FEDERAL COURT OF AUSTRALIA

Burragubba on behalf of the Wangan and Jagalingou People v State of Queensland [2017] FCA 373

ORDERS

THE COURT ORDERS THAT:

1.    The interlocutory application filed on 4 May 2016 is dismissed.

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

REASONS FOR JUDGMENT

REEVES J:

Introduction

1    Relying on s 66B of the Native Title Act 1993 (Cth) (the NTA) and a meeting held on 19 March 2016, certain members of the Wangan and Jagalingou Peoples native title claim group (W & J claim group) have applied to remove Ms Gwendoline Fisher, Ms Priscilla Gyemore, Mr Les Tilley and Mr Norman Johnson Jnr as members of the Wangan and Jagalingou Applicant (the existing W & J Applicant) and replace them with Mr Gary Saltner Fisher, Ms Alexandra Gater, Ms Billy-Anne Broome and Ms Murrawah Johnson, respectively (the replacement applicant). This application arises in the following factual context.

Factual context

The Wangan and Jagalingou native title claim

2    The Wangan and Jagalingou native title determination application (the W & J application) was filed in the Court on 27 May 2004. It was entered on the Register of Native Title Claims (s 190(1)(a) of the NTA) on 5 July 2004. It covers an area of approximately 30,277.6 square kilometres on the western edge of central Queensland and includes the townships of Clermont, Alpha, Rubyvale and Capella. Significantly, as will appear below, it also includes the area where Adani Mining Pty Ltd (Adani) proposes to develop a coal mine known as the Carmichael mine.

The existing W & J Applicant authorised in 2015

3    In addition to the four individuals mentioned above, the existing W & J Applicant comprises Mr Adrian Burragubba, Mr Patrick Malone, Mrs Irene Simpson, Ms Lyndell Turbane, Mr Craig Dallen, Ms Linda Bobongie, Ms Delia Kemppi and Ms Lester Barnard. This composition of the existing W & J Applicant was authorised at a meeting of the W & J claim group held on 21 June 2015.

The Terms and Conditions of the 2015 authorisation

4    This 2015 authorisation was subject to various Terms and Conditions. They were recorded in resolution 9 of the minutes of the 21 June 2015 authorisation meeting. Part A of the Terms and Conditions was headed “Terms and Conditions of Appointment of the Applicant”. Clause 2 of that Part provided as follows:

(a)    If one or more of the individuals comprising the Applicant is incapable, unable or unwilling to continue to act as a member of the Applicant group whether as a result of the death of one of the Applicant members or ill health or any other reason, the remaining individuals (or individual) may continue to act as Applicant for and on behalf of the Claim Group and deal with matters arising in relation to the Application until a Replacement Applicant is authorised.

(b)     A Replacement Applicant will have been authorised by all of the Claim Group if the person/s who are incapable, unable or unwilling to continue to act as a member of the Applicant group is replaced by a member of the descent group to whom the person/s who are incapable, unable or unwilling to act belongs and that member is authorised at a properly convened meeting of the descent group to whom that person/s belongs.

(c)     Following the meeting of the descent group referred to at 2(b) above, the Replacement Applicant is instructed to bring an application under s66B of the NTA.

5    Part B of the Terms and Conditions was headed “Accountability and Transparency Dealing with Money and Benefits”. That Part contained the following three clauses:

The Wangan and Jagalingou native title claim group (“the Claim Group”) instructs the persons who jointly are the Applicant for the Wangan and Jagalingou native title determination application (“the Application”) as follows:

1.    Until:

(a)    a determination of native title; or

(b)    an order of the Court; or

(c)    a further resolutions of the Claim Group at a properly convened authorisation meeting,

if a Monetary Benefit is, or becomes payable, because of the operation of the:

(d)    the Native Title Act 1993 (Cth) (the NTA); or

(e)    another legislative enactment pursuant to which benefits may be derived because:

(i)    the Claim Group has a particular status by operation of the NTA;

or

(ii)    a member or members of the Claim Group has a particular status by operation of the NTA

to:

(f)    the Applicant or one of the persons who jointly comprise the Applicant; or

(g)    the Claim Group; or

(h)    any member of (sic) members of the Claim Group; or

(i)    any person or entity for and/or on behalf of any one or more persons referred to in sub-clauses 1(f) – (h)

(collectively the persons described in Clause 1 (f) to (i) of this Part B are “the Payee”)

the Payee must do all things necessary to ensure that the Monetary Benefit is paid to a trustee to be identified by agreement (“the Trustee”) to be held for the benefit of the Claim Group.

2.    In this Part B of the Terms and Conditions of Appointment of the Applicant:

(a)     The expression “monetary benefit” does not include a payment made to or for the benefit of an individual as a bona fide reimbursement for travel, accommodation or expenses related to attending a meeting or negotiation, and

(b)    “benefit” means a payment in kind or an action or thing that provides advantage or gain and includes anything of economic value, an asset, chose in action, property services and the discharge of liability; and

(c)    “all things necessary” includes giving:

(i)    Instructions to any lawyer, accountant, consultant or advisor assisting the Claim Group or retained by it; and

(ii)    An authority to the payer of any monetary benefit,

to cause money to be paid in the way contemplated by Clause 1 of this Part B.

3.    Within 7 days of the end of each successive calendar quarter (31 March, 30 June, 30 September and 31 December) any person receiving a payment or benefit of the type referred to in Clause 2(a) or 2(b) of this Part B must prepare and submit to:

(a)    the Trustee;

(b)    the solicitor for the Claim Group; and

(c)     the Applicant

a written statement containing full and particularised details of:

(d)    all monetary benefits and other benefits received by the individual or paid to another person or entity at the direction of that individual in the preceding three months; and

(e)     all meetings attended and activities undertaken in relation to matters arising because of the person’s status as a member of the Claim Group.

(Emphasis in original)

6    At the time of the hearing of this application, it was common ground that no trustee had yet been appointed for the purpose of clauses 1 and 3(a) above.

The meeting held on 19 March 2016

7    On 19 March 2016, certain members of the W & J claim group held a meeting and, by way of resolution, purported to remove and replace the four persons identified above to act as members of the existing W & J Applicant. That meeting was notified by newspaper advertisements and by a notice that was posted, on 11 March 2016, to those members of the W & J claim group who were, at the time, members of the Wangan and Jagalingou Traditional Owners Aboriginal Corporation. An attachment to the affidavit of Mr Anthony Esposito filed in support of this application lists the 122 individuals to whom that letter was sent.

8    The newspaper advertisements were published in The Courier-Mail on 27 February 2016 and in the Koori Mail on 9 March 2016. The notice published in those newspapers was in the following form:

WANGAN AND JAGALINGOU PEOPLE AUTHORISATION MEETING

An authorisation meeting has been called of the Wangan and Jagalingou People Native Title Claim group.

The arrangements for the meeting are as follows:

Date:    19 March 2016

Time:    10:00am to 3:00pm (registration from 9.00am)

Venue:    Colossus Reception Lounge, 71 Jane Street, West End, Brisbane

This meeting has been called because of concerns by 5 of the 12 Wangan (sic) Jagalingou applicants that negotiations with Adani Mining have proceeded without the authority of the Wangan and Jagalingou People and that some applicants have received sitting fees for attending those negotiations without disclosing the benefits they have received.

At the authorisation Meeting the following matters will be considered:

1.    A resolution preventing Applicants from negotiating an ILUA or other Native Title Agreement with Adani Mining Pty Ltd unless and until they have obtained the express approval of the Wangan and Jagalingou People.

2.    A resolution to authorise an application under S66B of the Native Title Act to remove those Applicants who have received sitting fees or other benefits for attending negotiations with Adani Mining Pty Ltd and/or have otherwise not complied with the terms of their appointment.

3.    A resolution allowing individual descent groups to remove and replace an Applicant from their descent group who has breached their terms and conditions of appointment, without the need to go to a full claim group meeting.

4.    A resolution seeking to terminate the instructions of the Future Act lawyer for the Wangan and Jagalingou People

5.    A resolution authorising legal proceedings to be issued for the removal and replacement of Cato Galilee Pty Ltd as trustee of the Wangan and Jagalingou Charitable Trust.

For the purposes of this authorisation meeting the Wangan and Jagalingou people are the descendants of the following aboriginal people –

Billy and Lucy (parents of Jimmy Tarpot, Mary Ann Alboro and Mary Ellen); Daisy Collins, Nellie Digaby; Dan Dunrobin (also known as Dunrobin, Christopher Dunrobin and Dan Robin); Frank Fisher (Snr) of Clermont; Annie Flourbag; Jimmy Flourbag; Katy of Clermont; Charlie McAvoy of Logan Downs; Liz McEvoy of Alpha; Maggie of Clermont (also known as Maggie Miller) and Nandroo); The Mother of Jack (Girrabah) Malone and Jim (Conee) Malone; Mary of Clermont (also known as Mary Johnson); Momitja.

Only the descendants of the above persons will be entitled to attend and participate in the authorisation meeting.

Please register your interest in attending the meeting by contacting … to register for the meeting.

9    According to the attendance sheets for the 19 March 2016 meeting, 96 members of the W & J claim group attended. In her affidavit filed in support of this application, Ms Sharon Ford of the Wangan and Jagalingou Aboriginal Corporation said that she “took great care to ensure that only Wangan and Jagalingou people [were] registered to participate in the meeting”. She said that once a participant had registered for the meeting, they were given a coloured arm band to identify that they were registered for a particular apical ancestor. From her observations at the meeting, Ms Ford said that only those persons who were wearing an arm band voted on the resolutions at the meeting.

10    The relevant resolutions that were passed at the 19 March 2016 meeting were as follows. First, resolution 7 set out the process for the appointment and replacement of the existing W & J Applicant. That resolution provided:

Resolution #7 – Appointment and replacement of Applicants

That this meeting confirms that with the exception of the appointment and replacement of Applicants, at past meetings of the claim group, decisions have been made by a simple majority of those in attendance at a meeting called for a properly notified purpose. The meeting confirms its intention to continue this practise for making decisions at this meeting. Subject to the terms and conditions of appointment of applicants and the provisions for replacement of applicants by descent groups contained therein, the meeting further adopts the following process for any decision to replace the Applicants:

7.1    With the exception of Katy of Clermont who has no known living descendants, each group of descendants (“a descent group”) of the deceased aboriginal persons listed in resolution 5.1 (“apical ancestors”) is entitled to choose an Applicant (making twelve applicants in total).

7.2    Even though a claim group member may be a descendant of more than one apical ancestor, he or she is entitled to participate in the decision making process of only one descent group for the purposes of selecting an Applicant.

7.3    The current meeting will be adjourned to allow each descent group an opportunity to meet separately for the purpose of selecting a person to be an Applicant.

7.4     Where a descent group selects a person to be an Applicant, the chairperson will reconvene the meeting and providing the person selected consents to the conditions of appointment determined by the whole claim group, that person is entitled to be put forward unopposed for endorsement by the whole claim group as an Applicant.

7.5    Unless the members of the descent group in attendance at the meeting by resolution passed at their descent group meeting determine otherwise, where a descent group is unable or unwilling to select a person to be an Applicant, the whole claim group will decide which member of that descent group will be an Applicant.

7.6    If no member from a particular descent group is in attendance or consents to being an Applicant, the number of total Applicants will be reduced by one and the descent group in question will not be represented by an Applicant.

Moved: Lyndell Turbane

Seconded: Kaycee Thomas

Carried unanimously

(Italics in original)

11    Secondly, resolution 9 addressed certain aspects of the existing W & J Applicant’s negotiations with Adani for an Indigenous Land Use Agreement (the Adani ILUA) in connection with the Carmichael Coal Project. Importantly, that resolution challenged the conduct of “the majority of applicants” (sic) in entering into and continuing those negotiations and purported to “reject” and “not authorise” any ILUA with Adani. It was in the following terms:

Resolution #9 – Adani Carmichael Project

This meeting notes that a proposed ILUA with Adani for its Carmichael Project has been rejected at claim group meetings on two prior occasions, the last occasion being at a meeting held in Rockhampton on 4 October 2014. The meeting also notes that no mandate has been given by the Wangan and Jagalingou claim group to continue or restart negotiations with Adani in respect of an ILUA for the project. This meeting expresses disappointment and concern that the majority of persons who make up the Applicant have ignored the will of the claim group and have:

1.    continued to negotiate with Adani for an ILUA for its Carmichael project;

2.    engaged a future act lawyer to assist them with negotiations;

3.    accepted sitting fees funded by Adani for the negotiations; and

4.    endorsed the holding of an authorisation meeting fully funded by Adani to approve an ILUA.

This meeting also notes that the ILUA proposed by the majority of Applicants to be considered at a subsequent authorisation meeting is in substantially the same terms as the proposal already rejected by the claim group at its meeting on 4 October 2014. Further the meeting notes that the scope of Carmichael Project has not changed and the potential for environmental damage to the traditional lands of the Wangan and Jagalingou People has not been ameliorated.

Having regard to the above, this meeting rejects and does not authorise an ILUA with Adani for its Carmichael project and directs the Wangan and Jagalingou Applicants to:

(a)    Immediately cease negotiations with Adani in relation to an ILUA for its Carmichael project and not attend, authorise or support the calling of an authorisation meeting to consider approving an ILUA (to this end we note that a meeting to authorise an ILUA has been called by unidentified persons for 16 April 2016 in Maryborough);

(b)    Not attend, support or authorise the calling of any future authorisation meeting to consider authorising an ILUA with Adani (or any successor) for the Carmichael Project unless before doing so it has been given express approval from the claim group to enter negotiations and to call a subsequent authorisation meeting of the claim group for that purpose; and

(c)    Repay to Adani any and all monies received (other than travelling and accommodation allowances) since 4 October 2014 for attending negotiations with Adani for an ILUA in respect to the Carmichael Project.

Moved: David Thomas

Seconded: Aunty Lester Barnard

Carried: unanimously

Count: 82 votes for

(Italics in original; emphasis added)

12    Thirdly, resolution 11 accepted the terms and conditions of the appointment of the existing W & J Applicant and then purported to amend them. That resolution was as follows:

Resolution #11 – Amendment to terms and terms and conditions of appointment of Applicants

Except as is provided below, this meeting accepts the terms and conditions for appointment of applicant passed at the authorisation meeting of the claim group held on 21 June 2015 (resolution 9) (“the terms and conditions for appointment of applicants”).

This meeting determines to amend the terms and conditions for appointment of applicants by:

1.    By adding the following words to the end of clause 2(b) of Part A- General Conditions: “and in such circumstances a replacement will be deemed to be authorised without the need to obtain the endorsement at a subsequent authorisation meeting of the whole claim group.”

2.    By deleting clause 3 of part A- General Conditions and replacing with the following:

“Any individual who is one of the Applicant group and”

(a)    does not attend two consecutive meetings of the Applicant without reasonable notice and excuse; or

(b)    at a properly convened meeting of the descent group to which he or she belongs, is determined to have breached these terms and conditions of appointment or for any other reason is no longer accepted as an Applicant by his or her descent group;

will be regarded as unwilling or unable to continue as a member of the Applicant group.

Moved: Ezra Broome

Seconded: Kaycee Thomas

Carried: unanimously

Count: 87 votes for

(Italics and errors in original)

13    Fourthly, resolution 12 was the resolution which resolved to remove and replace the four members of the existing W & J Applicant mentioned at the outset of these reasons. It was in the following terms:

Resolution #12 – Replacement of Applicants

In accordance with resolutions 7 and 11, the meeting recognises that the following descent groups have met and determined to replace the Applicant to which that person belongs because they are no longer accepted as an Applicant by that descent group.

1.    Momitja- Les Tilley replaced with Billie-Ann Broome;

2.    Frank Fisher (Snr) of Clermont- Gwendoline Fisher replaced with Gary Saltner Fisher;

3.    Annie and Jimmy Flourbag- Priscilla Gymore removed replaced with Alexandra Gater; and

4.    Mary of Clermont- Norman Johnson Jnr replaced with Murrawah Johnson.

This meeting endorses to the right of descent groups to replace Applicants in this way and determines that subject to the terms and conditions of appointment the following persons are now authorised to be Applicants for the Wangan and Jagalingou Native Title Claim Group:

1.    Billy and Lucy Tarpot- Irene White

2.    Daisy Collins- Delia Kemppi

3.    Nellie Digaby –Aunty Lester Barnard

4.    Dan Dunrobin - Craig Dallen

5.    Frank Fisher (Snr) of Clermont –Gary Saltner Fisher

6.    Annie and Jimmy Flourbag –Alexandra Gater

7.    Charlie McAvoy – Lyndell Turbane

8.    Liz McEvoy –– Adrian Burragubba

9.    Maggie of Clermont (Nandroo) –Linda Bobongie

10.    Mother of Jack (Girrabah) Malone & Jim (Conee) Malone – Patrick Malone

11.    Mary of Clermont –Murrawah Johnson

12.    Momitja –Billie-Ann Broome

Moved: Ezra Broome

Seconded: David Thomas

Carried: unanimously

(Italics and errors in original)

14    Finally, resolution 13 gave a direction to the replacement applicant to make the present application, as follows:

Resolution #13 – Application to Federal Court to change Applicants

This meeting directs the Applicant as determined by the previous resolution, to file an application in the Federal Court under S66B of the Native Title Act to replace the current Applicant.

Moved: David Thomas

Seconded: Casey Thomas

Carried: unanimously

(Italics in original)

The meeting held on 16 April 2016

15    On 16 April 2016, a different type of authorisation meeting of the W & J claim group was held. The purpose of that meeting was to consider authorising the making of an ILUA with Adani and to address any outcomes arising from the meeting on 19 March 2016. The notice for the 16 April 2016 meeting was advertised in seven newspapers on various dates between 16 and 23 March 2016. As well, on 16 March 2016, it was posted to those members of the W & J claim group who were recorded on the database maintained by Queensland South Native Title Service. That notice was in the following terms:

PUBLIC NOTICE OF AUTHORISATION MEETING

This is a notice of the upcoming meeting to consider authorising a proposed Indigenous Land Use Agreement (ILUA) between the Wangan and Jagalingou People (W&J People), Adani Mining Pty Ltd (Adani) and the State of Queensland, for the development of Adani’s Carmichael Project.

Adani’s Carmichael Project includes the development of green-field open-cut and underground coal mines, infrastructure, and rail facilities connecting to coal export terminals (Project).

Under Subdivision C of Division 3 of Part 2 of the Native Title Act 1993 (Cth), Adani proposes to enter into an ILUA (area agreement) with the W&J People, for that part of the Project located within the external boundaries of the W&J People’s native title determination application ... (W&J Native Title Claim)

Members of the claim group to the W&J Native Title Claim who identify with the name Wangan and Jagalingou are descendants of the following persons:

ILUA Area

The area subject the proposed ILUA is shown within the map below and is approximately 180 kilometres northwest of Clermont, Queensland.

[Map of claim area omitted]

The ILUA will provide for the W&J People’s consent to certain defined future acts required for the Project within the ILUA Area, including the grant of mining leases and the grant of certain property rights for the Project. The ILUA will also provide for the extinguishment of native title through the surrender and/or taking of native title within the ILUA Area for an area of up to 2,750 hectares.

A second, related agreement, referred to as the “Ancillary Agreement” will set out the benefits that will be provided by Adani to the W&J People in return for their consent to the Project.

Authorisation of the ILUA (and Ancillary Agreement) by all persons who hold or may hold native title in relation to the ILUA Area is now sought.

The Authorisation Meeting will also address the outcomes (if any) of the meeting of the W&J People that was advertised in the Courier Mail on 27 February 2016 to occur on 19 March 2016. At a recent meeting of the Applicant to the W&J Native Title Claim concerns were raised that the meeting of the W&J People advertised to occur on 19 March 2016 was not properly notified and may not be properly convened. The Authorisation Meeting will consider whether it is necessary to address and, if necessary, rescind or revoke any resolutions purportedly made at that meeting.

Authorisation Meeting - the Authorisation Meeting for the proposed ILUA and Ancillary Agreement (and to address the outcomes (if any) of the 19 March 2016 meeting) will be held as follows:

Date    Saturday, 16 April 2016

Time    9:00 am (registration from 7:30 am)

Place    Maryborough City Hall

    388 Kent Street, Maryborough

All adult members of the W&J People and all other adult persons who hold or may hold native title in the ILUA Area are invited to attend the Authorisation Meeting for the purpose of authorising the ILUA and Ancillary Agreement.

To register to attend the Authorisation Meeting please contact:

…

Please provide your name and contact details and the name of your Wangan and Jagalingou ancestor or (if you are not a member of the W&J Native Title Claim group) the basis upon which you assert that you hold or may hold native title in the ILUA area.

…

16    Resolution 3 of the 16 April 2016 meeting authorised the making of the Adani ILUA as follows:

3.    AUTHORISATION OF ILUA AND ANCILLARY AGREEMENT

The persons present and entitled to vote at this meeting comprising the persons who hold or may hold native title to the ILUA Area:

AUTHORISE:

(a)    the making of an ILUA between Adrian Burragubba, Patrick Malone, Irene White, Lyndell Turbane, Priscilla Gyemore, Craig Dallen, Linda Bobongie, Norman Johnson Jnr, Gwendoline Fisher, Les Tilley, Delia Kemppi and Lester Barnard on their own behalf in their capacity as Registered Native Title Claimant for the W&J Native Title Claim and on behalf of the W&J People, Adani Mining Pty Ltd and the State of Queensland titled ‘Carmichael Project Indigenous Land Use Agreement’ over the lands and waters described in the ILUA as presented to and discussed at this meeting of 16 April 2016; and

(b)    the making of an Ancillary Agreement between Adrian Burragubba, Patrick Malone, Irene White, Lyndell Turbane, Priscilla Gyemore, Craig Dallen, Linda Bobongie, Norman Johnson Jnr, Gwendoline Fisher, Les Tilley, Delia Kemppi and Lester Barnard on their own behalf in their capacity as Registered Native Title Claimant for the Native Title Claim and on behalf of the W&J People and Adani Mining Pty Ltd as presented to and discussed at this meeting of 16 April 2016.

17    Of the 340 members of the W & J claim group who were present at the 16 April 2016 meeting, 294 voted in favour, one voted against and three abstained from voting.

18    By resolution 2 of the same meeting, the members of the W & J claim group also resolved to “set aside or rescind any resolutions that may have been made at the meeting advertised to be held in Brisbane on 19 March 2016”. Two hundred and seventy four members voted in favour of this resolution, none voted against and 19 abstained from voting.

The relevant provisions of the NTA

19    Section 66B of the NTA relevantly provides:

Replacing the applicant

Application to replace applicant in claimant application

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

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

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

(ii)    the person has died or become incapacitated;

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

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

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

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

Court order

(2)    The Court may make the order if it is satisfied that the grounds are established.

20    Section 251B of the NTA 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 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 person 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.

The fundamental importance of proper authorisation

21    The proper authorisation of an applicant is of fundamental importance to the conduct of a native title determination application and the rights that flow from the valid registration of such an application under the NTA: Daniel v Western Australia (2002) 194 ALR 278; [2002] FCA 1147 (Daniel) at [11] per French J and Weribone on behalf of the Mandandanji People v State of Queensland [2013] FCA 255 (Weribone) at [36] per Rares J. Among other things, it establishes that the person or persons claiming before the Court to be the applicant has the authority of the native title claim group on whose behalf of the application is being brought to make the application and to deal with all matters arising in relation to it. Indeed, if the Court has any doubt about the applicant’s authority, it has, since the 2007 amendments to the NTA, had the power under s 84D(1)(a) to require a person to produce evidence that he or she is properly authorised as the applicant.

22    The process whereby a native title claim group authorises a person or persons to make an application on its behalf is set out in s 251B (see at [20] above). As has been observed on occasions in the past, the provisions of ss 251B(a) serve to recognise the communal character of the traditional laws and customs that underpin the concept of native title as defined in the NTA: see, for example, Bolton on behalf of the Southern Noongar Families v State of Western Australia [2004] FCA 760 (Bolton) at [43] per French J. I will return to the alternative procedure provided for in ss 251B(b) later in these reasons. However, whether the native title claim group proceeds under s 251B(a) or (b), the authorisation that ensues must be that of the whole of that claim group: see Daniel 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 at [45]–[46] per French J.

Applications under section 66B

23    Section 66B reinforces the crucial role of the native title claim group with respect to the authorisation of an applicant. Section 66B(1) requires that an application to replace a person or persons who make up an applicant that has already been authorised must emanate from “one or more members of the native title claim group”. More importantly, aside from the circumstances where a person consents to his or her replacement (s 66B(1)(a)(i)), or where a person has died or become incapacitated (s 66B(1)(a)(ii)), the person or persons who have been authorised to act as the applicant can only be replaced if he or she:

(a)    is no longer authorised by the claim group (s 66B(1)(a)(iii); or

(b)    has exceeded the authority given to him or her by the claim group (s 66B(1)(a)(iv)),

to make the application and to deal with matters arising in relation to it.

24    Furthermore, s 66B(1)(b) requires that the member or members of the native title claim group who make an application to replace the current applicant must themselves be duly authorised by the claim group to perform that role. That is, they must be authorised under s 251B to make the native title determination application and to deal with matters arising in relation to it.

25    The three conditions for a successful application under s 66B mentioned above were included in a list of five conditions (noting that 3 and 4 are alternatives) that were identified by French J in Daniel as follows (at [17]):

1.    There is a claimant application.

2.    Each applicant for an order under s 66B is a member of the native title group.

3.    The person to be replaced is no longer authorised by the claim group to make the application and to deal with matters arising in relation to it.

4.    Alternatively, the person to be replaced has exceeded the authority given to him or her by the claim group.

5.    The persons making the application under s 66B are authorised by the claim group to make the application and to deal with matters arising under it.

However, even if these conditions are met, and therefore the grounds under s 66B(1) have been established, the Court still has a discretion under s 66B(2) whether or not to grant the application in question.

The issues concern three conditions

26    In this matter, it is not in dispute that the W & J application is a claimant application (condition 1 above), nor that the members of the replacement applicant are all members of the W & J claim group (condition 2 above). It is also worth recording that the replacement applicant accepts that the authority of the existing W & J applicant continues pursuant to s 62A of the NTA until such time as an order is made under s 66B replacing it as the applicant. The dispute in this matter therefore concerns the last three conditions mentioned above. It follows that, to succeed in this application, the replacement applicant needs to establish that it has complied with conditions 3 and 5 above or, alternatively, conditions 4 and 5. Furthermore, because of the provisions of s 66B(2), it must persuade the Court to exercise its discretion to make the replacement order.

The contentions on those three conditions

27    With respect to the third and fifth conditions above, the replacement applicant relied on resolution 12 passed at the 19 March 2016 meeting (see at [13] above) to submit that the four members of the existing W & J applicant described in [1] above were no longer authorised by the W & J claim group to make the application and to deal with the matters arising in relation to it. It also contended that the same resolution constituted the authority of the W & J claim group for it to make the W & J application and to deal with matters arising in relation to it. The W & J applicant challenged both of these contentions. It also contended that resolution 12 was not, as it claimed to be by its terms, passed in accordance with resolution 7. Neither the State of Queensland nor the Commonwealth, both of whom participated in the hearing related to this application, made submissions on the validity of the 19 March meeting.

28    The fourth condition above involved a complex legal and factual dispute about the role of an authorised applicant under the NTA. It included the validity of the terms and conditions imposed in the course of authorising the existing W & J applicant (outlined at [4]–[5] above) and whether an authorised applicant has any and, if so, what, role in negotiating an ILUA. Notwithstanding the time and effort that was devoted to these questions by all the parties at the hearing of this application, I do not consider I need to determine them. That is so because I have concluded that the replacement applicant has not established that it has met conditions 3 and 5. In that circumstance, it is unnecessary to consider whether it has met conditions 4 and 5. My reasons for reaching this conclusion are as follows.

Resolution 12 and the need for a valid notice of the 19 March meeting

29    In order for resolution 12, or indeed any of the resolutions passed at the 19 March meeting, to be effective for the purpose of s 66B(1)(a)(iii) (condition 3), or s 66B(1)(b) (condition 5), that meeting must have been a validly convened and properly conducted meeting of the W & J claim group for the purposes of s 251B of the NTA. I should hasten to add that this is not to say that such a meeting is prescribed by s 251B. Plainly, it is not. In the first place, the expression “meeting” does not appear anywhere in that section. Furthermore, it is undeniably the fact that a process of decision-making under the traditional laws and customs of a native title claim group as described in s 251B(a) can exist quite independently of such a meeting. However, if, for example, the members of a native title claim group consider it is desirable to affirm that such a traditional decision-making process exists, or if such a decision-making process is accepted not to exist, and the native title claim group wishes to agree on, and adopt, a decision-making process as provided under s 251B(b), a meeting of the claim group is usually the most practical and effective means to achieve these outcomes. Thus, the development of the practice of convening and conducting authorisation meetings under s 251B of the NTA.

30    When such an authorisation meeting is convened, proper notice is essential to its validity. In this particular context, that means, among other things, that (Weribone at [40] and [41]):

… 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. …

… 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.

31    It is also important to note that, while the authorisation that ensues from an authorisation meeting conducted for the purposes of s 251B must be that of the whole of the claim group concerned (see the authorities cited at [22] above), it is not necessary that the notice of the meeting must result in all the members of the claim group attending the meeting. Rather, it is necessary that all the members be offered a reasonable opportunity to decide whether to attend: Frank on behalf of the Mayala People v State of Western Australia (No 3) [2016] FCA 1255 at [11] per Barker J; Butterworth on behalf of the Wiri Core Country Claim v State of Queensland (No 2) [2014] FCA 590 at [13] per Collier J; and Jurruru People v State of Western Australia [2012] FCA 2 at [30]–[31] per Barker J. The primary purpose of the notice of an authorisation meeting for the purposes of ss 251B and 66B of the NTA, therefore, is to result in a resolution concerning the authorisation of the applicant – whether that be the original authorisation prior to the filing of a native title determination application, or a subsequent replacement authorisation under s 66B – that is both fairly representative of the views of the whole of the native title claim group on that authorisation issue and that constitutes the informed consent, or vote, of those present at the meeting: TJ v Western Australia (2015) 242 FCR 283; [2015] FCA 818 at [107] and Weribone at [39].

32    Accordingly, the notice of an authorisation meeting must be expressed in a form, and promulgated in a manner, that is likely to result in all the members of the native title claim group being offered a reasonable opportunity to decide whether to attend the meeting and to participate in its deliberations. It must therefore alert those members to the fact the meeting has been called and to give them sufficient time to make arrangements to attend it, if they wish to. It must also give fair notice to the members of the native title claim group concerned of the business to be dealt with at the meeting so that they can make an informed decision whether, or not, to attend. Hence, where the notice relates to a meeting that is being called for the purposes of replacing an applicant, or certain members of an applicant, under s 66B, it must clearly state that that is the main purpose, or one of the main purposes, of the meeting.

The notice for the 19 March meeting did not convene a valid authorisation meeting

33    When these principles are applied to the notice for the 19 March meeting, I do not consider it served to convene a valid authorisation meeting for the purposes of ss 251B and 66B of the NTA. On its face, the notice described a meeting called by a minority of the membership of the existing W & J Applicant out of their concerns about the conduct of the majority in allegedly negotiating an ILUA with Adani without the authority of the W & J claim group. While it was headed “authorisation meeting”, it was, in truth, a notice for a meeting of those members of the W & J claim group who held the same concerns as those calling the meeting. So much is apparent from the paragraph of the notice immediately below the word “Venue” which identified why the meeting was being called and who had called it. That paragraph begins by identifying the people calling the meeting as “5 of the 12 [W & J] applicants”. Then, the reasons given for calling the meeting are identified as: “concerns that negotiations with Adani Mining have proceeded without the authority” of the W & J claim group and, further, that some “applicants” have “received sitting fees for attending those negotiations without disclosing the benefits they have received”. Thereafter, in the list of matters to be considered at the meeting, the notice states that the first item of business will be a resolution “preventing Applicants from negotiating an ILUA … with [Adani] unless and until they have obtained the express approval” of the W & J People. Of the other four items of business, the second and third items touch on the authority of the W & J Applicant, but they both do so in the context of the ILUA negotiations with Adani.

34    The notice was therefore squarely focused on the ILUA negotiations with Adani and those members of the W & J claim group who had concerns about the continuation of those negotiations. Conversely and significantly, there is no mention in it of anyone having any concerns relating to the primary function of an authorised applicant under the NTA namely, to make the native title determination application and to deal with matters arising in relation to it. Indeed, the W & J application is not mentioned anywhere in the notice. Given this quite specific focus, the notice, perhaps not surprisingly, resulted in a minority of the W & J claim group attending the 19 March meeting. That is demonstrated by the fact that 96 members of the claim group attended that meeting, compared to the 340 members who attended the 16 April meeting.

35    It follows that the notice was not, by its terms, a notice directed to all the members of the W & J claim group notifying them that an authorisation meeting had been convened for that claim group to consider the authority of its authorised applicant for the purposes of ss 66B and 251B of the NTA. That being so, it could not result in a meeting being convened that would be fairly representative of the views of the whole of the W & J claim group concerning the membership of the W & J Applicant. It therefore follows that the replacement applicant is not able to rely upon resolution 12 passed at that meeting for the purposes of establishing condition 3 (s 66B(1)(a)(iii)), or condition 5 (s 66B(1)(b)).

Discretionary considerations under section 66B(2)

36    The conclusion I have reached immediately above is sufficient to dispose of this application. However, for completeness, it is appropriate that I express my conclusions about the discretion contained in s 66B(2) of the NTA. Even if resolution 12 of the 19 March meeting could have been relied upon by the replacement applicant to establish conditions 3 and 5, in the circumstances outlined above, I would not have been willing to exercise my discretion under s 66B(2) to make the order sought by it. The factors I have taken into account in reaching this conclusion are as follows.

37    First, as has already been mentioned above, the central purpose of the 19 March meeting, as disclosed by the notice for that meeting, was to address concerns held by a minority of the members of the existing W & J Applicant and those members of the W & J claim group who held the same concerns, relating to the ILUA negotiations with Adani. Resolution 9 (see [11] above) expressed the views of those present on that issue and the course of action they decided to adopt to attempt to prevent the W & J claim group making an ILUA with Adani. Resolution 12 facilitated the course of action adopted by resolution 9, but it was clearly ancillary to it. Despite these decisions made at the 19 March meeting, it is apparent from the resolutions of the meeting of 16 April 2016 that the W & J claim group did proceed to authorise the making of an ILUA with Adani. Moreover, 340 members of the W & J claim group attended that meeting and the resolution to authorise the Adani ILUA was passed by 294 votes to one, with three abstentions. Since that resolution overwhelmingly disposed of the Adani ILUA issue and rejected the views expressed in resolution 9, there is, in my view, no purpose to be served in now giving effect to the ancillary provisions of resolution 12.

38    Secondly, and relatedly, there is no indication from the notice of, or resolutions passed at, the 19 March meeting of any member of the W & J claim group having any concerns about the manner in which the existing W & J Applicant was carrying out its primary role in connection with the W & J application. This is, in my view, a particularly important discretionary consideration. That is so because the W & J application has now been on foot for approximately 13 years. It is therefore imperative that it is brought to finalisation as soon as is reasonably possible. With this important goal in mind, unless there were some clear evidence that the W & J claim group wished to alter the authority of the existing W & J Applicant because of concerns related to the progress of the W & J application, I consider the existing W & J Applicant should be permitted to continue to pursue the W & J application without the hindrance or disruption that would undoubtedly be associated with now giving effect to resolution 12.

Conclusion

39    For these reasons, the interlocutory application by the replacement applicant filed on 4 May 2016, seeking to replace the existing W & J Applicant pursuant to s 66B of the NTA, must be dismissed.

Associate:    

Dated:    11 April 2017