FEDERAL COURT OF AUSTRALIA
Hatfield on behalf of the Darumbal People v State of Queensland (No 2) [2013] FCA 1151
IN THE FEDERAL COURT OF AUSTRALIA | |
ALAN DOUGLAS HATFIELD AND OTHERS ON BEHALF OF THE DARUMBAL PEOPLE Applicant | |
AND: | STATE OF QUEENSLAND AND OTHERS Respondent |
DATE OF ORDER: | |
WHERE MADE: |
THE COURT ORDERS THAT:
Ms Berylanne Bauman-Sadowski cease to be a party to this proceeding pursuant to s 84(8) of the Native Title Act 1993 (Cth).
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
QUEENSLAND DISTRICT REGISTRY | |
GENERAL DIVISION | QUD 6131 of 1998 |
BETWEEN: | ALAN DOUGLAS HATFIELD AND OTHERS ON BEHALF OF THE DARUMBAL PEOPLE Applicant
|
AND: | STATE OF QUEENSLAND AND OTHERS Respondent
|
JUDGE: | COLLIER J |
DATE: | 6 NOVEMBER 2013 |
PLACE: | BRISBANE |
REASONS FOR JUDGMENT
1 This is an application by the native title applicant to remove Ms Berylanne Bauman-Sadowski as a respondent to this proceeding. Ms Bauman-Sadowski claims her family are the true holders of native title for the Darumbal claim. When the applicant filed its amended native title application on 15 June 2000, Ms Bauman-Sadowski’s apical ancestor was expressly excluded from the claim group description. Subsequently Ms Bauman-Sadowski filed a Form 5 – Notice of intention to become a party to an application under the Native Title Act 1993 (Cth) (“the Act”) and became a respondent to these proceedings in 2001. In 2012 the applicant commissioned further anthropological research, which resulted in the applicant amending its claim group description on 26 July 2012 to include Ms Bauman-Sadowski’s apical ancestor. The issue is whether Ms Bauman-Sadowski should continue as a respondent to this proceeding in these circumstances.
Background – amendment of claim description and history of proceedings
2 It is not in dispute that Ms Bauman-Sadowski’s father was Mr Roy Maurice Bauman and her grandfather was Mr Roy Bauman, whom Ms Bauman-Sadowski submits was the traditional owner of Darumbal Land. The applicant’s amended native title application filed 15 June 2000 included the following claim group description:
The contemporary Darumbal Native Title claimants are made up of nine non-unlineal cognatic descent groups each of whom traces their ancestry from an apical ancestor and contains the descendants of that apical ancestor as well as those who may be born, adopted or married into these groups. The descent groups can be described as follows.
1. McPherson-Bowman Descent Group
…
The McPherson-Bauman group also includes the grandchildren and other descendants of Roy Bauman (deceased) (whose father Harry Bauman, aka John Bauman, was the brother of John McPherson) and his second wife Beryl Pickering. These children are Selwyn, Trudy, Christine and Sandra Bauman/Pickering. This group does not include Roy Bauman’s children from his first marriage, namely Trevor Bauman, Morris Bauman (aka Ray Morris) and Alison Bauman.
…
(Emphasis added.)
3 As a result, the 2000 native title application expressly excluded Ms Bauman-Sadowski as a member of the native title claim group. I note that during oral submissions at the show cause hearing, Ms Bauman-Sadowski stated that she was insulted that material before the Court referred to the marriage between her grandparents as Mr Roy Bauman’s “first marriage”. Her grandparents’ marriage was Mr Bauman’s only marriage (transcript 6 September 2013 p 6 ll 29-36).
4 Pursuant to s 84(3) of the Act Ms Bauman-Sadowski became a respondent party to this proceeding. Ms Bauman-Sadowski filed a Form 5 – Notice of intention to become a party to an application in this proceeding on 23 August 2001. She stated her interest claimed as “Traditional Law’s [sic] and Culture as Traditional Owner of Darumbal Land”. The Form 5 included the following:
Applicant’s might have the right to claim a Traditional Descendant, but have no right to claim Traditional Inheritance of the Land …
Applicants have not asked permission from the Traditional Owners of Darumbal Land to represent on behalf of the Traditional Owners.
Bauman Family line claim Traditional Owners of Darumbal Land.
Ray Bauman Grandfather of Berylanne recognise her with the Inheritance to his claim to Darumbal Land.
(Errors in original.)
5 On 15 July 2011 Deputy Registrar Fewings ordered Ms Bauman-Sadowski to file an affidavit clearly identifying any interests she had that might be affected by a determination of native title in these proceedings. I made a similar order at the review hearing in this proceeding in Rockhampton on 18 November 2011. At that hearing, the applicant made an oral application seeking an order that Ms Bauman-Sadowski be removed as a respondent. She had failed to articulate her rights or interests in the claim area in a comprehensible way. The following exchange occurred (transcript 18 November 2011 p 23 l 26 – p 24 l 28):
MR BOGE: Your Honour, while I’ve been sitting here, I’ve just been looking at something, and I don’t – in terms of the way this claim is structured, and what Ms Bauman-Sadowski is being asked to justify, the claim, as currently framed, includes descendants of Roy Bauman, who I presume Ms Bauman-Sadowski is descended from, but it excludes the children of his first marriage so, really, it’s not a claim about why – what interests Ms Bauman-Sadowski has, it is why her line from that woman is excluded. So once again, I think we’re putting the cart before the horse is that this claim group, it’s [sic] description, excludes people and there is no apparent basis for why that is done. So on any test, if it was simply the descendants of Roy Bauman, Ms Sadowski and her family would be included as claimants in this claim, but because her descent line from his first marriage is excluded, therefore, out she goes. Now, this issue has arisen in other claims but, again, I’m not sure – you know, it’s – her position is simply, I think, that there’s – she’s descended from one of the – she descended from an ..... and there’s got to be a basis for excluding her.
HER HONOUR: All right. Frankly, that is a very important issue to be raised, and I think that’s what Ms Bauman-Sadowski has been, maybe, trying to say all along.
MS BAUMAN-SADOWSKI: For 12 years.
HER HONOUR: All right. I am hopeful, and will expect – in fact, I’m more than hopeful. I will expect that this be dealt with in the anthropology, and I’m just looking at you Mr Wishart because you’re standing. It’s not your – you’re not the anthropologist, but I would expect that this issue would be dealt with in the anthropology. Ms Bauman-Sadowski, I would ask that you – I’m sure you will anyway, that you will raise this as an issue at the next directions hearing if you are – if your line is still not dealt with in the anthropology and the framework of the native title claim.
MS BAUMAN-SADOWSKI: Yes. Well, sorry, your Honour, that’s the whole reason why we got involved.
HER HONOUR: Yes. You will note that one of the orders I’m proposing and which I will make on the basis that no one has anything else they want to say, is that there will be an amendment to the Form 1 and that, of course will follow from the anthropology, and I’m hopeful that this issue will be cured by the anthropological research which is going to be conducted in the next few months.
MS BAUMAN-SADOWSKI: I’m sorry about before. That’s why I did the affidavit on a technical basis because of the technicalities of the claim, and that we were excluded in the beginning. That’s how I’ve been struggling that the claim is not a – I suppose, their claim is not of true character with the people, and that’s why I explained it in that way with my affidavit …
6 As the anthropological research for the claim was incomplete, I refused the applicant’s application. I requested that the applicant’s anthropologists consider Ms Bauman-Sadowski’s claims as part of their research. I ordered that the applicant provide its connection material to Ms Bauman-Sadowski and other parties before 29 June 2012. I also ordered that Ms Bauman-Sadowski show cause as to why she should not be removed as a respondent to these proceedings at a date to be fixed in July 2012.
7 Queensland South Native Title Services (“QSNTS”) for the native title applicant engaged consultant anthropologists Professor Paul Memmott and Mr Peter Blackwood in January 2012 to research and make recommendations about the composition of the Darumbal People’s native title claim group. As part of this research, on 18 February 2012 Mr Blackwood interviewed Ms Bauman-Sadowski.
8 On 20 June 2012 the applicant filed an interlocutory application requesting an extension of time to file its further connection material. The applicant also requested that the show cause hearing be adjourned in order to enable Ms Bauman-Sadowski to consider the applicant’s connection material. Deputy Registrar Fewings so ordered on 29 June 2012.
9 Ms Bauman-Sadowski filed an affidavit on 16 July 2012 setting out her interests in the native title application with reference to my orders of 18 November 2011. In summary, in that affidavit Ms Bauman-Sadowski identifies her interests in the land the subject of the native title claim as follows:
The Bauman Clan asserts and identifies itself as the last full blood Bauwiwara group of Yetimarla and the last full blood custodians of Darumbal laws and customs (at [2]-[3]). In this capacity it claims native title rights and interests under the Darumbal law. Roy Bauman asserted his claim as Darumbal and the traditional owner of Darumbal Law and Customs ([55]-[56]).
The applicant is not of true character and has no true representation of Yetimarla, having no claimant who identifies themselves as having a descendant to Yetimarla ([5]-[6]).
The applicant is not authorised by all persons in the native title claim group to make the native title application in the sense of authorisation pursuant to s 251B of the Act ([7]).
The s 251B(a) decision-making process under the traditional sovereign laws and custom of Yetimarla is through the bloodline and inheritance of the Bauman Clan. Their predecessor bloodline is John McPherson Snr, Harry Bauman, Roy Bauman, and Roy Bauman’s three children (Trevor Bauman, Roy Bauman Jnr, and Alison Bauman). It is offensive to claim Roy Bauman was married a second time as he never divorced Beryl Bauman and there was no tribal ceremony to proclaim a second marriage ([22]-[32]).
The Hatfield children (who include Dougie Hatfield named as an applicant to the native title application) cannot speak for country ([44]). The Darumbal application is not a true representation of the contemporary Darumbal People ([49]).
The Federal Court is to find in this process with certainty the anterior question of who is authorised to make a native title application. It is a question of ego of all involved as to who they prefer to accept as “natives”. If so, then it is a fundamental corruption of the Act ([62]).
10 On 26 July 2012, I granted leave for the native title claim group to replace the applicant in this proceeding, and for the replacement applicant to amend the native title claim group description (Hatfield on behalf of the Darumbal People v State of Queensland [2012] FCA 796). I allowed the amendment to the claim group description because, inter alia, at [13]:
The current Native Title Claim Group unanimously passed the resolution to amend the Native Title Claim Group description after having had the opportunity to consider the research, ask questions of the consultant anthropologists, and discuss the matter as a group.
11 I also noted at [21]:
Finally, a number of submissions were made this morning by Ms Berylanne Bauman-Sadowski opposing the interlocutory applications. In my view however Ms Berylanne Bauman-Sadowski’s submissions relate only to anthropological issues in respect of the claim. Her concerns can be addressed in the report currently being prepared by [anthropologists] Professor Memmott and Mr Blackwood, and are also issues for resolution within the claim group.
12 The amended native title application filed 26 July 2012 describes the native title claim group as follows:
The claim group is comprised of all people who are descendants of deceased persons who are recognised by the Darumbal People as having been Darumbal People from whom the living Darumbal People have descended, including the following deceased persons:
Brothers John McPherson and Harry Bauman
Kate Reid and James Hector
Clara McKenzie
Jack Naylor (Jnr)
Maria McKenzie
Clara Wallace
Mundabel
Mary Jones
Maggie (Mitchell)
Yorky
Kitty Mulway and Pompey of Stannage.
(Emphasis added.)
13 In her affidavit affirmed 29 August 2013, Ms Olsen of QSNTS deposed:
To the best of my knowledge and belief, and based on the research conducted by Professor Memmott and Mr Blackwood, one of the consequences of the claim group description being amended so as to include all of the descendants of Harry Bauman (and thus of his son, Roy Bauman) is that Ms Bauman-Sadowski is now considered to be a member of the Darumbal People native title claim group ([16]).
(Emphasis added.)
14 QSNTS served Ms Bauman-Sadowski with further connection material on 31 October and 8 November 2012.
15 At the directions hearing on 16 November 2012, Mr Wishart for the applicant stated (transcript 16 November 2012 p 7 ll 9-35):
MR WISHART: The other outstanding matter is the redoubtable Ms Bauman-Sadowski. Pursuant to your Honour’s order of 18 November 2011, Ms Bauman-Sadowski was to show cause at a hearing in July on a date to be advised as to why she should not be removed as a respondent to these proceedings. That order was effectively deferred on 28 June 2012 when Registrar Fewings made orders extending the time for doing various things. Pursuant to order 11 of 18 November last year, two weeks before the directions hearing referred to in order 10 of those orders, Ms Bauman-Sadowski was to file and serve on all parties an affidavit clearly identifying any interest of Ms Bauman-Sadowski that may be affected by determination of native title in these proceedings.
Despite the deferral of the directions hearing, Ms Bauman-Sadowski filed a further affidavit which was sworn on 16 July 2012 and that affidavit purports to be responsive to order 11 of the orders of 18 November last year requiring Ms Bauman-Sadowski to identify her interest in the proceedings. As is apparent from the progress report that is before your Honour today at paragraph 31, Ms Bauman-Sadowski’s primary concern appeared to be that she and other members of her family had been excluded from the native title claim group. Your Honour, the amendment to the claim group description that was approved by this court on the last occasion and has now been filed in the court, rectifies that perceived defect.
That is, Ms Bauman-Sadowski’s family is now included within the claim group description. As is also set out in the applicant – in the progress report before your Honour, Ms Bauman-Sadowski has now been provided with the further connection material. The applicant submits that Ms Bauman-Sadowski ought to be given a reasonable period to review that material and to contemplate her position in these proceedings.
16 In response I made the following orders on 16 November 2012:
1. …
…
7. On 27 March 2013 Ms Berylanne Bauman-Sadowski show cause as to why she should not be removed as a respondent to these proceedings.
8. By no later than 13 March 2013, the Applicant and Ms Bauman-Sadowski attend a case management conference for the purpose of identifying and resolving any interest of Ms Bauman-Sadowski that may be affected by a determination of native title in these proceedings.
9. By 13 March 2013 Ms Bauman-Sadowski file any further affidavit material clearly identifying any interest she has that may be affected by determination of native title in these proceedings.
10. Any respondent to these proceedings who does not want to take an active role in the hearing contemplated by order 7 may be excused from an active role in that process by giving written notice to the Applicant and the Court in that regard by no later than 20 March 2013.
11. …
17 Pursuant to Order 8 of my Orders of 16 November 2012, on 4 March 2013 Deputy District Registrar Fewings conducted a case management conference with Ms Olsen and Ms Bauman-Sadowski. The purpose of the conference was to identify any interest of Ms Bauman-Sadowski that might be affected by a determination of native title in the proceeding, and resolve any related issues. It was suggested at the conference that Mr Wishart and Ms Olsen of QSNTS meet with Ms Bauman-Sadowski and her family in Townsville. Ms Bauman-Sadowski proposed that the meeting take place on 14 March 2013.
18 Ms Bauman-Sadowski wrote to the Registrar on 19 March 2013 requesting an adjournment of the show cause hearing. The applicant did not object to the adjournment (transcript 27 March 2013 p 39 ll 31-33). On 27 March 2013 I ordered the show cause hearing be listed on a date to be advised, and varied orders 7, 9 and 10 of 16 November 2012.
19 In her letter of 12 June 2013 to Ms Bauman-Sadowski, Ms Olsen summarised the applicant’s unsuccessful attempts to meet with Ms Bauman-Sadowski.
20 Ms Bauman-Sadowski sent an email to Deputy District Registrar Fewings on 19 June 2013. Ms Bauman-Sadowski stated she would not attend the directions hearing. She stated that it had been very difficult to organise to meet the applicant’s legal representatives because of the “fly by” nature in which QSNTS had contacted her and her family. She requested that a show cause hearing not be listed for eight weeks due to personal reasons.
21 At the mention later that day, I listed the show cause hearing for September 2013. The applicant consented to the adjournment. At the mention, Ms Morrison for the State stated that the parties were working to an agreed timetable under the direction of the Deputy Registrar and that all timeframes had so far been met (transcript 19 June 2013 p 18 ll 43-45). The applicant indicated that the next time the claim was before the Court, the parties aimed to provide the Court with programming orders in relation to a consent determination or contested determination (transcript 19 June 2013 p 18 ll 24-33).
22 Ms Olsen wrote to Ms Bauman-Sadowski on 26 June 2013, reiterating inter alia that “QSNTS remains willing to meet with you and members of your family in an attempt to resolve any issues relating to the Darumbal proceedings”.
23 At the show cause hearing on 6 September 2013, Ms Bauman-Sadowski requested leave to file her affidavit sworn 2 September 2013. The applicant objected to the filing of annexure G to the affidavit. The material in annexure G was confidential as it had been provided solely for the purposes of mediation. Ms Bauman-Sadowski consented to remove annexure G (transcript 6 September 2013 p 5 ll 12-15). I granted leave to Ms Bauman-Sadowski to file the remainder of her affidavit.
Submissions of the parties
24 The applicant conceded that there has been a long and most unfortunate history between the applicant and Ms Bauman-Sadowski in this native title application. In summary, the applicant submits that Ms Bauman-Sadowski should be removed as a respondent because:
at the time Ms Bauman-Sadowski became a respondent to the proceeding, she was not included in the native title claim group on behalf of whom the Darumbal native title determination application is brought;
as a result of amendments made to the Darumbal application on 26 July 2012 Ms Bauman-Sadowski is now included in the Darumbal native title claim group; and
there are no other circumstances that warrant Ms Bauman-Sadowski remaining as a respondent to the proceeding.
25 The applicant accepted that, prior to the amendment of the claim group description on 26 July 2013, Ms Bauman-Sadowski had a legitimate basis on which to be a respondent. However, the applicant submits that there are no circumstances that would warrant Ms Bauman-Sadowski remaining as a respondent now that she has been recognised and included as a member of the claim group. In particular, the applicant submits ([34] applicant’s submissions):
There is no evidence that the applicant has been doing anything other than what it is required to do under the Act. The applicant has been diligently progressing the Darumbal application filed 26 July 2012 on behalf of all the members of the claim group.
Ms Bauman-Sadowski has not provided evidence that she is not now part of the native title claim group. She does not dispute that she was interviewed by Mr Blackwood when the applicant’s connection material was prepared, or that QSNTS has extended an open invitation to her to consult with her and her family (transcript 9 September 2013 p 8 ll 1-22).
The issues that concern Ms Bauman-Sadowski are properly characterised as intramural issues and cannot, in any event, be determined by the Court in this proceeding.
There is no reason to believe that the applicant will not consult Ms Bauman-Sadowski, as a member of the claim group, as and when it is appropriate to do so for the proper conduct of the claim. QSNTS on the applicant’s behalf has made every reasonable attempt to meet with Ms Bauman-Sadowski.
Ms Bauman-Sadowski could seek to be re-joined as a respondent if the applicant were excluding members of the claim group. She could also seek to have the applicant changed, if she were concerned that the applicant was exceeding its authority (transcript 6 September 2013 p 8 ll 35-43).
Ms Bauman-Sadowski may only assert rights and interests on her own behalf as a respondent. She cannot assert them in a representative capacity on behalf of members of her family.
26 The applicant relies on the affidavits of Ms Andrea Lynn Olsen filed 19 March and 29 August 2013.
27 In response, in summary Ms Bauman-Sadowski made the following oral submissions:
Her response to the show cause related to her justifications for getting involved in this proceeding (transcript 6.9.13 p 3 ll 41-43; p 4 ll 37-47).
She had attempted to mediate with the Gurang Land Council (the applicant’s legal representatives before QSNTS) before she lodged her Form 5 in 2001.
Ms Bauman-Sadowski had become involved in the proceeding because agreements had been made without her family’s involvement (for example, in relation to the Apis Creek area).
Ms Bauman-Sadowski’s father had been part of the native title working group at an early stage of development of the claim. The anthropologists in this proceeding are not independent and have been led by the working group, which does not have the right to speak on behalf of Ms Bauman-Sadowski’s family. This is prejudicial to the interests of Ms Bauman-Sadowski’s family.
Ms Bauman-Sadowski disputes QSNTS’s submissions. Her family’s rights and interests and not being “taken care of” by the applicants. She represents, and has affidavits from, her father Roy Morris Bauman Senior, her brother Roy Morris Bauman Junior, her aunt Alison Bauman and Trevor Bauman. Ms Bauman-Sadowski has always stated that she represents her family, and has always disputed the applicant’s right to speak on her family’s behalf (transcript 6 September 2013 p 9 ll 35-41).
Her family would like mediation to happen on a proper basis. Ms Bauman-Sadowski has been upfront with everybody. Her family had mediations with the applicant in Rockhampton. She put a proposal across to the applicant and gave it grace to move back south of the river. The applicant apparently did not want that. In relation to QSNTS’ submissions about attempts it had made to contact Ms Bauman-Sadowski, she had made the Court aware that she had been dealing with a close family member’s illness.
Ms Bauman-Sadowski’s family holds the authority to make indigenous land use agreements pursuant to s 251B of the Act. Her family was involved vigorously in the Marlborough nickel deal, in which the Darumbal and BBKY peoples were also involved.
28 Ms Bauman-Sadowski also appeared to rely on her affidavits affirmed 16 July 2012 and 3 September 2013.
Consideration
29 The applicant concedes that Ms Bauman-Sadowski was entitled to become a respondent to this proceeding in 2001, at which time her apical ancestor was expressly excluded as a member of the native title claim group. The issue is whether Ms Bauman-Sadowski should remain as a party following the applicant’s amendment to the claim group description on 26 July 2012.
30 The Court’s power to remove a party to a proceeding is found in s 84 of the Act, which materially provides:
Parties
…
Dismissing parties
(8) The Federal Court may at any time order that a person, other than the applicant, cease to be a party to the proceedings.
Court to consider dismissing parties
(9) The Federal Court is to consider making an order under subsection (8) in respect of a party who is a party to the proceedings if the Court is satisfied that:
(a) the following apply:
(i) the person’s interests may be affected by a determination in the proceedings merely because the person has a public right of access over, or use of, any of the area covered by the application; and
(ii) the person’s interests are properly represented in the proceedings by another party; or
(b) the person never had, or no longer has, interests that may be affected by a determination in the proceedings.
31 The power in s 84(8) of the Act is not confined to the particular circumstances in s 84(9): Butterworth v Queensland (2010) 184 FCR 397 at [39] per Logan J and Starkey v South Australia (2011) 193 FCR 450 at 458 per Mansfield J. Section 84(8) gives the Court a broad discretion to remove a party in appropriate circumstances.
32 In my view Ms Bauman-Sadowski should be removed as a party to this proceeding. I so find for the following reasons.
33 First, I am satisfied that Ms Bauman-Sadowski is part of the native title claim group in this proceeding. It was not contested that Ms Bauman-Sadowski is descended from one of the apical ancestors listed in the native title claim group description as amended in July 2012. Ms Bauman-Sadowski’s evidence is that she is the granddaughter of Roy Bauman, who is the son of the Harry Bauman listed as an apical ancestor in the amended claim group description. Importantly, the applicant has also expressly acknowledged in open Court and at [19] of the affidavit of Ms Olsen affirmed 29 August 2013 that Ms Bauman-Sadowski is a member of the Darumbal People native title claim group (cf Butterworth at [30]). I am satisfied that Ms Bauman-Sadowski is a dissentient member of the native title claim group.
34 Second, as Mansfield J observed in Starkey, the circumstances in which a dissentient member of a native title claim group will be permitted to remain as a respondent party will be rare. Under s 84(3)(a)(iii) of the Act, a person is entitled to be a party to a proceeding if that person has an interest in land or waters that might be affected by determination of the proceedings. In my view Ms Bauman-Sadowski has not identified any interest in the proceeding separate from her interests as a member of the native title claim group.
35 Ms Bauman-Sadowski asserts that her interests in the proceeding are those of the Bauman clan in the Darumbal land. She submits that she represents the Bauman clan, and has done so since becoming a respondent to the proceeding in 2001. Ms Bauman-Sadowski’s affidavit affirmed 16 July 2012 annexes affidavits of her father Roy Maurice Bowman and Kristy Barnes authorising Ms Bauman-Sadowski to represent “matters arising for the Bauman Claim in accordance with the traditional laws and custom of Yetimarla”. Regardless of Ms Bauman-Sadowski’s intentions, as a person joined as a respondent party she cannot act in a representative capacity on behalf of others claiming the same rights or interests: Bonner on behalf of the Jagera People #2 v State of Queensland [2011] FCA 321 at [19] per Reeves J. Ms Bauman-Sadowski may only assert interests in her personal capacity.
36 In my view it is clear that Ms Bauman-Sadowski’s remaining concerns in relation to the claim are intramural concerns. As Mansfield J observed in Starkey at [63]:
… the definition of native title, and the requirements of a determination of native title, do not require the consideration of, or the resolution of, any intramural or internal issues about the respective status of, or relative responsibilities of, individual members of the claim group. There is therefore no reason routinely to recognise and give a voice to those within the claim group who take a different view about any such matters from that taken by the claim group through the authorised applicant.
37 There is no apparent basis why Ms Bauman-Sadowski’s family was excluded from the claim group prior to 26 July 2012. Until that time her concerns, and her joinder as a respondent, were justified. However, Ms Bauman-Sadowski’s concerns have not changed since Harry Bauman was included as an apical ancestor in the claim group description. Her oral submissions at this show cause hearing appeared to draw heavily on her affidavit affirmed 16 July 2012, which was filed prior to the applicant amending the claim group description. Now that Ms Bauman-Sadowski is a member of the claim group, her concerns are properly classified as intramural and should be resolved within the claim group.
38 Third, in my view the applicant has been fulfilling its obligation to consult with members of the claim group. As Logan J stated in Butterworth:
[39] … Consult does not equate with “be dictated to by a member of”. A member of a native title claim group, where a need for consultation arises, is entitled to be given an opportunity to be heard, nothing more and nothing less than that …
39 In Starkey, Mansfield J also commented:
[56] The claim group is empowered by ss 251B and 66B to select from time to time the person or persons on their behalf who are to be the applicant and to fulfil the functions provided by s 62A. It is not part of the scheme of the NT Act, nor would it be consistent with the effective and efficient presentation and conduct of their claim, that individual members of the claim group who prefer a different approach or approaches should routinely be able to play a direct role in the presentation of the case both during its procedural stages or its evidentiary stages by becoming a separate party to the application.
40 The applicant has acknowledged its responsibility to consult with members of the claim group, including Ms Bauman-Sadowski, in open Court. Ms Olsen’s letter of 12 June 2013 details the numerous attempts that the applicant has made to meet with Ms Bauman-Sadowski to resolve her outstanding concerns. Ms Bauman-Sadowski stated at the show cause hearing that the applicant and the Court were aware that she had been dealing with a close family member’s illness. Despite these difficulties, the evidence suggests that the applicant is aware of its role as a representative of the claim group and has made reasonable attempts to fulfil this role. For example, the applicant consented to Ms Bauman-Sadowski’s request to adjourn the show cause hearing for eight weeks, due to her personal circumstances. The applicant’s conduct is not in any way suggestive of a lack of inclusion where necessary of all members of the claim group, including Ms Bauman-Sadowski.
41 In addition, I am satisfied that the applicant appropriately consulted Ms Bauman-Sadowski prior to the amendment of the claim group description on 26 July 2012. The applicant engaged anthropologists to address the defects in their connection material. Mr Blackwood interviewed Ms Bauman-Sadowski, which led to the amendment of the claim group description. After considering the new anthropological evidence prepared by Professor Memmott and Mr Blackwood, the then native title claim group unanimously passed the resolution to amend the claim group description. Ms Bauman-Sadowski alleged at the show cause hearing that the anthropologists were not independent and were led by the working group, which was prejudicial to Ms Bauman-Sadowski’s family’s interests. However, that the anthropologists’ material led to the amendment of the claim group description to include Ms Bauman-Sadowski’s apical ancestor would tend to refute this claim.
42 Fourth, notwithstanding this claim’s history, it is appropriate to take a prospective view based on the amended native title claim of 26 July 2012, as Logan J did in Butterworth at [34]. Since the claim was amended in July 2012 the applicant has been diligently progressing its claim. At the date of this show cause hearing the State was assessing the applicant’s connection material. Ms Bauman-Sadowski’s continued status as a respondent is likely to delay and interfere with the progress of the claim towards determination. The applicant first requested that Ms Bauman-Sadowski show cause on 18 November 2011, although some of the subsequent delay was caused by the applicant obtaining further connection material. There are no other circumstances that suggest there is a need for a continued separate representation as a party by Ms Bauman-Sadowski.
Conclusion
43 Ms Bauman-Sadowski should cease to be a respondent in this proceeding.
I certify that the preceding forty-three (43) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Collier. |
Associate:
