FEDERAL COURT OF AUSTRALIA

Sandy on behalf of the Yugara/Yugarapul People v State of Queensland [2012] FCA 978

FEDERAL COURT OF AUSTRALIA

Sandy on behalf of the Yugara/Yugarapul People v State of Queensland [2012] FCA 978

CORRIGENDUM

1.    In [3], line 5, delete “piece” and insert in lieu thereof “peace”.

Associate:

Dated:    13 September 2012

THE COURT ORDERS THAT:

1.    The amended interlocutory application filed 18 June 2012 is dismissed.

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

REASONS FOR JUDGMENT

1    The Turrbal People (Ms Connie Isaacs and Ms Maroochy Barambah as authorised applicant) and the Yugara/Yugarapul People (Mr Desmond Sandy and others as authorised applicant) have competing and overlapping native title determination applications over an area of land and waters that essentially covers the City of Brisbane and its immediate surrounds.

2    This application (in these reasons I will refer to it as “the” or “this” “current application”) marks a further stage of the dispute between these two native title claim groups. It began life as an application by the Turrbal People under s 84C or s 84D(4)(b) of the Native Title Act 1993 (Cth) (the NTA) to strike out the application lodged by the Yugarapul People on the ground that it was not properly authorised in accordance with s 61 of the NTA. However, during the hearing of the current application in June 2012, that approach was abandoned and it was reduced to an application for:

An order under 84D(4)(b) of the Native Title Act 1993 (Cth) that the Applicant in this proceeding conduct a fresh process to authorise it to make a native title determination application or a compensation application, and to deal with matters arising in relation to it.

Before dealing with this remanent of the current application, it is appropriate to set out some of the factual background to the somewhat bitter dispute between these two native title claim groups.

Procedural history of the two claims

3    The Turrbal People’s original claim was lodged with the National Native Title Tribunal more than 14 years ago: on 13 May 1998. Early in its history, it was subject to two other overlapping native title applications: one by the Jinibara People and the other by the Jagera People (#2). The overlapping claim with the Jinibara People was resolved relatively early in the piece, but the other overlapping claim with the Jagera People was not. As a consequence, the Turrbal People’s claim was divided into two parts: Parts A and B. Part B contained the areas of the claim that overlapped with parts of the Jagera People’s claim. Those overlapping parts were essentially along the southern boundary of the Turrbal People’s claim and the northern boundary of the Jagera People’s claim.

4    In December 2010, the proceedings comprising the corresponding parts of the overlapping claims were set down for trial to commence on 28 November 2011. At about the same time, the dispute about the overlapping claims was referred to mediation. That mediation was successful and, in July 2011, the boundaries between both claims were amended so that the two claim areas did not overlap. This cleared the way for the whole of the Turrbal claim to proceed to hearing at the trial dates fixed for the overlapping claims, viz 28 November 2011 as above.

5    In the meantime, in mid-May 2011 (subsequently amended in late June 2011) Mr Desmond Sandy, Ms Pearl Sandy and Ms Ruth James filed a notice of motion seeking to be joined as respondents in the Turrbal proceedings. That application was dismissed in August 2011 (see [2011] FCA 942) on two grounds, which can be summarised as follows:

(a)    a person could not seek to become a respondent party to native title proceedings to obtain a positive determination of native title on behalf of his or her people, clan or group and since that was the clear purpose of the Sandy/James application, it should be rejected: see [2011] FCA 942 at [19]–[26];

(b)    in any event, the application would have been rejected on discretionary grounds because, allowing the Sandy/James applicants to become respondents at that stage of the Turrbal proceedings, may have jeopardised the trial dates (see [2011] FCA 942 at [29]) and because they had delayed in making their application without giving any explanation for that delay (see [2011] FCA 942 at [32]–[34]).

6    To demonstrate that the dispute between these two groups dated from well before 2011, it is appropriate to interpolate that in their opposition to the Sandy/James application, the Turrbal People produced evidence of what they claimed to be a formal resolution of the dispute between the Turrbal People and Yugarapul People made in September 1998. That matter is referred to in the reasons ([2011] FCA 942 at [33]) as follows:

The explanation could not lie in their [the Yugarapul People’s] ignorance as to the existence of the Turrbal People’s native title application. That is amply demonstrated by a document entitled “Memorandum of Understanding” made on 17 September 1998 which is annexed to Ms Barambah’s affidavit filed on behalf of the Turrbal People. In that affidavit, Ms Barambah claims that this Memorandum of Understanding was made between her mother and two Yugarapul Elders, sisters who are members of the “Yugarapul Anderson family”. On its face, the document records an agreement reached between the Turrbal People and the Yugarapul People about “the traditional boundary of the Turrbal People for their native title claim” (emphasis added). In her affidavit in response, Ms James says that she remembers this document and she says she raised an objection to it because “Aunty Mona Parsons herself said that Kathleen Anderson and Kathleen Anderson were the same person in the Deebing Creek book and it states their Apical is from Crow’s Nest”. Whether or not Ms James’ objection is valid, this document and her response to it show that she must have been aware of the existence of the Turrbal People’s native title claim since almost the outset of these proceedings some 13 years ago.

7    On the first day of the trial of the Turrbal People’s claim (28 November 2011), counsel for the Turrbal People and counsel for the State of Queensland informed the Court that there had been an agreement in principle between the parties on the basis of which the parties would request the Court to make a consent determination under s 87 of the NTA to the effect that native title did not exist in the determination area. Accordingly, the parties proposed that the trial dates should be vacated and the matter should be adjourned for a short period to allow various procedural steps to be undertaken so that an application for a consent determination under s 87 could be made to the Court. Since this course was supported by all the parties, the trial dates were vacated and the matter was adjourned for approximately one week.

8    Shortly before the adjourned hearing began on 7 December 2011, the Yugarapul People filed their native title determination application. It covered the same area of land and waters (albeit not specific lots) as the Turrbal People’s claim area. This had the effect of thwarting the settlement in principle and, particularly, any consent determination of the Turrbal People’s claim. In large part, this result flowed from the provisions of s 67 of the NTA, which requires that where two or more proceedings cover in whole, or in part, the same area of land and waters, the Court must ensure that the overlapping parts of those claims are dealt with in the same proceeding.

9    To allow all of the parties to both claims to consider their positions in relation to this sudden and significant development, both proceedings were adjourned to 15 December 2011. On that date the Yugarapul People submitted to orders to, by 20 January 2012, file an amended application which addressed various defects in their original application. Those orders included orders that they comply with the following provisions of the NTA:

(a)    s 61(3) of the NTA and Federal Court Rules 2011 (FCR) 11.01 and 21.6, by providing an address for service, including an email address;

(b)    s 61A(2) of the NTA, by excluding areas in relation to which previous exclusive possession acts were done;

(c)    s 62(1)(a) of the NTA, by annexing fresh affidavits by the persons comprising the Applicant, in particular addressing the matter referred to in s 62(1)(a)(i);

(d)    s 62(2)(e) of the NTA, by setting out a general description of the factual basis on which it is asserted that the native title rights and interests claimed exist;

(e)    s 62(2)(g) of the NTA, by providing details of other applications in relation to the whole or a part of the area covered by this application.

10    As well, the Yugarapul People submitted to an order pursuant to s 84D(1) of the NTA requiring them, by 20 January 2012, to file and serve evidence that Mr Sandy, and the others, were duly authorised as the applicant to file the Yugarapul People’s application. That order specified that the evidence was to include the following:

(a)    the process of notification of the authorisation meeting, and the form of any such notices;

(b)    who was invited to the authorisation meeting;

(c)    the form of the invitation(s) to the authorisation meeting;

(d)    who attended the authorisation meeting (by producing the attendance list);

(e)    the agenda for the authorisation meeting;

(f)    the resolutions put to the authorisation meeting;

(g)    a record of proceedings at the authorisation meeting, including a record of the votes taken on resolutions put to the authorisation meeting;

(h)    minutes of the authorisation meeting;

(i)    a description of the process of decision-making that was used at the authorisation meeting, and whether it is a traditional decision making process or not.

11    It will be apparent from these orders that, almost since the outset of the Yugarapul People’s claim, there has been an issue about the validity of the authorisation process for that claim. It is also pertinent to note that the Yugarapul People were not legally represented while this authorisation process was being carried out. Indeed, Queensland South Native Title Services (QSNTS) did not formally begin to act for them until mid-January 2012.

12    The dates for compliance with the orders mentioned in [9] and [10] above were subsequently extended to 16 February 2012 and 30 April 2012 respectively. The Yugarapul People complied with the former order by the extended date. However, the current application filed on 26 March 2012 by the Turrbal People intervened before compliance with the extended date for the latter order fell due. Nonetheless, in mid-January 2012, Mr Wishart, a solicitor employed at QSNTS, filed an affidavit on behalf of the Yugarapul People which was intended to constitute part compliance with the latter order.

13    It is also of importance to record that, in February 2012, about a month prior to this current application being filed, orders were made that there should be a trial of all the issues in the two proceedings, except extinguishment. That trial was tentatively fixed to be held in the second half of 2013. Further, the Deputy Registrar was directed to supervise the adoption and implementation of a program to achieve that trial date. Because this current application, in its original form, included an application under s 84C(1) of the NTA (see at [1] above), this process before the Deputy Registrar was suspended once it was filed. Section 84C(2) of the NTA dictated that course because it provides that where an application is made under s 84C(1) of the NTA, the Court must “consider” that application “before any further proceedings take place in relation to the main application”. However, once this current application was heard in June 2012 and, at the same time, the s 84C aspects of it were abandoned, this provision no longer applied to prevent the process before the Deputy Registrar being reinstated and implemented.

14    There are two other aspects of the relatively complex procedural history of these two native title claims that should be mentioned. First, during the course of a directions hearing conducted in February 2012, Mr Wishart, for the Yugarapul People, informed the Court that, as a part of QSNTS’ role as a representative Aboriginal/Torres Strait Islander body for the south east Queensland region, it maintained records of those people who had claimed native title in relation to land or waters in that region. Accordingly, an order was made to the following effect:

By 30 April 2012, Queensland South Native Title Services notify in writing any person or group of persons of whom Queensland South Native Title Services is aware who claims or has claimed to hold native title in relation to any part of the area covered by this application informing them of this application and the matters provided for in ss 66(10)(b) and 66(10)(c) of the Native Title Act 1993 (Cth).

15    In late June 2012, Ms Jessica Ling, a legal officer employed by QSNTS, made an affidavit outlining how QSNTS had complied with the above order. In that affidavit Ms Ling confirmed that:

QSNTS maintains an electronic contacts database that is frequently revised and updated. This database contains the contact details of persons who identify as a member of one or more of the native title claim groups in the QSNTS operational area and have sought to receive correspondence in relation to native title matters. We also maintain contact details of persons in relation to research projects undertaken by QSNTS. QSNTS cannot guarantee the accuracy or completeness of the contact details contained in our electronic database.

16    Ms Ling deposed to having posted letters to all persons (or their legal representatives):

… of whom QSNTS is aware who claims, has claimed or may claim to hold native title in relation to any part of the area covered by the Yugara YUgarapul People’s native title determination … advising them of the matters provided for in sections 66(10)(b) and 66(10)(c) of the Native Title Act 1993 (Cth).

17    She also deposed to sending similar letters to the legal representatives of the Turrbal People, the Jagera People, Mr Eddie Ruska (an Indigenous respondent party in the Yugarapul People’s claim), the Gold Coast Native Title Claim Group and the Quandamooka and Jinibara Peoples and to “… 295 people recorded in the Kabi Kabi contacts folder”.

18    Ms Ling deposed to not having received any responses to any of these letters.

19    The second aspect arose out of the hearing of this current application in June 2012. During that hearing, Mr Blackshield, for the Turrbal People, submitted that, since they had recently settled their dispute with the Jagera People, those people may have an interest in the claim by the Yugarapul People because it covers a part of the same overlapping area that was previously in dispute between them and the Turrbal People. As a consequence, all the parties agreed that an order should be made in the following terms:

The Deputy Registrar (Native Title) give notice to the legal representatives of the Jagera #2 People’s claim group in proceeding QUD6014 of 2003 of the existence of the amended application in these proceedings, and to request that those legal representatives advise the Deputy Registrar whether they consider the amended application raises any issue that they consider has been resolved between the Jagera #2 claim group and the Turrbal People’s claim group.

20    The Deputy Registrar (Native Title) subsequently sent a letter in those terms. A Mr Matt Patterson of p&e Law, who acts on behalf of the Jagera People, responded to that letter and said, among other things:

Having regard to the description of the native title claim group at Schedule A of the Yugara/YUgarapul People claim (QUD586/2011), there does not appear to be any commonality of membership of these two native title claim groups.

The words “these two native title claim groups” (above) referred to the Yugarapul People and the Jagera People.

The authorisation process for the Yugarapul People’s claim

21    Finally, it is necessary to describe what happened during the authorisation process for the Yugarapul claim – that is obviously the focal point of this current application. It is probably not a coincidence that this process seems to have begun in earnest shortly after the Sandy/James application to become respondent parties in the Turrbal claim was rejected on 19 August 2011 (see at [5] above). The following is a chronology of the authorisation process taken from an affidavit of Mr Wishart, which was filed in part compliance with the order made on 15 December 2011 (see at [10] and [12] above).

22    On 24 August 2011, a notice in the following form was published in The Courier-Mail and the Beaudesert Times newspapers:

Native Title

Authorisation Meeting

Sunday, 10:30 a.m.

11 September,2011

BYO plate to share

CJ Greenfield

Sports & Community Hall,

Freeman Road, Inala.

RSVP, Nominations or details:

Text 0400 836 709 or email

ravjames@bigpond.com

NT map: www.koorimail.com

23    From 23 August 2011 to 13 September 2011, a notice for the meeting of 11 September 2011 continuously appeared on the website of the Koori Mail, an Indigenous newspaper. This notice included a map of the proposed claim area of the Yugara, Yugambeh & Yugarapul Peoples’ native title claim and otherwise included words similar to the above.

24    On 11 September 2011, the meeting referred to above was held. It was attended by 38 individual Indigenous persons. According to Mr Wishart’s affidavit, the minutes of that meeting record that the “‘Next Native Title Authorisation Meeting’ would be held on 1 October 2011”. It is not clear from Mr Wishart’s affidavit why the notices that were subsequently published referred to two meetings, viz on 1 and 15 October 2011.

25    On 14 September 2011, a notice was published in The Courier-Mail newspaper about the authorisation meetings to be held on 1 and 15 October 2011. It was in the following form:

Native Title

Authorisation Meetings

Saturday 11:00am

1 & 15 October, 2011

BYO plate to share CJ Greenfield

Complex Hall Freeman Road, Inala

RSVP, submissions or details:

Text 0400 836 709 or

Email Ruth James

ravjames@bigpond.com

NT map & apicals:

www.koorimail.com

26    From 13 September to 5 October 2011, a notice for the native title authorisation meetings to be held on 1 and 15 October 2011 continuously appeared on the website of the Koori Mail newspaper. This notice contained the same map of the proposed Yugara/Yugarapul and Yugambeh Peoples’ native title claim as described above (see at [23]) and was to the following effect:

Saturday 1st & 15th October,

Registration 10:30 for 11:00 am

BYO plate to share

CJ Greenfield Sports Community Hall,

Freeman Road, Inala

RSVP submissions or details:

Ruth James text 0400 836 709 or

email: ravjames@bigpond.com

Other general contacts:

Desmond Sandy: 0401 393 781

27    This notice also included a note as follows:

NB: Resolution passed on 11 September 2011:

No overlap with Quandamooka or Gold Coast Native Title claims.

28    The notice then set out details of the apical ancestors of the Yugara/Yugarapul People by reference to various geographical areas. It also contained details of a proposed resolution to be considered at that meeting.

29    On 1 October 2011, a meeting was held at which 14 individual Indigenous people identifying as Yugara/Yugarapul and Yugambeh People attended. Among other things, it was agreed at that meeting that the next meeting would be held on 15 October 2011.

30    From 5 October to 17 October 2011, a notice for the meeting of 15 October 2011 appeared continuously on the website of the Koori Mail newspaper. This notice was in similar form to the notice published on 13 September to 5 October 2011 above (see at [26] to [28]).

31    At the meeting on 15 October 2011, six individual Indigenous people were present and 24 other individuals recorded proxy votes.

32    From 17 October to 23 October 2011, a notice for the 23 October 2011 meeting appeared on the website of the Koori Mail newspaper. This notice was essentially in the same form as that for the notice published 13 September to 5 October 2011 above (see at [26] to [28]).

33    The minutes of the meeting held on 23 October 2011 record that “24 Claimants; 5 visitors and others” were present. They also record that resolutions were passed relating to the “claimant group descendants of apical ancestors”, “map boundaries”, “authorisation of applicants – Desmond Sandy; Ruth James and Pearl Sandy”, “name – Yugara / YUgarapul People” and “Native Title Rights and Interests”.

Relevant legislative provisions

34    Before setting out the contentions of the parties in relation to the current application, it is convenient to set out the relevant legislative provisions that fall for consideration. Because of the amendment to significantly narrow down the current application to one under s 84D(4)(b) of the NTA, it is not necessary to set out s 84C. Section 84D provides:

(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.

(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.

(Notes omitted)

35    As will appear below, the contentions of the parties on this current application raise two other sections of the NTA. They are ss 61 and 251B. For present purposes they provide as follows:

61 Native title and compensation applications

Applications that may be made

(1)    The following table sets out applications that may be made under this Division to the Federal Court and the persons who may make each of those applications:

    Applicant in case of applications authorised by claim groups

(2)    In the case of:

(a)    a native title determination application made by a person or persons authorised to make the application by a native title claim group; or

(b)    a compensation application made by a person or persons authorised to make the application by a compensation claim group;

the following apply:

(c)    the person is, or the persons are jointly, the applicant; and

(d)    none of the other members of the native title claim group or compensation claim group is the applicant.

Applicant’s name and address

(3)    An application must state the name and address for service of the person who is, or persons who are, the applicant.

Applications authorised by persons

(4)    A native title determination application, or a compensation application, that persons in a native title claim group or a compensation claim group authorise the applicant to make must:

(a)    name the persons; or

(b)    otherwise describe the persons sufficiently clearly so that it can be ascertained whether any particular person is one of those persons.

Form etc.

(5)    An application must:

(a)    be in the prescribed form; and

(b)    be filed in the Federal Court; and

(c)    contain such information in relation to the matters sought to be determined as is prescribed; and

(d)    be accompanied by any prescribed documents and any prescribed fee.

(Bold emphasis added)

…

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.

Contentions

36    It is pleasing to record that much common ground emerged during the hearing of this current application. Of significance, it was accepted as common ground that:

(a)    there was a substantive issue in dispute between the Turrbal People and the Yugarapul People about who holds the native title rights and interests to the claim area the subject of both claims; and

(b)    for the purposes of this current application, the Court cannot act under s 84D(4)(b) of the NTA unless it is first satisfied that the Yugarapul People’s claim was not properly authorised in accordance with s 61 of the Act.

37    On [36](a) above, a great deal of material was placed before the Court on this current application directed to defining the substantive issue in dispute between the Turrbal People and the Yugarapul People. That included a number of affidavits by Dr Fiona Powell, a consultant anthropologist assisting the Yugarapul People, and Dr Gaynor McDonald, an anthropologist assisting the Turrbal People. While none of this material is now (or probably ever was) relevant to the determination of this current application, it is of assistance to record the parameters of the substantive dispute between these two groups. The core issue is whether Connie Isaacs and her descendants are themselves descendants of a Turrbal/Yugarapul man known as the Duke of York. The Turrbal People claim that she is, and the Yugarapul People claim that she is not.

38    Turning to the current application, Mr Blackshield, on behalf of the Turrbal People, made it clear that they make no complaint about the form of the notice given for the Yugarapul People’s authorisation meeting held on 23 October 2011. Instead, he stated that their only complaint was about the limited extent to which that notice had been distributed to the Yugarapul native title claim group. Mr Blackshield submitted that, when it was properly analysed, the only means by which that notice was circulated in the community was by its publication on the website of the Koori Mail Indigenous newspaper between 17 and 23 October 2011 (see at [32] above). Mr Blackshield submitted that, in view of the limited circulation of this notice, Mr Sandy and the other members of the applicant could not establish that they had been authorised by all the persons who comprise the Yugarapul native title claim group as required by s 61(1) of the NTA (emphasised at [35] above). On this aspect, he relied upon decisions such as Coyne v State of Western Australia [2009] FCA 533 at [51] per Siopis J and Boulton on behalf of the Southern Noongar Families v Western Australia [2004] FCA 760 at [45] per French J. Mr Blackshield submitted that Mr Sandy and the other members of the Yugarapul applicant cannot rely upon the earlier meetings of 11 September, 1 October and 15 October 2011. This was so because, so he submitted, the authorities that permit the decision-making process under s 251B of the NTA (see at [35] above) to be adopted by a continuous process over a period of time (such as Daniels v Western Australia (2002) 194 ALR 278; [2002] FCA 1147 at [39]–[44] and [51] per French J and P.C on behalf of the Njamal People v State of Western Australia [2007] FCA 1054 at [17]–[18] per Bennett J) did not apply because the minutes of those three meetings did not show any evidence of this continuous process occurring during those meetings.

39    Mr Preston, for the Yugarapul People, submitted that, while it appeared that the notice for the 23 October 2011 meeting had only been circulated by placing it on the website of the Koori Mail newspaper, that meeting was the culmination of a process involving three earlier meetings, each of which was widely advertised, including notices published in The Courier-Mail and Beaudesert Times newspapers. Mr Preston submitted that there was no particular authorisation process prescribed by the NTA and that the fundamental question was whether it could be said that all the members of the native title claim group had been afforded every reasonable opportunity to participate in the process of decision-making that was engaged in when the applicant was authorised to make the claim. Mr Preston pointed to the fact that no one from the Yugarapul native title claim group had come forward and complained about the validity of the authorisation of the applicant and the only complaint was that of Ms Isaacs and Ms Barambah, who were the authorised applicant in the competing claim group. Finally, Mr Preston submitted that there would be no purpose in incurring the considerable costs, time and resources associated with holding a fresh authorisation meeting.

40    Ms Bowskill, for the State of Queensland, pointed to the existence of the competing claims between the Turrbal People and the Yugarapul People and submitted that this was not a case where anybody affected by the authorisation process would not have their substantive rights protected when that underlying/substantive dispute is resolved. Ms Bowskill submitted, even if the Court considered that there were defects in the authorisation of the applicant in the Yugarapul claim, in was in the interests of justice for the Court to proceed to hear and determine the substantive dispute between these two groups.

41    As with Mr Preston, Mr Hardy, on behalf of Mr Ruska, an Indigenous respondent in the Yugarapul People’s claim, also pointed to the absence of any prescribed authorisation process in the NTA. He submitted that the Court should follow the “practical approach” described by Stone J in 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 [28]. Mr Hardy submitted that there was a fundamental dispute between these two groups, which dispute will not be resolved by attending to any defects that may have occurred in the authorisation of the applicant in the Yugarapul claim.

Consideration

42    It cannot be denied that there are some aspects of the authorisation process followed by the Yugarapul People that raise some real doubts about whether Mr Sandy and the other persons involved were validly authorised as the applicant by all of the persons comprising the native title claim group in accordance with s 61(1) and/or by a process of decision-making that accords with s 251B of the NTA. Those aspects include:

(a)    the limited nature and extent of the circulation of the notice of the authorisation meeting held on 23 October 2011. It is common ground between the parties that the only circulation given to that notice was to post it on the website of the Koori Mail Indigenous newspaper and no such similar notice was published in a widely circulating newspaper such as The Courier-Mail or the Beaudesert Times.

(b)    while notices of the earlier meetings on 11 September and 1 and 15 October were published in widely circulating newspapers such as The Courier-Mail or the Beaudesert Times, the minutes of those meetings do not provide evidence that the requisite decision-making process under s 251B of the NTA was agreed on and adopted by a continuous process during that series of meetings. In fact, the minutes of the meetings of 1 and 15 October 2011 have not been produced at all and the minutes of the meeting of 11 September 2011 simply note, without giving any details, that:

RESOLUTION: Decision making for the NT Authorisation meeting …

Katharine Wiltshire read resolution on behalf of Ida Close (nee Sandy). Moved: Deborah Sandy. Seconded: Grace Chong. Motion Carried with 35 in favour. 0 against.

43    On the other hand, there is much to be said for the countering submissions made on behalf of the Yugarapul People, the State of Queensland and Mr Ruska. They are quite correct in pointing out that there is no particular authorisation process prescribed in the NTA. Further, there is much to be said for the “practical approach” described by Stone J in Lawson (see also Harrington-Smith on behalf of the Wongatha People v Western Australia (No 9) (2007) 238 ALR 1; [2007] FCA 31 (Harrington-Smith) at [1267] per Lindgren J). And, in this respect, it is significant that, despite the relatively exhaustive process engaged in by QSNTS to identify any member of the Yugarapul native title claim group who may be dissatisfied with the Yugarapul authorisation process, no one has come forward. Instead, the only complaint about the Yugarapul authorisation process has come from the Turrbal People, their opponents in the substantive dispute and that complaint is axiomatically self-serving. Indeed, Mr Blackshield frankly acknowledged that Ms Barambah would not have attended the 23 October 2011 authorisation meeting, whether she knew about it or not. Thus, to act on the Turrbal People’s complaint will cause significant expense to the Yugarapul People in having to conduct a fresh authorisation process, and yet that expense will be to no avail because resolving defects in the authorisation process for the Yugarapul People’s claim will do nothing to resolve the substantive dispute between these two groups.

44    It is well-established by numerous decisions of this Court over the past decade or more that proper authorisation under ss 61 and 251B of the NTA is foundational to the filing and maintenance of a valid native title determination application under the NTA: see, for example, Harrington-Smith at [1171]. Thus, strict compliance with those provisions has often been held to be fatal to an application: see Harrington-Smith at [1172] per Lindgren J. However, there has been some difference in approach in some decisions as to what is required by the word “all” in s 61 of the NTA: see Harrington-Smith at [1265]. Nonetheless, as Finn J observed in Akiba v Queensland (2010) 270 ALR 564; [2010] FCA 643 (at [913]–[918]), s 84D was introduced to the NTA to ameliorate the fatal consequence identified in Harrington-Smith. See also Ashwin on behalf of the Wutha People v Western Australia (No 2) (2010) 191 FCR 549; [2010] FCA 1472 at [21] per Siopis J. It follows that, since the introduction of s 84D to the NTA, when the Court is satisfied that an application does not comply with s 61 (or s 251B) of the NTA, it is able to balance the effect of that defect with the need for due prosecution of the application and the interests of justice in deciding whether the defect should be remedied, or instead, whether to hear and determine the substantive application: see s 84D(4)(a) and (b).

45    In this case, the Turrbal People have urged me to proceed under s 84D(4)(b) and require the Yugarapul People to conduct a fresh authorisation process for their application. All the other parties have urged me to proceed under s 84D(4)(a) to hear and determine the substantive dispute between these two native title claim groups. For the reasons that follow, I consider the course urged by the Yugarapul People and the other parties to these proceedings is the most just and appropriate course. I have reached this conclusion on the assumption (without deciding) that the Yugarapul People’s application does not comply with s 61 and/or s 251B of the NTA.

46    There is an obvious confluence between the provisions of s 84D(4) of the NTA and the overarching purpose of civil litigation expressed in Pt VB of the Federal Court of Australia Act 1976 (Cth). As is now well known, the latter requires civil litigation in this Court to be conducted justly and as quickly, inexpensively and efficiently as possible.

47    To require the Yugarapul People to conduct a fresh authorisation process will be expensive and time-consuming. If it were thought to be justified, it would be perverse not to delay these proceedings while it was carried out and the outcome of it determined. But whatever that outcome, that fresh authorisation process will not result in the resolution of the substantive dispute which, it is universally accepted, exists between these two native title groups.

48    So, the net result of embarking on the s 84D(4)(b) course urged by the Turrbal People will be expense for the Yugarapul People, further delay in these proceedings and no timely resolution of the substantive dispute. As I have noted above (at [45]–[46]), on every aspect, this net result is the direct opposite of the overarching purpose in Pt VB of the Federal Court of Australia Act 1976 (Cth) and the due prosecution/interests of justice factors described in s 84D(4). Further, as I have also noted above, s 84D(4) was introduced to the NTA with the express purpose of overcoming this sort of result. That being so, I consider this case presents the perfect occasion for that section to be put to positive use. That is, to proceed to hear and determine the substantive dispute between these two native title groups without further expense or delay being devoted to the validity of the authorisation process for the Yugarapul People’s claim.

Conclusion

49    For these reasons, I dismiss the current application of the Turrbal People.

Associate:

Dated:    6 September 2012