied to the Dingaal claim, the convening of meetings of the five nominated clan groups to be joined in the Dingaal claim to discuss whether those claim groups wished to be included in the Dingaal claim, the convening of a meeting of all groups to provide information on the progress of the claim and the conduct of further discussions with Dr Fiona Powell about the process involved in compiling a connection report.

11 A letter confirming all of these matters was sent to Gordon Charlie on 24 March 2006 by the CYLC. A further letter was sent to Gordon Charlie on 24 May 2006 by the CYLC further confirming those matters and advising Gordon Charlie that although an extension of the Application of the registration test had been sought from the NNTT, the registration test would be applied on 31 May 2006 and that:

‘The Dingaal claim requires more work for it to pass the registration test which will be re-applied after we have made the necessary changes to the claim. As discussed at the last meeting, this may involve changing the size of the claim area and including other groups in the claim. The attached work plan sets out the steps we need to take in order to make those changes. Please see Part B on page 2 that sets out the time table for meetings, anthropological work and amending the application. …’

12 On 17 October 2006, the CYLC wrote to Gordon Charlie enclosing the Notice of Meeting of clan members to consider and, if thought appropriate, authorise the amendment of the Native Title Application to include other groups and make any other amendments to the Application that might arise. That meeting was expressly contemplated in the letters of 24 March 2006 and 24 May 2006. The covering letter of 17 October 2006 requested Gordon Charlie to contact the CYLC specifically in relation to transport requests and generally. Gordon Charlie on 20 October 2006 wrote to the CYLC advising that 85 people sought travel assistance and that a private security guard would need to be available for two days.

13 At no time after the receipt of the letters dated 24 March 2006 and 24 May 2006 from the CYLC did Gordon Charlie, on the evidence, write to the CYLC and set out those matters contended for by paragraphs 5(d), (e), (f) and (g). On 30 October 2006, the solicitors for Gordon Charlie sought to bring on this ex parte Application which was heard early this morning. Plainly, the CYLC has incurred considerable cost in convening the meeting of group members and clan members and the delay and dislocation caused by enjoining the meeting will inflict significant prejudice upon the Applicant representatives for the claim group, the claim group members and, in addition, the CYLC in the provision of support to claim group members in the prosecution of the Native Title Application. The Applicant comes to the Court at the last minute. The delay in agitating the matter is considerable. It seems to me that the balance of convenience lies in favour of allowing the meeting to proceed to consider and determine the matters before it.

14 Apart from the balance of convenience issue, the threshold matter involves an assessment of the basis upon which Gordon Charlie contends, as a matter of law, that the convening of the meeting by the CYLC and the consideration by the claim group and those attending the meeting of the particular questions to be resolved, gives rise to an arguable question of a contravention of the rights owed by the CYLC to Gordon Charlie or duties to be discharged by the CYLC, a breach of which is actionable by Gordon Charlie.

15 The central matters seems to be that a sub‑group of the Dingaal, the Brims, have not been recognised as legitimate claim group members having a connection with the lands, the subject of the Native Title Claim Application. Because the Brims have not been so recognised, they have not received a Notice of Meeting and are not in a position to attend the meeting. Although Gordon Charlie says that he has told anthropologists of the genealogy link and the visitation arrangements between the Brims and the Charlies (5(f), 5(g)), there is no material demonstrating an arguable case of connection on the part of the Brims with the claim area such as an anthropology report or a draft preliminary research opinion. The extent of the connection is a recognition by some Brim members that Gordon Charlie is the representative of Brim signatories to a ‘Mandate’ document and that the Brims and the Charlies ‘visited each other and interacted as a close community’ (5(f)). I am not satisfied that the Applicant has demonstrated an arguable question of claim group connection on the part of the Brims with the lands the subject of the Application.

16 In any event, the contended recognised Elder of the Brims, Gordon Charlie, did receive the Notice of Meeting of 17 October 2006 despatched by the CYLC.

17 In reporting on 24 March 2006 on the outcome of the deliberations of the meeting on 28 February 2006 continued on 1 March 2006, the CYLC advised Gordon Charlie that Dr Fiona Powell had provided an overview based upon her field work in the claim area as an anthropologist of the need to address any rights and interests of other groups that share the claim area with the Dingaal. Those other groups were the five additional groups previously mentioned. There is no suggestion in that overview of any emergent anthropological evidence of rights or interests, based upon field work conducted in the claim area, on behalf of the Brims.

18 The genealogical chart attached to Gordon Charlie’s affidavit dealing with the interconnection between the Charlies and the Brims makes reference to Toby Brim ‘born around 1867 near Kuranda’ as the child of ‘Tji Auwin and Annie’. On 17 December 2004, Spender J made a determination that native title exists in relation to lands described by paragraph 1 of his Honour’s order in favour of the Djabugay People being a determination arising out of a Native Title Claim Group Application on behalf of the Djabugay People the ancestors of which, identified by Schedule A of the Application for the purposes of s 61 of the Act, included, as the first two ancestors, ‘Toby Brim and Annie Hunter’. There therefore seems to be a real question as to whether the Brims represent a claim group which have been the subject of an existing determination for the purposes of the Act.

19 Gordon Charlie asserts rights of participation in relevant meetings convened by the CYLC which, on the material, seem to be rights or entitlements enjoyed by the Brim Group. Even though Gordon Charlie contends that the Brims are a sub‑group of the Charlies, they are nevertheless a separate sub‑group. The contentions advanced in this Application ought really to be advanced by the Brims. Gordon Charlie relies upon a ‘Mandate’ document (annexed to his affidavit marked ‘H’) signed by 70 individuals comprising the Charlies and the Brims from the Kuranda area which contains a provision in these terms:

‘We mandate that Gordon Charlie is our Elder who is our clan representative has the full authorisation of we as clan members, which is based on traditional customs and we support our Elder in all decisions that he makes as this is the decision-making process that was handed down to us for centuries and that we still practice traditionally.’

20 In that sense, Gordon Charlie speaks for and represents the Brims. In truth, he brings the proceedings in a representative capacity and in that regard it will be necessary for the Applicant to demonstrate a proper basis for the proceeding consistent with ss 69 and 70 of the Act and the Federal Court Rules. For the purposes of the present interlocutory Application, I proceed on the footing that Gordon Charlie brings the proceeding as a representative of the Brims in reliance upon the provision of the mandate document described at [19]. Mr Black, the solicitor for Gordon Charlie, accepts that the Applicant brings the proceeding on behalf of the Brims in reliance upon the mandate document and traditional law and custom.

21 Gordon Charlie says that the Cape York Land Council has failed to discharge the ‘facilitation and assistance function’ cast upon it by ss 203B(1)(a) and 203BB of the Act. Section 203BA(2) provides that such a function is to be performed in the manner that:

‘(2)(a) maintains administrative processes that promote the satisfactory representation by the body of native title holders and persons who may hold native title in the area for which it is the representative body; and

(b) maintains administrative processes that promote effective consultation with Aboriginal peoples and Torres Strait Islanders living in the area for which it is the representative body; and

(c) ensures that the processes operate in a fair manner, having particular regard to the matters set out in paragraphs 203AI(2)(a) to (f).’

22 The matters set out in paragraphs 203AI(2)(a) to (f) address the criteria for determining fairness.

23 Section 203BB sets out the facilitation and assistance functions of a representative body in these terms:

‘(a) To research and prepare native title applications, and to facilitate research into, preparation of and making of native title applications; and

(b) To assist registered native title bodies corporate, native title holders and persons who may hold native title (including by representing them or facilitating their representation) in consultation, mediations, negotiations and proceedings relating to the following:

(i) native title applications;

(ii) future acts;

(iii) indigenous land use agreements or other agreements in relation to native title;

(iv) rights of access conferred under the Act or otherwise;

(v) any other matters relating to native title or to the operation of this Act.’

24 Section 203BC provides direction as to ‘how facilitation and assistance functions are to be performed’. That section provides, in relevant parts, as follows:

‘203BC (1) General In performing its facilitation and assistance functions in relation to any matter, a representative body must:

(a) consult with, and have regard to the interests of, any registered native title bodies corporate, native title holders or persons who may hold native title who are affected by the matter; and

(b) if the matter involves the representative body representing such bodies corporate, native title holders or persons – be satisfied they understand and consent to any general course of action that the representative body takes on their behalf in relation to the matter.

(2) Consent of native title holders etc. For the purposes of paragraph 1(b), a native title holder or person who may hold native title is taken to have consented to action if:

(a) where there is a process of decision‑making that, under the traditional laws and customs of the group to which he or she belongs, must be complied with in relation to giving consent of that kind – the consent was given in accordance with that process; or

(b) where there is no such process of decision‑making – the consent was given in accordance with a process of decision‑making agreed to and adopted by the members of the group to which he or she belongs in relation to giving the consent or giving consent of that kind.’

25 Section 203BJ confers other functions upon a representative body and the additional function relied upon by the Applicant is that conferred by s 203BJ(b) in these terms:

‘(b) as far as is reasonably practicable, identify persons who may hold native title in the area for which the body is the representative body.’

26 Although the Applicant contends that the Brims have not properly been given notice of the meeting, the primary contention in the Applicant’s written submissions is that the CYLC has failed to discharge its facilitation and assistance function by failing to have regard to the Dingaal claim group members’ interests by failing to recognise that the Dingaals ‘have far and away the best claim for native title over Lizard Island and surrounding islands’ and that ‘it is likely that a larger claim with a number of parties and groups added on will fail the registration test on the basis that a connection to all groups will not be found’. The Applicant contends that the CYLC has failed to have regard to the interests of the Dingaal claim group; has failed to be satisfied that that group consents to any general course of action; has failed to promote the satisfactory representation of native title holders; has failed to maintain a process that promotes consultation and operates in a fair manner; and has failed to assist Dingaal claim group members and Brim sub‑group members in consultations, negotiations and proceedings in relation to the Native Title Application.

27 The CYLC has established a process to isolate and determine those claim groups which may be in a position to establish, based upon research conducted in the claim area and otherwise, a connection with the lands the subject of the claims and thus identifiable common law native title rights and interests. That process has brought together claim group members on behalf of the Dingaal claim group, family representatives and applicants for a native title determination for the Dingaal claim group. In addition, a process has been established by the CYLC for the implementation of particular tasks reflected in the letters of 24 March 2006 and 24 May 2006 and a Work Plan which is designed to identify other groups which have established a basis for a shared connection with the claim area. The CYLC has identified steps designed to amend the Application both as to the area and the claimant groups, among other steps. There is no evidence in any of the material that the CYLC has failed to discharge any of the obligations conferred upon it by ss 203BA, 203BB, 203BC or 203BJ. As to s 203BJ(b), there is no evidence that the CYLC has failed to identify persons who may hold native title in the area the subject of the claim for which the body is the representative body. That function, of course, is not absolute, it is a function to be discharged ‘as far as is reasonably practicable’. The CYLC has established processes reflected in the correspondence, Work Plan and steps taken to convene meetings of relevant claim group members or those members asserting interests in respect of the lands the subject of the claim, to discharge that obligation. Members of the Dingaal claim group have participated in those meetings and, in particular, the ‘applicants’ on behalf of the Dingaal claim group. Questions of whether the Dingaal claim group have ‘by far and away the best claim’ and whether other claim groups should be ‘added on’ and the extent to which such a course will affect the application of the registration test are all matters to be considered by the applicants and those claim group members participating in meetings convened by the CYLC.

28 An additional question arises as to whether intervention by the Court is, in any event, appropriate.

29 Section 203BI provides for an internal review function of a representative body, in these terms:

‘203BI The internal review functions of a representative body are:

(a) to provide a process for registered native title bodies corporate, native title holders and persons who may hold native title to seek review by the representative body of its decisions and actions, made or taken in the performance of its functions or the exercise of its powers, that affect them; and

(b) to publicise that process appropriately.’

30 The matters that are the subject of the present criticism of the CYLC arguably seem to be matters which ought properly be brought within the review process, contemplated by the Act.

31 A further question is whether in seeking an interim injunction in respect of the performance by the CYLC of duties conferred upon it by the Act, the Applicant has standing (apart from any representative question) to seek orders which compel the performance of the public statutory duty by a body such as the CYLC. I do not propose to examine that question further but it raises another issue concerning the soundness of the arguable question as to a cause of action in the Applicant.

32 The remaining ground on behalf of the Applicant is that the CYLC failed to give reasonable notice to claim group members. The Notice of Meeting was issued on or about 17 October 2006 enclosed with a letter. The Applicant responded to that letter on 20 October 2006, 11 days before the meeting, requesting transport assistance but sought to impose terms that a security guard be provided for the two day meeting. I am not satisfied that the Notice of Meeting was too short. The CYLC extended an invitation to provide transport support but the Applicant sought to impose terms upon that support, in effect, rejecting the facilitation of transport. I am not satisfied that there is either a failure to perform functions on the part of the CYLC, in this respect.

33 Accordingly, I propose to dismiss the motion filed by the Applicant on 30 October 2006.

Associate:

Dated: 31 October 2006