FEDERAL COURT OF AUSTRALIA

Tatow on behalf of the Iman People #2 v State of Queensland [2011] FCA 802

THE COURT ORDERS THAT:

1.    Richard Doyle, Patrick Silvester, Kenny Waterton, Eve Fesl, Eddie Waddy, Graham Anderson, Arwa Waterton, Cynthia Kemp, Bradley Curtis, Dena Marie Dodd-Ugle and Heidi Anne-Marie Lawson replace Richard Doyle, Patrick Silvester, Cynthia Kemp, Eve Fesl, Fergus Waterton, Russell Tatow, Madonna Barnes, Troy Noble and Fred Tull as the Applicant for this Application.

2.    The names of the parties to the proceeding as the Applicant for this Application be amended to be “Richard Doyle, Patrick Silvester, Kenny Waterton, Eve Fesl, Eddie Waddy, Graham Anderson, Arwa Waterton, Cynthia Kemp, Bradley Curtis, Dena Marie Dodd-Ugle and Heidi Anne-Marie Lawson on behalf of the Iman People #2”.

3.    Leave is granted to discontinue the notice of motion filed 6 June 2011.

4.    The notice of motion filed 13 November 2010 is dismissed.

5.    Leave to file in Court the affidavit of Jean Johnston affirmed 14 July 2011 and the affidavit of Madonna Barnes affirmed 14 July 2011 is refused.

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 for determination is a notice of motion filed 6 July 2011 pursuant to s 66B of the Native Title Act 1993 (Cth) (“the Act”). The notice of motion arises out of an authorisation meeting of the native title claim group which the Court ordered to take place by no later than 17 June 2011, and which was held in Rockhampton on 11 June 2011.

2    The applicants to the notice of motion, namely Richard Doyle, Patrick Silvester, Kenny Waterton, Eve Fesl, Eddie Waddy, Graham Anderson, Arwa Waterton, Cynthia Kemp, Bradley Curtis, Dena Marie Dodd-Ugle and Heidi Anne-Marie Lawson (“the applicants”), seek orders from the Court that they replace Richard Doyle, Patrick Silvester, Cynthia Kemp, Eve Fesl, Fergus Waterton, Russell Tatow, Madonna Barnes, Troy Noble and Fred Tull as the native title applicant in the proceedings. More particularly, the applicants rely on s 66B(1)(a)(iii) of the Act. They submit that the existing native title applicant is no longer authorised to make the application and to deal with matters arising in relation to it.

3    Prior to the hearing the notice of motion appeared to be opposed by two members of native title claim group, Mr Russell Tatow (who filed an affidavit on 6 July 2011) and Ms Elizabeth Johnston (who filed an affidavit on 13 July 2011).

4    At the hearing no appearance was entered by Mr Tatow or Ms Elizabeth Johnston. However Ms Madonna Barnes and Ms Jean Johnston, who are also members of the native title claim group, appeared at the hearing and opposed the orders sought by the applicants to the notice of motion. I note that Ms Barnes is also currently a member of the applicant.

5    Ms Barnes and Ms Jean Johnston sought to file in Court affidavits affirmed by them on 14 July 2011 in relation to this matter. Ms Barnes submitted orally that the affidavits contained evidence in relation to the authorisation meeting which took place on 11 June 2011 in Rockhampton. It was clear at the hearing that the affidavits had not been served, in draft or otherwise, on the other parties to the proceedings prior to the hearing. Accordingly, I adjourned the hearing temporarily to allow me, as well as the other parties to the proceedings, an opportunity to peruse and consider the affidavits of Ms Barnes and Ms Johnston.

Preliminary issue – affidavits of Ms Madonna Barnes and Ms Jean Johnston

6    Order 14 rule 7(1) of the Federal Court Rules requires a party intending to use an affidavit to serve it on each other interested party not later than a reasonable time before the occasion for using it arises. While the Court may dispense with compliance with this requirement of the Rules (O 1 r 8), in this case following perusal of the affidavits of Ms Barnes and Ms Jean Johnston it was clear to me that:

1.    No explanation was provided by Ms Barnes on behalf of Ms Jean Johnston or herself for the delay in filing the affidavits. To the extent that the affidavits contained evidence relating to the events of 11 June 2011 (over five weeks ago) substantial time has passed to allow preparation of the affidavits. Further, the notice of motion currently before the Court was filed on 6 July 2011. No suggestion has been made that Ms Barnes or Ms Jean Johnston were unaware of the filing of the notice of motion, or that they had insufficient time to prepare their material prior to the hearing last Friday.

2.    The affidavits contained extensive allegations of fact. This is particularly the case in relation to Ms Barnes’ affidavit, which constituted 47 paragraphs and almost 70 pages of annexures. Even assuming all of the allegations in the affidavits are relevant to the proceedings (and Mr Preston has submitted, with justification, that much of the material is irrelevant and therefore inadmissible), in no way could the applicants to the notice of motion be in a position to reply to the allegations in a meaningful way at the hearing, by the provision of additional evidence or otherwise.

3.    The affidavits contained unsubstantiated hearsay material.

4.    The affidavits contained scandalous material, particularly concerning Mr Hardie.

7    Accordingly, I refused leave for the affidavits of Ms Barnes and Ms Jean Johnston to be filed in Court.

Consideration of notice of motion

8    So far as relevant in these proceedings, s 66B of the Act provides as follows:

(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:

…

(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;

…

(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.

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

9    As French J explained in Daniel v Western Australia (2002) 194 ALR 278 at 284 [17], notwithstanding the beneficial character of s 66B in supporting the continuing authority of the claim group, those who bring applications under that section must satisfy the following conditions which it imposes:

1.    There is a claimant application.

2.    Each applicant for an order under s 66B is a member of the native title group.

3.    The person to be replaced is no longer authorised by the claim group to make the application and to deal with matters arising in relation to it.

4.    Alternatively, the person to be replaced has exceeded the authority given to him or her by the claim group.

5.    The persons making the application under s 66B are authorised by the claim group to make the application and to deal with matters arising under it.

10    Further, even if the conditions for the exercise of the power under s 66B are satisfied the Court retains a discretion not to make the orders sought: Ward at [16], Daniel at 285 [18].

11    In this case the applicants submit that the only relevant conditions are 1, 2, 3 and 5 of Daniel. I consider this submission accurate – there is no suggestion that the native title applicant has exceeded the authority given to it by the native title claim group.

Condition 1

12    In this case there is no dispute that a claimant application exists for the purposes of the notice of motion.

Condition 2

13    Each of Richard Doyle, Patrick Silvester, Kenny Waterton, Eve Fesl, Eddie Waddy, Graham Anderson, Arwa Waterton, Cynthia Kemp, Bradley Curtis, and Dena Marie Dodd-Ugle have filed affidavits in these proceedings deposing to the fact that they are members of the native title claim group. All affidavits were filed on 7 July 2011, with the exception of the affidavit of Mr Graham Anderson filed on 12 July 2011 and the affidavits of Ms Eve Fesl and Mr Kenny Waterton filed on 13 July 2011.

14    Although Ms Lawson has not filed material in respect of this notice of motion, in an affidavit affirmed and filed on 7 July 2011 Dr Fiona Powell has deposed, inter alia, that:

    Dr Powell attended the authorisation meeting of the native title claim group on 11 June 2011 in Rockhampton;

    her function at the meeting was to record accurately on attendance sheets the details of all persons who wished to attend;

    each person who wished to participate in the decision making at the meeting was required to sign an attendance sheet and to provide his or her name, contact details, confirmation of whether or not he or she was 18 years or over, and the Iman apical ancestor/s from whom he or she was descended;

    Dr Powell was asked to assist with the registration of persons wishing to attend the meeting because of her previous research in relation to the native title claim, which has given her a working knowledge of the descent groups of the Iman people.

    Dr Powell notes the apical ancestors for the claim as including Maggie Palmtree.

15    Annexed to Dr Powell’s affidavit is a document entitled “Attendance Register, Iman Native Title Claim Group Meeting, Rockhampton 11 June 2011”. On page 7 of the Attendance Register is an entry of “Heidi Lawson”, signed by Ms Lawson, and identifying herself as descended from Maggie Palmtree.

16    There is no challenge before me as to the claim of the applicants to be members of the native title claim group.

17    I am satisfied that each of these members of the proposed applicant group are members of the native title claim group.

Conditions 3 and 5

18    It is logical to consider conditions 3 and 5 together, in that the applicants submit that at the same meeting as they were authorised to be the new native title applicant, the native title claim group resolved to no longer authorise the existing native title applicant.

19    Mr Colin Hardie, the solicitor for the applicants to the notice of motion, affirmed an affidavit on 6 July 2011. Annexed to his affidavit is a document entitled “The Report of Neutral Facilitator (Darryl Pearce) to the Federal Court on Authorisation Meeting”. A number of additional documents are annexed, including a document Mr Hardie deposes was a copy of the Minutes of the Authorisation Meeting of Saturday 11 June 2011.

20    In the Report, Mr Pearce states, inter alia, that the Minutes of the authorisation meeting record all of the resolutions of the meeting. Mr Pearce also wrote that he was assisted at the meeting by Mr David Yarrow of Counsel who prepared a copy of a PowerPoint presentation used to assist in the conduct of the meeting. Mr Pearce stated further:

I have been responsible for the conduct of authorisation meetings for native title determination applications on a number of occasions. In my view, the authorisation meeting for the Iman #2 matter on 11 June 2011 was conducted in accordance with:

(a)    the principles of fair meeting procedure; and

(b)    the prevailing standards for authorising persons to make a native title determination application on behalf of a native title group.

21    It appears from the Minutes that resolutions to the following effect were carried at the authorisation meeting:

    that only people of Iman descent be present at the meeting (Motion 1, carried 72 in favour, 4 against);

    a resolution in relation to the process for making decisions at the meeting (Motion 2, carried 88 in favour and 11 against);

    that the members of the native title claim group in attendance at the meeting were satisfied that the people at the meeting were sufficiently representative of the claim group to make authoritative decisions about the claim, and that sufficient notice was given of the meeting to the claim group to enable authoritative decisions to be made about the claim (Motion 3, carried 81 in favour and none against);

    resolutions imposing terms and conditions on the authority of those authorised as the native title applicant (Motion 4, carried 127 in favour, none against and 1 abstention);

    that voting by the claim group be by persons 18 years or older (Motion 5, carried 119 in favour, 1 against and 9 abstentions);

    that Richard Doyle, Patrick Silvester, Kenny Waterton, Eve Fesl, Eddie Waddy, Graham Anderson, Arwa Waterton, Cynthia Kemp, Bradley Curtis, Dena Marie Dodd-Ugle and Heidi Lawson be confirmed as the native title applicant (Motion 6. Each of the applicants were confirmed with different majorities);

    that the existing native title applicant be directed to terminate the retainer of Queensland South Native Title Services (QSNTS) in relation to Iman native title business and the new native title applicant be authorised to engage appropriate legal representatives (Motion 7, carried 51 in favour, 25 against, 8 abstentions).

22    Significantly, Motion 8, which was carried 80 in favour, none against and with no abstentions, was:

That:

(a)    Russell Tatow; Patrick Sylvester, Cynthia Kemp, Eve Fesl, Troy Noble, Frederick Tull, Fergus Waterton, Richard Doyle and Madonna Barnes are no longer authorised by the claim group to make the application and to deal with matters arising in relation to it; and

(b)    Richard Doyle, Kenny Waterton, Eddie Waddy, Arwa Waterton, Bradley Curtis, Dena Dodd-Ugle, Heidi Lawson, Patrick Silvester, Eve Fesl, Graham Anderson and Cynthia Kemp are authorised to seek an order under section 66B of the Native Title Act 1993 that they replace Russell Tatow; Patrick Sylvester, Cynthia Kemp, Eve Fesl, Troy Noble, Frederick Tull, Fergus Waterton, Richard Doyle and Madonna Barnes.

23    A copy of the PowerPoint presentation used at the meeting, which contained all the resolutions, was also annexed to Mr Hardie’s affidavit.

24    In Ward v Northern Territory [2002] FCA 171, in considering an application pursuant to s 66B, O’Loughlin J said at [24]:

The information concerning the meeting that was held on 27 January 2002, the date of Mr Carlton's affidavit, is wholly deficient. There is no information about that meeting. Who convened it and why was it convened? To whom was notice given and how was it given? What was the agenda for the meeting? Who attended the meeting? What was the authority of those who attended? Who chaired the meeting or otherwise controlled the proceedings of the meeting? By what right did that person have control of the meeting? Was there a list of attendees compiled, and if so by whom and when? Was the list verified by a second person? What resolutions were passed or decisions made? Were they unanimous, and if not, what was the voting for and against a particular resolution? Were there any apologies recorded?

25    In applying these criteria to the case before me, I am satisfied that information concerning the meeting in Rockhampton on 11 June 2011 is satisfactorily disclosed. In summary, it is clear from the evidence before the Court that:

    the meeting was convened by QSNTS pursuant to orders of the Court;

    an agenda displayed in a PowerPoint presentation was put to the meeting;

    those in attendance were recognised by resolutions passed at the meeting as having the right or entitlement to participate in the authorisation process;

    the meeting was chaired independently by Mr Darryl Pearce, who has previous experience in chairing such meetings;

    Mr Pearce was assisted by Mr Yarrow of Counsel;

    those who attended the meeting had the fact of their attendance recorded and their line of descent from one of the apical ancestors verified by an experienced anthropologist familiar with the composition of the claim group;

    the minutes recorded resolutions put to the meeting, resolutions both carried and not carried, and the number of votes cast;

    by resolution, the meeting accepted that adequate notice had been given in respect of the convening of the meeting.

26    I am satisfied that the meeting was properly convened and conducted, that authorisation of the current native applicant was withdrawn, and that the applicants to the notice of motion were authorised by the claim group to make the native title application and to deal with matters arising under it. In my view no evidence of either Mr Russell Tatow or Ms Elizabeth Johnston as found in their respective affidavits supports any findings to the contrary.

Discretion of the Court

27    In this case, the relevant conditions under s 66B have been satisfied. I am also satisfied that the Court should exercise its discretion to make order replacing the native title applicant in accordance with the orders sought in the notice of motion because:

    The authorisation meeting of 11 June 2011 was ordered by the Court to take place, and the meeting resolved unanimously and overwhelmingly to replace the native title applicant.

    The authorisation meeting of 11 June 2011 effectively superseded the two earlier meetings held by members of the claim group in which attempts were made to replace the native title applicant.

Other orders sought

28    Mr Preston for the applicants sought an order that the names of the parties to the proceeding as native title applicant be amended to reflect the replacement of the native title applicant. In my view such an order is appropriate.

29    Mr Preston also sought the leave of the Court to discontinue or withdraw the notice of motion filed on 6 June 2011 by Just Us Lawyers. Reasons for judgment are currently reserved in respect of this notice of motion. The application to discontinue or withdraw the notice of motion filed on 6 June 2011 was not opposed. It is clear from the notice of motion currently before the Court that events have overtaken both the notice of motion filed 6 June 2011, orders given on 9 June 2011 and the reserved reasons for those orders. In my view, it is appropriate to grant leave for the notice of motion filed on 6 June 2011 to be discontinued. In light of the discontinuance of that notice of motion reasons in relation to orders previously made in respect of that notice of motion are now clearly unnecessary.

30    Finally, Mr Preston submitted that the notice of motion filed on 13 November 2010 by QSNTS prior to the orders dated 13 April 2010 amending the description of the claim group ought be dismissed. Mr Wishart of QSNTS submitted that such an order was appropriate. Accordingly, I so order.

Associate:

Dated:    19 July 2011