FEDERAL COURT OF AUSTRALIA

Weribone on behalf of the Mandandanji People v State of Queensland (No 3)

[2013] FCA 662

THE COURT ORDERS THAT:

1.    Leslie Weribone, Wayne Weribone, Vincent Anderson, Tracy Landers, Theresa Manns, Rodney Landers, Neville Munn, Leigh Himstedt, Alexandra Combarngo, Jude Saldanha, Max McDonald and Alex Costa (the replacement applicant) jointly replace Leslie Weribone, Sarah Trindall, Lorraine Tomlinson, Miranda Mailman, Sylvia McCarthy, Violet Costa, David Combarngo, Phylis Hopkins and Alexandra Combarngo (the current applicant) as Applicant in these proceedings, pursuant to s 66B of the Native Title Act 1993 (Cth).

2.    Leave be granted to the replacement applicant to file an amended application in Form 1 recording the changed constitution of the Applicant pursuant to order 1 made today on or before 5 July 2013.

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

REASONS FOR JUDGMENT

1    This is an application under s 66B of the Native Title Act 1993 (Cth) to replace the current applicant with the 12 new persons who constitute the replacement applicant on the grounds that the current applicant is no longer authorised by the claim group to make the application and deal with the matters arising in relation to it, and the persons who comprise the replacement applicant are authorised by the claim group to make the application, to bring the native title application and deal with matters arising in relation to it.

Background

2    On 1 March 2013 I dismissed two previous, competing applications under s 66B for replacement applicants who were called “the Binge applicant” and “the Mailman applicant”: Weribone on behalf of the Mandandanji People v State of Queensland [2013] FCA 255. I found there was dysfunction in the claim group, but that neither of the three purported authorisation meetings in late 2011 had been validly called.

3    Following that decision the solicitor who had previously acted for the Mailman applicant, Colin Hardie of Just Us Lawyers, caused a new authorisation meeting to be convened in Roma on 25 May 2013. Since that meeting the representative body, Queensland South Native Title Services Limited, has taken over the prosecution of the interlocutory application to replace the current applicant.

4    The meeting that was held on 25 May 2013 was advertised in the Courier Mail of 4-5 May 2013. There is not a great deal of evidence as to the steps taken to effect service, or bring to the notice of the members of the claim group, the details of the meeting beyond the advertisement. However, the evidence upon which the replacement applicant relies has been circulated to the parties to the proceedings. I have no doubt that, prior to its being held, the notice of the meeting and the nature of the business that the meeting was to consider came to the attention of those representing the Binge applicant.

5    The notice convening the meeting identified correctly who the apical ancestors were whose lineage defines the current applicant. It referred to my decision that all of the previous authorisation meetings held in September, October and November 2011 were invalid, and that, as a result, a new authorisation meeting for the claim group had to be held. The notice invited all existing claim group members to attend and stated that only the descendants of the four named apical ancestors would be entitled to participate in the meeting. It stated that the meeting would be convened at the Roma Explorers Inn in Roma on 25 May 2013, and that the purpose of the meeting would be to consider and determine:

(1)    whether the descendants of Dolly Clark should be added to the claim group description for the native title claim;

(2)    whether the boundary of the claim area should be amended to exclude all areas south of the junction of the Upper Balonne and Maranoa Rivers at Lake Kajarabie (Beadmore Dam) as set out in a map that was reproduced in the advertisement;

(3)    who should be the applicants for the native title claim group;

(4)    where there was disagreement, whether decisions of the applicant could be made by a majority of the applicants and to establish a procedure for decision-making by the applicants; and

(5)    whether the remaining applicants should continue to act without the need to replace or reauthorise the applicant where a person was incapable or unwilling to carry out the duties of an applicant.

6    The notice stated that it was a very important meeting, and that if a determination of native title were ultimately made, the claim group description would identify those who would be recognised as holders of the lands and waters in the claim area. It also stated that if an amendment were made to add descendants of Dolly Clark to the claim group description, they would also be recognised as native title holders. It informed readers that limited travel and accommodation assistance was available to claim group members who wished to attend the meeting, and that they had to register for the meeting before applying.

The meeting of 25 May 2013

7    173 persons attended the meeting who identified themselves as members of the native title claim group. I am satisfied by the evidence before me that the meeting was properly convened and constituted. An independent facilitator, Mark Annandale, chaired the meeting. He swore an affidavit that explained the way in which the business of the meeting was conducted. It is clear from the voting records that Mr Annandale kept, which were written up on long sheets of paper attached to a board after each vote during the course of the meeting for all present to see, that virtually all the members of the native title claim group present participated in each of the votes that were taken. Representatives of Queensland South and Mr Hardie, together with counsel briefed by him, Nathan Jarro, attended the meeting and were able to make presentations.

8    The meeting accepted that an honesty system for voting be adopted. It resolved there was no particular process of decision-making under the traditional laws and customs of the Mandandanji people that had to be complied with by them when making decisions relating to their native title determination application, and that the process of decision-making for the purposes of the meeting would be as follows: a resolution would be put in the form of a clearly-worded written resolution; it would be read out to the meeting, moved and seconded before it was voted on, and voted on by a show of hands; the chairperson would cause a count to be made of those in favour and those against, and those who wished to be recorded as abstaining; the chairperson would also ensure that a record was made of the count, and if a majority who cast a vote voted in favour of a resolution, then the chairperson had to declare the motion carried. That resolution was carried unanimously by 157 votes.

9    Next, the meeting resolved that only persons descended from Nellie Edwards, Combarngo Bill, Weribone Jack Senior, and Mary Weribone would be entitled to speak and participate in the meeting. Again, that was carried unanimously by 153 votes. The next resolution accepted that, for the purpose of the meeting, persons who had signed the attendance book as descendants of one of the apical ancestors listed in the immediately preceding resolution would be taken to be the descendants of that ancestor. That was carried unanimously by 159 votes.

10    Importantly, the next two resolutions dealt with the issues relating to the status of descendants of Dolly Clark. The first was that the meeting did not accept that Dolly Clark and her descendants were recognised and accepted as Mandandanji people, and it did not accept that the descendants of Dolly Clark’s mother, Biddie, or her grandfather, Old Frog, were Mandandanji people, rather than belonging to the Gunggari People. It also proposed that the meeting determine that the claim group description remain as it currently was, so that it would continue to be composed of descendants of the four apical ancestors I have identified. That resolution was carried by a majority of 93 for, over 72 votes against, with a total of 165 people voting.

11    The second resolution concerning Dolly Clark’s descendants resolved against amending the boundary of the claim area by excluding all areas south of the junction of the Upper Balonne and Maranoa Rivers at Lake Kajarabie as shown in the shaded area identified on a map at the meeting, and also in the map reproduced in the advertisement for the meeting. That motion was decided by 91 votes to 58.

12    The meeting then resolved that the claim group determined that it was a precondition to the appointment of a person as a member of the replacement applicant that those persons would conduct the affairs of the applicant in accordance with the following four stipulations:

(1)    the applicant must represent the whole of the claim group and not just the person’s own family or descent group;

(2)    in the event that one or more of the individuals was incapable and unable or unwilling to continue to serve as a member of the applicant, whether as a result of death, ill health, or any other reason, the remaining individuals could continue to act without the need to appoint a replacement, and that any individual who was not present and did not participate in three consecutive meetings of the applicant without reasonable excuse, or who refused to sign, when requested, any document purporting to bind the applicant or the claim group that bore a majority of signatures of persons who constituted the applicant, must be regarded as unwilling or unable to continue to serve;

(3)    in the event of disagreement among the applicant group, decisions of the applicant be made by a majority vote, either at a face-to-face meeting, or by written or verbal instructions provided to the applicant’s legal advisers; and

(4)    the signatures of the majority of persons who constituted the applicant would be sufficient on any document to bind the applicant.

That resolution was carried unanimously by 163 votes.

13    The meeting then resolved to constitute the replacement applicant with three persons from each of the four family groups identified by their apical ancestors. Voting occurred, and after each of the three representatives of the four descent groups were selected, a further resolution was carried unanimously by 166 votes, with one abstention, that the 12 persons who now constitute the proposed replacement applicant be authorised to replace the current applicant, and that when the Court made an order for that to occur the current applicant would no longer be authorised to prosecute the native title determination application, or deal with matters arising in relation to it.

14    The replacement applicant consists of three persons who were formerly members of the current applicant, Leslie Weribone, Alexandra Combarngo, and Leigh Himstedt. Thus, seven members of the current applicant will no longer constitute the replacement applicant, and nine new persons would be added to the replacement applicant.

Consideration

15    No person has appeared today to oppose the orders that have been sought for the replacement of the current applicant. Relevantly, s 66B and s 251B provide:

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.

…

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.

(emphasis in the Act)

16    In my decision on the competing previous s 66B applications, Weribone [2013] FCA 255 at [31]-[55], I discussed the requirements for a valid notice of meeting and the correct identification of members of the native title claim group. The position of uncertainty as to the correct anthropological analysis of who the correct members of the native title claim group are still remains to be resolved at a final hearing of these proceedings. It is clear that the meeting held on 25 May 2013 was acutely conscious of this anthropological dispute, particularly having regard to the voting on the resolutions concerning whether Dolly Clark’s descendants should be included in the description of the claim group, and whether there should be a change in the boundaries, the subject of the present application under s 225 of the Act. Those are matters which remain controversial and outstanding. Nonetheless, the meeting clearly desired to constitute a replacement applicant that would be capable of prosecuting the application for a determination of native title in the Court, and to make decisions concerning that matter. So much is clear from the involvement of virtually the whole of the meeting on each of the numerous resolutions with which it dealt.

17    For the purposes of s 66B I am satisfied that the current applicant is no longer authorised by the claim group to make the application and deal with matters arising in relation to it. Not only did the meeting of 25 May 2013 resolve that to be the position, but the dysfunction that was evident at the time I dealt with the two previous competing s 66B applications had also made that clear. I am satisfied that the persons proposed as the replacement applicant are authorised by the claim group to make the application and deal with matters in relation to it, by reason of the decision-making processes and resolutions at the 25 May 2013.

18    The evidence demonstrates that the replacement applicant was authorised by the meeting to make the present application under s 66B, and to deal with matters in accordance with the process of decision-making that they agreed to and adopted in accordance with s 251B. The notice of meeting substantially and properly gave the members of the native title claim group notice of the business proposed to be dealt with that was, in fact, dealt with, and they had the opportunity to attend. A very large number of persons did attend at the meeting. The absence of any opposition to the present application is significant, particularly having regard to the fact that the meeting was divided on the issue as to whether Dolly Clark’s descendants ought be included in the claim group, but, nonetheless, having made resolutions in relation to that matter, the meeting continued to resolve on the constitution of the current applicant with a united purpose. Those factors demonstrated the desire of the native title claim group that the replacement applicant be able to prosecute these proceedings.

19    It will be a matter for those claiming the right to native title by reason of descent from Dolly Clark to deal with what they say, or may say, their rights and interests are at a later stage in these proceedings. The 12 persons who constitute the replacement applicant each made an affidavit identifying his or her descent from one of the four named apical ancestors. It may have been better for some evidence to have been provided by Mr Hardie as to the circumstances in which he caused advertisements to be placed and notifications of the meeting to be given.

Conclusion

20    Nonetheless, I am satisfied that the very large attendance, that I consider on the evidence to have been sufficiently representative of all the various interests in the claim group, including those who sought to advance the status of descendants of Dolly Clark, shows that the meeting was properly constituted and held, and that it is appropriate to make an order as sought in the interlocutory application for the replacement applicant to be made the applicant in the proceedings.

Associate:

Dated:    12 July 2013

SCHEDULE

QUD 366 OF 2008

BETWEEN:

LESLIE WERIBONE, WAYNE WERIBONE, VINCENT ANDERSON, TRACY LANDERS, THERESA MANNS, RODNEY LANDERS, NEVILLE MUNN, LEIGH HIMSTEDT, ALEXANDRA COMBARNGO, JUDE SALDANHA, MAX MCDONALD AND ALEX COSTA

Applicant

AND: