FEDERAL COURT OF AUSTRALIA

Butterworth on behalf of the Wiri Core Country Claim v State of Queensland (No 2) [2014] FCA 590

THE COURT ORDERS THAT:

By a date to be fixed, the parties bring in short minutes of order to give effect to these reasons.

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

REASONS FOR JUDGMENT

1    Before the Court is an interlocutory application filed on 27 September 2013 by the Native Title applicant (“the applicant”) in these proceedings. The applicant seeks the following relief:

1.    Pursuant to section 66B of the Native Title Act 1993 (Cth), the following group of persons:

        a.    Eileen Beryl Pegler;

        b.    Paul Royce Butterworth;

        c.    Loraine Joyce McLennan;

        d.    Ronald Jock Watson;

        e.    Marilyn Joyce Duncan;

        f.    Kenneth Stewuart [sic] Peters Dodd;

        g.    Graham Ian Sauney;

        h.    Oswald Alfred Skeen;

        i.    Athol Noel Goltz; and

        j.    Lida Joyce Wailu.

        (the replacement Applicant)

do jointly replace the current Applicant.

2.    The name of the Application be amended to remove reference to “James Henry Butterworth and Others on behalf of the Wiri Core Country claim” so as to read, “Eileen Beryl Pegler and Others on behalf of the Widi People of the Nebo Estate #1”.

3.    The replacement Applicant be granted leave to further amend the Native Title Determination Application, in accordance with the proposed Further Amended Application marked “DGS7” annexed to the affidavit of David Glen Saylor sworn on 24 September 2013.

4.    The Applicant file and serve a re-engrossed copy of the Further Amended Application on the State of Queensland and each respondent party who appeared at the 1 October 2013 directions hearing within 10 working days of the date of this Order.

5.    There be no Orders as to costs of this Interlocutory Application.

6.    Such further or other Orders as the Court deems fit.

2    This application is being opposed by Ms Vassa Hunter and Ms Juanita Johnson, both of whom are currently members of the Native Title claim group. Should the Court be minded to make the orders sought in the interlocutory application and grant the applicant leave to further amend the Native Title determination application, one important consequence will be the removal of Mary Johnson as an apical ancestor from the Wiri ancestors identified in Part A (3) Schedule A of the application. Mary Johnson is an apical ancestor of Ms Hunter and Ms Johnson. The amendment will mean that Ms Hunter and Ms Johnson are no longer members of this Native Title claim group.

3    Ms Hunter and Ms Johnson have both sought orders of the Court that they be joined as respondents to the application. On 6 May 2014 I adjourned the hearing of their applications until the determination of the interlocutory application currently before the Court.

4    At the hearing of this interlocutory application, Mr Liddy (for North Queensland Land Council Native Title Representative Body Aboriginal Corporation (“NQLC”)) and Mr Creamer (for Ms Hunter and Ms Johnson) agreed that the issue for determination for the Court was whether the Native Title claim group had agreed to a decision-making process within the meaning of s 251B of the Native Title Act 1993 (Cth) (“the Act”) at the first authorisation meeting of the claim group on 16 July 2013 (“first authorisation meeting”), and if they had, whether that decision-making process was followed at the meeting. I accept that this is the key issue for determination at this stage, and now turn to consider it. If the decision-making process was agreed and properly followed, the Court will make further directions in respect of the question whether Mary Johnson should properly be described as an apical ancestor in respect of this Native Title claim.

The meeting

5    Mr David Saylor, the solicitor for NQLC, swore an affidavit on 24 September 2013 in which were set out salient facts concerning the first authorisation meeting, including the manner in which the meeting arrived at the decision-making process. From this affidavit of Mr Saylor it appears that by close of business on 10 July 2013, 177 people registered to attend the meeting. In his affidavit sworn 12 February 2014, Mr Saylor attached the attendance list for the first authorisation meeting. NQLC submits that of the persons who attended the first authorisation meeting, 73 were members of the claim group.

6    At paragraph 21 of his affidavit sworn 24 September 2013 Mr Saylor deposed as follows:

Decision Making Process

21.    After extensive discussion on the decision making process, the following resolution, which was displayed on three projector screens, was put to the floor and passed:

Resolution about Decision Making

Graham Sauney wished to move a resolution that the decision making process discussed at this meeting is put to the floor, and to be passed.

Seconded by: Kenneth Peters Dodd

People who object to the resolution:

-    Harriet Hulthen (nee Johnson) (descendant of Mary Johnson)

-    Norman Johnson

-    Juanita Johnson (she wanted it noted that the resolution was not explained properly)

-    Reece Harrington

-    Jade Johnson

-    Ben Johnson

-    Vassa Hunter nee Johnson

-    Valencia Johnson

-    Natalie Johnson

-    Cyantha Johnson

-    Evelyn Johnson

-    Harry Johnson Jnr

-    Lisa Johnson

-    Shirika Johnson

-    Ellison Shaw (Johnson)

-    Nadine Shaw (Johnson)

-    Nancy Riehl

-    Duncan Kenneth Johnson

-    Bruce McLean

-    Ryan McLean

-    Tyrone Santo

-    Reginald Bligh

22 people

Luarna Mitchell stated that she is not happy with voting people out of the group, so she walked out

THE RESOLUTION

The process of decision making for the purpose of authorising the proposed resolutions is as follows:

(a)    Each person in each group of people descended from a particular Apical Ancestor or the union of two Apical Ancestors (“lineage”) must have a reasonable opportunity to participate in the decision-making process;

(b)    The proposed resolution will be put in the form of a clearly worded written motion;

(c)    The motion will be displayed and read out to the meeting;

(d)    The motion must be moved and seconded by a member of the Native Title Claim Group before it is decided upon in the manner following:

i.    There shall be a reasonable time for discussion and debate upon the motion before the motion is settled upon;

ii.    Each lineage may meet separately today to agree upon the terms of the proposed resolution according to its own processes;

iii.    A lineage is taken to have agreed upon the terms of the proposed resolution when its decision to agree is reported to the meeting of the Native Title claim Group through a lineage representative;

iv.    The Native Title Claim Group is taken to have agreed upon the terms of the proposed resolution when there is a consensus;

v.    No one person or lineage has a right of veto; and

vi.    If any person publicly disagrees the name and lineage of the person shall be noted for the record.

‘Consensus’ means general agreement amongst lineages present as to any particular manner [sic] whereby differing points of view, if any, have been considered, noted and reconciled and any decision is generally agreed upon. For the avoidance of doubt, a decision made by consensus does not necessary [sic] require that the decision is agreed upon unanimously.

DECISION BY EACH LINEAGE                  Representative                 Decision

-    Albert Butterworth                 Paul Butterworth                 Agree

-    Jinny Clark                              Ronald Watson                   Agree

-    Nellie Emmerson                    Marilyn Duncan                   Agree

-    Mary Johnson                         Vassa Hunter                     Disagree

-    Jerry and Janie,                       Shirley Dunrobin                 Disagree

    Parents of Booyah

    McDonald

-    Flora Reed                             None

-    Roger of Nebo                        Kenneth Dodd                    Agree

-    Sarah Sauney                          James Sauney                     Agree

-    Donald Tiers                           None

-    Sophie Skeen                           Oswald Skeen                     Agree

(Reiterated)

-    Dick of Nebo,                          Lorraine McLennan             Agree

    father of Sam Murray

and Jessie

-    Billy & Molly,

    parents of Jessie

Cotherstone & Billy

Sullivan

FOR THE RECORD: the anthropological research provides evidence that there is no known descendants of these apical ancestors. From the floor Juanita Johnson she [sic] is a descendant of this ancestor; she objects to the assertions that there is “no known descendants”

-    Harry, father of Flora                  Earl Monsell                   Disagree

Doyle

FOR THE RECORD: When David asked for the decision by members of the Monsell Family, Norman Johnson went over to Earl Monsell and spoke with him.

-    King & Meg King                       None

-    Ida Hess                                   Eileen Pegler                    Agree

-    Maggie Barker                          Linda Wailu                     Agree

Those lineages who agree:     9

Those who disagree:             3

Those not in attendance:       4 (3 with no known descendants)

7    Importantly for the purposes of this interlocutory application, Mr Saylor deposed as to proposed resolution 5 at the meeting, as follows:

Proposed Resolution 5 – Amendment to the Native Title Claim Group Description of the current Wiri Core Country Native Title Determination Application (QUD 372/2006)

The current claim group resolves that the description of the native title claim group in the Wiri Core Country Claim (QUD 372/2006) be amended by removing from that description the following apical ancestors with the consequence that the descendants of those apical ancestors are no longer members of that native title claim group in the proceedings:

•    Mary Johnson

•    Jerry & Janie, parents of Booyah McDonald

•    Flora Reed

•    Donald Tears

Moved: Graham Sauney

Seconded: Sam Dallachy

8    It appears that seven lineages agreed with proposed resolution 5, four disagreed, and five were not in attendance. The four lineages who disagreed were those of:

•    Mary Johnson

•    Jerry & Janie, parents of Booyah McDonald

•    Sophie Skeen

•    Harry, father of Flora Doyle

9    After proposed resolution 5 was deemed passed, the first authorisation meeting closed and a second authorisation meeting (“second authorisation meeting”) immediately commenced. This meeting was open only to those persons descended from the newly described claim group. At the second authorisation meeting the members of the reconstituted claim group resolved to, inter alia, replace the applicant.

Consideration

10    Section 251B of the Act provides:

Authorising the making of applications

For the purposes of this Act, all the persons in a native title claim group or compensation claim group authorise a person or persons to make a native title determination application or a compensation application, and to deal with matters arising in relation to it, if:

(a)    where there is a process of decision-making that, under the traditional laws and customs of the persons in the native title claim group or compensation claim group, must be complied with in relation to authorising things of that kind--the persons in the native title claim group or compensation claim group authorise the person or persons to make the application and to deal with the matters in accordance with that process; or

(b)    where there is no such process--the persons in the native title claim group or compensation claim group authorise the other person or persons to make the application and to deal with the matters in accordance with a process of decision-making agreed to and adopted, by the persons in the native title claim group or compensation claim group, in relation to authorising the making of the application and dealing with the matters, or in relation to doing things of that kind.

11    In this case it is not in dispute that there was no relevant traditional decision-making process capable of dealing with the decisions that need to be made to progress this claim and determine who was to represent the claim group as contemplated by s 251B(a). The parties have presented their respective cases on the basis that the approach of the claim group either was or was not a process of decision-making adopted by the claim group.

Was a process of decision-making adopted?

12    Mr Creamer for Ms Hunter and Ms Johnson submitted that the decision-making process was flawed because, inter alia, each person in the claim group descended from a particular lineage (including those not present at the meetings) was not given a reasonable opportunity to participate in the decision-making process.

13    This Court has held on numerous occasions that s 251B(b) does not require all the members of the relevant claim group to be involved in making the decision or indeed that the vote be a unanimous vote of every member: Lawson on behalf of the Pooncarie Barkandji (Paakantyi) People v Minister for Land & Water Conservation (NSW) [2002] FCA 1517 at [25]; Harrington-Smith v Western Australia (No 9) (2007) 238 ALR 1 at 242-243[1265]. Further, s 251B does not require proof of a system of decision-making beyond proof of the process used to arrive at the particular decision in question: Noble v Mundraby [2005] FCAFC 212 at [18]; Jurruru People v State of Western Australia [2012] FCA 2 at [28]. However the words “agreed to and adopted by” in s 251B(b) do import the giving to all of those whose whereabouts are known, and have capacity to authorise, a reasonable opportunity to participate in the adoption of a particular process and the making of decisions pursuant to that process: Lawson at [25]; Wharton on behalf of the Kooma People v Queensland [2003] FCA 790 at [34]; Fesl v Delegate of the Native Title Registrar (2008) 173 FCR 150 at [71]; Jurruru People v State of Western Australia at [31].

14    Ms Hunter and Ms Johnson submit that the resolution to approve a decision-making process did not specifically limit participating in the decision-making process to only those in attendance at the meeting, and further Mr Saylor’s affidavit was silent on who drafted the resolutions and how they came to be used at the meeting. However:

    It is not in dispute that sufficient notice in relation to the meeting was provided to members of the claim group. Evidence of Mr Saylor (which is not disputed) is that the purpose of the authorisation meeting and the business to be transacted was advertised widely and in detail. This included the issue that based on anthropological research, a resolution would be put to amend the description of the claim group by removing certain apical ancestors from the claim group description.

    There is no suggestion by Ms Hunter and Ms Johnson that anyone was excluded from the first authorisation meeting. The evidence of Mr Saylor is that all members of the claim group as then constituted were invited to the authorisation meetings, and 177 people registered to attend the meeting.

    In proposed resolution 4, the claim group as then constituted (including Ms Hunter and Ms Johnson) unanimously agreed that the members of the claim group at the meeting were sufficiently representative of their respective families to make authoritative decisions about claim business and the matters referred to in the public notice advertising this meeting, which was placed in both the Courier Mail and Daily Mercury newspapers on 29 June 2013. Further in that resolution the claim group unanimously agreed that:

o    each person attending was representative of members of their family who were unable to attend;

o    their families and Elders were aware of the meeting and had been consulted about the issues for discussion;

o    the persons who were in attendance represented the views of their families and Elders who could not attend.

    Evidence of Mr Saylor was that the proposed resolution concerning the decision-making process was put the first meeting “after extensive discussion” (affidavit of David Glen Saylor sworn 24 September 2013 para 21).

    The question whether the proposed resolution in respect of the decision-making process did or did not specifically limit participating in the decision-making process to only those in attendance at the meeting appears to be irrelevant. The decision-making process adopted was based on the decision of each lineage. The question whether persons within each lineage were also there to contribute the views of members of the claim group not in attendance was not in issue. There is nothing to suggest that decisions of each lineage, and the group as a whole, were not made by the members of the claim group in attendance.

    The proposed decision-making resolution was clear. In this respect, the facts of this case can be contrasted, for example, with those in Wharton.

    The questions of who drafted the resolutions and how they came to be used at the meeting are, in my view, irrelevant in light of the fact that the members of the claim group were clearly given ample opportunity to consider and vote on the resolutions.

    There is no evidence of any improper conduct by anyone at the meeting in respect of the resolutions put to the meeting or in relation to votes taken.

    Members of the claim group who objected to the resolution were noted, and the resolution was put to the vote.

15    The evidence before me supports a finding that members of the claim group were given a reasonable opportunity to participate in the decision-making process.

Was the agreed process of decision-making followed?

16    The evidence before the Court is that the decision-making process adopted by the claim group in the first authorisation meeting was carried, with nine lineages in favour, three against, and four lineages not in attendance. Further, evidence of Mr Saylor indicates that of the 73 persons voting at that meeting, 22 objected to the decision-making resolution.

17    At the second authorisation meeting proposed resolution 6 was put to the meeting, namely:

Proposed Resolution 6 – Adoption of Decision-making Process by Amended Native Title Claim Group

The native title claim group for the Wiri Core Country Claim as amended by Resolution 5 above (Amended Native Title Claim Group) resolve that resolutions 2, 3 and 4 above, are adopted by the Amended Native title Claim Group as though they were resolutions of the amended Native Title Claim Group and the Amended Native Title Claim Group also resolves that the decision making process used in Meeting One be adopted for any resolutions to be passed at this meeting.

18    There was no objection to this resolution. Subsequent resolutions put to the second authorisation meeting were passed unanimously by the claim group.

19    Ms Hunter and Ms Johnson claim that the decision-making process adopted by the claim group at the first authorisation meeting was not followed at the meeting. In particular, Mr Creamer acting for them submits:

    Most critically, the decision-making process adopted at the claim group meeting called for “consensus” which required any decision to be “generally agreed upon”. The minutes of the meeting reflect strong disagreement.

    The resolution with respect to the decision-making process itself was strongly opposed, as were other resolutions put to the first authorisation meeting (namely proposed resolutions 2, 3 and 5). This did not constitute “consensus” at the meeting.

20    In the submissions put to me in relation to this issue there was some confusion between the propositions whether the alleged absence of “consensus” at the first authorisation meeting constituted a failure of the claim group to “agree and adopt” a decision-making process, or whether the decision-making process was not “followed” where the claim group purported to accept subsequent resolutions which were met with stiff opposition (and where there was not “consensus”). In my view this question is of little moment, because I have formed the view that there was “consensus” in respect of decision-making by the claim group, and to that extent the decision-making process was both agreed and adopted, and followed. I have formed this view for the following reasons.

21    First, the terms of the relevant resolution required that the claim group reach consensus. I note that, unlike in other cases which have come before the Court (for example, Kuruma and Marthudunera People v State of Western Australia [2012] FCA 14; Jurruru People v State of Western Australia [2012] FCA 2) the resolution did not propose a “fall-back” position that resolutions could be determined by a majority vote where “consensus” could not be reached.

22    Second, the Macquarie Dictionary defines the ordinary meaning of “consensus” as:

1.    general agreement or concord.

2.    majority of opinion.

23    In this case the claim group resolved that consensus should mean “general agreement”.

24    Third, the claim group clearly resolved that “consensus” did not mean unanimous agreement.

25    Fourth, as observed by French J in Daniel v Western Australia (2002) 194 ALR 278 at [11]:

It is of central importance to the conduct of native title determination applications and the exercise of the rights that flow from their registration, that those who purport to bring such applications and to exercise such rights on behalf of a group of asserted native title holders have the authority of that group to do so.

(Emphasis added.)

26    Taking this principle into account, the intention of Parliament with respect to s 251B(b) of the Act is clear. A claim group is entitled to develop its own decision-making process in relation to authorising the making of the application and dealing with the matters, or in relation to doing things of that kind, in circumstances where there is no process of decision-making under the traditional laws and customs of the claim group. To that extent, in considering the terms of a resolution adopted by the claim group in relation to a decision-making process the Court ought adopt a benign approach towards giving effect to those terms.

27    Fifth, the resolution contemplated that differing points of view in respect of proposed resolutions be considered, noted and “reconciled”. While reconciliation as a general proposition contemplates an abandonment of disagreement, this did not mean that a resolution at the meeting could not be passed if differing viewpoints could not be reconciled. That this is so follows from the terms of the resolution including that unanimity was not required, and that there be no right of veto. Mr Creamer submitted that “reconcile” meant more complete agreement than was achieved in the circumstances of this case, however when pressed was unable to identify a more specific ratio of agreement and dissent.

28    Sixth, the facts of this case demonstrate clearly that whilst there was clearly strong disagreement within the claim group, there was also strong agreement within the majority of the claim group in relation to the proposed resolutions put in the first authorisation meeting. Fifty-one of the 73 persons in attendance – namely approximately 70% of the claim group in attendance – did not object to the proposed resolution concerning decision-making. Similar majorities approved proposed resolutions 2, 3 and 5. If the matter is considered in terms of voting by lineage, 75% voted in favour of the decision-making process, and 63% voted in favour of proposed resolution 5 and the amendment to the description of the Native Title claim group. These levels of approval, in my view, constitute “general agreement” of the claim group with those resolutions. It falls considerably short of unanimity, however the claim group clearly did not expect or require unanimous decisions.

29    Finally, the evidence before the Court – in particular the affidavit of Mr Saylor sworn 24 September 2013 – supports a finding that the majority of members of the claim group at both authorisation meetings accepted at those meetings that the majorities reached in favour of the relevant resolutions constituted “consensus” of the group. The proposed resolutions were recorded as “passed”, and the majority of members at the meeting treated them as such. It is appropriate to give effect to what appeared to be the will of overwhelming majority of members at the meeting, and not to second-guess the intention of the members of the claim group in circumstances where they clearly sought to make workable the definition of “consensus” determined by the majority of the group. I note a similar approach (albeit on different facts) was taken in Butchulla People v Queensland (2006) 154 FCR 233 at [33].

Conclusion

30    It follows that I am satisfied that the native title claim group agreed to and adopted a decision-making process within the meaning of s 251B(b) of the Act at the first authorisation meeting, and that they followed that decision-making process at both the first and the second authorisation meetings.

31    I will ask the parties to bring in short minute of orders to give effect to these reasons.

Associate:

Dated:    5 June 2014