FEDERAL COURT OF AUSTRALIA

Doctor on behalf of the Bigambul People v State of Queensland (No 2) [2013] FCA 746

THE COURT ORDERS THAT:

1.    The application filed on 26 October 2011 is dismissed.

2.    The application filed on 4 March 2013 is dismissed.

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

REASONS FOR JUDGMENT

Introduction

1    This decision concerns competing applications to amend the composition of the Bigambul Native Title Claim Group (the Bigambul NTCG) and a related application to change the authorised applicant for the Bigambul NTCG (the Bigambul Applicant). The first application in time (filed 26 October 2011) is based upon a meeting that took place in the Brisbane suburb of Carseldine. Accordingly, that application and its applicants will be described in these reasons as “the Carseldine application” and “the Carseldine applicants” respectively. The second application (filed 4 March 2013) was filed by the Bigambul Applicant. It is based upon two meetings held in 2013: one at Cherbourg and one in Brisbane. For the reasons that follow, I consider both applications should be dismissed.

2    Before proceeding to give those reasons, it is first necessary to set out the background to the Bigambul native title determination application (the Bigambul claim) and the various meetings I have referred to above.

Background to the Bigambul claim and the various meetings

The Bigambul claim

3    The Bigambul claim relates to a large area of land and waters (approximately 21,500 square kilometres) in southern Queensland. The Bigambul NTCG is described in the Bigambul claim filed with the Court on 14 April 2009 as being comprised of the descendants of the following apical ancestors:

(a)    Queen Susan (also known as Granny Susan or Susan of Welltown);

(b)    “Sally” (mother of Mary Ann Beng) (Sally);

(c)    Nellie of Goondiwindi;

(d)    Nellie Yumbeina;

(e)    Jack Noble; and

(f)    Sally Murray.

4    Soon after the Bigambul claim was filed, the Bigambul Applicant commissioned Dr Anna Kenny, an anthropologist, to produce a report in support of the claim. Dr Kenny commenced work on her report in March 2010. She produced a draft report in May 2011 and a final report in July 2011. In her final report, Dr Kenny opined, among other things, that Sally (see [3(b)] above) was not a Bigambul person.

The Bigambul Applicant changes its solicitor

5    At this point it is convenient to digress briefly to describe some events that were, at least in part, the catalyst for the Carseldine meeting. When the Bigambul claim was filed in 2009, the principal solicitor of Queensland South Native Title Services (QSNTS) was nominated as the lawyer acting for the Bigambul Applicant. According to one of the affidavits of Russell Doctor (one of the members of the Bigambul Applicant) filed in these proceedings, the Bigambul Applicant met on 9 July 2011 and decided to terminate its retainer with QSNTS. In his affidavit, Mr Doctor implies that this occurred because the Bigambul Applicant believed QSNTS intended to supply Dr Kenny’s draft report to the State and other respondents without allowing it an opportunity to read the draft report and without obtaining its instructions to do so.

6    Mr Colin Hardie, a lawyer with the firm “Just Us Lawyers”, filed a notice of change of solicitor and address for service for the Bigambul Applicant on 18 July 2011.

7    This action appears to have provoked a petition that was submitted to QSNTS in August 2011. That petition was signed by 134 members of the Bigambul NTCG. It stated, in part, that:

We are Bigambul people. We request that QSNTS organise an authorisation meeting for the Bigambul native title claim as a matter of urgency.

It has come to our attention that the named applicants for the Bigambul People claim are acting beyond their authority. The Bigambul native title group have at no time given authority to the named applicants to change legal representation. We believe that to change legal representation is beyond their role under the Native Title Act, and beyond the authority that the community has given them.

…

It is our view that the named applicants do not have the authority to change solicitors, so we consider QSNTS to still be the solicitor for our claim. If this is not correct, can you please explain also, how it is that the named applicants can act without any reference to the Bigambul community.

8    Then, in September 2011, Ms Jennifer Doctor, a member of the Bigambul NTCG, wrote to QSNTS in the following terms:

I, Jennifer Doctor, of the Bigambul Claim Group, formally request Queensland South Native Title Services (QSNTS) to hold a meeting for the following purposes:

1. Provide the current claim group with the outcomes of the connection report commissioned by QSNTS – Dr Anna Kenny, the author of the report, will be present at the meeting;

2. Authorise an amendment to the application which could include removing Apical Ancestors from the current claim group description;

3. Authorise the Applicant to bring a claim on behalf of the Bigambul People as newly described in accordance with the changes made in the preceding paragraph 2. above;

4. Should there be no changes to the claim under paragraph 2 above, decide the authority of the current applicant to continue to make the application. Decisions could include removing some or all of the current applicants and/or adding new applicants on the basis that the current applicant is no longer authorised to make the application or has exceeded the authority given to make the application;

5. Determine the role of the Applicant and the scope of their authority.

I look forward to your response and assistance with this matter. Should you require further information or clarification I can be contacted on the above details.

The Carseldine meeting

9    This letter and petition resulted in the Carseldine meeting being called.

10    The notice for the Carseldine meeting began by recording that the Bigambul claim had been filed with the Federal Court and stating that the Bigambul People were “currently described as the biological descendants of the following Apical Ancestors”. The apical ancestors so described were identical to those set out at [3] above. The notice then stated that:

This Notice invites all members of the Bigambul People native title claim group (as described above) to an Authorisation Meeting at the time and location below:

Date of Meeting:    Saturday 15 October 2011

Venue of Meeting:    Tavernetta Function Centre, 144 Dorville Road, Carseldine, Brisbane

Time of Meeting:    Registration 9.30 am - Meeting open 10.00am

(Emphasis in original)

11    Thereafter, the notice set out the purpose of the meeting in terms identical to the purposes set out in the five numbered paragraphs of Ms Jennifer Doctor’s letter: see at [8] above.

12    QSNTS promulgated the notice of the Carseldine meeting by the following means:

(a)    posting it in the form of a letter to all members of the Bigambul NTCG as recorded on its database – 149 letters were sent in all;

(b)    publishing it in seven local newspapers, including the [Brisbane] Courier-Mail, the Toowoomba Chronicle and the Goondiwindi Argus;

(c)    telephoning approximately 40 members of the Bigambul NTCG who were contactable by telephone and conveying the contents of the notice to them orally; and

(d)    broadcasting the contents of the notice on 172 occasions across five radio stations, including 4AAA in Brisbane, 2VM in Moree and 4US in Rockhampton/Cherbourg.

13    The attendance sheets for the Carseldine meeting record the names of 118 Bigambul People being present at the meeting.

14    The minutes of the Carseldine meeting are confined to recording the 15 resolutions that were passed at that meeting. A number of those resolutions were preliminary to the main resolutions and do not need to be set out in full in these reasons. Among the main resolutions was a resolution as to the decision-making process to be used at the meeting. It was in the following terms (Resolution 9a):

The Bigambul People confirm that the following decision making process is agreed to and adopted by the claim group in relation to decisions to be made at this meeting including authorising changes to the Bigambul People’s the (sic) native title determination application and dealing with all matters relating to it:

    There will be reasonable opportunity for informed discussion about each matter before a decision is made on it;

    The following process will then be used to make a decision about each matter:

    A clearly worded draft motion reflecting the general consensus will be read to the meeting;

    The decision will be put in the form of a clearly worded resolution;

    The proposed resolution will be read out to the meeting;

    The proposed resolution must be moved and seconded by members of the group before it is voted on;

    The decision by the group about the proposed resolution will then be made by a show of hands; and

    A decision of the majority of those people eligible to vote at the meeting will be an authoritative decision of the claim group; and

    Decisions are binding unless altered by a resolution at a properly notified and convened Bigambul People native title authorisation meeting.

15     Using that decision-making process, the Carseldine meeting then passed a number of resolutions, including the following that are of particular relevance to these applications:

Resolution 7

That the claim group description in the Bigambul Peoples’ Native Title Determination Application (QUD 101/2009) be amended by removing the apical ancestor Sally mother of Mary Ann Beng from the claim group description.

Resolution 12

That Russell Doctor, Veronica Jarrett, Rhonda Sandow, Elaine Georgetown, Roger Knox and Cyril Logan are no longer authorised by the claim group to make the Bigambul People’s Native Title Determination QUD101/2009 and to deal with matters arising in relation to it.

Resolution 13

The Bigambul People native title [claim] group authorises the following members of the native title claim group to make the application for determination of native title and deal with matters arising in relation to it:

1.    Thomas Daniels – accepted (Susan of Welltown)

2.    Justin Saunders – accepted – (Nellie of Goondiwindi)

3.    Ted Watson – accepted – (Jack noble and Sally Murray)

4.    George Hopkins – accepted - (Nellie Yumbeina)

5.    Elvie Georgetown – accepted (Nellie of Yumbeina)

6.    Robert Doctor – accepted (Nellie Yumbeina)

7.    Cheryl Moggs - accepted Nellie of Goondiwindi)

Resolution 14

That the newly appointed Applicant is authorised and instructed to make an application to the Federal Court pursuant to section 66B Native Title Act, that they be the Applicant for the Bigambul People’s native Title Determination Application (QUD101/2009)

Resolution 15

The Bigambul People instruct the newly elected Applicant and QSNTS to prepare and file amendments to the Bigambul People native title application QUD101/2009 in the Federal Court of Australia in accordance with resolutions passed here today and taking into account the NNTT NT Registration Test, to give effect to the resolutions passed at today’s meeting.

(Errors in original)

16    In broad terms, the intended effect of these resolutions was to remove Sally as an apical ancestor for the Bigambul NTCG and to replace the Bigambul Applicant with an authorised applicant comprised of seven other members of the Bigambul NTCG.

The Goondiwindi meeting

17    The Goondiwindi meeting was called by the Bigambul Applicant. It was held on the same day as the Carseldine meeting, viz 15 October 2011. In one of his affidavits filed in support of the Bigambul Applicant’s application, Mr Russell Doctor claims that “the meeting was attended by at least 150 [Bigambul] claim group members and this was the largest attendance at a claim group meeting in recent times (even larger than the meeting held on 5 June 2010 at which 146 people attended)”. The meeting of 5 June 2010, mentioned by Mr Doctor, was an earlier meeting of the Bigambul NTCG that resolved to replace the applicant that had been authorised shortly before the Bigambul claim was lodged in 2009, with the current Bigambul Applicant: see Doctor on behalf of the Bigambul People v State of Queensland [2010] FCA 1406. Since the Bigambul Applicant does not now seek to rely upon the resolutions that were passed at the Goondiwindi meeting (see [37] below), it is unnecessary to set out the details of the notice of that meeting. However, it is germane to the present applications to note the following aspects of that meeting.

18    As was the case with the Carseldine meeting (see [8] above), Dr Kenny’s report was, at least in part, the reason why the Goondiwindi meeting was called. Accordingly, at the Goondiwindi meeting, the contents of Dr Kenny’s report were summarised by the Bigambul Applicant’s lawyer, Mr Hardie, and then discussed at some length. Following that discussion, the meeting resolved to pass the following resolutions unanimously:

Resolution 3

3.1    That based upon Dr Kenny’s research the claim group accepts the descendants of John Geoffrey Connors as part of the claim group;

3.2    The claim group accepts the descendants of Mary Ann Beng as part of the claim group; and

3.3    The claim group requests the Applicant to commission further research to determine whether under the laws of the Bigambul People as described in Dr Kenny’s report any further apical ancestors (who were previously recognised as part of the traditional Bigambul community and in particular whether the families that have been excluded from the claim as a result of the report of Michael Nibblet) should be added to the claim group description of the native title claim.

Resolution 4

…

4.1    That this meeting agrees with the decision of the Bigambul Applicant to terminate the instructions of QSNTS;

4.2    That this meeting express support for the Bigambul Applicant and reaffirms the authorisation of the Applicant on the terms and conditions set out at the last authorisation meeting;

4.3    This meeting condemns QSNTS for interference in the internal affairs of the Bigambul People by providing support for an authorisation meeting to remove the Applicant and further narrow the membership of the claim group without proper consideration of the probable harm that such action will cause to the Native Title claim; and

4.4    That this meeting urges the Applicant and all members of the claim group to devote every effort to establishing the connection of the Bigambul People to their traditional lands and satisfying the State of Queensland of that connection.

Competing applications are filed

19    Soon after the Carseldine meeting, the Carseldine applicants filed their present application (on 26 October 2011 – see [1] above). For present purposes, the pertinent orders sought in that application are as follows:

1.    That pursuant to Rule 8.21 of the Federal Court Rules 2011, leave be granted to amend the Native Title Determination Application filed on 14 April 2009.

2.    That Thomas Daniels, Robert Doctor, Elvie Georgetown, George Hopkins, Cheryl Moggs, Justin Saunders and Edward Watson replace Russell Doctor, Veronica Jarrett, Rhonda Sandow, Elaine Georgetown, Roger Knox, and Cyril Logan as the Applicant in the Native Title Determination Application filed on 14 April 2009.

3.    That the heading of the said Native Title Determination Application filed on 14 April 2009 be amended by removing the words “Russell Doctor” from the title of the action and by adding “Thomas Daniels” to the title of the action.

20    Order 1 above obviously sought to give effect to Resolutions 7 and 15 passed at the Carseldine meeting (see at [15] above) by seeking leave to amend the description of the Bigambul NTCG in the Bigambul claim (see [3] above) to remove Sally as an apical ancestor.

21    The Bigambul Applicant responded on 16 March 2012 by filing their own application. For present purposes, the pertinent interlocutory order sought in that application was that: “Pursuant to S64 (sic) of the Native Title Act 1993, the Application is amended in the form of annexure CSH 1 to the affidavit of Colin Stanley Hardie dated 16 March 2012.” This order sought to give effect to Resolution 3.1 passed at the Goondiwindi meeting (see at [18] above). To this end, annexure CSH1 to Mr Hardie’s affidavit proposed to amend the description of the Bigambul NTCG in the Bigambul claim (see at [3] above) to add John Geoffrey Connors as an apical ancestor as follows:

The Bigambul People are the descendants of the following people:

(Emphasis in original)

22    In the meantime, acting on the request contained in Resolution 3.3 passed at the Goondiwindi meeting (see [18] above), the Bigambul Applicant commissioned an anthropologist, Mr Nathan Woolford, to undertake further anthropological research to consider, among other things, Sally’s status as a Bigambul person. For various reasons, including ill health, Mr Woolford did not produce his report until 25 October 2012. In that report, Mr Woolford essentially agreed with Dr Kenny that Sally was not a Bigambul person.

23    Following the receipt of Mr Woolford’s report, the Bigambul Applicant arranged to hold the two 2013 meetings mentioned above (see at [1]). The first of those meetings was held in Cherbourg on 22 February 2013 and the second was held in Brisbane on 19 April 2013.

The Cherbourg meeting

24    The pertinent parts of the notice for the Cherbourg meeting were as follows:

The Bigambul Applicant invites all persons who are members of the Bigambul People Native Title claim group to attend an authorisation meeting. The Bigambul People are the descendants of Queen Susan, Nellie Yumbeina, Sally mother of Mary Ann Beng, Jack Noble, Nellie of Goondiwindi and Sally Murray.

The meeting will be held at the time and location listed below:

Date of Meeting:    Friday 22 February 2013

Venue of Meeting:    Nurunderi TAFE Collins Road,

            Cherbourg Q 4605

Time of Meeting:    Registration 12:00 noon,

            Meeting will start at 1 pm.

The Purpose of the Authorisation meeting is to consider the recommendations contained in the anthropologist’s report of October 2012 particularly those relating to amendment of the claim group description and the extent of the traditional lands of the Bigambul People.

(Emphasis in original)

25    This notice was promulgated by the following means:

(a)    posting it to 146 people whose names appeared on the attendance sheets for the two earlier meetings of the Bigambul NTCG, viz the 5 June 2010 meeting and the Goondiwindi meeting;

(b)    publishing it in two editions of the [Brisbane] Courier-Mail and one edition of the Koori Mail newspapers.

26    75 members of the Bigambul NTCG attended the Cherbourg meeting. That number was made up of the following number of descendants of the various apical ancestors described above (at [3]):

(a)    3 descendants of Queen Susan;

(b)    31 descendants of Sally;

(c)    4 descendants of Nellie of Goondiwindi;

(d)    33 descendants of Nellie Yumbeina;

(e)    1 descendant of Jack Noble; and

(f)    3 descendants of Sally Murray.

27    According to the minutes of the Cherbourg meeting, the meeting began by electing Mr Trevor Robinson to chair the meeting. The meeting then resolved to adopt a decision-making process similar in terms to Resolution 9a of the Carseldine meeting: see [14] above. The meeting then passed resolutions to confirm that only the descendants of the apical ancestors described above (at [3]) were entitled to speak and make decisions at the meeting and that those persons who had signed the attendance book were accepted as those descendants for that purpose. Following a discussion about the findings contained in Mr Woolford’s report, the meeting resolved in the following terms (Resolution 5):

The Applicant is authorised to amend the claim group description on the Bigambul Native Title claim to the following:

“The Bigambul People are the descendants of the following people who identify as traditional owners of the area claimed and are accepted by other Bigambul People as being traditional owners for that area:

28    The vote on the above resolution was 36 “for” and 17 “against”. Following the passage of this resolution, Mr Hardie is recorded as explaining to the meeting that an amendment to the description of the native title claim group required a two-step process, as follows:

… Now that the existing claim group has endorsed an amendment of the claim group description a meeting of the new claim group must be held to see whether those families who will be added want to be included in the claim. As a result it is necessary for another meeting to be held reasonably quickly to which members of the new families will be invited to attend.

29    Immediately thereafter the meeting passed the following resolution:

The Bigambul People authorise and direct the Applicants to call, within a reasonable time, a further meeting of the claim group as amended by Resolution 5 to endorse the decisions of this meeting.

This resolution led to the calling of the Brisbane meeting.

The Brisbane meeting

30    The pertinent parts of the notice for the Brisbane meeting were as follows:

At an authorisation meeting held in Cherbourg on the (sic) 22 February 2012, amendments to the claim group description for the Native Title Claim were approved by members of the existing claim group. Those in attendance at this meeting voted to remove the descendants of Sally (mother of Mary Ann Beng) and include descendants of further ancestors so that the claim group description will be as follows:

“The Bigambul People are the descendants of the following people who identify as traditional owners of the area claimed and are accepted by other Bigambul People as being traditional owners for that area:

1. Queen Susan also known as Grannie Susan and Susan of Welltown;

2. Nellie of Goondiwindi;

3. Nellie Yumbeina;

4. Jack Noble and Sally Murray;

5. John Geoffrey Connors;

6. Jimmy Query;

7. Richard Nugget Brown;

8. King Tommi Tommi;

9. Lucy Long, mother of Harry Lange; and

10. Sam McGowan.”

A further meeting will be held to authorise the Applicants to proceed to amend the Native Title Claim in accordance with the above description (and make other technical amendments to the native title claim).

The Applicants to the Native Title Claim invite you to attend the further meeting if you are a descendant of the ancestors listed above. If you are a descendent (sic) of Sally Nerang (mother of Mary Ann Beng) and were not able to attend the Cherbourg meeting you are also invited to attend.

…

This is a very important meeting. If a Determination of Native title is ultimately made, the claim group description will set out those who are recognised as the native title holders of the lands depicted in the accompanying map. If the amendment is made the descendents (sic) of Sally Nerang (mother of Mary Ann Beng) will not be included and the Determined Native Title Holders will be as set out above.

(Emphasis added)

31    This notice was promulgated by the following means:

(a)    posting it to 248 people whose names appear on the attendance sheets for the three earlier meetings of the Bigambul NTCG, viz the 5 June 2010 meeting, the Goondiwindi meeting and the Cherbourg meeting;

(b)    publishing it in three editions of the [Brisbane] Courier-Mail and one edition of the Koori Mail newspapers.

32    194 members of the proposed reconstituted Bigambul NTCG attended the meeting, comprising the following numbers of descendants of the named apical ancestors:

(a)    2 descendants of Queen Susan;

(b)    9 descendants of Nellie of Goondiwindi;

(c)    49 descendants of Nellie Yumbeina;

(d)    3 descendants of Jack Noble and Sally Murray;

(e)    29 descendants of John Geoffrey Connors;

(f)    5 descendants of Jim Query;

(g)    3 descendants of Richard Nugget Brown;

(h)    2 descendants of King Tommi Tommi;

(i)    78 descendants of Lucy Long;

(j)    7 descendants of Sam McGowan; and

(k)    7 descendants of Sally.

33    The minutes of the Brisbane meeting record that it proceeded along similar lines to the Cherbourg meeting. First, Mr Trevor Robinson was authorised to chair the meeting and the meeting resolved to adopt a decision-making process in almost identical terms to the Cherbourg meeting. Then, the meeting considered the findings of Mr Woolford’s anthropological report, following which a resolution (Resolution 3) was put in the following terms:

Trevor Robinson read out the following resolution to the meeting, he said that if this resolution was carried persons who identified as being only the descendents (sic) of Sally (mother of Mary Ann Beng) would not be entitled to participate further in the meeting. He explained that those persons are identified by the green arm bands:

“For the purposes of this meeting only the persons who are descended from:

1.    Queen Susan also known as Granny Susan and Susan of Welltown;

2.    Nellie of Goondiwindi;

3.    Nellie Yumbeina;

4.    Jack Noble and Sally Murray;

5.    John Geoffrey Connors;

6.    Jimmy Query;

7.    Richard Nugget Brown;

8.    King Tommi Tommi;

9.    Lucy Long, mother of Harry Lange; and

10.    Sam McGowan.

will be entitled to speak and make decisions at this meeting.”

This resolution was passed 74 “for” and 36 “against”.

34    After confirming that the persons who had signed the attendance book as descendants constituted the descendants of the apical ancestors mentioned above, the meeting passed the following resolution (Resolution 5), 85 “for” and 24 “against”:

1.    “The Applicant is authorised to amend the claim group description on the Bigambul Native Title claim to the following:

The Bigambul People are the descendants of the following people who identify as traditional owners of the area claimed and are accepted by other Bigambul People as being traditional owners for that area:

1.    Queen Susan also known as Granny Susan and Susan of Welltown (sic)

2.    Nellie of Goondiwindi;

3.    Nellie Yumbeina;

4.    Jack Noble and Sally Murray;

5.    John Geoffrey Connors;

6.    Jimmy Query;

7.    Richard Nugget Brown;

8.    King Tommi Tommi;

9.    Lucy Long, mother of Harry Lange; and

10.    Sam McGowan.

2.    The Applicants are authorised to continue to prosecute the amended native claim subject to the same terms and conditions as previously (Resolution 5 of the authorisation meeting held on 5 June 2010).”

A further application is filed

35    In the intervening period between the two 2013 meetings (on 4 March 2013 – see above at [1]), the Bigambul Applicant filed a further application seeking an order that: “Leave is granted to file an Amended Native Title Determination Application pursuant to Section 64 of the Native Title Act 1993, in the form of annexure CSH 3 to the affidavit of Colin Stanley Hardie dated 28 February 2013.”

36    This order sought to give effect to Resolution 5 passed at the Cherbourg meeting (see at [27] above). Thus, annexure CSH3 to Mr Hardie’s affidavit proposed the following description of the Bigambul NTCG:

The Bigambul People are the descendants of the following people who identify as traditional owners of the area claimed and are accepted by other Bigambul People as being traditional owners for that area:

37    Mr Hardie subsequently indicated to the Court that the Bigambul Applicant did not wish to pursue the application it had filed on 16 March 2012 (see at [21] above) and, as a result, that application was dismissed.

38    So, in summary, the Carseldine applicants seek to remove Sally as an apical ancestor for the Bigambul NTCG and to replace the Bigambul Applicant with a new group of Bigambul People as the authorised applicant for the Bigambul claim. For its part, the Bigambul Applicant now agrees that Sally should be removed as an apical ancestor for the Bigambul NTCG, but it says that her removal should occur concurrently with the addition of six new apical ancestors for the Bigambul NTCG. Finally, the Bigambul Applicant opposes its replacement as the authorised applicant for the Bigambul claim.

39    The two remaining applications – the Carseldine application filed 26 October 2011 and the Bigambul Applicant’s application filed 4 March 2013 – were heard together in late May 2013.

Identical issues to be determined – the validity of the meeting notices

40    The issues at the heart of each of these two applications are essentially the same. They are whether the notices for the meetings in question gave adequate and proper notice of the business to be conducted at those meetings, such that the resolutions passed at those meetings constituted the informed and legitimate views of the whole of the Bigambul NTCG.

The Mandandanji decision

41    It is appropriate to consider the two applications in the order in which they were filed. As a prelude to that consideration, it is convenient to mention the recent decision of Rares J in Weribone on behalf of the Mandandanji People v State of Queensland [2013] FCA 255 (Mandandanji). That decision considered the validity of a notice for a meeting of a native title claim group under the Native Title Act 1993 (Cth) (the Act), which meeting was called to consider whether to add an apical ancestor to the native title claim group in question. The notice in Mandandanji stated that the purpose of the meeting was, in part, to authorise “a claim group description that is consistent with the expert evidence which may include amending the existing apical ancestors’ (emphasis in original)”: Mandandanji at [34]. Similar to the present applications, the expert anthropological evidence available to the native title claim group in Mandandanji identified an apical ancestor who should be added (here removed) to the list of apical ancestors for the native title claim group, viz Dolly Clark.

42    After describing the relevant aspects of the statutory scheme of the Act (at [31]–[33]), Rares J referred to various authorities which underscored the significance of the proper identification of the native title claim group in any native title determination application and the necessity for the applicant to be duly and properly authorised by the whole of that native title claim group in accordance with the apposite provisions of the Act. Those authorities included the often cited decisions of Daniel v Western Australia (2002) 194 ALR 278; [2002] FCA 1147 at [11]–[16] per French J; Landers v State of South Australia (2003) 128 FCR 495; [2003] FCA 264 at [35]–[38] per Mansfield J; Ward v Northern Territory [2002] FCA 171 at [24]–[25] per O’Loughlin J; 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 at [25] per Stone J; and Bolton on behalf of the Southern Noongar Families v State of Western Australia [2004] FCA 760 at [45]–[46] per French J. His Honour then concluded (at [40]–[42]) that:

40.    I am of opinion that the notice of the 3 September 2011 meeting did not give fair notice that that was the business to be considered at the meeting. Notices of meeting of native title claim groups called to authorise the progress of claims under the Act need to be clearly, simply and directly expressed. The Court must be mindful that the class of persons to whom such notices will be addressed are not lawyers, but indigenous people from many varied walks of life who have greater and lesser degrees of sophistication and understanding. Ordinarily, it would not serve any purpose to require such notices to set out at great length and detail material of the nature that is sometimes sent to members of a corporation who are asked to consider amending or voting on resolutions put forward by directors. Nonetheless, the basic test that the common law has developed for notices calling meetings is suitable and adaptable to meetings such as those called under s 251B of the Act. The notice must be sufficient to enable the persons to whom it is addressed, namely members or potential members of the native title claim group, to judge for themselves whether to attend the meeting and vote for or against a proposal or whether to leave the matter to be determined by the majority who do attend and vote at the meeting. That test conforms to the substance of what the Full Court of this Court synthesised as the test for a valid notice of meeting identified in a well-known line of authority in corporations cases: Fraser v NRMA Holdings Limited (1995) 55 FCR 452 at 466B-C per Black CJ, von Doussa and Cooper JJ.

41.    Where a current applicant, or another person, wishes a meeting of a native title claim group to consider particular business or to proceed along a particular path that that applicant or person has in mind, the proponent must give fair notice of the business to be dealt with at the meeting to all members of the claim group. The notice must be such as will fully inform the persons entitled to attend the meeting, so that they can make an informed decision whether or not to be present.

42.    I am satisfied that it would have been material to the consideration of members of the claim group to whom the notices of the 3 September 2011 meeting were addressed to know specifically that what was always to be discussed at the meeting was a resolution seeking to add Dolly Clark as an apical ancestor in the description of the claim group.

the notice for the Carseldine meeting

Contentions

43    Since the decision in Mandandanji was delivered a matter of weeks before the hearing of these applications, it is not surprising that the above observations of Rares J became the central focus of the submissions of counsel for the various parties. While he conceded that the notice of the Carseldine meeting could have been more precise, Mr Liddy, counsel for the Carseldine applicants, submitted that by stating that at least some of the apical ancestors could be removed at the meeting, the notice was sufficient to inform the members of the Bigambul NTCG of the business to be conducted at that meeting. Mr Liddy sought to distinguish the notice of the Carseldine meeting from the meeting notice that was impugned in Mandandanji by pointing out that the proposal at the Carseldine meeting was to remove one of a small and finite list of named apical ancestors, rather than to add an additional unnamed apical ancestor, as occurred in Mandandanji. In the alternative, Mr Liddy contended that Sally should be removed as an apical ancestor in the description of the Bigambul NTCG in the Bigambul claim and that no other apical ancestors should be added. He submitted that this should occur even if the notice for the Carseldine meeting were held to be inadequate because both the Bigambul Applicant and the Carseldine applicants now agreed that Sally should be removed as an apical ancestor. In making this submission, Mr Liddy relied on the resolutions passed at the Cherbourg and Brisbane meetings. Further, once Sally was removed as an apical ancestor for the Bigambul NTCG, Mr Liddy submitted that the Court should make an order under s 84D of the Act that a meeting of the Bigambul NTCG, as so reconstituted, should be held to determine who should be authorised to be the applicant for the reconstituted Bigambul claim.

44    This proposal was opposed by Mr Hardie, for the Bigambul Applicant. Mr Hardie submitted that the Cherbourg and Brisbane meetings had only resolved to remove Sally and her descendants from the Bigambul NTCG on the understanding that, concurrently with that decision, a number of new apical ancestors linked to Sally’s descendants would be added to the claim group. He submitted that by only removing Sally as an apical ancestor and then voting on the composition of the authorised applicant for the amended Bigambul claim, those descendants of Sally who could trace descent through one of the proposed new apical ancestors would be unfairly deprived of a vote on that question. As to the validity of the Carseldine meeting notice, Mr Hardie submitted that it was inadequate because it did not identify Sally as the apical ancestor who was proposed to be removed. He submitted that it therefore did not give proper or adequate notice of the business that was to be conducted at that meeting. Further, he submitted that the Carseldine applicants did not have the authority to apply to replace the Bigambul Applicant because only the authorised applicant, viz the Bigambul Applicant, had that authority.

45    The State of Queensland is the main respondent to the Bigambul claim. It neither opposed nor supported either of the present applications. However, Ms Kidson, counsel for the State of Queensland, did rely upon the decision in Mandandanji to raise queries about the validity of the Carseldine meeting notice. Those submissions were similar in effect to the criticisms of that notice made by Mr Hardie above. Ms Kidson also submitted that the Court should be reluctant to take the alternative approach put forward by Mr Liddy (see at [43] above) unless it were clear that that approach reflected the views of all the members of the Bigambul NTCG.

Consideration

46    Applying the principles outlined by Rares J in Mandandanji above (with which I respectfully agree), I do not consider that the notice of the Carseldine meeting was adequate to provide the descendants of Sally with a fair opportunity to decide whether to attend that meeting. The notice for the Carseldine meeting was in vague and ambiguous terms. It stated that the purpose of the meeting “could include removing Apical Ancestors from the current claim group description” (see [8(2)] above). This description is deficient in a number of respects. First, the word “could” did not fairly reflect the background to the proposal which was to be considered at the meeting. The critical aspects of that background were, first, the considered opinion of Dr Kenny that Sally was not a Bigambul person and, secondly, the fact that the proponents of the Carseldine meeting therefore intended to propose to that meeting that Sally should be removed as an apical ancestor for the Bigambul NTCG. In other words, I do not consider the notice of the meeting was frank in its terms. It did not squarely state that one of the two main purposes of the meeting was to consider whether to remove Sally, and only Sally, as an apical ancestor for the Bigambul NTCG. Of course, the other main purpose of the meeting was to replace the Bigambul Applicant. Finally, in context, I consider the use of the plural “ancestors” was misleading. That is so because it was only ever the intention of the proponents of the Carseldine meeting to remove one apical ancestor, viz Sally.

47    I also reject Mr Liddy’s attempt to distinguish Mandandanji on its facts. Whether the proposal was to add an apical ancestor, as in Mandandanji, or to remove one, as in the present application, the notice of the meeting had to be drafted so that it made it clear to anyone in the native title claim group who may be affected by the matters to be considered at the meeting that such a situation may arise at the meeting. Indeed, this obligation must be heightened in a case, such as the present, where the proponents of the Carseldine meeting intended to propose to the meeting that a particular group of Bigambul People, viz the descendants of Sally, should be excluded from membership of the Bigambul NTCG. This is to be contrasted with Mandandanji where the proposal to add someone to the native title claim group was likely to have had a more indirect and amorphous effect on the rights of the whole group. For similar reasons, I also do not consider Mandandanji can be distinguished on the ground that there was only a small, finite group, ie six named apical ancestors, to whom the notice of the Carseldine meeting could have been directed. This distinction may have been valid if, for example, there were only two apical ancestors named. However, with six named apical ancestors, it is entirely conceivable that the descendants of Sally may have been so confident about their position as members of the Bigambul NTCG that they did not think it was possible that the Carseldine meeting notice was directed to their apical ancestor, Sally, out of the six named apical ancestors.

48    It follows that, since the notice of the Carseldine meeting was not adequate to provide a fair opportunity to the descendants of Sally to decide whether to attend that meeting, the meeting did not constitute a meeting of the whole of the Bigambul NTCG. That being so, the authorities referred to at [42] above make it clear that the meeting was not competent to make any alteration to the Bigambul NTCG, or to its authorised applicant. For these reasons, the Carseldine application (see at [19] above) must be dismissed.

The notice for the Cherbourg meeting

Contentions

49    It is not necessary to consider the notice for the Cherbourg meeting in any detail. This is so because, in oral submissions, Mr Hardie for the Bigambul Applicant frankly conceded that the notice of that meeting was not valid “by itself”. Specifically, Mr Hardie agreed that the notice should have, and did not, specify which apical ancestor may be affected by the decisions to be taken at that meeting. This concession was well made. Indeed, the notice for the Cherbourg meeting does not even state that any apical ancestors may be affected by the decisions to be taken at that meeting. It merely stated (see at [24] above) that:

The Purpose of the Authorisation meeting is to consider the recommendations contained in the anthropologist’s report of October 2012 particularly those relating to amendment of the claim group description and the extent of the traditional lands of the Bigambul People.

(Emphasis added)

50    It follows that, for the reasons outlined above in relation to the deficiencies in the Carseldine meeting notice, I do not consider the notice for the Cherbourg meeting was adequate to provide the descendants of Sally with a fair opportunity to decide whether to attend that meeting.

The notice for the Brisbane meeting

Contentions

51    However, Mr Hardie submitted that the Cherbourg meeting should not be considered in isolation. Instead, he submitted it should be considered in the context of the two-step process which was followed, including, as it did, the Brisbane meeting. On that approach, Mr Hardie submitted that the factual circumstances of the two meetings, ie the Cherbourg meeting and the Brisbane meeting, could be distinguished from those considered in Mandandanji. This was so, he submitted, because in Mandandanji only a small number of people attended the meeting in question and the vote at that meeting was particularly close. By contrast, Mr Hardie submitted, 75 members of the Bigambul NTCG attended the Cherbourg meeting and 194 members attended the Brisbane meeting. Furthermore, the critical resolution at each meeting was passed by a clear majority: 36-17 at the Cherbourg meeting and 85-24 at the Brisbane meeting. Mr Hardie also submitted that the notice for the Brisbane meeting specified the precise proposed form of the reconstituted Bigambul NTCG and it contained an express invitation to the descendants of Sally to attend that meeting by stating:

… if you are descendent (sic) of Sally Nerang (mother of Mary Ann Beng) and were not able to attend the Cherbourg meeting you are also invited to attend.

52    Mr Liddy submitted that, on its face, the notice for the Brisbane meeting was not valid because all the members of the Bigambul NTCG were not invited to attend. That is so, he submitted, because the descendants of Sally were only invited to attend if they “were not able to attend the Cherbourg meeting”. Furthermore, he submitted that, by inviting the descendants of the six new apical ancestors to attend the meeting, the notice for the Brisbane meeting provided an erroneous impression of finality about the resolutions passed at the Cherbourg meeting. At the very least, he submitted, the notice for the Brisbane meeting was confusing because it used mixed terminology when describing the Cherbourg meeting as an authorisation meeting when, in reality, it was the preliminary meeting to the authorisation meeting.

53    Ms Kidson took a neutral position similar to that the State had taken in relation to the Carseldine application (see at [45] above). Otherwise, Ms Kidson made submissions similar in effect to Mr Liddy’s above.

Consideration

54    It is appropriate to begin by returning to the Cherbourg meeting.

55    Given that the Cherbourg meeting notice was inadequate (see [50] above), the same consequences flow from that inadequacy as for the Carseldine meeting (see at [48] above). That is, the Cherbourg meeting was not a meeting of the whole of the Bigambul NTCG and, as such, it was not competent to make any changes to the constitution of the Bigambul NTCG.

56    Turning then to the Brisbane meeting, I consider the defect in Mr Hardie’s approach lies in the two-step process itself. That two-step process appears to have its origins in some observations made by Dowsett J to the effect that, if a native title claim group wishes to alter its composition, the existing claim group needs to meet and determine how the claim group is to be reconstituted and then the new or reconstituted claim group needs to meet and decide to authorise a new applicant to make the claim on behalf of that new claim group: see, for example, Kudjala People v State of Queensland [2006] FCA 1564 at [13]–[15] and Dodd on behalf of the Wulli Wulli People v State of Queensland (No 2) [2009] FCA 1180 (Wulli Wulli) at [14].

57    Section 61 of the Act makes it clear that the authority vested in the authorised applicant comes exclusively from the native title claim group on whose behalf the native title determination application is made. Further, the validity of that authority fundamentally relies upon the native title claim group following the authorisation process set out in s 251B of the Act. It follows that, if an existing claim group wishes to alter its composition, it must first meet as a whole and resolve to do that. If it does, then the new or reconstituted native title claim group must then meet and resolve in accordance with the process set out in s 251B to authorise an applicant to make a claim on its behalf under s 61. For these reasons, I respectfully agree with the observations of Dowsett J above.

58    In this instance, it is clear from all the materials that the Cherbourg meeting was intended to constitute the first step in this two-step process and the Brisbane meeting was intended to constitute the second. Accordingly, the Cherbourg meeting was intended to be the meeting of the existing Bigambul NTCG and the Brisbane meeting was intended to be the meeting of the new or reconstituted Bigambul NTCG. It must follow that the Brisbane meeting was not competent to make decisions on behalf of the existing Bigambul NTCG.

59    Furthermore, the notice for the Brisbane meeting makes this clear (see at [30] above). It begins by stating that it was resolved that the constitution of the Bigambul NTCG be amended at the Cherbourg meeting to remove the descendants of Sally. Then, it proceeds to describe the Bigambul claim group as comprising the five original apical ancestors, excluding Sally, and the six new apical ancestors. The latter were, of course, added at the Cherbourg meeting, although John Geoffrey Connors had originally been added at the Goondiwindi meeting. This description of the new or reconstituted Bigambul NTCG is followed by the critical invitation to attend the meeting. That invitation applies “if you are a descendant of the ancestors listed above”, viz the new or reconstituted Bigambul NTCG.

60    I do not consider this conclusion is affected by the fact the notice goes on to state: “… if you are descendent (sic) of Sally Nerang (mother of Mary Ann Beng) and were not able to attend the Cherbourg meeting you are also invited to attend.” The clear import of these words is that those descendants of Sally who had attended the Cherbourg meeting were not invited to attend the Brisbane meeting. It is not an invitation to any and all of the descendants of Sally to attend the Brisbane meeting.

61    It follows that the Brisbane meeting was not a meeting of the whole of the existing Bigambul NTCG. Instead, it was a meeting of the new or reconstituted Bigambul NTCG called to undertake the second step in the two-step process referred to above. Further, because the two-step process that was being pursued at the Cherbourg and Brisbane meetings was undermined from the outset by the inadequacy of the notice for the Cherbourg meeting, I do not consider the attendance numbers and voting margins or patterns at either of those meetings are of any relevance in determining the views of the existing Bigambul NTCG. In other words, I do not consider the “practical approach” urged by Mr Hardie based on those factors (see [51] above) is available in the particular circumstances of those meetings. This is a reference to the approach taken by Dowsett J in Dodd on behalf of the Wulli Wulli People v State of Queensland [2009] FCA 793 and Wulli Wulli. Even if this practical approach were available, given the entrenched dispute that exists within the Bigambul NTCG, I would not have been willing to follow it. For similar reasons, I reject the alternative approach advocated by Mr Liddy, based on the resolutions passed at the Cherbourg and Brisbane meetings, of ordering the removal of Sally as an apical ancestor at this point (see at [43] above).

62    The same consequences must therefore flow for the Brisbane meeting as are outlined above in relation to the Carseldine meeting and the Cherbourg meeting (see at [48] and [55] respectively). That is, that the Brisbane meeting was not competent to make any changes to the constitution of the existing Bigambul NTCG. For these reasons, the Bigambul Applicant’s application (see at [35] above) must also be dismissed.

The future conduct of these proceedings

63    The dismissal of both the present applications based on what are essentially common procedural defects in the notices for the meetings concerned is most unlikely to resolve the underlying dispute that clearly exists within the Bigambul NTCG. The alternative, or additional, submissions put forward on behalf of both the Carseldine applicants and the Bigambul Applicant as to what should happen in these proceedings beyond determining the present applications demonstrate this. Thus, Mr Liddy submitted that, in addition to removing Sally as an apical ancestor at this point, the Court should order a meeting of the Bigambul NTCG under s 84D of the Act: see at [43] above. For his part, at the last minute, Mr Hardie sought to amend the Bigambul Applicant’s application to include an application that leave be granted to the Bigambul Applicant to discontinue the Bigambul claim on the basis that the Bigambul NTCG as reconstituted at the Cherbourg and Brisbane meetings would file a new claim within 14 days. That application to amend was opposed by Mr Liddy and subsequently rejected on case management and futility grounds.

64    Before considering Mr Liddy’s submission about s 84D, it is appropriate to identify more precisely the nature of the underlying dispute that exists within the Bigambul NTCG. While one of the original sources of dispute within the claim group now appears to be agreed – that Sally was not a Bigambul person and therefore she should be removed as an apical ancestor from the Bigambul NTCG – there clearly remains a dispute about which, if any, other apical ancestors should be added to the native title claim group. It follows that the critical underlying dispute therefore relates to the composition of the native title claim group. As Dowsett J has observed in the past, that is quintessentially a matter for the native title claim group itself to determine, acting in accordance with its traditional laws and customs: see Aplin on behalf of the Waanyi Peoples v State of Queensland [2010] FCA 625 at [256]–[258].

65    For this reason, I do not consider s 84D of the Act applies, at least at this point in time, to the present situation. That section is directed to resolving questions about the authority of the authorised applicant to act at all, or to act in a particular way: see s 84D(3). It is not directed to resolving disputes about the composition of the native title claim group. Nonetheless, this should not be taken as excluding the possible use of s 84D in these proceedings if it eventually emerges that this critical underlying issue about the composition of the Bigambul native title claim group can only be resolved at a trial of these proceedings. In that event, the anterior question about the proper authorisation of the applicant by the native title claim group, the members of which are the true native title holders in the sense that they are ultimately held to be such by the Court, may well become problematic. In those circumstances, it may become necessary to consider whether s 84D(4) of the Act can be relied upon to facilitate that trial.

66    Notwithstanding this conclusion about s 84D, two things are clear: that as a first step to attempting to resolve the underlying dispute that exists within the Bigambul native title claim group, there has to be a meeting or meetings of that claim group so that it can be given the opportunity to determine its composition in accordance with its traditional laws and customs; and before any such meeting or meetings can be convened and conducted, there is a number of preliminary matters that have to be determined, including the location, timing and chairing of the meeting or meetings concerned. Whilst both Mr Liddy and Mr Hardie made some submissions about the location of such a meeting and Mr Liddy indicated on behalf of QSNTS that it would be willing to meet the costs of convening and conducting a meeting, I do not consider I received detailed and considered submissions on the full range of matters that needs to be determined before any such meeting could be convened and conducted. Furthermore, given the long history of disputation between these two groups within the Bigambul NTCG, it seems unlikely that these preliminary matters will be readily agreed without the assistance of an independent third party.

67    If these preliminary matters are not agreed, the meeting or meetings described above are not likely to be convened and conducted. In that event, the dispute about the composition of the Bigambul native title claim group is not likely to be resolved and, as a consequence, these proceedings are likely to be stifled. The Court’s jurisdiction under ss 13, 81 and 213 of the Act, together with provisions such as ss 22, 23 and 37M of the Federal Court of Australia Act 1976 (Cth), extend to allowing it to make orders that are appropriate to protect and enforce the rights of parties in matters before it and to achieve the just resolution of proceedings before it, according to law, as quickly, inexpensively and efficiently as possible. The Court also has the power under s 86B of the Act to refer the whole, or part, of a native title proceeding to mediation. The identification of “the persons … who, according to their traditional laws and customs, hold the common or group rights and interests comprising the particular native title claimed” is fundamental to the right of a native title claim group to authorise an applicant to make an application under s 61 of the Act. While it is possible for a native title determination application to proceed to trial without this identification issue being resolved, the usual course provided for in the scheme of the Act is for the native title claim group to resolve it, at or near the outset of proceedings, in accordance with its traditional laws and customs. Given all these considerations, I consider that, quite apart from s 84D of the Act, the Court has ample power to make orders to attempt to achieve a resolution of the present dispute within the Bigambul native title claim group so that these proceedings may proceed to trial following the usual course provided for in the Act.

68    Accordingly, I propose to refer the parties to the present applications, viz the Carseldine applicants and the Bigambul Applicant, to a mediation before the Deputy District Registrar (Native Title) directed to attempting to reach agreement about all of the preliminary matters necessary to ensure that the meeting or meetings of the Bigambul claim group described above are convened and conducted. While the following is by no means an exhaustive list, it seems to me that these matters will need to be agreed in the course of this mediation:

(a)    the time, date and location of the meeting or meetings;

(b)    the form of a proper notice for the meeting or meetings;

(c)    the agenda for the meeting or meetings;

(d)    the chairperson for the meeting or meetings;

(e)    the provision of transport to those members of the claim group who reside away from the agreed location of the meeting or meetings

(f)    who is to meet the costs of convening and conducting the meeting or meetings and providing transport to and from them.

69    There are two final matters I should mention before concluding these reasons. First, because the attendances at the two competing meetings held on 15 October 2011 demonstrate that these two groups within the Bigambul native title claim group are of approximately equal size (Carseldine meeting – 118 and Goondiwindi meeting – more than 150, including the descendants of Sally: see at [13] and [17] above respectively), I do not consider the Carseldine applicants can be characterised as a dissentient minority who are seeking to raise an intramural dispute: see Bidjara People #2 v Queensland [2003] FCA 324 at [7] per Ryan J and Starkey v South Australia (2011) 193 FCR 450; [2011] FCA 456 at [47]–[66], but particularly [52]–[55], per Mansfield J. Secondly, the position that prevails in these proceedings, following the dismissal of these two applications, is different from that which applied in Mandandanji. In this case, the Bigambul Applicant remains as the authorised applicant for the existing Bigambul NTCG whereas, in Mandandanji, after the applications before the Court were disposed of, there was no longer an applicant authorised by the claim group to prosecute the proceedings: see Mandandanji at [55]. For this reason, I do not consider it is presently necessary to determine whether to make preservation orders of the kind that were made by Rares J in Mandandanji (see the discussion in Mandandanji at [60]–[71] and the subsequent decision of Weribone on behalf of the Mandandanji People v State of Queensland (No 2) [2013] FCA 485). I mention this issue because the possibility that I might proceed to make similar orders was the subject of some debate during the hearing of these applications. However, I would add this rider. While Mandandanji-type orders are not necessary at this particular point in these proceedings, that does not mean that they may not be appropriate in the future if the dispute about the composition of the Bigambul native title claim group cannot be resolved and these proceedings have to proceed to trial to resolve that fundamental question.

Conclusion

70    For these reasons, I will order that:

(a)    The application filed by the Carseldine applicants on 26 October 2011 be dismissed.

(b)    The application filed by the Bigambul Applicant on 4 March 2013 be dismissed.

71    Secondly, I direct the parties to the present applications to bring in a set of orders to reflect the matters discussed above, in particular, the preliminary matters affecting the convening and conduct of a meeting or meetings of the Bigambul native title claim group that need to be agreed at a mediation before the Deputy District Registrar (Native Title) to ensure that such a meeting or meetings are successfully convened and conducted.

Associate:

Dated:    30 July 2013