FEDERAL COURT OF AUSTRALIA

Kuruma and Marthudunera People v State of Western Australia [2012] FCA 14

THE COURT ORDERS THAT:

1.    Neil Finlay, Gloria Lockyer, Mark Lockyer and Jack Alexander (the replacement applicant) replace the applicant to the current application WAD 6090 of 1998 pursuant to s  66B of the Native Title Act 1993 (Cth), on the grounds that:

(a)    Jean Lockyer has consented to her removal;

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

(c)    the persons who comprise the replacement applicant are authorised by the claim group to make this application under s 66B of the NTA, and are authorised to bring the native title application and deal with matters arising in relation to it.

2.    The heading of the current application be amended by the removal of the applicant member Jean Lockyer from the title to the action.

3.    Service of this interlocutory application and supporting documentation on any respondent other than the State of Western Australia be dispensed with, but the replacement applicant notify the other respondents of the making of the order by email communication as soon as possible.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

application to replace current applicant

1    By application filed 15 November 2011 Neil Finlay, Gloria Lockyer, Mark Lockyer and Jack Alexander apply for an order under s 66B of the Native Title Act 1993 (Cth) (NTA) that they replace the current applicant.

court’s power to replace current applicant

2    Section 66B of the NTA provides as follows:

66B Replacing the applicant

Application to replace applicant in claimant application

(1)    One or more members of the native title claim group (the claim group) in relation to a claimant application, or of the compensation claim group (also the claim group) in relation to a compensation application, may apply to the Federal Court for an order that the member, or the members jointly, replace the current applicant for the application on the grounds that:

(a)     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.

3    The table to s 61(1) of the NTA indicates that the native title determination application must be brought by applicants who are authorised by the native title claim group. The term ‘authorise’ is defined in s 253 as having the meaning given to it by s 251B of the NTA.

4    Section 251B of the NTA provides as follows:

251B Authorising the making of applications

For the purposes of this Act, all the persons in a native title claim group or compensation claim group authorise a person or persons to make a native title determination application or a compensation application, and to deal with matters arising in relation to it, if:

(a)    where there is a process of decision-making that, under the traditional laws and customs of the persons in the native title claim group or compensation claim group, must be complied with in relation to authorising things of that kind—the persons in the native title claim group or compensation claim group authorise the person or persons to make the application and to deal with the matters in accordance with that process; or

(b)    where there is no such process—the persons in the native title claim group or compensation claim group authorise the other person or persons to make the application and to deal with the matters in accordance with a process of decision-making agreed to and adopted, by the persons in the native title claim group or compensation claim group, in relation to authorising the making of the application and dealing with the matters, or in relation to doing things of that kind.

5    The terms ‘claimant application’ and ‘native title claim group’ are defined in s 253 of the NTA:

claimant application means a native title determination application that a native title claim group has authorised to be made, and, unless the contrary intention appears, includes such an application that has been amended.

…

native title claim group means:

(a)    in relation to a claim in an application for a determination of native title made to the Federal Court—the native title claim group mentioned in relation to the application in the table in subsection 61(1); or

(b)    in relation to a claim in an application for an approved determination of native title made to a recognised State/Territory body—the person or persons making the claim, or on whose behalf the claim is made.

grounds on which application is made

6    The application is brought under s 66B of the NTA on the following grounds:

    One of the current applicants, Ms Jean Lockyer, has consented to being removed as a member of the applicant;

    The persons comprising the proposed replacement applicant are all members of the native title claim group;

    The current applicant is no longer authorised by the claim group to make the application and deal with matters arising in relation to it; and

    The replacement applicant is authorised by the claim group to make the application and deal with matters arising under it.

ConsideratioN

7    The application is supported by an affidavit of Ms Penelope Muecke, lawyer, filed 15 November 2011 explaining the circumstances surrounding the Kuruma Marthudunera claim group meeting held over two days on 3 October 2011 and 4 October 2011 in Point Samson.

8    Ms Muecke is employed by Yamatji Marlpa Aboriginal Corporation (YMAC), a representative of the native title body for the Pilbara and Geraldton regions of Western Australia. YMAC has represented and provided legal advice to the persons on whose behalf the claimant application in this proceeding is made. Ms Muecke has attended many Kuruma and Marthudunera claim group community meetings in her capacity as a claim lawyer.

9    As to the ground that Ms Lockyer has consented to her removal as a member of the applicant, the evidence concerning consent is provided by Ms Muecke to the following effect:

    Ms Lockyer’s daughter, Ms Gloria Lockyer, facilitated discussions and informed Ms Muecke that her mother ‘accepted’ that her failing health made it difficult to continue as a member of the applicant. Ms Muecke was unable to speak with Ms  Lockyer personally because she did not attend meetings;

    Ms Lockyer was aware that the purpose of the 3 October 2011 and 4 October 2011 meeting was to remove her as an applicant which was stated on the meeting notice sent to all Kuruma Marthudunera claim group members;

Purpose:

…

Morning Tea in Appreciation of Jean Lockyer’s Service to the K&M

s66B Change of Applicant discussions and decision

    Ms Lockyer attended a celebratory morning tea on 3 October 2011 where Ms Lockyer’s retirement as member of the applicant was acknowledged. Ms Muecke observed that Ms Lockyer smiled and nodded when thanked for her service to the claim group. Ms Lockyer left the meeting early after the morning tea and stated that she was unwell. Ms Lockyer did not attend the second day of the meeting held on 4 October 2011.

10    Based on Ms Muecke’s affidavit evidence, the Kuruma Marthudunera claim group understood that Ms Lockyer consented to her removal as an applicant. Ms Muecke discussed Ms Lockyer’s removal with several of her close family members on numerous occasions. A letter dated 20 September 2011 was also sent to Ms Lockyer’s family explaining the circumstances surrounding her retirement and organising the 3 October 2011 celebratory morning tea. It may also be noted that at the meeting on 4 October 2011 the resolutions to remove Ms Lockyer were passed unanimously. In all the circumstances, I infer that Ms Lockyer did consent to her replacement as a current applicant, and that inference is supported by the fact that no one at the meeting on 4 October 2011 suggested that she did not. In any event, the applicant raised s 66B(1)(a)(iii) of the NTA, authorisation by the claim group for Ms Lockyer’s replacement, as a further or alternative ground.

11    I am satisfied that the application is brought on the basis that persons comprising the replacement applicant are all members of the native title claim group. It appears from Ms Muecke’s affidavit that the four members are descended from a Kuruma Marthudunera apical ancestor as depicted on the Kuruma Marthudunera genealogies.

12    Authorisation is one of the central issues in these proceedings and obtaining proper authorisation of a claim group is a fundamental requirement of the NTA. It is important in native title determination applications that those who purport to bring an application and to exercise, on behalf of the native title claim groups, the rights and responsibilities associated with such application have authority of their groups to do so: Bolton on behalf of the Southern Noongar Families v State of Western Australia [2004] FCA 760 (Bolton) at [43] per French J.

13    The purpose of the 3 October 2011 and 4 October 2011 meeting was to seek instructions from the Kuruma Marthudunera community regarding the removal of Ms Lockyer from the applicant list and authorising the replacement applicant.

14    The applicant submits that the usual and accepted method for convening meetings of the Kuruma Marthudunera claim group is by way of notices posted and delivered to claim group members listed on YMAC database. YMAC maintains a database of Kuruma Marthudunera claim group members’ contact details and the database is used when mailing notices of community meetings. Notice is also given by word of mouth through YMAC staff and by publishing the notices in regional newspapers.

15    Ms Muecke settled the notice for the 3 October 2011 and 4 October 2011 meeting. The notice was posted on 6 September 2011 from YMAC’s Perth office to the Kuruma Marthudunera claim group members listed on the YMAC database. The notice is titled ‘Notice of Community Meetings of the Kuruma and Marthudunera (WC99/12) People – FaHCSIA Meeting’ and states one of its purposes is ‘s66B Change of Applicant discussions and decision’.

16    The notice for the 3 October 2011 and 4 October 2011 meeting was also published in the following three regional Pilbara newspapers:

    Pilbara Echo from 10 to 11 September 2011;

    North West Telegraph on 6 September 2011; and

    Pilbara News on 14 September 2011 (Newspaper Notices).

17    The Newspaper Notices are titled ‘Kuruma & Marthudunera Community Meeting’ and state that:

Date:     Monday, 3 October &

Tuesday, 4 October 2011

…

Yamatji Marlpa Aboriginal Corporation (YMAC) invites members of the Kuruma & Marthudunera native title claim group (WAD6090/1998)* to a community meeting. The first day of the meeting (3 October) is to authorise a change to the applicant under Section 66B of the Native Title Act, and to discuss other important issues to the Kuruma & Marthudunera Native Title Claim. All Kuruma & Marthudunera people should attend.

…

* You are a member of this group if:

a)    you can establish your descent from any of the following apical ancestors (biological descendants of the unions between): Tumbler, Minnie, Rosie, Bobby Marrawarru, Ruby Woolhouse, Johson Alec and Algy Patterson; and

b)     you identify as Kuruma & Marthudunera and are accepted as Kuruma & Marthudunera in accordance with their traditional laws and customs.

18    Ms Muecke had regular contact with the Kuruma Marthudunera claim group members in the period leading up to the 3 October 2011 and 4 October 2011 meeting and accordingly, the meeting was discussed and details were confirmed.

19    Ms Muecke states that she is not aware of any complaints from Kuruma Marthudunera claim group members that they were not aware of the meeting.

20    In the circumstances described above, I find that sufficient notice was given to all claim group members of the agenda that involved authorisation of a replacement applicant. All the notices contained information specific to authorisation for the removal of a deceased applicant and the election of a new replacement applicant relevant to s 66B of the NTA.

21    On the first day of the meeting, 3 October 2011, Ms Lockyer attended the morning tea and was thanked for her contribution to the Kuruma Marthudunera claim group. As discussed above, Ms Lockyer left the meeting early. According to Ms Muecke’s affidavit, the decision was made to postpone the authorisation of the s 66B proposal until the second day of the meeting on 4 October 2011. This was not considered a problem because:

    every member of the Kuruma Marthudunera claim group was aware of the meeting and the purpose of the meeting;

    the four Kuruma Marthudunera members who attended on 3 October 2011 were prepared to attend the following day and would not be prejudiced by postponing the authorisation until the next day;

    the four Kuruma Marthudunera members who attended on 3 October 2011 agreed to use their best endeavours to ensure that more claim group members representative of the families attended on 4 October 2011; and

    the estimated cost of the 3 October 2011 and 4 October 2011 meeting was $35,657 and it would be a waste of resources if an outcome was not achieved.

22    On the second day of the meeting, 4 October 2011, twelve Kuruma Marthudunera claim group members attended, including the four from the previous day (not including Ms Lockyer). The Kuruma Marthudunera claim group unanimously passed resolutions reflecting their decision to elect a new applicant and replace the current applicant. The claim lawyers read out the proposed resolutions to those in attendance and explained the purpose of the resolutions.

23    The resolutions passed at the meeting on 4 October 2011 are as follows:

Resolution: 041011.1

The members of the KM claim group:

(a)     Thank Jean Lockyer for her years of hard work as a member of the Applicant for the KM claim.

(b)     Notes that Jean Lockyer has consented to be being removed as a member of the Applicant.

(c)     Agree that Jean Lockyer will continue to be valued (sic) member of the KM Claim Group.

Moved: Sarah Slattery

Seconded: Alma Tumbler

Carried: Unanimously

Resolution 041011.3

The members of the KM claim group:

decide (sic) that:

(i)     The Current Applicant in the KM native title claim (Jean Lockyer, Neil Finlay, Gloria Lockyer, Mark Lockyer and Jack Alexander), be replaced by Neil Finlay, Gloria Lockyer, Mark Lockyer and Jack Alexander (Replacement Applicant)

(ii)     Should any individual amongst the persons making up the Replacement Applicant cease to be part of the Applicant group, then the remaining persons remain authorised to act as the Applicant, subject to compliance with this Resolution and any further resolution of the KM Claim Group

(iii)     The Replacement Applicant is authorised to make the application and to deal with matters arising in relation to it, but this is always subject to any specific direction or decision of the KM Working Group or a meeting of the KM Claim Group

(iv)     The Replacement Applicant is authorised to bring an application in the Federal Court to replace the Current Applicant.

(v)     The Replacement Applicant is authorised to bring any further applications in the Federal Court to replace the Applicant in order to give effect to Resolution 3(ii) if the need arises.

(vi)    The KM claim group request that the issue of adding additional members to the Applicant be addressed at a further community meeting.

Moved: Alma Tumbler

Seconded: Joan Evans

Carried: Unanimously

Resolution: 041011.4

For the purposes of Resolution 3, the circumstances in which an individual ceases to be a member of the Applicant in respect of the KM native title application include, but are not necessarily limited to, the following:

(a)     The person has informed PNTS (or any replacement solicitor on the recordz0 that they no longer wish to be a member of the Applicant;

(b)     The person has died;

(c)     The person has become physically or mentally incapacitated such that they can no longer adequately perform the role of member of the Applicant;

(d)     The person has ceased to make themselves readily available to do such things as are reasonably necessary to progress the application and/or ancillary matters such as “future acts” or has acted unreasonably when requested to perform these tasks;

(e)     The person has engaged in conduct which has caused the Applicant as then constituted to exceed the authority given to it by the KM claim group.

(f)     The decision as to whether an individual ceases to be a member of the Applicant for the purposes of Resolution 4(c)-(e) is a matter for the KM claim group to decide by majority vote. In the case of mental or physical incapacity, the claim group must take into consideration, the recommendation of the family of the person concerned.

Moved: Valerie Alexander

Seconded: Matthew Sampi

Carried: Unanimously

24    The resolutions were passed unanimously. Ms Muecke states that she did not observe any opposition to the resolutions and she did not receive any complaints in relation to the community meeting system adopted on 3 October 2011 and 4 October 2011.

25    On these facts, consensus was achieved and there was no opposition to the resolutions either during or subsequent to the 3 October 2011 and 4 October 2011 meeting.

26    Ms Muecke’s affidavit reveals that Kuruma Marthudunera claim group ‘agreed to and adopted’ a process of decision-making in accordance with s 251B(b) of the NTA for the purpose of making decisions of the kind contemplated under s 66B of the NTA. When attending Kuruma Marthudunera meetings Ms Muecke observed that:

    there is no traditional process under Kuruma Marthudunera law and custom for making decisions as to the removal or authorisation of applicants as contemplated by s 66B of the NTA; and

    the agreed and adopted process of decision-making is by passing resolutions, agreed by consensus, at community meetings after discussions between group members with deference to the knowledge and seniority of the group’s elders. If no consensus can be reached, then decisions are made by resolutions determined by a majority vote at such meetings.

27    The ‘agreed and adopted’ process of decision-making is used to make decisions about the Kuruma Marthudunera’s native title claim on a regular basis, including for decisions of the kind contemplated by s 66B of the NTA.

28    Ms Muecke’s produces in her affidavit an extract titled ‘Resolution 111004/2 Acknowledged Decision Making Process’ which clarifies that the decision-making process described above was adopted in the Kuruma Marthudunera community meeting held on 3 October 2011 and 4 October 2011. Ms Muecke personally observed the decision-making process on that day.

29    The Full Court of the Federal Court of Australia has confirmed that it is not necessary that an anterior systemic process of decision-making is agreed or adopted before the members of the native title claim group can validly resolve to remove an applicant in a native title determination application under s 251B(b) of the NTA: Noble v Murgha [2005] FCAFC 211 at [30]-[34]. Furthermore, the Full Court of the Federal Court of Australia in Noble v Mundraby, Murgha, Harris and Garling [2005] FCAFC 212 at [18] accepted that:

Section 251B does not require proof of a system of decision-making beyond proof of the process used to arrive at the particular decision in question.

…

Nor does s 251B require a formal agreement to the process adopted for the making of a particular decision. Agreement within the contemplation of s 251B may be proved by the conduct of the parties.

30    I accept that that an agreement as to a decision-making process as contemplated by s 251B(b) of the NTA was established by the conduct of those present at the Kuruma Marthudunera community meeting held on 3 October 2011 and 4 October 2011, as explained by Ms Muecke.

31    The ‘adoption’ of a decision-making process pursuant to s 251B(b) of the NTA does not require proof that individual decisions were made by all, or most, of the members of the group to satisfy s 66B of the NTA. The NTA does not require that all members of the claim group be present or that all persons present agree: Lawson on behalf of the ‘Pooncarie’, Barkandji (Paakantyi) People v Minister for Land and Water Conservation for the State of New South Wales [2002] FCA 1517 (Lawson) at [25] per Stone J; Butchulla People v State of Queensland [2006] FCA 1063 at [33]; (2006) 154 FCR 233 at [33] per Kiefel J and Moran v Minister of Land and Water Conservation for New South Wales [1999] FCA 1637 at [48].

32    It is sufficient if a decision is made once the members of the claim group are given every ‘reasonable opportunity’ to participate in the decision-making process and a ‘technical and pedantic approach’ is not required by the NTA: Lawson at [25] per Stone J. The representatives at a meeting to authorise the removal of the applicant group must be ‘fairly representative of the native title claim [group] concerned’: Bolton at [46] per French J.

33    I am satisfied on the affidavit evidence that members of the native title claim group were given a ‘reasonable opportunity’ to participate in the decision-making process at the meeting on 3 October 2011 and 4 October 2011. I accept Ms Muecke’s evidence that there was appropriate representation by the Kuruma Marthudunera families at the meeting, including key claimants. The usual claim group members were in attendance when the authorisation resolutions were passed at the meeting. Ms Muecke also reviewed the attendance list to further inform herself in making her affidavit.

34    While all Kuruma Marthudunera claim group members were invited to the 3 October 2011 and 4 October 2011 meeting, not all attended, for various reasons.

35    Based on the affidavit evidence, I find that authorisation was given at the community meeting by a representative group of persons who constitute the native title claim group in the Kuruma Marthudunera claim. There was adequate representation and the resolutions were properly authorised by the Kuruma Marthudunera claim group in accordance with the agreed decision-making process and adopted by the group for making decisions of this nature as provided for by s 251B of the NTA.

Conclusion and orders

36    I infer that Ms Lockyer consented to her removal as an applicant. In any event, I am satisfied that authorisation was given by the Kuruma Marthudunera claim group to replace Ms Lockyer as a current applicant. Sufficient steps were taken to ensure that all persons falling within the claim group description were given notice of the 3 October 2011 and 4 October 2011 community meeting and there was adequate use of the agreed and adopted decision-making process. I accept the meeting itself produced a good cross-section of claim members from the Kuruma Marthudunera families and the resolutions received unanimous support from those who attended the meeting. Accordingly, I am satisfied that the application to replace the current applicant with the replacement applicant should be allowed. I will make orders in terms of the minute of proposed orders filed on behalf of the applicant on 15 November 2011.

37    The Court orders that:

1.    Neil Finlay, Gloria Lockyer, Mark Lockyer and Jack Alexander (the replacement applicant) replace the applicant to the current application WAD 6090 of 1998 pursuant to s 66B of the Native Title Act 1993 (Cth), on the grounds that:

(a)    Jean Lockyer has consented to her removal;

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

(c)    the persons who comprise the replacement applicant are authorised by the claim group to make this application under s 66B of the NTA, and are authorised to bring the native title application and deal with matters arising in relation to it.

2.    The heading of the current application be amended by the removal of the applicant member Jean Lockyer from the title to the action.

3.    Service of this interlocutory application and supporting documentation on any respondent other than the State of Western Australia be dispensed with, but the replacement applicant notify the other respondents of the making of the order by email communication as soon as possible.

Associate:

Dated:    16 January 2012