FEDERAL COURT OF AUSTRALIA

JT on behalf of the Njamal People v State of Western Australia [2016] FCA 458

ORDERS

THE COURT ORDERS THAT:

1.    Pursuant to s 66B of the Native Title Act 1993 (Cth) (NTA), Kevin Allen, Willie Jumbo, Alice Mitchell, Tony Taylor and Jean Walker (collectively the new applicant) replace the current applicant in this matter on the grounds that:

(a)    Rodney Monaghan has consented to his removal (s 66B(1)(a)(i));

(b)    JT, MC and LW (names withheld for cultural reasons) are deceased (s 66B(1)(a)(ii));

(c)    the current applicant is no longer authorised by the claim group to make the claimant application and to deal with matters arising in relation to it (s 66B(1)(a)(iii)); and

(d)    the persons who comprise the new applicant are authorised by the claim group to make this interlocutory application under s 66B of the NTA and are authorised to bring the claimant application and to deal with matters arising in relation to it.

2.    The heading of the claimant application be amended to reflect the names of the new applicant.

3.    Service of the interlocutory application filed 15 April 2016 and supporting documentation on any respondent other than the State be dispensed with.

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

REASONS FOR JUDGMENT

BARKER J:

1    Kevin Allen, Willie Jumbo, Alice Mitchell, Tony Taylor and Jean Walker (collectively the replacement applicant) apply to jointly replace Kevin Allen, Willie Jumbo, Alice Mitchell, Tony Taylor, Jean Walker, Mr Rodney Monaghan, JT (deceased), MC (deceased) and LW (deceased) (collectively the current applicant) in this claimant application under the Native Title Act 1993 (Cth) (NTA).

2    An interlocutory application to this end was filed 15 April 2016 and, all other parties having indicated they did not object to the orders sought, was dealt with on the papers.

3    The replacement applicant seeks to replace the current applicant on the basis that relevant members of the current applicant have either consented to their removal or replacement, or are deceased.

4    The Court’s power to make such an order arises under s 66B of the NTA. By s 66B(2), the Court may make the order if it is satisfied that the grounds set out in subs (1) are established. Section 66B(1) provides that:

(1)    One or more members of the native title claim group (the claim group) in relation to a claimant application, or of the compensation claim group (also the claim group) in relation to a compensation application, may apply to the Federal Court for an order that the member, or the members jointly, replace the current applicant for the application on the grounds that:

(a)    one or more of the following applies to a person who is, either alone or jointly with one or more other persons, the current applicant:

(i)    the person consents to his or her replacement or removal;

(ii)    the person has died or become incapacitated;    

(iii)    the person is no longer authorised by the claim group to make the application and to deal with matters arising in relation to it;

(iv)    the person has exceeded the authority given to him or her by the claim group to make the application and to deal with matters arising in relation to it; and

(b)    the member or members are authorised by the claim group to make the application and to deal with matters arising in relation to it.

Note:    Section 251B states what it means for a person or persons to be authorised by all the persons in the claim group to deal with matters in relation to a claimant application or a compensation application.

5    The issues that arise on the determination of the interlocutory application are therefore:

(1)    Whether the replacement applicant is comprised of members of the claim group in this matter.

(2)    Whether Mr Monaghan has consented to his replacement or removal.

(3)    Whether JT (deceased), MC (deceased) and LW (deceased) are deceased.

(4)    Whether the replacement applicant is authorised by the claim group to make the claimant application and deal with matters arising in relation to it.

(5)    Whether it is appropriate that such order be made.

IS THE REPLACEMENT APPLICANT COMPRISED OF MEMBERS OF THE CLAIM GROUP?

6    I am satisfied that the replacement applicant, which makes the interlocutory application, is comprised of persons who are members of the claim group.

HAS MR MONAGHAN CONSENTED TO HIS REPLACEMENT OR REMOVAL?

7    With regard to Mr Monaghan, the relevant circumstance mentioned in s 66B(1)(a), is whether he consented to his replacement or removal.

8    I accept the evidence contained in the affidavits of Marcus Benjamin Fort affirmed 14 April 2016 at [13] and [20], and Kevin Allen affirmed 8 April 2016 at [10], that he did.

ARE THE RELEVANT CURRENT APPLICANTS DEAD?

9    The relevant circumstance under s 66B(1)(a) with regard to JT (deceased), MC (deceased) and LW (deceased), is whether those persons are dead.

10    I accept the evidence contained in the affidavit of Marcus Benjamin Fort affirmed 14 April 2016 at [19], that they are.

IS THE REPLACEMENT APPLICANT AUTHORISED?

11    The reference to “authorised” in s 66B is a reference to authorisation, and withdrawal of authorisation, in accordance with a decision-making process under s 251B of the NTA. See the note to s 66B(1) and Daniel and Others v Western Australia and Others (2002) 194 ALR 278 at [10] and [14]; [2002] FCA 1147.

12    Under s 251B(b), if there is no traditional decision-making process, then authorisation must be given in accordance with a decision-making process agreed to and adopted by the persons in the claim group. This does not import a requirement that all members of the claim group be involved in making the decision, or that the vote be a unanimous vote of every remember; rather, it requires giving to persons 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. See, for example, Butterworth on behalf of the Wiri Core Country Claim v State of Queensland (No 2) [2014] FCA 590 at [13], and Jurruru People v State of Western Australia [2012] FCA 2 at [30]-[31].

13    The applicant relies on the evidence contained in the affidavits of Marcus Benjamin Fort affirmed 14 April 2016 and Kevin Allen affirmed 8 April 2016, concerning resolution 1 made at a community meeting on 1 and 2 March 2016.

14    A community meeting on 1 and 2 March 2016 authorised changes to the list of named applicants. The meeting had the usual attendance of Njamal claim group members. I find those claim group members present were an appropriate representation of the families that comprised the Njamal claim group, including cultural elders.

15    I accept the meeting was originally convened by way of notice posted on 12 October 2015 to all members of the Njamal claim group whose contact details were known by Yamatji Marlpa Aboriginal Corporation, in its capacity as the representative body. Additionally, further notices were posted to the same persons on 23 October 2015 and 11 February 2016, to notify them of the meeting being rescheduled.

16    I accept that, on the evidence, there is no traditional decision-making process that must be used in order for the claim group to make decisions in relation to interlocutory applications of this nature. Accordingly, authorisation could be given by way of a process that was agreed and adopted at the meeting.

17    I further accept that at the meeting, by way of a decision-making process agreed and adopted at that same meeting, the Njamal claim group resolved to make resolution 1, one of the consequences of which is this interlocutory application to replace the current applicant.

18    In the circumstances, I accept the replacement applicant is authorised by the claim group to make the claimant application and deal with matters arising in relation to it.

IS IT APPROPRIATE TO MAKE THE ORDER?

19    Finally, s 66B(2) gives the Court a discretion as to whether or not in any case an order replacing an applicant should be made. See TJ v State of Western Australia [2015] FCA 818 at [107]; Stock v State of Western Australia [2014] FCA 179 at [25]. There is, in my view, no reason why the orders sought should not be made.

20    In these circumstances, the Court will make the orders set out in the interlocutory application filed 15 April 2016 at [1], [2] and [3].

ORDERS

21    The Court orders that:

(1)    Pursuant to s 66B of the Native Title Act 1993 (Cth) (NTA), Kevin Allen, Willie Jumbo, Alice Mitchell, Tony Taylor and Jean Walker (collectively the new applicant) replace the current applicant in this matter on the grounds that:

(a)    Rodney Monaghan has consented to his removal (s 66B(1)(a)(i));

(b)    JT, MC and LW (names withheld for cultural reasons) are deceased (s 66B(1)(a)(ii));

(c)    the current applicant is no longer authorised by the claim group to make the claimant application and to deal with matters arising in relation to it (s 66B(1)(a)(iii)); and

(d)    the persons who comprise the new applicant are authorised by the claim group to make this interlocutory application under s 66B of the NTA and are authorised to bring the claimant application and to deal with matters arising in relation to it.

(2)    The heading of the claimant application be amended to reflect the names of the new applicant.

(3)    Service of the interlocutory application filed 15 April 2016 and supporting documentation on any respondent other than the State, be dispensed with.

Associate:

Dated:    3 May 2016