FEDERAL COURT OF AUSTRALIA

Sambo v State of Western Australia [2008] FCA 1575

NATIVE TITLE – members of applicant in a native title determination claim did not cooperate with other members of the applicant ‑ whether a member of an applicant can be removed as a party by reference to O 6 r 9 of the Federal Court Rules

Native Title Act 1993 (Cth) ss 64(5), 66B, 66B(1)(a), 66B(1)(b), 251B

Native Title Amendment (Technical Amendments) Act 2007 (Cth)

Federal Court Rules O 6 r 9, O 80

Native Title Amendment (Technical Amendments) Bill 2007 (Cth),

Explanatory Memorandum

Chapman v Queensland (2007) 159 FCR 507

Butchulla People v Queensland (2006) 154 FCR 233

Doolan v Native Title Registrar (2007) 158 FCR 56

Daniel v State of Western Australia (2002) 194 ALR 278

DENNIS SAMBO AND OTHERS v STATE OF WESTERN AUSTRALIA AND OTHERS

wad 65 of 1998

siopis j

22 october 2008

perth

THE COURT ORDERS THAT:

1.                  The notice of motion dated 5 November 2007 is dismissed.

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

REASONS FOR JUDGMENT

1                     The applicant in this proceeding for a native title determination in the Central West Goldfields region of Western Australia is comprised of seven persons.  They are Dennis Sambo, Elizabeth Sambo, Carlene Sceghi, Linda Champion, Nancy Wilson, Sue Wyatt and Victor Cooper.  There is a schism between the first five named persons, and Ms Wyatt and her brother, Mr Cooper.  The first five named persons seek by this application to have Ms Wyatt and Mr Cooper removed as “parties” to this proceeding.

BACKGROUND

2                     Relations between the first five named persons and Ms Wyatt and Mr Cooper have broken down – this has been the case for sometime.  Ms Wyatt and Mr Cooper have stopped attending meetings of the applicant group.  They have opposed a proposal made by the rest of the members of the applicant group for the appointment of a trustee under a land use agreement that the applicant group entered into with Portman Iron Ore Limited on 12 July 2002.  In the absence of the appointment of a trustee, Portman has refused to make any payments under the agreement and has placed the amounts due in an interest bearing account.  The rest of the applicant group have applied to the Supreme Court of Western Australia for orders that the court appoint a trustee notwithstanding that Ms Wyatt and Mr Cooper refuse to consent thereto.  Ms Wyatt and Mr Cooper have sought separate representation in that proceeding.  There is also uncontradicted evidence that Ms Wyatt and Mr Cooper have taken a different view to the rest of the members of the applicant group in relation to other future act applications with the result that the intervention of the National Native Title Tribunal has been necessary.

3                     Further, it is said that Ms Wyatt and Mr Cooper have not cooperated with the rest of the members of the applicant in progressing this native title claim.  The uncontested evidence is that Ms Wyatt and Mr Cooper have failed to respond to requests from the legal representative of the rest of the members of the applicant to provide substantial connection evidence relating to their place in the claim group.  Further, for a time Ms Wyatt and Mr Cooper sought to be separately represented in this proceeding.

4                     On 5 November 2007, the first five named members of the applicant (the applicant movers) filed a notice of motion seeking orders that Ms Wyatt and Mr Cooper be removed as applicants and that the Register of Native Title Claims be amended accordingly.

5                     The evidence relied on by the applicant movers comprises affidavits from Ms Sambo, one of the applicant movers, and Mr Shayne Daley, their solicitor.  I issued a certificate under O 80 of the Federal Court Rules (the Rules) so that Ms Wyatt and Mr Cooper could have representation before the Court.  Ms Wyatt and Mr Cooper did not read any affidavits.

6                     No claim group meeting has been held to authorise the removal of Ms Wyatt and Mr Cooper and to approve the applicant movers making this application for the replacement of the applicant, with a differently constituted applicant.  Ms Sambo deposed that convening a claim group meeting of the Central West Native Title Claim group would involve considerable expense, time and other personal resources because members of the claim group live in places widely dispersed.  Ms Sambo estimated that up to 300 members of the claim group live in South Australia or in areas of Western Australia from which they would need to travel for more than half a day to attend a claim group meeting, likely to be held in Kalgoorlie.  These members would then need to arrange accommodation in Kalgoorlie.  Ms Sambo also estimated that the direct costs of holding a meeting would range from $10,000 to upwards of $20,000, which would include notification and advertising costs, venue hire costs, meals, accommodation and fuel and travel expenses.  She said that it would also be difficult for the claim group to organise a meeting and arrange the logistics.  She noted that many of the applicants and their families do not have the resources to pay for these costs.

7                     Ms Sambo further deposed that even if a claim group meeting was held, she was not confident that Ms Wyatt and Mr Cooper would be removed as members of the applicant.  Ms Sambo also pointed out that there had been a claim group meeting to approve the current members of the applicant group and that from 1999 to 2003 the Goldfields Land and Sea Council paid the costs of the claim group meetings.  At such meetings, the claim group members adopted a decision‑making process, as there is no traditional decision‑making process that must be complied with in matters of this nature.

8                     The applicant movers rely primarily on O 6 r 9 of the Rules, rather than s 66B of the Native Title Act 1993 (Cth) (the Act) in support of their motion.

9                     The applicant movers contend that the conduct of Ms Wyatt and Mr Cooper has hindered the native title claim application and that the Court should find that they have ceased to be proper or necessary parties to a proceeding within the meaning of O 6 r 9(b) of the Rules.  The applicant movers also submit that the applicant members were authorised on the basis that they were willing and able to act reasonably in the timely management and advancement of the claim and in other ancillary matters.  It is said further that no authorisation of the persons comprising the applicant could be reasonably construed as permitting the conduct alleged in respect of Ms Wyatt and Mr Cooper.  The conduct of Ms Wyatt and Mr Cooper shows that they are no longer willing and able to act as members of the applicant.

CAN MS WYATT AND MR COOPER BE REMOVED BY REFEREENCE TO o6 R 9 OF THE RULES

10                  The main issue is whether Ms Wyatt and Mr Cooper can be removed as members of the applicant by reference to O 6 r 9 of the Rules, or whether, as the other parties submit, s 66B of the Act is the only method by which an applicant in a native title proceeding can be altered.

11                  Order 6 r 9 of the Rules provides:

If a person:

(a)        has been improperly or unnecessarily joined as a party to a proceeding; or

(b)       has ceased to be a proper or necessary party to a proceeding;

the Court may order that the person cease to be a party and make orders for the further conduct of the proceeding.

12                  Section 66B of the Act provides:

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)        one or more of the following applies to a person who is, either alone or jointly with one or more other persons, the current applicant:

(i)         the person consents to his or her replacement or removal;

(ii)                the person has died or become incapacitated;

(iii)               the person is no longer authorised by the claim group to make the application and to deal with matters arising in relation to it;

(iv)       the person 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.

Registrar of Federal Court to notify Native Title Registrar

(3)       If the Court makes the order, the Registrar of the Federal Court must, as soon as practicable, notify the Native Title Registrar of the name and address for service of the person who is, or the persons who are, the new applicant.

Register to be updated

(4)       If the claim contained in the application is on the Register of Native Title Claims, the Registrar must amend the Register to reflect the order.

(Original emphasis.)

13                  Section 251B of the Act provides:

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.

(Original emphasis.)

14                  The applicant movers rely particularly on the authority of Chapman v Queensland (2007) 159 FCR 507 (Chapman) to support their argument that Ms Wyatt and Mr Cooper could and should be removed as members of the applicant pursuant to O 6 r 9 of the Rules.  The other parties submit that Chapman should not be followed.

15                  In Chapman, Kiefel J removed as a “party” to a native title proceeding, each of three of the persons comprising the named applicant.  One of those persons was deceased and Kiefel J found that the other two had evinced an intention to no longer act in a representative capacity because they had failed to cooperate with the other members of the applicant and failed to attend meetings of the applicant group.  Kiefel J found that the three members of the applicant were not proper or necessary parties to the proceeding within the meaning of O 6 r 9 of the Rules, and removed them as parties on that basis.  In coming to this conclusion Kiefel J followed her decision in Butchulla People v Queensland (2006) 154 FCR 233 (Butchulla People).

16                  Before examining the reasoning of Kiefel J in Butchulla People and Chapman, it is necessary to record that at the time of each of those decisions the Act was, in important respects, different to its current form.  First, s 66B(1) then provided:

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.

(Original emphasis.)

17                  Secondly, the Act also contained s 64(5) which provided as follows:

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 claim 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).

18                  In Butchulla People, two persons comprising the applicant did not wish to act in that capacity notwithstanding that they had previously consented to do so at a meeting of the claim group.  The respondents to the motion submitted that another authorisation meeting had to be convened before the remaining persons could act as the applicant.  They submitted that the “applicant” authorised for the purpose of the bringing of the native title proceeding had “something of a corporate character” and could not be viewed as being made up of “individual applicants”.

19                  Kiefel J rejected the contention of the respondents.  Kiefel J found that the Act contemplated that each of the persons comprising the applicant would be authorised to act personally and that the persons comprising the applicant were not authorised collectively.  Further, Kiefel J observed that, as there was no statutory provision to the contrary, the usual presumption as to personal appointments would operate, namely, that the authorisation would “continue until revoked” and whilst the person was “willing and able to act in their representative capacity”.  It followed, observed Kiefel J at 244‑245, at [43], that the inability of one of the persons comprising the applicant group to continue did not affect the continuing authorisation of the other persons to act as the applicant.  Further, said Kiefel J, this approach, which her Honour referred to as the “preferred approach”, did not “cut across any statutory provision or purpose”.

20                  Kiefel J went on to observe at 245, at [44]‑[45]:

It is of some importance that the preferred approach also allows the Court’s rules to have effect in proceedings of this kind.  Order 6, r 9 of the Federal Court Rules contemplates that there may be a need in some cases to remove a person as a party to the proceedings.  A “party” in the context of a native title claim the “applicant”, would be all persons who together make up the applicant, since the “applicant” referred to in the NTA is not an entity itself capable of suing.  There seems to me to be good reason why the Court should be in a position to exercise the power given by O 6, r 9 in native title claim proceedings as it does in any other litigation.  I do not think it could be suggested that the need to do so would not arise.

In my view s 251B should be understood to refer to the authorisation of each person who is to represent the claim group and act with others as the “applicant”.  The authorisation is personal to them and continues until revoked or whilst they are willing or able to act.  Sections 66B(1) and 64(5), dealing with replacement and appointment respectively, should be read in a way consistent with this approach.  The reference to the “current applicant” being no longer authorised would be taken to refer only to those persons whose authority has in fact been revoked.  This may not be all persons comprising “the applicant”.  The “new applicant” referred to in s 64(5) is each person who is authorised to make up the applicant when a change is made to one or more of them.  The evidence that the subsection requires about their authorisation would be satisfied by those persons not newly appointed referring to their prior authorisation and the fact that it has not been revoked.  For administrative convenience and clarity, their authorisation might also be ratified at the same meeting which authorises the new appointment or appointments, but this is not necessary.

21                  It is apparent from these observations that Kiefel J construed s 64(5) of the Act as comprising the means of changing the composition of the applicant by supplementing their number with a person not hitherto a member of the applicant group.  It is also apparent that Kiefel J did not regard it as necessary for the existing members of the applicant to be “re‑authorised” as part of this process.  Further, Kiefel J gave s 66B(1) a construction which limited its operation to the circumstance where the authority of an existing member had in fact been revoked.  Accordingly, on the construction of the Act favoured by Kiefel J, s 66B would have no role to play where a member of the applicant died, or no longer wished to act as a member of the applicant.  It was in circumstances of that kind that O 6 r 9 presented the Court with a means of changing the composition of the applicant without the necessity for an authorisation of the applicant as comprised by remaining previously authorised persons.  It followed from the ruling in Butchulla People that there was, depending on the circumstances, more than one way to change the applicant to a native title proceeding.

22                  In Doolan v Native Title Registrar (2007) 158 FCR 56, Spender J followed the reasoning of Kiefel J in Butchulla People.

23                  As already mentioned, in Chapman, Kiefel J used the O 6 r 9 method of changing the applicant where one of the persons comprising the applicant had died, and also where two others had, by their non‑cooperation, manifested an intention no longer to act in a representative capacity.  Kiefel J again rejected the notion that “the applicant” was to be construed as having an indivisible character.

24                  At 511 of Chapman ([12]‑[13]), her Honour reaffirmed the view she had expressed in Butchulla People and continued:

A contrary approach would mean that “the applicant” in native title claim proceedings would cease to exist if it transpired that just one of the persons making up “the applicant” was not a member of the claim group or died and involve the considerable expense of undertaking another authorisation meeting of the entire group.  I note that the decision in the Butchulla People’s application has been followed by Spender J in Doolan v Native Title Registrar (2007) 158 FCR 56.

The approach which I consider to be open does not limit the grounds for the effective removal of a person to those in s 66B(1), rather it gives effect to the basis upon which authorisation was originally made.  It should not be inferred that it was intended that s 66B(1) be the only means by which the constitution of the applicant in proceedings before the Court can be altered.

25                  After the decision in Chapman, amendments to the Act were made by the Native Title Amendment (Technical Amendments) Act 2007 (Cth) (the 2007 amendments).  These came into operation on 1 September 2007.

26                  The 2007 amendments included the expansion of the circumstances in which s 66B(1)(a) would apply to include the death or incapacity of a member of the applicant, or a member consenting to his or her removal (see [12] above).  Further, the 2007 amendments provided for the repeal of s 64(5).  This was a provision which provided for the replacement of the applicant, and was referred to by Kiefel J in Butchulla People in her discussion of what she described as “the preferred approach” (see [20] above).

27                  The Explanatory Memorandum in respect of the 2007 amendments referred to the proposed s 66B and to the proposed repeal of s 64(5) of the Act and commented that after s 64(5) was repealed, the “proposed section 66B would be the only mechanism through which any changes to the applicant could be made”.

28                  The 2007 amendments and the comments in the Explanatory Memorandum that the proposed s 66B was to be the only mechanism through which any changes to the applicant could be made, are inconsistent with the observations of Kiefel J in Chapman (see [24] above) that “it should not be inferred that it was intended that s 66B(1) be the only means” of making changes to the applicant.

29                  Further, the 2007 amendments are inconsistent with the premise that underlies the decision in each of Butchulla People, Chapman and Doolan, namely, that the authorisation given by the claim group is personal to each member of the applicant, rather than being given to the particular group of persons comprising the applicant collectively.  This is evident, for example, from the inclusion of the death of a person comprising the applicant in the circumstances listed in s 66B(1)(a).  When s 66B(1)(a)(i) is read with s 66B(1)(b) it is clear that even when a person comprising the applicant has died, it is Parliament’s intention that there is to be an authorisation by the claim group of the replacement applicant, whether or not the deceased person is replaced by another person as part of the applicant.

30                  It follows that since the passing of the 2007 amendments there is only one means whereby any changes can be made to the composition of the applicant and that is through s 66B of the Act.  The decisions in the cases of Butchulla People, Chapman and Doolan have been superseded by the amendments.  Accordingly, I reject the applicant movers’ contention that it is open to the Court to remove Ms Wyatt and Mr Cooper as members of the applicant by reference to O 6 r 9 of the Rules on the basis that each is not a proper or necessary party.

31                  As an alternative contention, the applicant movers sought also to rely on s 66B(1) to effect the removal of Ms Wyatt and Mr Cooper from the applicant.  They referred to the comments of French J in Daniel v State of Western Australia (2002) 194 ALR 278 at 284, at [15] (Daniel) that:

The cessation of authority conferred upon an applicant requires decision‑making on the part of the native title claimant group unless it can be said that the authority originally conferred was limited in such a way that it ceased upon the happening of some event without any separate decision being required.

32                  The applicant movers submitted that the conduct of Ms Wyatt and Mr Cooper is such that they no longer have authority on behalf of the claim group.  There was no evidence as to the terms on which the members of the applicant were originally appointed.  However, even if it could be said that the authority of Ms Wyatt and Mr Cooper has ceased in accordance with the terms of their original appointment (on which I express no view), that would not be sufficient for the applicant movers to succeed.  Unlike the position in Daniel, the applicant movers have not been authorised by a claim group meeting to bring this motion to replace the applicant as currently constituted with an applicant as constituted by the five applicant movers.  There has, therefore, been no compliance with s 66B(1)(b).  Accordingly, I reject the applicant movers’ contention based on s 66B(1) of the Act.

33                  I dismiss the applicant movers’ notice of motion.  I express the appreciation of the Court to pro bono counsel.

Associate:

Dated:         22 October 2008