FEDERAL COURT OF AUSTRALIA

Far West Coast Native Title Claim v State of South Australia [2012] FCA 733

FEDERAL COURT OF AUSTRALIA

Far West Coast Native Title Claim v State of South Australia [2012] FCA 733

CORRIGENDUM

1.    On p 2 of the coversheet to the reasons for judgment of the Honourable Justice Mansfield, the following appearance is to be added:

Associate:

Dated:    13 July 2012

THE COURT ORDERS THAT:

1.    The application of Robert Victor Miller for the reinstatement of the Mirning Native Title Claim (WAD 6016 of 1998) (by its deconsolidation from the Far West Coast Native Title Claim) is refused.

2.    The applications of Robert Victor Miller for his joinder as a party to the Far West Coast Native Title Claim, and for an order or orders under s 84D(1) or (4) – if still pressed – and for the summary dismissal of those claims, are stood over to a date to be fixed.

3.    The parties, including Robert Victor Miller, are given liberty to apply.

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

REASONS FOR JUDGMENT

INTRODUCTION

1    The applicants in this claim, called the Far West Coast Native Title Claim, are Barker Bryant, Clem Lawrie, Richard John Le Bois, Samuel George Mastrosavas, Gladys Rita Miller and Kenneth Gordon Roberts (the Applicant). The claim is for the determination of native title over an extensive area in the south west of South Australia. The Far West Coast Native Title Claim reflects the consolidation of separate, but previously overlapping, claims by the Far West Coast People and the Mirning People for determinations of native title.

2    Robert Victor Miller, a Mirning man, primarily seeks an order that the Mirning Native Title Claim (WAD 6016/1998) be reinstated as a separate application for the determination of native title under the Native Title Act 1993 (Cth) (NT Act) and/or no longer be combined with the Far West Coast Native Title Claim. Mr Miller is presently a member of the Far West Coast Native Title Claim group (as it is described in the application). He has been on the governing committee of the Far West Coast Traditional Lands Association since 5 March 2009. He also seeks the other orders referred to in [13] below.

3    The Applicant denies that Mr Miller has standing to make the application and seeks a summary dismissal of the application.

BACKGROUND

4    It is necessary to refer to how the Far West Coast Native Title Claim came about, and more recent events, to understand why the present application is made.

5    The background is described in Far West Coast Native Title Claim v State of South Australia (2011) 191 FCR 381 at [6]-[12].

6    By way of summary, in 1998 the Mirning people and Far West Coast people each separately made claims for native title under s 61 of the NT Act, namely WAD 6016/1998 (Mirning) and SAD 6008/1998 (Far West Coast). The areas claimed in the two applications overlapped. This presented problems, as under s 68 of the NT Act only one approved determination of native title can be made with respect to an area.

7    In May 2004 at Spear Creek an extensive mediation was held, facilitated by the Aboriginal Legal Rights Movement Inc (ALRM), which at the time was the native title representative body for South Australia, and the National Native Title Tribunal. Amongst other outcomes, that mediation resulted in an agreement for the Mirning claim to be combined with the Far West Coast claim. Following this, ALRM continued to facilitate a number of meetings to further consider the combination of the two claims. On 19-20 December 2005 a meeting at the Standpipe Hotel in Port Augusta was held for the purposes of authorising the amendment of the existing claims pursuant to s 251B of the NT Act to facilitate their combination. That meeting authorised the persons comprising the Applicant to apply to consolidate the two claims and to deal with matters in relation to the consolidated claim. Clem Lawrie is a Mirning man and was authorised by the Mirning people to join as part of the Applicant in the proposed consolidated claim on behalf of the Mirning people at an earlier meeting of the Mirning native title claim group on 21-22 July 2005 (following the Spear Creek agreement in principle).

8    On 18 January 2006, leave was granted to amend the Far West Coast application, to combine it with the Miring native title claim (WAD 6016/1998) thereby expanding the claim area to cover the two claim areas of the previously separate claims, and consolidating the two claims so that the two applications were to be conducted as a single application. That resolved any issues of overlapping claims. The separate claim groups were redescribed as one claim group to incorporate the apical ancestors of both the previously separate claim groups and their successors. The amended application bears the title of the application numbered SAD 6008/1998, and the previously separate Mirning Native Title Claim application was consolidated with that application. It ceased to be a separate claim. That is the claim which is sought to be “reinstated” as a separate claim. The consolidated claim is called the Far West Coast Native Title Claim.

9    The Far West Coast Native Title Claim has since progressed to the point where there is a real prospect that in the proximate future there may be a determination by consent of the claim in favour of the composite claim group.

10    Mr Miller is concerned that the Mirning people have not been adequately represented, nor their interests adequately protected, in the ongoing conduct by the Applicant of the Far West Coast Native Title Claim. Some members of the Mirning people have expressed concerns regarding consultation with the Mirning people in the conduct of the Far West Coast Native Title Claim, and that the ongoing negotiations are not adequately protecting their particular interests. These concerns were raised in this Court at the callover of 13 March 2009 by Michael Laing, Robert Lawrie and Mr Miller. At that time, Mr Laing stated that there had been a Mirning community meeting ‘to remove the authority from Clem Lawrie’ and that the Mirning people were concerned about the advice that they had received, and the way parts of the claim area were proposed to be protected.

11    In late 2010 Mirning Community Inc (MCI) was incorporated. Its purpose was to “encourage, promote and cultivate an appreciation of Mirning language, culture, history and heritage; to preserve and protect that language, history and culture; and to carry out activities to do so;” and “to engage in such other activities as may be incidental to or in furtherance of those purposes.” It applied to be joined as a respondent to the Far West Coast Native Title Claim. It wished to be in a formal position to advance the perceived interests of the Mirning people in the consolidated claim. Membership of MCI was in essence confined to descendants of Willis Lawrie or Gordon Charles Naley: Far West Coast Native Title Claim v State of South Australia [2011] FCA 24 at [16]. Mr Miller is a member of MCI. The application was dismissed, on the basis that an incorporated association did not have a sufficient interest to be joined as a party: Far West Coast Native Title Claim v South Australia [2011] FCA 24 [27], applying Byron Environment Centre Inc v Arakwal People (1997) 78 FCR 1 [9]-[10] per Black CJ.

12    The present application is another step in the attempt to advance the perceived interests of some of the Mirning people, reflecting the discontent or the concerns expressed above. It is not clear how extensive that discontent is. The evidence suggests that a significant section of the Mirning people do not support the position Mr Miller seeks to adopt, but on the other hand, there are a number of Mirning people who share Mr Miller’s concerns.

ISSUES

13    Mr Miller seeks the following orders:

(1)    the Mirning Native Title Claim (WAD 6016/1998) be re-instated as a separate application and not be combined with application numbered as SAD 6008/1998 (in effect, a de-consolidation order);

(2)    he be joined as a respondent party to the Far West Coast Native Title Claim under section 84(5) of the NT Act so as to be in a position formally to advance his (and others’) concerns;

(3)    in the alternative to order 2, the Applicant produce evidence to the Court in relation to the Far West Coast Native Title Claim of the character specified in subs 84D(1)(a) and (b); and

(4)    such other orders as the Court deems appropriate.

Mr Miller relies on s 84D(2)(c) of the NT Act for his standing to seek order (3) above.

14    The Applicant seeks summary disposal of the interlocutory application.

PRINCIPLES

15    The application for summary disposal is brought pursuant to s 31A of the Federal Court of Australia Act 1976 (Cth) and rule 26.01 of the Federal Court Rules 2011.

16    Section 31A relevantly provides in respect of summary judgments against an applicant that:

(2)    The Court may give judgment for one party against another in relation to the whole or any part of a proceeding if:

(a)    the first party is defending the proceeding or that part of the proceeding; and

(b)    the Court is satisfied that the other party has no reasonable prospect of successfully prosecuting the proceeding or that part of the proceeding.

(3)    For the purposes of this section, a defence or a proceeding or part of a proceeding need not be:

(a)    hopeless; or

(b)    bound to fail.

for it to have no reasonable prospect of success.

17    Rule 26.01(1) describes the basis for a summary judgment as follows:

(1)    A party may apply to the Court for an order that judgment be given against another party because:

(a)    the applicant has no reasonable prospect of successfully prosecuting the proceeding or part of the proceeding; or

(b)    the proceeding is frivolous or vexatious; or

(c)    no reasonable cause of action is disclosed; or

(d)    the proceeding is an abuse of the process of the Court; or

(e)    the respondent has no reasonable prospect of successfully defending the proceeding or part of the proceeding.

18    Mr Miller submits that rule 26.01 refers to summary judgments in “proceedings” which he says does not include interlocutory applications. Interlocutory applications are defined in the Dictionary as “an application, other than a cross-claim, in a proceeding already started.” He submits that the interlocutory application is a part or a step in the process of a proceeding already started, and accordingly rule 26.01 does not apply.

19    It may also be observed that both s 31A and r 26.01(1) refer to a “party” seeking summary judgment against another “party”. At first glance, Mr Miller is not a party to the Far West Coast Native Title Claim. He does not have that status by reason of being a member of the claim group. Indeed, his present application to be joined as a party acknowledges that.

20    The Dictionary in Schedule 1 to the Federal Court of Australia Act 1976 (Cth) defines “proceeding” as follows:

proceeding means a proceeding in a Court, whether between parties or not, and includes an incidental proceeding in the course of, or in connexion with, a proceeding, and also includes an appeal.

21    “Proceeding” is defined widely, particularly with its inclusion of incidental proceedings. In Fiorentino v Irons (1997) 79 FCR 327 (Fiorentino), Foster J at 330 found that the definition was sufficiently wide to cover the issuing of summons, and a notice of motion for leave for the service of that summons outside Australia. In Pasdale Pty Ltd v Concrete Constructions (1995) 59 FCR 446, which was referred to in Fiorentino, Finn J at 448 held that the term “incidental proceeding” was “apt to encompass a motion for security of costs.” The definition of a “proceeding” is clearly wide enough to including any application, whether or not final orders are sought, by the reference to incidental applications, to accommodate the summary dismissal of an interlocutory application. Although there is no decision directly on point, for present purposes I assume Mr Miller’s three claims to relief can each fall within the wide definition of a “proceeding”.

22    The term “party” is in turn defined to mean “a party to a proceeding”. In the circumstances, that would therefore include Mr Miller, as I have assumed his present claims constitute a proceeding.

23    Accordingly, I am prepared to proceed on the basis that the Applicant is properly invoking power of the Court in seeking the summary dismissal of the application for the three orders sought by Mr Miller. That conclusion is in accordance with the decisions referred to. It also accords with common sense. Where a “non-party”, that is, a person who is not presently designated as a party to a proceeding formally seeks orders from the Court in that proceeding, there is as much reason to entitle the Court summarily to dispose of such an application if it is otherwise appropriate to do so (having regard to the criteria in s 31 and r 26.10) as in the case of an interlocutory application by an existing party. In either case, costs, time and expense of a full hearing should not be permitted to be incurred if there is no reasonable prospect of the orders sought being granted.

24    In this case, Mr Miller and the Applicant have indicated that the full hearing of Mr Miller’s applications would require more time. Mr Miller indicated also that discovery would be requested. Already 17 affidavits had been filed by Mr Miller and 26 by the Applicant in response. If the Applicant in response considers the claims cannot succeed, there is merit in entertaining the summary dismissal application. Summary dismissal would, if granted, reduce potential further delays and save costs in this already protracted native title application. This is in line with the overarching purpose of civil practice and procedure provisions, as described in Federal Court of Australia Act 1976 (Cth) s 37M.

25    The onus is on the Applicant, responding to Mr Miller’s application, to show that there is no reasonable prospect of Mr Miller successfully obtaining the orders he seeks. In Spencer v Commonwealth (2010) 241 CLR 118, the High Court warned against the “judicial creation of a lexicon of words or phrases intended to capture the operation of a particular statutory phrase like ‘no reasonable prospect’, but instead, ‘full weight must be given to the expression as a whole’”: at [58]-[60] per Hayne, Crennan, Kiefel and Bell JJ. The test does not require the Court to determine whether Mr Miller will succeed on his claim, but whether there is no reasonable prospect of Mr Miller successfully prosecuting the proceedings or part of the proceedings in question: Boston Commercial Services Pty Ltd v GE Capital Finances Australasia Pty Ltd [2006] FCA 1352 [42] per Rares J.

CONSIDERATION

De-consolidation

26    Mr Miller first seeks an order to deconsolidate the Mirning Native Title Claim from the Far West Coast Native Title Claim. The consequence would be that there would again be overlapping native title claims over part of the Far West Coast Native Title Claim area, even more extensive than existed at the time of the Spear Creek decision as the Far West Coast Native Title Claim now covers the whole of the two separate previous claim areas.

27    The Applicant (including Mr Lawrie) submits that the orders sought by Mr Miller should be summarily refused because he lacks standing to make any of his claims; and there is no legal basis on which the interlocutory orders sought could or should be made.

28    As to the first order, on the issue of standing, Mr Miller correctly said that his evidence showed at least an arguable case that:

(a)    he considers it his role to give a voice to some Mirning concerns; and

(b)    he and some other Mirning people have concerns that Mirning interests are not being protected or represented by the Applicant in dealing with the Far West Coast Native Title Claim, in particular not giving effect to the agreement which constituted part of the authorisation given, apparently under s 251B of the NT Act at the meeting on 19-20 December 2005 at the Standpipe Hotel.

29    However, in my view, Mr Miller has no standing to seek the first order relating to deconsolidation, even accepting that there is an arguable case that the Mirning interests are not being fully protected or represented or are not being properly included in the conduct of the Far West Coast Native Title Claim by the Applicant.

30    Mr Miller does not purport to represent the claim group which authorised the Far West Coast Native Title Claim as it emerged following the 19-20 December 2005 meeting. Nor does he purport to represent the Mirning people as previously defined in the pre-consolidation Mirning Native Title Claim, but only some of them. Prior to the decisions referred to in [7] above and the consolidation order he was not the person who alone was authorised under s 251B to bring and conduct the then Mirning Native Title Claim on behalf of the Mirning People as a claim group.

31    Native title claims are necessarily conducted through representatives. The NT Act sets out how and by whom native title proceedings (and steps in those proceedings) are to be taken: s 61. It identifies the applicant as the party which bears responsibility for the carriage of the native title claim: ss 61(1) and 251B. To the extent that individual members of a claim group, or the native title claim group itself, are dissatisfied with the conduct of the claim by the applicant, the NT Act provides the avenue to replace the authorised applicant: s 66B. That requires a withdrawal of the authorisation by the claim group to the then authorised applicant, and the appointment of a new person or persons to act as the applicant: s 66B or 251B.

32    Neither the Far West Coast Native Title Claim group nor the former Mirning Native Title Claim group have authorised Mr Miller to bring the current application. He does not assert to have been so authorised. A number of members of the Far West Coast Native Title Claim group, who identify themselves as Mirning people, have sworn affidavits opposing the current application by Mr Miller and affirming that the authorisation of the combined Far West Coast Native Title Claim has not been changed or revoked. That is not inconsistent with Mr Miller’s evidence: that is, some members of the Mirning people (as a group) support Mr Miller’s position and others do not.

33    At best, on the evidence, Mr Miller is supported by the MCI and by some but not all of the persons comprising the Mirning people. There is no evidence that Mr Miller is authorised under s 251B to act on behalf of either the present claim group or the group comprising all the Mirning people within the claim group. The Far West Coast Native Title Claim, as consolidated, was authorised under s 61 and s 251B. Mr Miller has not provided any evidence of any subsequent and different authorisation by that claim group, or indeed by those persons who constitute all the Mirning people within that claim group. Clearly also, there is little prospect of him securing such a decision, because the evidence shows that a number of Mirning people continue to support the present Applicant (including Mr Lawrie).

34    Accordingly, I decline to make order (1) sought in the interlocutory application of Mr Miller. It is not necessary to make that order as a summary dismissal order. In respect of this part of Mr Miller’s application, the evidence taken at its highest cannot lead to the making of the order he seeks. It is also unnecessary to consider the other issues or steps which would require consideration before a de-consolidation order could be made.

Joinder as a respondent

35    At present, I do not propose to give summary judgment dismissing Mr Miller’s application to be joined as a respondent.

36    Section 84(5) states:

The Federal Court may at any time join any person as a party to the proceedings, if the Court is satisfied that the person’s interests may be affected by a determination in the proceedings and it is in the interests of justice to do so.

37    The phrase “and it is in the interests of justice to do so” was added to s 84(5) by the Native Title Amendment Act 2007 (Cth) but only applies to proceedings commenced on or after 15 April 2007. In Barunga v State of Western Australia (No 2) [2011] FCA 755 at [163] Gilmour J held that the addition of the phrase adds nothing to the matters that the Court must consider in relation to a joinder application under s 84(5). The power to join a respondent is a discretionary power that requires proper consideration of the individual circumstances of each case.

38    An order for the joinder of a member of the claim group, in effect as a respondent or opponent to the claim itself, is not routinely recognised. The circumstances in which a dissentient member of a native title claim group will be permitted to become a respondent will be rare: Starkey v South Australia [2011] FCA 456 at [61] - [63] (Starkey). In Starkey I considered that the joinder of a claimant as a respondent may not be consistent with the effective and efficient presentation and the conduct of the claim, but may instead add to the cost and delay, and may subvert the intention of s 62A of the NT Act to provide to the respondents one person (or group) responsible for dealing with the claim on behalf of the claim group: at [55]. There will, however, be cases where it is appropriate to do so: see the cases discussed in Starkey at [46] and [48].

39    Ultimately, however, s 84(5) requires that each case be considered in the interests of justice, with consideration of the individual circumstances of each case. In this case, on the evidence, the combining of the two claims came about after a series of long and difficult negotiations. The minutes of the meetings leading up to the decision to combine the two claims records some discontent and unease of at least some members of the Mirning people, who were concerned that the Mirning people would not be adequately represented and that their voice would be lost in the combined claim. The minutes also record reference as to ‘future agreements’ that would be made after the consolidation of the claims to ensure that the Mirning people would be adequately represented. Mr Miller says that the authorisation of the combined claim group was only agreed to on the basis that these future agreements were entered into, and that they have not been entered into or given effect. Taking Mr Miller’s evidence at its highest, it is arguable that a condition precedent to the authorisation process has not been met, enabling the Applicant to claim that it represents the claim group, even though in effect its authorisation was dependent upon the proper representation of the Mirning people.

40    Where the line is to be drawn between intra-mural management of a claim by an applicant, in the conduct of matters relating to the claim, and circumstances where there is an issue as to whether the authorisation given under s 251B is being adhered to, may be a difficult one. That is a matter discussed at more length in the next section of these reasons. At present, until the issues referred to in that section of these reasons are further addressed, I do not propose summarily to dismiss Mr Miller’s application to be a party to the application. Depending on how those issues are addressed, I will further consider that option.

41    In addition, Mr Miller says that his evidence to support his status as a proposed party is incomplete. It is at present difficult to see what additional evidence (other than an authorisation in terms of s 251B) would advance his claim. However, as I have not heard fully from him on that aspect, it would be premature to refuse his application at present.

Proceedings affected by possible defect in authorisation

42    The third claim of Mr Miller is for an order to require the Applicant (or probably more precisely Mr Lawrie as the designated nominee of the Mirning people and as one of the persons constituting the Applicant) to produce evidence that the Applicant (or Mr Lawrie for the Mirning People) was authorised at and by the meetings by the Mirning people of 21-22 July 2005 and 19-20 December 2005 to consolidate the two claims and to deal with the consolidated Far West Coast Native Title Claim as that is occurring.

43    Section 84D states:

(1)    The Federal Court may make an order requiring:

(a)    a person who, either alone or jointly with another person, made an application under section 61, to produce evidence to the Court that he or she was authorised to do so; or

(b)    a person who has dealt with a matter, or is dealing with a matter, arising in relation to such an application, to produce evidence to the Court that he or she is authorised to do so.

(2)    An order under subsection (1) may be made:

(a)    on the Federal Court‘s own motion; or

(b)    on the application of a party to the proceedings; or

(c)    on the application of a member of the native title claim group or compensation claim group in relation to the application.

(3)    Subsection (4) applies if:

(a)    an application does not comply with section 61 (which deals with the basic requirements for applications) because it was made by a person or persons who were not authorised by the native title claim group to do so; or

(b)    a person who is or was, or one of the persons who are or were, the applicant in relation to the application has dealt with, or deals with, a matter arising in relation to the application in circumstances where the person was not authorised to do so.

Note: Section 251B states what it means for a person or persons to be authorised to make native title determination applications or compensation applications or to deal with matters arising in relation to them.

(4)    The Federal Court may, after balancing the need for due prosecution of the application and the interests of justice:

(a)    hear and determine the application, despite the defect in authorisation; or

(b)    make such other orders as the Court considers appropriate.

44    Section 84D was inserted in the NT Act in 2007 by the Native Title Amendment (Technical Amendments) Bill 2007 (Cth) on 20 July 2007. The primary focus of s 84D is in circumstances where the Court is asked to consider a native title application under s 61 where an authorisation is or may be defective under s 251B, if it is in the interests of justice to do so: e.g. Roe v Kimberly Land Council Aboriginal Corporation [2010] FCA 809.

45    In my view, that is not the only circumstance in which s 84D can be utilised.

46    The wording of s 84D(1)(b) encompasses an order requiring a person authorised to make a claim under s 61 of the NT Act and who has dealt, or is dealing, with a matter arising in relation to that claim to produce evidence that he or she is authorised to do so. The power to deal with matters arising in relation to a claim is complementary to, and additional to, the fact of making the claim. It relates in terms to the second concept in the authorisation under s 251B, namely the dealing with matters arising in relation to the claim. That distinction is preserved in the words of s 84D(3)(a) and (b). Section 84D(4) also gives effect to the distinction between a defect in the authorisation on the one hand, or conduct which is challenged not because there was a defect in the authorisation but because the authorisation did not encompass the particular conduct dealing with the claim. In either case, the Court may make orders which progress or resolve the claim notwithstanding the problem.

47    The fact that s 84D(1)(b) can operate where an applicant is authorised to bring a claim but is not then dealing with the claim in the manner authorised is recognised in the Explanatory Memorandum relating to s 84D.

48    The Explanatory Memorandum to that amending Act sets out at the purpose of s 84D as follows:

1.281    Section 61 sets out the requirements for making an application. A claimant application or a compensation application made by a compensation claim group must be made by a person or persons authorised to make the application (see s 61). The person or persons who are authorised to make the application are jointly ‘the applicant’. Section 251B sets out the process for authorising the applicant to make an application and deal with matters arising in relation to the application.

1.282    Questions about the validity of the applicant's authorisation can arise at any stage during proceedings. For example, there may be doubts raised about whether the initial authorisation process authorising the making of the application was conducted properly. Even if the initial authorisation was valid, members of the claim group may suggest during proceedings that the person or persons who are the applicant have exceeded their authority in dealing with matters arising in relation to the application.

Questions about authorisation may also arise if, for example, all of the persons who are the applicant die or become incapacitated or no longer wish to be the applicant. In circumstances where a deficiency in the authorisation of the claim is identified, it is unclear what steps the Court may take to address the problem. If the Court determines the application is not properly authorised, there is a question about whether the Court may continue to hear and determine the application. The inclusion of proposed section 84D seeks to clarify the Court's powers in relation to authorisation issues.

49    It then clarifies in respect of sub 84D(1) that:

1.283    Proposed paragraph 84D(1)(a) would enable the Court to make an order requiring a person who made an application under section 61 to produce evidence to the Court that he or she was authorised to make the application. This may be appropriate where questions have been raised about the initial meeting authorising the making of the claim. Similarly, paragraph 84D(1)(b) would enable the Court to require a person who is dealing with the matter arising in relation to an application (as the applicant) to produce evidence showing that he or she is authorised to deal with matters arising in relation to the application. Such an order may be appropriate where there is some doubt as to whether the applicant continues to be properly authorised to deal with matters in relation to the application. (Emphasis added.)

50    A claim group may place conditions upon the manner in which the applicant deals with a matter arising in relation to the native title application: Anderson on behalf of the Wulli Wulli People v State of Queensland (2011) 197 FCR 404 (Anderson v Queensland) at [60] per Collier J. In Anderson, for example, the authorisation under s 251B to the 15 persons there comprising the applicant was given, subject to detailed terms and conditions.

51    There are a number of possible circumstances where the authorisation explicitly or implicitly includes conditions.

52    Where a number of persons are collectively authorised to act as the applicant, and one or more of them chooses at a point in time no longer to act in that capacity, or is unable to do so, generally speaking the authorisation will remain effective for the remaining persons to continue with the claim, and deal with matters arising in relation to it: Butchulla People v State of Queensland (2006) 154 FCR 233 (Butchulla) at [43] and [45] per Kiefel J; Doolan v Native Title Registrar (2007) 158 FCR 56 per Spender J at [57] and [73]. If one of a number of persons authorised under s 251B were to die, then again generally speaking the remaining authorised person could continue with the claim and deal with matters arising in relation to it: Lennon v State of South Australia [2010] FCA 743 per Mansfield J.

53    I use the qualification “generally speaking” because the terms of the authorisation may require that all of the authorised persons act together, and that if one or more of them is unable or unwilling to do so, then the authorisation lapses. Conversely, there may also be cases where the sectional interests of the claim group are represented by a particular person or persons, who becomes unable or unwilling to continue to act as an authorised person. The terms of the authorisation in such circumstances would generally be given effect, subject to an order under s 84D(4). Strictly speaking the authorised applicant may be able to continue to deal with the claim: see eg Butchulla People at [41] per Kiefel J. The direction available to the Court under s 84D(4) may not be exercised to allow continued dealing with the claim notwithstanding s 62A of the NT Act: see eg Anderson v State of Western Australia (2003) 134 FCR 1 at [48] per French J.

54    Subject to the matters referred to above, where the persons authorised under s 251B to be the applicant for the purpose of bringing, and dealing with a claim, cannot agree among themselves about how to do so, resort must be had to s 66B by the claim group. The authorisation, unless it expressly provides for (say) a majority vote among the persons who comprise the authorised applicant, requires all the authorised persons who are able and willing to act to agree upon how to bring and deal with the claim: Tigan v State of Western Australia (2010) 188 FCR 533 per Gilmour J. In Anderson v Queensland, the detailed terms of the authorisation specifically allowed for decision-making by a majority of the authorised persons constituting the applicant, so Collier J gave effect to that provision of the authorisation: see at [53]-[62].

55    In Anderson v Queensland, particularly apt to the present circumstances, are her Honour’s remarks at [60] in the following terms:

Sixth, and critically, I do not consider that s 62(2)(c) ought be interpreted in such a way as to remove the autonomy of the native title claim group itself to place a condition on the manner in which the applicant can make effective decisions. Section 251B of the Act confers power on the native title claim group to authorise a person or persons to make a native title determination application. As Kiefel J observed in Chapman at [19]:

The continuance of authorisation must depend upon the terms of the authorisation, a matter upon which the NTA did not speak. Section 251B recognises that, in some cases, proper authorisation may require the use of traditional customs and laws. Beyond that, the NTA does not contain any reference to the terms upon which persons may be authorised. (cf Butchulla at [40]-[41])

(Emphasis added.)

See also Ward v Northern Territory (2002) 196 ALR 32 per Mansfield J at [15]. In particular, I there said:

The authority conferred to make and deal with matters related to a native title determination application will be exceeded only if:

(a)    the authority so conferred was subject to some expressed limitation or restriction which has been exceeded; or

(b)    the authority so conferred was subject to the continuing supervision and direction of the native title claim group and there is some resolution or direction of the native title claim group which has not been complied with; or

(c)    the authority so conferred has, by some further decision of the native title claim group, been made subject to some expressed limitation or restriction which has been exceeded, or has been made subject to the continuing supervision and direction of the native title claim group and there is some resolution or direction of the native title claim group which has not been complied with.

56    Reference was made there to Daniel v Western Australia (2002) 194 ALR 278 at [16] per French J (Daniel). Gorringe on behalf of the Mithaka People v Queensland [2010] FCA 716 at [24] considered, but did not decide, whether an authorisation to bring, and deal with matters arising in relation to, an application for determination of native title enabled the applicant so authorised to withdraw the claim.

57    In Que Noy v Northern Territory [2007] FCA 1888, one focus was upon the meaning and operation of the then s 66B(1)(a)(ii). At that time, s 84D had not been enacted, and s 66B was confined to grounds (iii) and (iv) as presently contained in s 66B(1)(a), save that the words “the current applicant” were used instead of “the person” as now appears. In other words, that decision broadly considered the terms of the present s 66B(1)(a)(iv), but without the alternatives now provided for in s 84D. By the attitude of one of the four persons then constituting “the current applicant”, that (collective) applicant had precluded the solicitors engaged for the purpose of dealing with an important matter arising in relation to the claim from performing their role, and was taking steps independently of those other three persons in purporting to deal with that matter. In acting in that way, that person and so the (collective) current applicant had exceeded the authority given by the authorisation under s 251B. As the remaining members of the current applicant, and additional persons had been authorised by the claim group in terms of s 66B(1)(b), orders were made under s 66B substituting a new “current applicant”.

58    The significance for present purposes is that that procedure was available to ensure that an authorised applicant could be removed for failing to adhere to, and act within, the constraints of the authority given under s 251B. The decision of French J in Daniel also concerned s 66B as then in force. His Honour at [16] recognised that the provision was to maintain the primacy of the claim group:

If the original authority conferred upon an applicant for the purpose of making and dealing with matters in relation to a native title determination is subject to the continuing supervision and direction of the native title claim group, then it may be that an applicant whose authority is so limited is not authorised to act inconsistently with a resolution or direction of the claim group. In a case where an applicant does not comply with such a resolution or direction, it is reasonable to say that the applicant has exceeded the authority given to him or her by acting in contravention of the claim group decision. The criterion of excess of authority as a condition of the power under s 66B may be less onerous than the criterion of cessation of authority. It does not require a separate decision-making process in order to establish it. It is also consistent with a beneficial construction of s 66B as a facultative provision directed to maintaining the ultimate authority of the native title claim group.

59    For those reasons, in my view, s 84D (in addition to the facilitative power in s 84D(4) considered by Gilmour J in Roe) also encompasses that concept of the claim group, by the terms of its authorisation, maintaining its ultimate authority. It does so in a way which facilitates the enforcement of that status, as it does not require any specific authorisation under s 251B for a claim group member to apply to secure adherence to the terms of the authorisation. Instead, the Court is given the power and the discretion to decide in all the circumstances what action is appropriate where there is a departure by the applicant from the terms of the authorisation.

60    Consequently, it is arguable that s 84D(1)(b) allows the Court to order a person to give evidence where there is a reasonable basis for thinking that they have exceeded the authority of the authorisation.

61    Mr Miller argues that the authorisation of the applicant under s 251B was subject to certain conditions, regarding communication between the representative of the claim group (Mr Lawrie) and the claim group, the decision making process for decisions that affect Mirning Land, the protection of country and sacred sites, and speaking for country. As discussed above at [39] he also says that an agreement addressing some or all of these issues was, in effect, a condition precedent to the authorisation and that that agreement has not subsequently been negotiated or entered into.

62    It may be that the authorisation under s 251B was given in absolute terms without equivocation. I have not heard detailed argument about that. Subject to the qualification now expressed, I propose to relist the summary dismissal application (and if appropriate Mr Miller’s own application) for further hearing to address further whether order (3) in [13] above as sought by Mr Miller should be summarily dismissed, or should be dealt with in some other way. The qualification arises as Mr Miller at [39] in his “Substitute outline of submissions addressing standing, power of the Court and application merits,” states that he “is not seeking orders under section 84D(1).” It is not clear whether no order under s 84D at all is sought. If that is the case, then order (3) is simply not being pursued and can be summarily dismissed. That will have to be clarified. Also, I have not considered the breadth of possible orders that could be made under subs 84D(4). That question may also need to be further explored.

63    Accordingly, as to order (3), I will list both Mr Miller’s application, and the Applicant’s request for its summary dismissal, for mention at a time when the parties have had the opportunity to consider these reasons.

ORDERS

64    (1)    The application of Mr Miller for the reinstatement of the Mirning Native Title Claim (by its reconsolidation from the Far West Coast Native Title Claim) is refused.

(2)    The applications of Mr Miller for his joinder as a party to the Far West Coast Native Title Claim, and for an order or orders under s 84D(1) or (4) – if still pressed – and for the summary dismissal of those claims are stood over to a date to be fixed.

(3)    The parties, including Mr Miller, are given liberty to apply.

Associate:

Dated:    10 July 2012