FEDERAL COURT OF AUSTRALIA

Doctor on behalf of the Bigambul People v State of Queensland [2010] FCA 1406

THE COURT ORDERS THAT:

Russell Doctor, Elaine Georgetown, Veronica Jarrett, Rhonda Sandow, Roger Knox, Cyril Logan and Gary Woodbridge replace Russell Doctor, Arthur Georgetown, George Hopkins, Veronica Jarrett, Cheryl Moggs, Tony Turnbull and Gary Woodbridge as the Applicant for this Application.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. The text of entered orders can be located using Federal Law Search on the Court’s website.

REASONS FOR JUDGMENT

1    Before me is a notice of motion filed 15 July 2010 pursuant to s 66B of the Native Title Act 1993 (Cth) (“the Act”) seeking orders to replace the applicant to the native title application in the substantive proceedings. The orders sought by the applicants to the notice of motion are:

1.    That Russell Doctor, Elaine Georgetown, Veronica Jarrett, Rhonda Sandow, Roger Knox, Cyril Logan and Gary Woodbridge replace Russell Doctor, Arthur Georgetown, George Hopkins, Veronica Jarrett, Cheryl Moggs, Tony Turnbull and Gary Woodbridge as the Applicant for this Application.

2.    Such other orders as the Court considers fit.

2    In substance, the applicants to this notice of motion seek orders to replace the current applicant to the substantive proceedings with a new applicant comprised of some of the members of the current applicant group and other persons. An important background issue to the notice of motion is the refusal of a member of the current applicant, Mr George Hopkins, to sign an Indigenous Land Use Agreement (“ILUA”) on behalf of the Bigambul People with QGC Pty Limited (“QGC”).

3    The onus of proof in respect of this notice of motion rests on the applicants on the motion.

4    An order in the form of draft order 1 would result in Arthur Georgetown, George Hopkins, Cheryl Moggs and Tony Turnbull no long being members of the applicant for the purposes of the substantive proceedings. Those four persons oppose this notice of motion. For convenience, I will refer to them collectively as “the dissenting applicants”, and collectively I will refer to the seven persons who would, in the event of the success of the notice of motion, constitute the applicant as “the proposed applicants”.

5    The fundamental issue for decision in these interlocutory proceedings is whether the members of the native title claim group have properly authorised a new applicant (comprising the proposed applicants) to replace the applicant on the record.

BACKGROUND

6    The proposed applicants submit that there is no traditional decision-making process as contemplated by s 251B(a) of the Act, and that they are authorised to make the native title claim in accordance with a decision-making process agreed to and adopted by persons in the claim group at a meeting held for that purpose. It appears that an authorisation meeting of the native title group had previously been held on 16 August 2008 at Goondiwindi and that at that meeting a resolution had been passed confirming that there was no traditional decision-making process for the making or management of the native title claim. A resolution in similar terms was also passed at the authorisation meeting held in Brisbane on 5 June 2010 (“the authorisation meeting”), which is the relevant meeting for the purposes of the current proceedings. This meeting was held at a venue organised by one of the proposed applicants, Mr Russell Doctor. The 5 June 2010 was also the day on which Mr Doctor organised a substantial celebration of his 50th birthday, to which all members of the native title claim group were invited.

Publication of authorisation meeting

7    That the authorisation meeting was to be held at a venue on 5 June 2010 was advertised in the following publications:

    South Burnett Times 14 May 2010;

    Courier Mail 15 May 2010;

    Warwick Daily News 14 May 2010;

    Toowoomba Chronicle 15 May 2010;

    The Daily Telegraph (Sydney) 15 May 2010;

    Koori Mail 19 May 2010.

8    The advertisement in those publications read as follows:

Notice of Meeting of the Bigambul People Claimant Group

Section 66B

NATIVE TITLE ACT 1993 (CTH)

All members of the registered Bigambul People native title claimant group (QUD 101/99) are invited to attend a claimant group meeting to be held at the Brisbane International Virginia Palms Hotel Cnr Sandgate and Zillmere Roads Boondall Queensland Q4034 on Saturday 5th of June 2010 at 10.00am.

All members of the native title claim group for this claim are invited to attend. The members of that claim group are the biological and adopted descendants of the following people:

-    Queen Susan, also known as Granny Susan, also known as Susan of Welltown;

-    “Sally”, mother of Mary Ann Beng;

-    Nellie of Goondiwindi;

-    Nellie Yumbeina;

-    Jack Noble; and

-    Sally Murray.

Decisions may be made to authorise a new set of persons to be the “applicant” for the Bigambul claim. This could involve removing some or all of the existing applicants and/or adding new applicants. If current applicants were to be removed, it would need to be determined by the meeting that those persons were no longer authorised by the claim group, or that they had exceeded the authority previously given to them by the claim group.

The current applicants on the Bigambul claim are Russell Doctor, Arthur Georgetown, George Hopkins, Veronica Jarrett, Cheryl Moggs, Tony Turnbull and Gary Woodbridge.

This is an important meeting for the Bigambul People. Your attendance and participation is strongly encouraged.

We regret that we are unable to assist with transport to and from the meeting however morning tea and lunch will be provided.

No Attendance monies or Sitting Fees are payable to Attendees.

Any enquiries regarding this meeting please contact Sandlewood Aboriginal Projects Ltd on 07-XXXX XXXX or 07-XXXX XXXX.

9    Mr Doctor also caused a notice of the meeting to be posted to members of the claim group for whom he had the address. It appears that this notice was posted after the advertisement appeared in the newspapers. The notice posted to members of the claim group was in similar form to that published in the newspapers, although differed in marked respects, including:

    there was no reference in the posted notice to transport being unavailable;

    there was no reference in the posted notice to absence of monies or fees.

10    The posted notice read as follows:

PUBLIC NOTICE

BIGAMBUL AUTHORISATION MEETING

A meeting is being held at Brisbane International Virginia Palms Hotel Cnr Sandgate and Zillmere Roads Boondall Queensland Q4034 on Saturday 5 June 2010 at 10.00am for the members of the native title group for the Bigambul native title claim (QUD 101/09) in the Federal Court of Australia.

All members of the native title claim group for this claim are invited to attend. The members of that claim group are the biological and adopted descendants of the following people:

-    Queen Susan, also known as Granny Susan, also known as Susan of Welltown;

-    “Sally”, mother of Mary Ann Beng;

-    Nellie of Goondiwindi;

-    Nellie Yumbeina;

-    Jack Noble; and

-    Sally Murray.

Decisions may be made to authorise a new set of persons to be the “applicant” for the Bigambul claim. This could involve removing some or all of the existing applicants and/or adding new applicants. If current applicants were to be removed, it would need to be determined by the meeting that those persons were no longer authorised by the claim group, or that they had exceeded the authority previously given to them by the claim group.

The current applicants on the Bigambul claim are Russell Doctor, Arthur Georgetown, George Hopkins, Veronica Jarrett, Cheryl Moggs, Tony Turnbull and Gary Woodbridge.

For further details of the meeting contact Mr Michael Owens of Michael Owens & Associates Solicitors phone 07 XXXX XXXX.

11    A mail-out of notices was further undertaken by Queensland South Native Title Services Ltd (“QSNTS”) to members of the claim group who were on their mailing list. This notice was in the same form as that posted by Mr Doctor and his associates.

12    Finally, it appears that copies of notices were hand-delivered to members of the claim group who could not be reached by post. Which version of the notice was so hand-delivered is not clear on the evidence before the Court, although it does not appear to be in dispute that it was one of the two versions to which I have already referred.

Buses

13    It is common ground that Mr Doctor hired two buses to be available to collect group members from Cherbourg and Goondiwindi who wished to attend the meeting of 5 June 2010. At the hearing, Mr Doctor gave evidence that, in total, approximately 30 members of the claim group travelled to Brisbane on buses from Goondiwindi and Cherbourg (TS p 46 ll 43-45).

THE AUTHORISATION MEETING OF 5 JUNE 2010

Events at the Authorisation Meeting – the evidence of Mr Trevor Robinson

14    The authorisation meeting was chaired by Mr Trevor Robinson. Attached to Mr Robinson’s affidavit affirmed 9 July 2010 is a document entitled “Summary of Outcomes for Bigambul People’s Authorisation Meeting”, which sets out the agenda for that meeting as well as resolutions proposed, the outcomes of those resolutions, and minutes of the meeting. Mr Robinson deposes that he caused this document to be prepared.

15    In particular I note the following material in the Summary of Outcomes document which sets out additional background to the convening of the meeting:

Trevor Robinson acknowledged the Traditional Owners for the land and a minutes silence was held to acknowledge the departed Bigambul ancestors.

Trevor Robinson gave a summary of events that gave rise to the meeting as follows:

The QGC ILUA was authorised on 12 December 2009. At the Authorisation Meeting, the persons comprising the Applicant namely Russell Doctor, Arthur Georgetown, George Hopkins, Veronica Jarrett, Cheryl Moggs, Tony Turnbull and Gary Woodbridge were directed to sign the QGC ILUA.

George Hopkins has refused to sign the QGC ILUA. All of the other persons comprising the Applicant have signed the QGC ILUA.

Issue

As a result the National Native Title Tribunal (“the NNTT”) has refused to register the QGC ILUA.

QGC has filed an Application in the Federal Court to review the decision of the NNTT to refuse to accept the QGC ILUA for registration. The Bigambul People have joined as a Respondent in that Application.

If the Application by QGC is not successful, the QGC ILUA will not be accepted for registration unless George Hopkins signs the ILUA.

If the QGC ILUA is unable to be registered, QGC have already stated that they will withdraw their offer to enter into the ILUA.

If that occurs, the Bigambul People will lose the benefit of the package of benefits under the QGC ILUA, including benefits to the value of $6.5M and the longer term benefits of employment, training and contracting opportunities over the life of the Project.

In addition, QGC is then entitled (at law) to:

Proceed via the Right to Negotiate process under the Native Title Act this may mean the benefits to the Bigambul People are significantly reduced, and/or

Request the State to compulsorily acquire all of the Bigambul People’s native title rights and interests affecting the Project. Should that occur the Bigambul People will get nothing unless they are successful in obtaining a native title determination in the Courts.

Position of George Hopkins

George has been given ample opportunity to sign the QGC ILUA but has not done so.

Purpose of meeting

Trevor explained that the purpose of the meeting is to allow the claimant group the opportunity to consider what (if anything) should be done to bring about the proper execution of the QGC ILUA.

He explained that the meeting had been called under s66B of the Native Title Act to specifically decide:

(1) Whether the claimant group wishes to continue to authorise the Current Applicant in view of George’s refusal to sign the QGC ILUA;

(2) How the New Applicant will conduct itself in the future;

(3) To Appoint a New Applicant; and

(4) If a decision is made by the Bigambul People claimant’s group to remove the Applicant, to authorise the New Applicant to make an application to the Federal Court pursuant to s66B Native Title Act (Cth).

16    Mr Robinson also deposed that, in his observation, the meeting was conducted in an orderly fashion.

Events at the Authorisation Meeting – the evidence of Mr Nathan Woolford

17    In his affidavit affirmed 13 July 2010, Mr Nathan Woolford deposed in summary that:

    he was an anthropologist and archaeologist with 15 years experience working with indigenous people in Australia.

    he was Director of Research for QSNTS.

    he had attended the original authorisation meeting of the Bigambul People in Goondiwindi on 16 August 2008.

    he also attended the meeting of 5 June 2010.

    at the meeting of 5 June 2010 he was responsible for ensuring that the people who attended the meeting and who were intended to participate in the meeting were recorded on an attendance sheet.

    from the attendance sheet, he was able to say that 146 people attended the meeting who asserted that they were members of the Bigambul claim group.

    the meeting was conducted in an orderly fashion, including:

    a full PowerPoint presentation containing draft resolutions for consideration by those in attendance at the meeting;

    display of resolutions on a large screen at the front of the meeting;

    provision of microphones to any person who wished to speak.

18    In a subsequent affidavit affirmed 1 September 2010 Mr Woolford deposed in summary that:

    Veronica Jarrett had assisted people in identifying their apical ancestor, nothing more.

    an anthropological report prepared in 2008 by anthropologist Michael Niblet contained extensive genealogies, which Mr Woolford used to assist attendees at the authorisation meeting identify their line of descent.

    because of his general knowledge of the existing genealogies he has a fair idea of who were the main Bigambul families and how they related to the apical ancestors listed in the native title claim. He also saw it as his role to assist claim group members understand what was meant by an apical ancestor, and to help them figure out how their families may be part of a line of descent.

    there was nothing in the behaviour of the attendees upon entering the meeting which lead him to the view that the persons who had signed the attendance sheets were not part of the line of descent from a Bigambul apical ancestor.

    from his observations the same Bigambul families were represented at the authorisation meeting as attended the claim authorisation meeting where the current applicant was selected.

    he did not see Russell Doctor at any time during the authorisation meeting act as chairperson, approach the podium where Trevor Robinson was chairing the meeting, or raise his hand to vote before anyone else.

    despite claims that children voted at the meeting, from his observations it did not appear that children voted, and in any event no-one raised an objection to any person voting on the grounds that they were a child.

Events at the Authorisation Meeting – the evidence of the proposed applicants

19    That the decision-making process which had been agreed to and adopted for the purpose of selecting the persons to constitute the applicant was properly followed, and the meeting conducted in an orderly fashion, was also evidence of the proposed applicants. The proposed applicants also deposed in affidavits – all filed 15 July 2010 – that the Summary of Outcomes document prepared by Mr Robinson was a fair and honest summary of what occurred at the authorisation meeting, and further in summary that:

    They had discussed the purposes of the authorisation meeting with members of their families and other members of the claim group before the authorisation meeting (Doctor affidavit para 15, Woodbridge affidavit para 11, Jarrett affidavit para 11, Georgetown affidavit para 11, Knox affidavit para 11, Santow affidavit para 11, Logan affidavit para 11).

    They were aware of the background to the meeting, and in particular that the refusal of George Hopkins to execute the ILUA was a controversial topic of discussion with members of their families and other claim group members with whom they associated (Doctor affidavit para 15, Woodbridge affidavit para 11, Jarrett affidavit para 11, Georgetown affidavit para 11, Knox affidavit para 11, Santow affidavit para 11, Logan affidavit para 11).

    Those members of the claim group who were in attendance at the authorisation meeting were capable of making decisions on behalf of the claim group because they were fairly representative of those persons who had shown an interest in Bigambul affairs and assert native title in the Bigambul claim area (Doctor affidavit para 16, Woodbridge affidavit para 11, Jarrett affidavit para 12, Georgetown affidavit para 12, Knox affidavit para 12, Santow affidavit para 12, Logan affidavit para 12).

    The decision-making process which had been agreed to and adopted for the purpose of selecting the persons who were to constitute the applicant was properly followed (Doctor affidavit para 17, Woodbridge affidavit para 11, Jarrett affidavit para 13, Georgetown affidavit para 13, Knox affidavit para 13, Santow affidavit para 13, Logan affidavit para 13).

Evidence of Mr Russell Doctor in relation to the buses, and timing of the meeting

20    In an affidavit affirmed 31 August 2010 and filed 1 September 2010, Mr Doctor deposed, in summary:

    He had hired two buses for transporting claim group members from Cherbourg and Goondiwindi. He was supposed to be reimbursed by those persons who used the buses, but in the end only received about two-thirds back.

    He was happy to bear the remaining expenses of the buses as he had organised his 50th birthday celebration for the evening of the authorisation meeting and had issued an open invitation for claim group members to attend.

    No conditions were imposed on who could travel on the buses. In particular, the invitation to his birthday celebration was not conditional upon anyone attending the authorisation meeting.

    Approximately 600 people attended his birthday celebration. Not all members of the claim group in attendance at the authorisation meeting attended his birthday celebrations.

Events at the Authorisation Meeting – the evidence of the dissenting applicants

21    Evidence of the dissenting applicants was given primarily by affidavits filed 12 August 2010 although additional affidavits were also affirmed and filed by those parties. In these affidavits Ms Moggs, Mr Georgetown, Mr Hopkins and Mr Turnbull gave evidence identifying similar irregularities in relation to the authorisation meeting. In summary, these irregularities were as follows:

    The commencement of the meeting was delayed to accommodate bus loads of people attending the meeting (Moggs affidavit para 7, Georgetown affidavit para 8, Hopkins affidavit para 7, Turnbull affidavit para 8).

    Some of the people only attended the meeting as they had been invited to Russell Doctor’s birthday party to be held immediately after the meeting (Georgetown affidavit para 7).

    Veronica Jarrett was directing people how to sign in and under which apical ancestors (Moggs affidavit para 8.2, Georgetown affidavit para 10.1, Hopkins affidavit para 8.1).

    Nathan Woolford did not act to stop Ms Jarrett from assisting people how to identify as a claimant group member for the purposes of signing in and being entitled to participate in the authorisation meeting (Moggs affidavit para 8.3). Alternatively, Nathan Woolford directed people to sign in for the meeting (Hopkins affidavit para 8.2).

    The consultant anthropologist for the application has not finalised genealogies for the claimant group, and has not been provided a copy of the attendance sheets to confirm membership of the authorisation meeting attendees to the claimant group (Moggs affidavit para 8.4).

    Of the 146 persons in attendance at the authorisation meeting only descendants of four of six apical ancestors were present, and of them the majority were descendants of Nellie Yumbeina and “Sally” mother of Mary Ann Beng. Accordingly there was not a sufficient amount of persons representative of all of the claimant group in attendance at the authorisation meeting with authority to make the decision to replace the applicant on the application (Moggs affidavit para 8.6, Georgetown affidavit para 13, Hopkins affidavit para 11, Turnbull affidavit para 12).

    A large number of persons who attended the meeting (and in particular those who had travelled to the meeting by the buses) were persons who identify with other claimant groups, such as the Kamilaroi People (Moggs affidavit para 8.9, Georgetown affidavit para 10.2, Hopkins affidavit para 8.4, Turnbull affidavit para 9.2 and para 9.3).

    The Summary of Outcomes prepared by Trevor Robinson is not a true and accurate reflection of the manner in which the authorisation meeting proceeded (Moggs affidavit para 15, Georgetown affidavit para 14, Hopkins affidavit para 12, Turnbull affidavit para 18).

    Russell Doctor co-chaired the meeting and influenced how people were casting their votes to achieve his own purpose (Moggs affidavit para 16, Georgetown affidavit para 17, Hopkins affidavit para 15 and para 16).

22    Further, Ms Moggs and Mr Turnbull deposed:

    They provided the solicitor Michael Owens with instructions to proceed with an application under s 66B to remove George Hopkins as a person comprising the applicant due to George Hopkins not signing the Bigambul and QGC ILUA (Moggs affidavit para 9, Turnbull affidavit para 13).

    They did not instruct Michael Owens to appoint Colin Hardie of Just Us Lawyers to conduct the meeting, or to appoint Trevor Robinson to chair the meeting, or to hold the meeting in Brisbane, or in respect of the aspects of the meeting including agenda, date or venue (Moggs affidavit para 10 and para 11, Turnbull affidavit para 14 and para 15).

    The current applicant is comprised of representatives from each apical ancestor on the application, whereas most of the proposed applicants are descendants of Nellie Yumbeina (Moggs affidavit para 22 and para 24).

23    I note that, subsequent to the authorisation meeting of 5 June 2010, George Hopkins has signed the QGC ILUA (Hopkins affidavit affirmed 11 August 2010 para 17).

Other disputed issues

24    Other disputed issues in relation to the events at the authorisation meeting include whether children voted at the meeting, and the identity of members of the claim group. In summary, it appears from a number of affidavits before the Court that some or all of the dissenting applicants do not accept a significant number of persons who attended the meeting as Bigambul people, including proposed applicants Veronica Jarrett and Roger Knox, and relatives of proposed applicants Russell Doctor and Gary Woodbridge. There is also evidence before the Court however supporting the identity of these persons, including Veronica Jarrett and Roger Knox, as Bigambul people.

Resolutions

25    Almost all resolutions put to the authorisation were passed either by substantial majorities or with no opposition. So far as relevant to these proceedings, I particularly note resolutions relevant to:

    attendees at the meeting;

    decision-making by the Bigambul People;

    confirmation that George Hopkins failed to act in accordance with the interests of the claim group by refusing to sign the QGC Area ILUA;

    direction of the applicant to sign the ILUA; and

    authorisation of a new applicant.

26    The relevant resolutions read as follows:

2 Attendees at Meeting

2.1 The Bigambul People accept that:

(a) Descent from an apical ancestor specified in the Form 1 of the Native Title Claim (“apical ancestor”) is a fundamental precept of traditional law and custom regarding membership of the Bigambul Native Title Claim group;

(b) There are other pathways to membership of the traditional Bigambul society;

(c) Upon entry to this meeting all persons have been asked to identify in the attendance sheet, the apical ancestor or other means by which they assert membership of the claim group for the Native Title Claim; and

(d) All persons who have complied with the request set out in (c) above are entitled to speak and make decisions at this meeting.

(Carried: 69 votes in favour, opposed 41)

2.2 Apart from those specified in clause 2.1, all other persons in attendance at this meeting may remain as observes (sic) but do not unless expressly agreed by the Bigambul People, have a right to speak or otherwise participate in the decisions making at this meeting.

(Carried without opposition)

2.3 The Bigambul People determine that Trevor Robinson will chair this meeting and that Colin Hardie will be entitled to attend and speak at this meeting.

(Carried without opposition)

3 Decision Making of Bigambul People

3.1 The Bigambul People confirm that there is no particular process of decision making under traditional laws and customs that must be complied with by them when making decisions about whether to replace the Applicant and whether to authorise an application to the Federal Court under s 66B Native Title Act (Cth) or matters of that kind.

3.2 The Bigambul People agree that when making decisions about whether to replace the Applicant and whether to authorise an application to the Federal Court under s66B Native title Act (Cth) or matters of that kind, will be as follows:

(a) The decision which is proposed to be made will be put in the form of a clearly worded resolution.

(b) A resolution will be read out to the meeting.

(c) A resolution must be moved and seconded by a member of the Bigambul People before it is decided on.

(d) If an amendment is moved to the resolution, it must be moved and seconded and dealt with before the original motion. If the amendment is passed it will become part of the resolution.

(e) The decision may initially be made by those members of the Bigambul People on a show of hands.

(f) Where a resolution is passed, those persons who do not vote in favour will be recorded.

(g) If the chair determines that it is not clear whether the resolution is passed by a show of hands, a full count will be undertaken by the chair or his delegate of those in favour and those against and a record made of the count.

(h) The chair may determine that a full count may be undertaken by secret ballot.

(i) The Bigambul People agree that no person, family or group will have a right to veto any decision reached by a majority of the Bigambul People under this process.

(Carried with 3 against)

4. Confirmation that George Hopkins has failed to act in accordance with the interests of the claim group by refusing to sign the QGC Area ILUA

The Bigambul People note that George Hopkins has failed to act in accordance with the interests of the claim group by refusing to sign the QGC Area ILUA.

(Carried: 80 votes in favour, opposed 34)

5. Directions to the Applicant on How to Conduct its Affairs

The Bigambul people determine that the Applicant must conduct its affairs according to the following principles and rules.

5.1 The Applicant must represent the whole of the claim group not just their own family or descent group.

…

…

5.7 All persons who constitute the Applicant are directed to sign the QGC Area ILUA.

…

(Carried: 76 votes in favour, opposed 24)

6. Removal of Authority of the Current Applicant

The Bigambul People hereby resolve that the Current Applicant is no longer authorised to make the Native Title Claim or deal with matters arising in relation to that application.

(Carried: 74 votes in favour, opposed 11)

27    An important resolution which was not carried was resolution 7, which was as follows:

7. Authorisation of New Applicant

On condition that each of the following persons agree to comply with the stipulations set out in resolution 5, the Bigambul People hereby authorise Russell Doctor, Arthur Georgetown, Veronica Jarrett, Cheryl Moggs, Tony Turnbull and Gary Woodbridge to make the Native Title Claim and deal with matters arising in relation to it.

(Decision: Not Carried

0 votes in favour, opposed 24)

28    After nominations of members of the applicant were called from the floor of the meeting, and nominees were individually the subject of a vote as to whether he or she should be a person to comprise the applicant, the meeting passed the following resolution 21 without opposition:

The Bigambul People hereby resolve and authorise Russell Doctor, Elaine Georgetown, Veronica Jarrett, Rhonda Santow, Roger Knox, Cyril Logan and Gary Woodbridge (the “New Applicant”) to make an application to the Federal Court pursuant to s66N Native Title Act (Cth) that they jointly replace the Current Applicant.

SECTION 66B

29    Relevantly s 66B provides as follows:

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.

Note: Section 251B states what it means for a person or persons to be authorised by all the persons in the claim group to deal with matters in relation to a claimant application or a compensation application.

Court order

(2) The Court may make the order if it is satisfied that the grounds are established.

30    The proposed applicants rely on s 66B(1)(a)(iii), 66B(1)(b) and 66B(2) of the Act and in summary contend 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, that the proposed applicants are so authorised, and that there is material before the Court that the grounds are established to make such an order.

SUBMISSIONS OF THE PROPOSED APPLICANTS

31    In summary the proposed applicants contend as follows:

    a properly constituted meeting of the claim group was held in Brisbane on 5 June 2010 at which the meeting resolved on a decision-making process.

    the persons in the claim group made a decision to remove and replace the current applicant at the authorisation meeting, and this was sufficient for the purposes of satisfying s 66B(1)(a)(iii) and (b).

    this decision was achieved by the attendees approving 19 resolutions by significant majorities or without opposition. To that extent there was no doubt as to the will of the meeting.

    the authorisation meeting effectively expressed the will of the claim group to replace the current applicant.

SUBMISSIONS OF THE DISSENTING APPLICANTS

32    In summary, the dissenting applicants contend as follows:

    Not all persons in the native title claim group were afforded a reasonable opportunity to participate in the process of decision-making having regard to the undisputed evidence that certain persons in the group were provided with assistance to attend the meeting while others were not informed of the fact of that assistance and were not provided with that assistance.

    The questions of who convened the meeting and why it was convened remain clouded. The solicitor on the record appeared to be an employee of QSNTS yet there is no evidence that QSNTS or the solicitor had any role in organising the meeting or preparing or publishing the notices advertising the meeting.

    There was a discrepancy between the forms of the notice of meeting published in the newspapers and otherwise delivered to certain claim group members. In particular, the general public notice published in the newspapers referred to the lack of travel assistance and directed inquiries to Sandlewood Aboriginal Projects Ltd. The statement in relation to travel was, however, absent from the notice given to selected members of the claim group, which also listed the contact as Mr Michael Owens. It follows that some members had greater and better opportunities to attend the meeting than others in the claim group who had read the public notice.

    A reasonable inference may be drawn that the meeting was called to secure a signature to an ILUA which is not a purpose to which s 66B is directed.

    The evidence before the Court does not address the substance of criteria listed by O’Loughlin J in Ward v Northern Territory of Australia [2002] FCA 1477 at [24].

    The claim group which authorised an applicant and which subsequently removes the authority of that applicant must be identical in terms of its composition, unless the claim has been validly amended in that regard. In this case:

    The notices of meeting in the newspapers refer to members of the claim group as being the biological and adopted descendants of various apical ancestors, whereas the claim group described in the application is the biological descendants of those named apical ancestors.

    It follows that the native title claim group described in the native title application was not the target of the public notice of the meeting nor of any other notices handed to sub-groups of the native title claim group. The s 66B notices were sent to a group of persons who included adopted descendants of certain ancestors thus importing an unknown and unidentified group of people who are not part of the native title claim group for the claimant application.

    Resolution 2.1, which was passed, was to the effect that there were other pathways to membership of the traditional Bigambul society. This fundamentally changes the nature of the membership of the native title claim group and who was entitled to speak and make decisions at the meeting.

    In exercising its discretion, the Court could not be satisfied of the relevant criteria on the material before it.

    In any event, the Court should exercise its discretion to dismiss the motion.

ISSUES FOR CONSIDERATION

33    In their submissions the proposed applicants say that the matters of concern to the dissenting applicants, as is clear from both the submissions in these proceedings and the evidence filed on behalf of the dissenting applicants, can be summarised as follows:

1.    was the authorisation meeting properly conducted and in particular was the will of the authorisation meeting corrupted by the activities of individuals who wanted to replace the current applicant?

2.    were those in attendance at the authorisation meeting members of the claim group and thereby authorised to vote on resolutions?

3.    were those in attendance at the authorisation meeting representative of the claim group?

4.    was there a requirement that the replacement applicant be representative of the composition of the claim group and if so was it less representative than the current applicant?

34    In my view this is a useful summary of the issues for consideration, and I propose to adopt it.

1.    WAS THE AUTHORISATION MEETING PROPERLY CONDUCTED AND IN PARTICULAR WAS THE WILL OF THE AUTHORISATION MEETING CORRUPTED BY THE ACTIVITIES OF INDIVIDUALS WHO WANTED TO REPLACE THE CURRENT APPLICANT?

35    In my view there is extensive evidence before the Court that the authorisation meeting of 5 June 2010 was properly conducted and that the will of the meeting was not corrupted by the activities of individuals – in particular Mr Russell Doctor – who wanted to replace the current applicant.

36    I form this view for the following reasons.

37    First, it is apparent that the primary reason for the holding of the authorisation meeting on 5 June 2010 was to consider a replacement applicant in the substantive proceedings which would sign the QGC ILUA. That this is the case was made clear in all forms of publication of the meeting, whether newspaper advertisements, notices posted, or notices physically delivered. While a number of dissenting applicants clearly opposed a meeting in these terms, s 66B(1) clearly provides that one or more members of the native title claim group may apply to the Court for an order that the member, or the members jointly, replace the current applicant for the application. To that extent, it is irrelevant in this case which member of the native title claim group actually called the authorisation meeting to propose replacement of the current applicant.

38    Second, the dissenting applicants claimed that the meeting exceeded the purpose for which it was called, namely only to remove George Hopkins as one of the persons who comprise the applicant. However if this was ever the intention, it is clear that it was overtaken by events at the authorisation meeting. I note in particular resolution 7 which proposed in effect that all members comprising the applicant with the exception of Mr Hopkins should constitute the applicant, and which was lost on the floor of the meeting. In any event, the notice of the meeting in no way limited any consideration by the meeting of the composition of the applicant. I note in particular the following extract from the notice of meeting:

Decisions may be made to authorise a new set of persons to be the “applicant” for the Bigambul claim. This could involve removing some or all of the existing applicants and/or adding new applicants. If current applicants were to be removed, it would need to be determined by the meeting that those persons were no longer authorised by the claim group, or that they had exceeded the authority previously given to them by the claim group.

39    Third, while it is clear that there were discrepancies between the forms of the notice of meeting published in the newspapers and those otherwise delivered to certain claim group members, and that in fact Mr Doctor did organise buses for transportation of members of the claim group from Cherbourg and Goondiwindi, in my view this was of little moment in the circumstances of this case. I do not accept that greater and better opportunities to attend the meeting were provided to some members of the claim group, compared with others in the claim group who had read the public notice. I do not accept that “stacking” of the meeting occurred as a result. This is because:

    there is no evidence that any member of the claim group was disadvantaged by not being able to take advantage of bus transportation provided by Mr Doctor.

    there is no evidence that complaints had been made because some members of the claim group were able to travel by buses provided by Mr Doctor.

    it is in my view feasible that Mr Doctor was partly motivated by wishing to have as many claim group members as possible attend his birthday celebrations. I see nothing sinister in this motivation.

    I agree with Mr Hardie on behalf of the proposed applicants that in these proceedings there was no real difference between the provision of the two buses and Mr Doctor offering a person a lift in a private car. I take this view in particular because it appears that only approximately 30 persons in total (out of the total 146 persons who attended the meeting) travelled to the authorisation meeting by buses provided by Mr Doctor.

    It is clear from the votes recorded at the meeting that the absence of the 30 persons who travelled by bus to the authorisation meeting would have made little (if any) difference to the outcome of the resolutions. So far as relevant in these proceedings the only outcomes which may have altered were in respect of resolutions 2 and 7, and that is on the assumption that all 30 persons on the buses voted in favour of that resolution. There is no basis upon which such a conclusion could be drawn.

40    Fourth, I consider there is no impropriety in relation to the organisation of Mr Doctor’s 50th birthday celebrations on the same day as the authorisation meeting. Even if some members of the claim group attended the authorisation meeting because they also intended to attend Mr Doctor’s party, I am unable to identify how this motive could in any manner affect the legitimacy of their attendance at the meeting or the validity of resolutions passed at the meeting.

41    Fifth, there was nothing improper about the meeting being delayed to await the imminent arrival of a number of members of the claim group by bus. I note in particular that members of the claim group were travelling to Brisbane from rural regions including Cherbourg and Goondiwindi. Indeed, in my view it would have been unreasonable to insist on commencement of a meeting at the scheduled time notwithstanding that members of the claim group were travelling long distances to the meeting, and were expected, albeit late.

42    Sixth, there is no evidence that Mr Doctor dictated the manner in which members of the claim group voted. Other than claims of the dissenting applicants, there is no evidence of substance before me that Mr Doctor co-chaired the meeting – indeed the Summary of Outcomes document indicates that he did not. It may be that certain members of the claim group chose to vote in the same way in which Mr Doctor voted, however in such a case it is equally possible that other members of the claim group chose to vote in the same way as other elders. I note, for example, evidence of Ms Moggs that she opposed resolutions 11, 12, 14 and 15, that she did not participate further in the authorisation meeting after those resolutions were passed, and “Nor did many of my immediate family” (affidavit of Cheryl Moggs affirmed 11 August 2010 para 23). An inference could be drawn that Ms Moggs and her family voted similarly, possibly following the lead of Ms Moggs or another elder.

43    Seventh, on the material before the Court I am not persuaded that members of the claim group in attendance at the authorisation meeting were being improperly directed, by Veronica Jarrett or otherwise, to sign attendance forms under particular apical ancestors. It is more likely, in my view, that persons in attendance were being assisted in signing the attendance forms and in relation to the identification of their apical ancestors, as deposed by Mr Woolford.

44    Eighth, in the absence of compelling evidence to the contrary I accept that the Summary of Outcomes document prepared by Mr Robinson provides an accurate description of events at the authorisation meeting. I also find on the material before me that the meeting was conducted in an orderly fashion. I note in particular the affidavit of Mr Woolford, whose evidence supported the orderliness of the meeting, who is an independent third party with knowledge of the claim group, and who has no personal interest in the outcome of the meeting.

45    Ninth, I do not find any impropriety in the presence of Mr Colin Hardie at the authorisation meeting. I note in particular resolution 2.3, which proposed that Mr Trevor Robinson chair the meeting and Mr Hardie be entitled to attend and speak. This resolution was carried by the authorisation meeting without opposition.

46    Tenth, I do not find the validity of the authorisation meeting compromised by the fact that the consultant anthropologist engaged in respect of the claim has not completed the genealogies for the claim group, and is not in a position to certify that the attendees were members of the claim group. I refer to comments in Barnes on behalf of the Wangan and Jagalingou People v State of Queensland [2010] FCA 533 at [43], [45] which in my view are equally applicable in this case.

47    Finally, while it is unfortunate that the events surrounding the signing of the ILUA should have resulted in the need for an authorisation meeting which had as a primary purpose the removal of Mr George Hopkins from the applicant, it does not follow that the meeting was called for an improper purpose and was therefore in some way invalid. The question for the Court in an application pursuant to s 66B to replace the applicant is whether the applicant is no longer authorised by the claim group to make the native title claim. In the circumstances of this case it is clear that there was dissatisfaction in the refusal of Mr Hopkins to sign the ILUA – indeed one of the dissenting applicants, Ms Moggs, indicates similar dissatisfaction in her affidavit affirmed 11 August 2010 at para 9. However the reason for the claim group’s dissatisfaction with a current applicant does not need to fall within any particular category. Provided the decision is made in a properly convened and properly conducted authorisation meeting, a decision by the claim group to withdraw authority from an applicant and to substitute a new applicant is effective.

2.    WERE THOSE IN ATTENDANCE AT THE AUTHORISATION MEETING MEMBERS OF THE CLAIM GROUP AND THEREBY AUTHORISED TO VOTE ON RESOLUTIONS?

48    The cessation of authority conferred upon an applicant requires decision-making on the part of the native title claimant group. Serious allegations have been made by the dissenting applicants that:

    the claim group described in the notice of the proposed authorisation meeting was a different group of people from the native title claim group; and

    there was actual attendance at the authorisation meeting by persons who were not Bigambul people, with the result that a different group to the native title claim group made the decision to replace the applicant.

Different claim group

49    In relation to the first issue, the notice of meeting (in all forms) stated as follows:

The members of that claim group are the biological and adopted descendants of the following people:

-    Queen Susan, also known as Granny Susan, also known as Susan of Welltown;

-    “Sally”, mother of Mary Ann Beng;

-    Nellie of Goondiwindi;

-    Nellie Yumbeina;

-    Jack Noble; and

-    Sally Murray.

50    The point in contention is reference to “adopted descendants”. Schedule A to the Form 1 Claimant Application filed 14 April 2009 describes the native title claim group as follows:

The Bigambul People are the biological descendants of the following people:

1.    Queen Susan, also known as Granny Susan, also known as Susan of Welltown;

2.    “Sally”, mother of Mary Ann Beng;

3.    Nellie of Goondiwindi;

4.    Nellie Yumbeina;

5.    Jack Noble; and

6.    Sally Murray.

51    I note also that, by resolution 2.1 (which was passed), the meeting resolved that, in addition to descent from an apical ancestor specified in the Form 1 of the native title claim:

(b) There are other pathways to membership of the traditional Bigambul society.

52    In this case I am satisfied that those persons in attendance at the authorisation meeting of 5 June 2010 were members of the native title claim group as described in the claimant application. I am also satisfied that the claim group described in the notice of the proposed authorisation meeting was not a different group of people from the native title claim group in the Form 1 application. I form this view for the following reasons.

53    First, the meeting passed resolution 2.1 which was as follows:

2.1 The Bigambul People accept that:

(a) Descent from an apical ancestor specified in the Form 1 of the Native Title Claim (“apical ancestor”) is a fundamental precept of traditional law and custom regarding membership of the Bigambul Native Title Claim group;

(b) There are other pathways to membership of the traditional Bigambul society;

(c) Upon entry to this meeting all persons have been asked to identify in the attendance sheet, the apical ancestor or other means by which they assert membership of the claim group for the Native Title Claim; and

(d) All persons who have complied with the request set out in (c) above are entitled to speak and make decisions at this meeting.

(Carried: 69 votes in favour, opposed 41)

54    I note in particular para (d) of the resolution where the claim group in attendance at the authorisation meeting accepted as members of the claim group at that meeting all persons who identified as an apical ancestor or who otherwise identified the means by which they asserted membership of the claim group. There is no evidence before me of confusion or uncertainty in the claim group at the authorisation meeting as to the right of persons in attendance to be there because of biological or adoptive heritage.

55    Second, I note that a similar issue was considered by Dowsett J in Aplin on behalf of the Waanyi Peoples v State of Queensland [2010] FCA 625. In that case a member of the claim group was described in the original application as “a biological descendant of a known Waanyi person”. His Honour relevantly observed as follows:

83.    This is, I believe, the crux of the present problem, namely the meaning of the requirement that a member of the claim group be a descendant of Waanyi ancestors or, as it is put in the application in its present form, a biological descendant of a known Waanyi person. In this case the parties have tended to assume that biological descent is, for present purposes, an ascertainable fact, capable of being known with certainty. However, in the absence of DNA or other scientific evidence, it is more likely to be a matter of belief or opinion, necessitating a determination as to whose belief or opinion is relevant. I will return to this matter.

56    Later in Waanyi after referring to ss 253, 61 (1) and 251B, his Honour continued:

256.    Inevitably, these requirements lead to the conclusion that for the purposes of the Native Title Act, it is the claim group which must determine its own composition. Any final decision in that regard must be taken pursuant to either of the alternative processes identified in s 251B. The claim group must assert that, pursuant to relevant traditional laws and customs, it holds Native Title over the relevant area. It is not necessary that all of the members of the claim group be identified in the application. It is, however, necessary that such identification be possible at any future point in time. A claim group cannot arrogate to itself the right arbitrarily to determine who is, and who is not a member. As to substantive matters concerning membership, the claim group must act in accordance with traditional laws and customs. As to matters of process the claim group must act in accordance with traditional laws and customs or, in the absence of relevant laws and customs, pursuant to such process as it may adopt.

57    Mr Hardie for the proposed applicants submitted that, based on this authority, the real question is whether an individual is accepted by the claim group as a biological descendant from a known Bigambul apical ancestor. In my view this is a realistic and reasonable approach, and indeed a contrary finding could result in significant injustice in respect of a person who, for example, has been adopted into and raised as a member of a Bigambul family and otherwise is considered and considers themselves Bigambul. To suggest that such a person is not a “biological descendant” of a Bigambul apical ancestor also flies in the face of the generally accepted principle that an adopted child is the child of the adoptive parent and therefore a child of that family (cf for example s 214(2) Adoption Act 2009 (Qld)).

58    Third, and in any event, there is no evidence before the Court to suggest that anyone who was not a strict biological descendant of a known Bigambul apical ancestor participated in the meeting. Indeed, there is no evidence before the Court as to the number of persons who attended the meeting who could be termed “adopted”. In this respect I also note the evidence of Mr Nathan Woolford in his affidavit affirmed 13 July 2010 that, while more people attended the 5 June 2010 authorisation meeting, the spread of representation from descendants of the apical ancestors of the claim group at the authorisation meeting of 5 June 2010 was “about the same” as the spread of representation at the authorisation meeting held in Goondiwindi on 16 August 2008 (para 4).

59    There is no material before the Court which could support an inference that the claim group described in the notice of the proposed authorisation meeting was a different group of people from the native title claim group in the Form 1 application.

Actual attendance

60    Further, I am not satisfied that there was actual attendance at the authorisation meeting by persons who were not Bigambul people.

61    First, there is evidence before the Court that Bigambul elders assisted claim group members sign attendance sheets before entering the meeting venue. One hundred and forty-six people attended the meeting – while this is a large group it is not, in my view, sufficiently large that strangers could attend without challenge. I consider it likely that persons who were not members of the claim group would be identified by elders at the point of entry to the meeting.

62    Second, I am not satisfied that a large number of persons in attendance identified with other claimant groups such as the Kamilaroi People and not the Bigambul People. I note in particular affidavits of Roger Knox, Normella Margaret Duncan, and Veronica Jarrett affirmed 31 August 2010, and the affidavit of Lexie Hattersley affirmed 30 August 2010, in which each deponent gave evidence that while one of their parents was a Kamilaroi person (or in the case of Roger Knox, a Gomeroi person), the other parent was of the Bigambul people and descended from one of the Bigambul apical ancestors.

63    Third, there is marked inconsistency between the dissenting applicants as to persons they accept as Bigambul people, and those they do not. I note the summary of the concerns of the dissenting applicants set out in the affidavit of Veronica Jarrett sworn 31 August 2010 paras 3-10. So, for example, it appears that Cheryl Moggs does not accept Veronica Jarrett as a member of the Bigambul claim group, however Ms Jarrett is accepted by Tony Turnbull, George Hopkins and Arthur Georgetown. Further, while Ms Moggs accepts Arthur Georgetown as a member of the claim group, she does not accept his mother, brother and sisters. Similarly, George Hopkins does not accept a niece of Cheryl Moggs as a Bigambul person. Further, in his affidavit affirmed 31 August 2010 Gary Woodbridge identified six people – rejected by the dissenting applicants as Bigambul – as actually being his cousins, descended from the same apical ancestor. In my view much of the evidence tendered by and in support of the position of the dissenting applicants is suggestive of the fact that persons they do not accept as Bigambul people are more properly persons they do not actually know. In my view lists of persons claimed by the dissenting applicants as not being persons they accept as Bigambul are of little weight.

3.    WERE THOSE IN ATTENDANCE AT THE AUTHORISATION MEETING REPRESENTATIVE OF THE CLAIM GROUP?

64    A recurrent concern expressed by the dissenting applicants was that there were not sufficient persons at the authorisation meeting of 5 June 2010 who were representative of all apical ancestors to make a decision to replace the applicant. Specifically, of the 146 persons in attendance at the authorisation meeting only descendants of four of six apical ancestors were present, and of them the majority were descendants of Nellie Yumbeina and “Sally” mother of Mary Ann Beng.

65    A similar contention was considered by Siopis J recently in Coyne v State of Western Australia [2009] FCA 533. In that case his Honour observed:

22 Each of Mr Samuel Miller and Mr Smith deposed that he was an elder of his family. Each went on to say that if he was to be removed as a member of the applicant, no elder from his family group would comprise part of the applicant. They each said that this would “make void the status of the applicants as authorised applicants”.

23 I have treated this statement in the affidavit of each of Mr Miller and Mr Smith as a contention that each of the family groups comprising the claim group was entitled to be represented by a person among the persons comprising the applicant, and that each could not, therefore, lawfully be removed as a person comprising the applicant, by the claim group, without the consent of his family group.

24 In my view, the respondents’ contention cannot be accepted. There is no provision in the Act which provides that the applicant must be comprised of representatives from each of the family groups within the claim group.

25 In the case of Combined Mandingalbay Yidinji-Gunggandji Claim v State of Queensland [2004] FCA 1703, Spender J emphatically rejected a contention along the lines of the contention now advanced by the respondents. At [16]-[17] of the reasons, Spender J observed:

That section [s 251B] speaks of all the persons in the native title claim group. “All the persons in the native title claim group” are not simply all the Gunggandji People or all the Yidinji People or all the Mandingalbay People. Mr Noble misunderstands the provision of the Act when he claims, “I was put on as an applicant by the elders of the Gunggandji People. Only the elders of the Gunggandji People can take me off”.

This view is wrong. The requirements of authorisation speak of an authorisation by all the members of the native title claim group.

26 The Full Court in Noble v Mundraby [2005] FCAFC 212 cited those observations of Spender J with approval.

66    In my view his Honour’s observations equally answer this issue in this case. There is no substance to the dissenting applicants’ complaint that those in attendance at the authorisation meeting were not representative of the claim group. There is no requirement that there be sufficient persons in attendance at an authorisation meeting who are representative of all apical ancestors in a claim.

67    In any event, there is evidence before the Court that the spread of family representation at the authorisation meeting of 5 June 2010 was similar to that at the Goondiwindi meeting where the current applicant was authorised (affidavit of Nathan Woolford affirmed 1 September 2010 para 8, affidavit of Russell Doctor affirmed 31 August 2010 para 31).

4.    WAS THERE A REQUIREMENT THAT THE REPLACEMENT APPLICANT BE REPRESENTATIVE OF THE COMPOSITION OF THE CLAIM GROUP AND IF SO WAS IT LESS REPRESENTATIVE THAN THE CURRENT APPLICANT?

68    As noted by Siopis J in Coyne at [24], there is no provision in the Act which requires that the applicant be comprised of representatives from each of the family groups within the claim group.

69    In any event, in this case:

    By resolution 5, the claim group resolved that the applicant must represent the whole claim group and not merely their own family or descent group; and

    I accept the submission of the proposed applicants that the family representation constituted by the proposed applicants is almost identical to the family representation in the current applicant. In particular:

    three people are the same (namely Russell Doctor, Veronica Jarrett, and Gary Woodbridge);

    Elaine Georgetown is the aunt of Arthur Georgetown;

    Rhonda Santow is the niece of George Hopkins;

    Cyril Logan is the nephew of Tony Turnbull.

DISCRETION

70    Section 66B(2) provides that the Court may make the order replacing an applicant to a native claim if it is satisfied that the grounds are established. In this case I am satisfied that the native title claim group in these proceedings has resolved to no longer authorise the current applicant at a properly convened and conducted authorisation meeting, and has properly resolved to authorise a new applicant in respect of the native title claim.

71    It is clear from the evidence before the Court that the refusal of George Hopkins to sign the ILUA was the source of considerable agitation in the Bigambul community. It is also clear that the dissenting applicants are disappointed that the resolution to authorise the current applicant (resolution 7) was lost on the floor of the meeting. It is unfortunate, but not surprising, that the replacement of the applicant in these circumstances would lead to significant ill-feeling within the claim group, and allegations of impropriety. However the evidence is clear that the resolutions to replace the current applicant were passed at the authorisation meeting with significant majorities. Even were there deficiencies in the notices of meeting or irregularities in relation to the conduct of the meeting, I am satisfied that the will of the Bigambul People as expressed at the meeting was to replace the current applicant with the proposed applicants. The evidence before the Court supports the order sought by the proposed applicants.

Associate:

Dated:    15 December 2010