FEDERAL COURT OF AUSTRALIA

Gomeroi People v Attorney General of New South Wales [2017] FCA 1464

ORDERS

THE COURT ORDERS THAT:

1.    Jason Wilson, Leslie Duncan, Marcus Waters, Malcolm Talbot, Barry French, Garry Binge, Raymond Weatherall, Steven Talbott, Donald Craigie, Dennis Griffen, Jennifer Bennett, Sheryl Barnes, Roslyn Nean, Sharon Porter, Emily Roberts, Fay Twidale, Tania Matthews, Natasha Talbott and Maria Cutmore jointly replace the current applicant for the application.

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

TABLE OF CONTENTS

REASONS FOR JUDGMENT

RANGIAH J:

1    The principal proceeding is an application for a determination of native title brought by the 19 persons comprising the applicant (the Current Applicant) on behalf of the Gomeroi People.

2    The application presently before the Court is an interlocutory application pursuant to s 66B of the Native Title Act 1993 (Cth) (the Act) for an order that 19 persons (the Replacement Applicant) replace the Current Applicant.

3    The application relies upon resolutions carried at a meeting of the native title claim group in Tamworth on 19 and 20 July 2016 (the 2016 Authorisation Meeting). The application is opposed by the Current Applicant who allege that those resolutions do not reflect decisions by the whole of the claim group to remove the Current Applicant and authorise the Replacement Applicant.

Background

4    The Gomeroi People seek a declaration of native title in respect of an area of New South Wales bounded by the Queensland border in the north, the western slopes of the New England Tableland in the east, the Hunter and Goulbourn Rivers in the south and the Castlereagh River in the west. The native title claim group is defined in the application as the descendants of 114 named apical ancestors.

5    The native title determination application was originally authorised at a claim group meeting held on 24 and 25 June 2011. The meeting was attended by at least 200 Gomeroi people.

6    The Current Applicant was authorised by the claim group at a meeting held on 10 and 11 May 2013 at Tamworth (the 2013 Authorisation Meeting). Approximately 400 Gomeroi people attended the 2013 Authorisation meeting. The claim group passed a resolution at that meeting that it wished to have 19 individuals as the applicant, each drawn from one of the 19 regions which were said to comprise the traditional Gomeroi country. Those 19 regions were identified by reference to towns or areas within the claim area, namely Ashford, Boggabilla, Caroona/Walhallow/Breeza, Collarenebri, Coonabarabran, Coonamble, Gulargambone, Gunnedah, Inverell, Moree, Mungindi, Narrabri, Quirindi/Werris Creek, South West Queensland, Terry Hie Hie, Tamworth, Tingha, Toomelah and Walgett.

7    The other resolutions carried at the 2013 Authorisation Meeting included the following:

Resolution #5 - Retention of NTSCORP Services and Legal Representation

The Gomeroi People native title claim group resolved to continue to retain the services of NTSCORP Limited and the legal practice funded by NTSCORP Limited in relation to the Gomeroi People’s native title determination application and related future acts processes on the basis that they act at all times in accordance with the instructions of the Gomeroi native title claim group and Applicants.

Resolution #10 - Authority and Role of the Applicant

The Gomeroi People native title claim group acknowledge the authority and responsibilities of the Applicant as set out in the Native Title Act 1993 (Cth).

The Gomeroi People native title claim group confers authority on the people who make up the Applicant in the expectation that they will act at all times in the interests of the Gomeroi People native title claim group and will not act in any way which is for personal benefit or in the pursuit of a personal interest. These expectations include:

…

(e)    The Applicant may not attempt to terminate the services of NTSCORP Limited or the Legal Practice funded by NTSCORP as solicitor acting on behalf of the Gomeroi People native title claim group in relation to their native title determination application (NSD2308/2011) and any future acts arising in relation to it, or engage another solicitor for those purposes, without first obtaining a resolution of the Gomeroi People native title claim group specifically authorising them to do so;

(f)    The Applicant must not execute any agreement conferring benefits or obligation on Gomeroi People, without first obtaining a resolution of the Gomeroi People native title claim group specifically authorising it to do so;

…

Any person comprising the Applicant may be replaced for acting contrary to these expectations and therefore exceeding the authority conferred on them by the Gomeroi People native title claim group.

8    The Current Applicant did not adhere to the “expectations” of the claim group expressed in Resolution #10 in two respects. First, the Current Applicant appointed Sam Hegney Solicitors to prosecute the native title claim and associated legal matters in place of Robert Powrie, a solicitor funded by NTSCORP. Second, the Current Applicant, by majority, agreed to the grant of a mining lease in favour of three mining companies. The authority of the claim group for these actions was not obtained.

9    Mr Hegney wrote to NTSCORP requiring that the file concerning the Gomeroi People claim be transmitted to his firm. NTSCORP responded saying that it did not accept that Mr Hegney’s firm was validly retained as solicitors on the record and declining to deliver the files. On 10 February 2015, Mr Hegney filed a notice of change of lawyer form in the Court.

10    Mr Powrie then filed an application seeking orders that the notice of change of lawyer form be uplifted from the Court file and that Mr Powrie be reinstated as solicitor on the record. On 10 March 2015, Jagot J dismissed that application, but granted leave to NTSCORP to file and serve upon Mr Hegney proposed directions concerning a meeting of the Gomeroi People. On 13 May 2015, Jagot J made orders, including an order that NTSCORP facilitate a claim group meeting to consider Resolution #10(e) of the resolutions carried at the 2013 Authorisation Meeting. The Current Applicant appealed against those orders and, on 30 May 2016, they were set aside by the Full Court: see Gomeroi People v Attorney-General (NSW) (2016) 241 FCR 301. The majority concluded that the jurisdiction of the Court to make the orders had not been enlivened in circumstances where there was no evidence of any current dispute within the Gomeroi claim group about the authorisation of the Current Applicant.

11    On 8 June 2016, NTSCORP decided to convene the 2016 Authorisation Meeting. The meeting was to be held to, inter alia, enable the Gomeroi claim group to consider whether to replace the Current Applicant. Alexander Chalmers, a solicitor employed by NTSCORP, deposes that the decision was “based on requests received by NTSCORP from various Gomeroi claim group members”.

12    The requests that Mr Chalmers referred to included a petition addressed to NTSCORP, which stated, relevantly:

Petition to NTSCORP Ltd, Chair of Board Michael Bell and CEO Natalie Rotumah

RE; Removal of Representatives from the Gomeroi, Gamilaroi, Kamilaroi Nation Claim Group Authorisation Body

We the undersigned, as representatives of the Gomeroi, Gamilaroi, Kamilaroi Nation, demand that NTS CORP Ltd, under the “Assistance and Facilitation Funding to consider and make decisions to”;

1.     Legal Representation, and

2.     Replace the Named Applicants

Under Section 66B of the National Native Title Act, hereby ask for a gathering of the Gomeroi, Gamilaroi, Kamilaroi Nation to replace the named representatives currently appointed to the Gomeroi, Gamilaroi, Kamilaroi Nation Claim Group Authorisation Body.

…As people of the Gomeroi, Gamilaroi, Kamilaroi Nation, we feel that we are not being represented by the current Claim Group Authorisation representatives to our best interests. The Claim Group does not provide any feedback to the Nations peoples and are currently making decisions without seeking ratification from the Nations peoples on various issues that are now Impacting on people and communities across our Nation.

…

We demand that NTSCORP ltd act immediately and take the necessary actions to host a Gomeroi, Gamilaroi, Kamilaroi Nation Gathering at its earliest possible convenience and to address the core recommendations outlined below in this Petition. These recommendations are that:

…

2.    Replace the currently Named Applicants on the Gomeroi, Gamilaroi, Kamilaroi Nation Claim Group Authorisation Body

3.     That the people of the Gomeroi, Gamilaroi, Kamilaroi Nation Immediately reinstate NTSCORP Ltd as the Legal Representative of the Gomeroi, Gamilaroi, Kamilaroi Nation people,

…

13    The petition contained the signatures of approximately 139 people. The provenance and authenticity of the petition was a matter of substantial controversy at the hearing.

14    NTSCORP produced a notice advertising the 2016 Authorisation Meeting (the Meeting Notice). The Meeting Notice stated, relevantly:

NOTICE OF AN AUTHORISATION

MEETING OF THE GOMEROI PEOPLE NATIVE TITLE

CLAIM GROUP (NSD 2308/2011)

In January 2015 the Current Applicant decided to remove NTSCORP as the lawyer representing the Gomeroi People, and appoint Mr Sam Hegney in its place. This was done without the authority of the Gomeroi Claim Group.

On 7 September 2015 the National Native Title Tribunal (‘NNTT’) handed down its decision in Ashton Coal 2 Pty Ltd, ICRA MC Pty Ltd and J-Power Australia Pty Ltd and Another v Gomeroi People [2015] NNTT A 40. The decision indicates that 16 of the 18 living named Applicants signed a Section 31 mining agreement with Ashton Coal 2 Pty Ltd, ICRA MC Pty Ltd and J-Power Australia Pty Ltd. NTSCORP understands that this agreement was executed without authorisation by way of any resolution of the Gomeroi Claim Group.

NTSCORP has since received a large number of requests from members of the Gomeroi Claim Group to call a meeting to enable the Gomeroi Claim Group to discuss and make a decision on who should be the group’s legal representative, and on whether or not the Current Applicant should continue to be authorised or be replaced.

Based on these requests, NTSCORP is assisting in the notification and organisation of this meeting. This is in accordance with NTSCORP’s statutory facilitation and assistance and dispute resolution functions under s 203BB and s 203BF of the Native Title Act 1993 (Cth).

An independent facilitator will be present to conduct the meeting and an independent legal advisor will be present to provide members of the Gomeroi Claim Group with legal advice regarding any issues arising during the course of the meeting.

The agenda for the meeting is:

1.    Update on developments in relation to the Gomeroi Claim.

2.     Confirmation of the relevant decision-making process for the members of the Gomeroi Claim Group.

3.     Discussion and making a decision on who the Gomeroi Claim Group wishes to retain as its legal representative in relation to the Gomeroi Claim and any related future act processes.

4.     Discussion and making decisions on whether the Gomeroi Claim Group wishes to continue to authorise the Current Applicant, or to replace the Current Applicant. If the claim group wishes to replace the Current Applicant, the meeting will consider resolutions to authorise a new Applicant on the basis that the Current Applicant is no longer authorised, has exceeded the authority given to it, and/or on the basis that one of the persons jointly comprising the Applicant has passed away. If the claim group authorises a new Applicant, it will be asked to authorise the new Applicant to make an application to the Federal Court for an order under section 66B of the Native Title Act 1993 (Cth) that the new Applicant replace the Current Applicant.

5.     The Gomeroi Claim Group will be asked to consider whether to place conditions on the powers of the Applicant (whether the Current Applicant or a new Applicant) such as in relation to its implementation of the resolutions and decisions of the Gomeroi Claim Group, its ability to change the Gomeroi Claim Group’s legal representative or its ability to enter into commercial and other agreements which may affect the Gomeroi People’s native title rights and interests.

6.     Any other matters, as determined by members of the Gomeroi Claim Group.

If you wish to attend the Gomeroi Claim Group meeting, please contact NTSCORP on the numbers listed below by close of business on Wednesday 13 July 2016, so that all relevant arrangements can be made.

15    NTSCORP mailed the Meeting Notice and a registration form for the meeting to the 862 members of the Gomeroi claim group for whom NTSCORP had postal addresses. A list of those names and addresses (the Claim Group List) had been compiled by NTSCORP and its predecessor from information provided at previous claim group meetings and on other occasions.

16    The Meeting Notice was published in the Koori Mail newspaper on 29 June 2016. NTSCORP places all its authorisation meeting notices in the Koori Mail. Mr Chalmers deposes that the Koori Mail is well-known to have a good circulation amongst Aboriginal people in New South Wales. The Koori Mail website also has a section where native title related notices can be accessed electronically.

17    NTSCORP published four statements advertising the 2016 Authorisation Meeting on the “Gomeroi Dreaming” Facebook page.

18    NTSCORP caused an advertisement for the 2016 Authorisation Meeting to be published in the Moree Champion newspaper on 14 July 2016. There was also an article written in that edition of the newspaper about the meeting. The Moree Champion also published the article online on 16 July 2016 and provided NTSCORP’s contact details in the article. The Moree Champion newspaper has an estimated readership of 4,576 people and its website has approximately 36,240 “impressions” per month. The distribution area encompasses a number of small towns in the Moree area.

19    On 17 June 2016, NTSCORP wrote to Mr Hegney notifying him of the 2016 Authorisation Meeting and providing details of the proposed date and matters that would be considered by the Gomeroi claim group at the meeting. On 24 June 2016, NTSCORP emailed a copy of the Meeting Notice to Mr Hegney.

20    On 1 July 2016, NTSCORP engaged Sarah Pritchard SC to act as an independent legal advisor at the 2016 Authorisation Meeting. It also engaged Wayne Bergmann to act as facilitator of the meeting.

21    NTSCORP offered financial assistance to Gomeroi claim members who wanted to travel to attend the 2016 Authorisation Meeting. It paid for a total of 203 hotel and motel rooms in Tamworth, accommodating 366 adults and 83 children. It made mileage payments for 128 people who travelled in excess of 50 kms to Tamworth. It also provided meals during the meeting and paid for breakfast and evening meals for those who travelled to Tamworth.

22    On the morning of the first day of the 2016 Authorisation Meeting there was a process of identification and registration of members and non-members of the Gomeroi claim group. Those people identified as members of the claim group were issued with green wrist bands. When voting took place at the meeting, NTSCORP staff counted the votes of those people with green wrist bands. The processes of identification, registration and voting will be described in more detail later in these reasons.

23    NTSCORP’s attendance records show that a total of at least 363 Gomeroi Claim Group members and 28 observers attended the 2016 Authorisation Meeting over the two days. There were 322 attendees who signed attendance sheets on 19 July 2016, while 273 attendees signed the attendance sheets on 20 July 2016.

24    The motions considered by the claim group, and their outcomes, were relevantly, as follows:

Day 1, Tuesday 19 July 2016

# 1. Gomeroi People Native Title Claim Group Decision-Making Method

When making important decisions about matters arising under the Native Title Act (including authorising a native title application and dealing with matters arising in relation to it), there is no particular process of decision-making under traditional laws and customs that MUST BE complied with by the Gomeroi People native title claim group.

The Gomeroi People native title claim group have agreed to and adopted the following process of decision-making for the purposes of the native title claim:

1.    the decision to be made will be put in the form of a clearly worded written motion;

2.    the motion will be read out to the meeting;

3.    the motion must be moved and seconded by members of the group before it is decided on;

4.    the decision will then be made by the group by a show of hands;

5.    a decision of the majority in relation to the motion shall be a decision of the meeting.

In favour: 200

Against: 13

Abstentions: 2

Resolution carried by majority

#2. Participation by Mr Sam Hegney in the meeting

The Gomeroi People native title claim group resolve that the Applicant’s solicitor on the record Mr Sam Hegney not be permitted to attend or speak at the meeting.

In favour: 71

Against: 131

Abstentions: 3

Motion not carried

Day 2, Wednesday 20 July 2016

#3. Involvement of NTSCORP in the Gomeroi native title determination application NSD2308/2011

This meeting withdraws their prior request consent for NTSCORP to be the statutory body providing their facilitation, assistance and support services and confirms the removal of NTSCORP as legal representative for the claim group.

In favour: 71

Against: 157

Abstentions: 7

Motion not carried

…

#5. Legal Representation of the Gomeroi People

The Gomeroi People native title claim group resolve to remove Mr Sam Hegney and to engage NTSCORP Limited, as their legal representative in relation to the Gomeroi People native title determination application NSD2308/2011 and any related future act matters.

In favour: 138

Against: 5

Abstentions: 8

Resolution carried by majority

#6. Authorisation of Applicant: removal of 19 persons named as the Applicant for the Gomeroi People in native title determination application NSD2308/2011

The Gomeroi People native title claim group resolve to remove the following 19 people jointly comprising the Applicant and confirm that they are no longer authorised by the Gomeroi People native title claim group:

In favour: 130

Against: 6

Abstentions: 10

Resolution carried by majority

Notes:

The named applicants in attendance at the meeting requested for it to be recorded that they do not consent to their removal.

Jason Wilson requested for it to be recorded that he supported the motion.

…

#8. Election and Authorisation or Applicant: 19 people

The Gomeroi People native title claim group resolve to elect 19 people as their Applicant in native title determination application NSD2308/2011, and to authorise them as the Applicant to make an application under s 668(1) in native title determination application NSD2308/2011 and to deal with matters arising in the course of the claim (s 62A).

In favour: 147

Against: 2

Abstentions: 1

Resolution carried by majority

#9. Election and Authorisation of Applicant: elected and authorised 19 people

The Gomeroi People native title claim group resolve that the 19 people to be elected and authorised as their Applicant in native title determination application NSD2308/2011 come from the floor of the meeting and represent the Gomeroi people, and not the regions.

In favour: 89

Against: 22

Abstentions: 3

Resolution carried by majority

#10. Election and Authorisation of Applicant: elected and authorised 19 people: 9 men, 9 women

The Gomeroi People native title claim group resolve that the first 9 women and first 9 men with the highest votes will be elected, and that the 19th person to be elected will be the next person with the highest vote.

Moved: Veronica Talbott

Seconded: Mitchum Neave

In favour: 161

Against: 0

Abstentions: 1

Resolution carried

#11. Election and authorisation

The Gomeroi People native title claim group confirm that the 19 people they have elected and authorised as their Applicant in native title determination application NSD2308/2011 are:

The persons authorised as the Applicant acknowledge the conditions upon which they are authorised, set out in resolution #13, and agree to act in accordance with them.

For: 79

Against: 28

Abstentions: 3

Resolution carried by majority

25    The most significant of the resolutions carried by the claim group are those described as Resolutions # 6 and # 11.

26    The meeting was video recorded and a copy of the recording is in evidence before the Court. An agreed transcript of what was said at the meeting has also been placed before the Court.

27    The meeting was facilitated and chaired by Mr Bergmann. Mr Bergmann and Dr Pritchard later prepared a report concerning the meeting. The report indicates that the resolutions moved and seconded by members of the claim group were drafted by Dr Pritchard in consultation with Mr Bergmann. Those resolutions were read to the meeting and were also projected and displayed on two large video screens at the front of the auditorium.

28    The report states that the procedure for the counting of votes was as follows. First, the votes of those in favour of the motion were counted. Second, the votes of those against the motion were counted. Finally, the votes of those abstaining from the motion were counted. The counting was carried out by four members of NTSCORP’s staff. The report indicates that only the votes of persons with raised hands wearing green wristbands were counted.

29    The first resolution put to and carried by the meeting concerned the voting procedures to be adopted. Shortly afterwards, Mr Bergmann made an announcement to the effect that, should people leave the meeting, the votes of the people present would be counted for each resolution and a resolution with the majority of votes of those present in favour of it would be carried. The meeting proceeded on this basis. People entered and left the meeting from time to time.

The legislation

30    Section 61(1) of the Act provides that an application for a determination of native title can be made by, relevantly:

A person or persons authorised by all the persons (the native title claim group) who, according to their traditional laws and customs, hold the common or group rights and interests comprising the particular native title claimed, provided the person or persons are also included in the native title claim group.

31    Section 61(2) of the Act provides, relevantly, that in the case of the native title determination application made by a person or persons authorised to make the application by a native title claim group, the person is, or the persons are jointly, the applicant.

32    Section 66B of the Act provides, relevantly:

66B 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.

…

33    Section 66B(1)(b) of the Act requires that the proposed replacement applicant must have the authorisation of the claim group to make (or continue) the native title determination, rather than authorisation to make the s 66B application: see Gomeroi People v Attorney-General (NSW) at [86].

34    Section 251B provides:

251B 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.

The issues

35    The conditions that must be satisfied in order for an applicant to succeed in an application under s 66B of the Act were described by French J (as his Honour was then) in Daniel v State of Western Australia (2002) 194 ALR 278; [2002] FCA 1147 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.

36    It is not in dispute that the first and second conditions are satisfied. The Replacement Applicant does not rely directly upon the fourth condition. The dispute is as to whether the third and fifth conditions are satisfied. Further, there is an issue as to whether, if the five conditions are satisfied, the Court should to refuse to make the order in the exercise of its discretion under s 66B(2) of the Act.

37    The Replacement Applicant submits that at the 2016 Authorisation Meeting the claim group clearly decided to replace the Current Applicant with the Replacement Applicant. They submit that this is demonstrated by the carriage of Resolutions #6 and #11.

38    The Current Applicant submits, in summary, that the interlocutory application should be dismissed because:

1.    The notice of the 2016 Authorisation Meeting drafted by NTSCORP was inadequate.

2.    The 2016 Authorisation Meeting was not adequately advertised.

3.    The composition of the persons attending the 2016 Authorisation Meeting was not appropriately representative of the Gomeroi Claim Group.

4.    The conduct of the 2016 Authorisation Meeting was irregular and/or unfair.

5.    The Replacement Applicant was not validly elected and authorised by those in attendance at the 2016 Authorisation Meeting.

6.    The Replacement Applicant is not representative of the Gomeroi Claim Group.

7.    The 2016 Authorisation Meeting was not convened by NTSCORP for a purpose permitted under the Act.

8.    The Court’s discretion should be exercised against making an order for the replacement of the Current Applicant.

39    I propose to consider the significance of authorisation, and the nature of the process by which authorisation of the claim group can be obtained, before dealing with each of these issues.

Consideration

40    Under s 61(1) of the Act, an application for a determination of native title may only be brought on behalf of a native title claim group by a person or persons authorised to do so by the claim group. In Daniel v Western Australia, French J said 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.

41    The power of a native title claim group to withdraw the authorisation of an applicant is equally important. Section 66B of the Act provides a mechanism – the only mechanism – by which a claim group can replace one applicant with another. The provision is protective of the claim group, as well as facultative. The persons applying under that provision must demonstrate not only the existence of one of the grounds set out in s 66B(1)(a), but also that they are authorised by the claim group to make the application and to deal with the matters arising in relation to it. This ensures that it is the claim group which decides (subject to the Court’s discretion to refuse to make an order replacing the applicant) who are the persons representing the group.

42    Section 251B of the Act describes the process by which the claim group can authorise members of the group to make a native title determination application and deal with matters arising in relation to it. Although it does not do so expressly, s 251B also defines the decision-making process by which authorisation may be withdrawn: Daniel at [14].

43    Section 251B of the Act sets out two processes by which the claim group can authorise the applicant or withdraw authorisation. The first, in paragraph (a), applies only where the claim group has a mandatory traditional process of decision-making in relation to authorisation. The second, in paragraph (b) allows the claim group to authorise the applicant, or withdraw authorisation, in accordance with a process of decision-making agreed to and adopted by the persons in the claim group. The second process was used in this case.

44    The process described in section 251B(b) of the Act does not require the agreement of every person in the claim group. In 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, Stone J said at [25]:

In s 251B(b) there is no mention of “all” and, in my opinion the subsection does not require that “all” the members of the relevant claim Group must be involved in making the decision. Still less does it require that the vote be a unanimous vote of every member. Adopting that approach would enable an individual member or members to veto any decision and may make it extremely difficult if not impossible for a claimant group to progress a claim. In my opinion the Act does not require such a technical and pedantic approach. It is sufficient if a decision is made once the members of the claim group are given every reasonable opportunity to participate in the decision-making process.

45    The Replacement Applicant must satisfy the Court on the balance of probabilities that the requirements of s 66B are met: see Qantas Airways Ltd v Gama (2008) 167 FCR 537 at [65], [132]. The central importance of authorisation is a matter that the Court should take into account pursuant to s 140(2) of the Evidence Act 1995 (Cth). The state of satisfaction that is required should not be produced by inexact proofs, indefinite testimony, or indirect inferences: see Briginshaw v Briginshaw (1938) 60 CLR 336 at 362-363.

46    On the other hand, it should not be accepted that any deficiency in the notification or conduct of an authorisation meeting must necessarily require the refusal of an order under s 66B of the Act. The Current Applicant asserts that there were misrepresentations in the Meeting Notice and procedural defects in the conduct of the meeting and voting at the meeting. The Current Applicant relies upon cases referring to the necessity for a “valid” or “properly conducted” meeting of the claim group. In my respectful opinion, prescriptive expressions such as these are unhelpful in a context where, as Reeves J pointed out in Burragubba on behalf of the Wangan and Jagalingou People v State of Queensland [2017] FCA 373 at [21] at [29], the Act does not require an authorisation meeting to be held. As a matter of practicality, questions of authorisation are usually dealt with by holding a meeting of the claim group (commonly referred to as an “authorisation meeting”), but the Act confers no particular status on such a meeting, nor does the Act prescribe rules for its conduct, nor conditions for its validity.

47    The questions that must be answered under s 66B of the Act are whether the Current Applicant is no longer authorised, and whether the proposed replacement applicant is authorised, by the claim group to make the application and deal with matters arising in relation to it. The outcome of an authorisation meeting provides evidence about those matters, but the weight given to that evidence may be affected by defects in the way the claim group is notified of the meeting, or the way the meeting is conducted. Such defects may produce the consequence that the Court is not satisfied that the claim group has made the necessary authorisation decisions. However, defects, whether substantive or procedural, do not necessarily require refusal of an order for replacement of the applicant: see, for example, Dodd on behalf of the Wulli Wulli People v State of Queensland (No 2) [2009] FCA 1180 at [14], Doctor on behalf of the Bigambul People v State of Queensland [2010] FCA 1406 at [71]. The precise questions that must be answered must be firmly kept in mind. Accordingly, it is necessary for the Court to consider the nature and seriousness of any defects and their significance to the questions of whether the applicant is no longer authorised, and the proposed replacement applicant is authorised, by the claim group.

48    In some important respects, the notification and conduct of a claim group meeting is more problematic than other types of meetings commonly encountered by the courts, such as a general meeting of a company, or a club, or association. The problems include the following.

49    Firstly, identification of all the members of the claim group, and therefore identification of the persons entitled to vote at an authorisation meeting, can be difficult. The members of a claim group are usually defined by reference to biological descent from named apical ancestors, and sometimes also by adoption by the biological descendants. This can create difficulties in identifying precisely who is within the claim group. Not all members of the claim group will necessarily be known to the organisers of the meeting or to one another. These matters can make notification of the whole of the claim group problematic. It can also lead to difficulties in determining who is eligible to vote at a claim group meeting.

50    Secondly, where there is a meeting of a large number of people, the counting of votes can be difficult. It is usually impracticable to facilitate a secret ballot. The meeting venue, together with the number of attendees, and issues with mobility of elderly people, may not lend itself to the creation of any clear physical division between those in favour of a resolution and those against. The use of coloured wrist bands is often used to assist in identifying those eligible to vote and the counting of votes.

51    Thirdly, there are administrative, record-keeping and logistical difficulties associated with a large claim group meeting. Such meetings often extend over more than one day and some people may attend on some days but not others. Some may arrive and leave at different times during a single day. Some people may not comply with instructions or requests, such as to sign attendance records, and that can be difficult to monitor.

52    Fourthly, there is no established and fixed set of rules that must be adhered to in the conduct of an authorisation meeting. Where s 251B(b) of the Act applies, the decision-making is conducted in accordance with a process agreed to and adopted by the claim group at the meeting. The evolving nature of discussion and the exigencies of time can result in departures from the agenda and changes in procedure as the meeting progresses. These changes may be expressly, but more commonly tacitly, agreed.

53    Fifthly, a meeting to consider the replacement of one applicant with another by its nature produces emotional responses, such that passionate views are expressed and tempers can overflow. The present case provides an example of such a meeting. That can make it difficult for the organisers of the meeting to ensure that order is kept and that the meeting is not unduly disrupted by one side or the other.

54    In Lawson, Stone J said at [28]:

I do not think, however, that the Act requires decisions of native title groups to be scrutinised in an overly technical or pedantic way. Unless a practical approach is adopted to such questions the ability of indigenous groups to pursue their entitlements under the Act will be severely compromised.

I respectfully agree. Her Honour’s opinion takes into account the practical difficulties involved in organising and conducting a claim group meeting. A standard of perfection should not be required. A robust approach should be taken to determining whether or not the claim group as a whole has made any decision about authorisation.

55    Bearing these matters in mind, I will turn to consider each of the Current Applicant’s submissions.

Adequacy of the notice of meeting

56    The Current Applicant submits that the Meeting Notice distributed to members of the claim group and used in advertisements was inadequate because the notice was, in effect, a notice only directed to those members of the Gomeroi claim group who had the same concerns as those calling for the meeting to be held.

57    Further, the Current Applicant submits that the Meeting Notice was misleading and wrong because the Notice:

(a)    stated that the Current Applicant decided to replace NTSCORP as the lawyer representing the Gomeroi People without the authority of the claim group, whereas the Current Applicant was so authorised;

(b)    implied that the Current Applicant had executed a mining agreement without the authority of the claim group, whereas the Current Applicant was so authorised;

(c)     stated that the registration for the meeting would be from 8:00 am - 12:00 pm on Day 1, whereas registration was permitted throughout the meeting;

(d)    stated that there had been a “large number of requests” to call the meeting when no such requests were in evidence apart from the petition (the provenance and authenticity of which are in dispute);

(e)    failed to disclose that the motivating purpose for NTSCORP convening the meeting was to have itself reinstated as the lawyers for the claim group and to provide a reason to refuse to hand over the file relating to the claim to Mr Hegney;

(f)     failed to disclose the substantial interest NTSCORP had in the outcome of the 2016 Authorisation Meeting;

(g)    failed to identify that the Gomeroi applicant would no longer consist of representatives of the 19 regions.

Whether notice was only directed to claim group members with similar concerns

58    The appellant submits that the circumstances are closely similar to those considered in Burragubba and that the present application should be dismissed for the reasons given in that case. In Burragubba, the meeting was called by a minority of the persons comprising the applicant. The meeting notice referred to concerns that negotiations with a mining company had proceeded without the authority of the claim group and that some of the persons comprising the applicant had received undisclosed fees for attending those negotiations. The notice stated that the matters to be discussed at the meeting included a resolution to authorise an application under s 66B of the Act to remove those persons. At the meeting, a resolution was carried replacing some members of the applicant.

59    The Current Applicant submits, paraphrasing the words of Reeves J in Burragubba at [33], that the Meeting Notice in this case was, in truth, a notice for a meeting of the members of the Gomeroi claim group who held the same concerns as those calling the meeting. They submit that the Meeting Notice should have included a paragraph saying that:

Members of the claim group should attend the meeting regardless of whether they had concerns about the change of lawyers and the agreement with mining companies because it was very likely that there would be a resolution that could result in the Current Applicant being replaced.

60    Counsel for the Current Applicant also submit that extra care had to be exercised in making sure that the notice was clear because “it’s well known that indigenous people in Australia, generally, haven’t had the education that non indigenous people have”. This is said to be relevant to attempting to ascertain objectively whether the notice alerted the whole of the claim group to the fact that the Current Applicant could be replaced. They submit that the same position would apply if it was a meeting notice addressed to a part of society in any lower socio-economic area, such as parts of western Sydney. Counsel relied upon a passage from Weribone on behalf of the Mandandanji People v State of Queensland [2013] FCA 255, where Rares J said at [40]:

The Court must be mindful that the class of persons to whom such notices will be addressed are not lawyers, but indigenous people from many varied walks of life who have greater and lesser degrees of sophistication and understanding.

61    That passage does not support the submission that Aboriginal people generally do not have the same level of education that non-indigenous people have. In my opinion, Rares J was saying no more than what is true of many groups of people, namely that they consist of people with a wide spectrum of education, literacy and comprehension. I do not accept that judicial notice should be taken of the assertion that Aboriginal people generally do not have the same level of education that non-indigenous people have.

62    I agree that a Meeting Notice should be drafted so that, to the extent possible, it can be understood by people throughout the spectrum. However, it will rarely be possible to give such notice to all members of the claim group. A claim group will usually include, for example, young children and other people who lack capacity. A practical evaluation has to be made as to whether the meeting notice is adequate to allow the members of the claim group with capacity to decide whether to attend and participate in the meeting.

63    Burragubba was decided in its own factual context and I do not accept that the findings made by Reeves J can simply be extrapolated to this case.

64    In this case, the Meeting Notice was entitled “Notice of an Authorisation Meeting of the Gomeroi People Native Title Claim Group”. Beside the notation “Who should attend?” appeared the words “The meeting is open to all members of the native title claim group in the Gomeroi People native title determination application.” (emphasis in original). The Meeting Notice then set out complaints about the conduct of the Current Applicant, namely the lack of authorisation by the claim group for the change of lawyers and the execution of the agreement with the mining companies. It set out an agenda for the meeting, which included “making decisions on whether the Gomeroi claim group wishes to continue to authorise the Current Applicant, or to replace the Current Applicant”.

65    The Meeting Notice was expressly addressed to “all” members of the Gomeroi claim group and invited all such members to attend the meeting. It expressly indicated that a purpose of the meeting was for the claim group to make a decision as to whether to continue to authorise the Current Applicant, or to replace the Current Applicant. The Meeting Notice set out the two particular concerns of those who wished the meeting to be called, but it is difficult to see why the articulation of these concerns should mean that the meeting was called only for those who shared the same concerns. It may be noted that the meeting was not expressed to be simply a meeting to authorise a new applicant, but rather was also to decide whether the claim group “wishes to continue to authorise the Current Applicant”. It would have made no material difference if the Meeting Notice had said that people should attend the meeting regardless of whether they had concerns set out in the Notice because it was very likely that there would be a resolution that could result in the Current Applicant being replaced. The Meeting Notice made it adequately clear that any member of the claim group who did not share the concerns expressed, or who did not want the Current Applicant to be replaced, could attend the meeting and have their say upon the proposed resolutions. In my opinion, the notice was a notice directed to all members of the Gomeroi claim group. It cannot be described as calling a meeting only for those members of the claim group who held the same concerns.

Whether the Meeting Notice was misleading

66    The Current Applicant submits that the Meeting Notice was misleading. Where a meeting is to be held to decide upon questions of authorisation, it is obviously necessary that notice of the meeting be given to members of the claim group. In Weribone, Rares J considered what is ordinarily required of such notice:

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

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

67    In TJ v Western Australia (2015) 242 FCR 283, Rares J said at [91]:

Nonetheless, it is still necessary to give proper notice to all persons entitled to participate when convening such a meeting or, in this case, voting process, seeking authorisation under s 251B(b). All the members of the claim group have a reasonable opportunity to understand, on proper information, what the questions for their decision are, and to decide whether, and, if so how, to participate in any decision-making process. Any decision-making process under s 251B must proceed on the basis of proper notice and full information to all persons in the claim group, that enables them to decide whether to participate in and vote on the relevant authorisation.

(Citations omitted).

68    If a notice calling an authorisation meeting is misleading, it may have the consequence that members of the claim group have not had the opportunity to make a fully informed decision as to whether or not to attend the meeting and participate in the decision-making process. However, this is not like a case under s 18 of the Australian Consumer Law where some form of relief is usually granted upon misleading or deceptive conduct being established. It is necessary to determine whether and in what way the notice is misleading and what impact it is likely to have had upon attendance and decision-making at a meeting. A misleading notice will be significant where, for example, it is likely that a portion of the claim group has been deceived into not attending a meeting. A misleading notice may produce the consequence that the Court cannot be satisfied that the current applicant is no longer authorised, and the proposed replacement applicant is authorised, by the claim group as a whole.

Whether the Meeting Notice was misleading by stating the Current Applicant acted without authority of claim group

69    The Current Applicant submits that the Meeting Notice was misleading because it stated that the Current Applicant decided to change lawyers and execute the agreement with the mining companies without the authority of the claim group, whereas the Current Applicant was so authorised. The Current Applicant’s argument seems to be that by virtue of its authorisation as the applicant, it was empowered under s 62A of the Act to “deal with all matters arising under this Act in relation to the application”, including deciding which lawyers should represent the claim group and entering into agreements under s 31 of the Act. The Current Applicant argues that the Meeting Notice should have stated that they were authorised by the claim group to make those decisions.

70    Section 62A of the Act, taken with s61(2)(d), suggests that power is conferred upon the applicant alone to make the application and to deal with matters arising in relation to it. However, s 66B(1)(a)(iv) of the Act provides that a ground for an application to replace the applicant is that 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. In Gomeroi People, Barker J (with whom Reeves J agreed), held at [80]-[82] that the claim group may place limits on the authority that the applicant would otherwise have. His Honour accepted at [87] – [91] that a claim group may place limits upon the power of the applicant to change lawyers. I accept that the claim group may also restrict the power of the applicant to enter into an agreement under s 31(1)(b) of the Act.

71    Resolution #10 carried at the 2013 Authorisation Meeting stated that the claim group “confers authority on the people who make up the Applicant in the expectation that they will act at all times in the interests of the Gomeroi People native title claim group”. Those expectations were said to include not attempting to terminate the services of the legal practice funded by NTSCORP and not executing any agreement conferring benefits on the Gomeroi People “without first obtaining a resolution of the claim group specifically authorising [the applicant] to do so”. The resolution went on to say that the persons comprising the applicant may be replaced for acting contrary to these expectations and “therefore exceeding the authority conferred on them by the Gomeroi People native title claim group”. In Gomeroi People, Barker J held at [90] –[91]:

90    On the face of it, the limitation in resolution 10(e), while expressed in terms of “expectation”, made it clear to the applicant that it had a limited authority on the question of a change of lawyer, which, if not met, would mean it had exceeded the authority given to it by the claim group and was liable to be replaced as applicant under s 66B — should the claim group (according to the relevant voting procedure prescribed by s 251B) take a dim view of its conduct.

91    I consider, therefore, and with respect, that the primary judge was correct to accept, in the course of argument with counsel on both 10 March 2015 and 13 May 2015, that it would be open to the claim group, under s 66B, to authorise the replacement of the applicant for exceeding the authority that the claim group had given to the applicant, having regard to the materials then before the Court.

72    The Meeting Notice stated the replacement of NTSCORP as the lawyer acting for the claim group “was done without the authority of the Gomeroi Claim Group”. That statement is supported by the findings made by Barker J in Gomeroi People. Therefore, the statement was not misleading.

73    Even if the statement was misleading, the issue is whether any members of the claim group are likely to have been misled into not attending the 2016 Authorisation Meeting by that misrepresentation. In my opinion, that is unlikely. Further, if they regarded the statement as significant, the members of the Current Applicant had the opportunity to address the meeting and make the argument that they were not required to obtain any further authorisation from the claim group. Even if it was misleading, the statement is unlikely to have made any material difference to the outcome of the meeting.

74    The Meeting Notice also stated that the agreement with the mining companies “was executed without authorisation by way of any resolution of the Gomeroi Claim Group”. Having regard to the reasoning of Barker J concerning the limitations placed upon the Current Applicant in relation to changing lawyers, the statement cannot be regarded as being misleading.

75    Further, for the reasons I have given, even if it was misleading, the statement is unlikely to have made any material difference to the outcome of the meeting.

Whether the Meeting Notice was misleading as to when registration would take place

76    The Current Applicant next submits that the Meeting Notice was misleading and wrong because it stated that the meeting registration would be from 8:00 am to 12:00 pm on Day 1, Tuesday, 19 July 2016, whereas registration was permitted throughout the meeting. The Current Applicant submits that registration should have closed at the advertised time. They submit that potential attendees might have decided not to attend the meeting on Day 2 in the belief that they could only register during the window for registration. They submit that Mr Hegney was led to believe that registration would close at 12:00 pm on the first day and would be expected to advise his clients to order their affairs accordingly. Further, they submit that the meeting was structured by Mr Bergmann to have updates and debate on the first day and decisions made on the second day, which meant that new arrivals on Day 2 were not informed by the debate on Day 1.

77    The Meeting Notice contains the notation “8:00 am – 12.00 pm – Meeting Registration”. It then refers to the meeting being at 1:00 pm – 5:00 pm on Tuesday, 19 July 2016 and the continuation of the meeting on Wednesday, 20 July 2016 from 9:00 am – 3:00 pm. The Meeting Notice implies that registration is a condition of participation in the meeting.

78    The Current Applicant submits that the Meeting Notice clearly indicated that registration would only be permitted from 8:00 am to 12:00 pm on Day 1. I do not accept that submission. However, I accept that the Meeting Notice is ambiguous as to whether registration for the meeting would only be allowed within the stated period, or whether registration would continue to be permitted after the meeting had commenced.

79    Mr Chalmers and Natalie Rotumah, the chief executive officer of NTSCORP, gave evidence that it is the usual practice of NTSCORP to allow registrations to continue throughout claim group meetings. I accept that the same procedure was followed at the previous Gomeroi authorisation meetings. Some, but limited, weight can be given to that evidence, as it is not apparent how many people attending the 2016 Authorisation Meeting had also attended the previous meetings.

80    It is quite possible that some persons who could not attend on the morning of Day 1 may have thought that it was not worthwhile attending later because they could not register to vote. That seems to have been Mr Bergmann’s interpretation of the Meeting Notice conveyed in a letter he wrote to Mr Hegney and Mr Chalmers dated 15 July 2016. However, Mr Hegney did not suggest that he told members of the claim group that they would not be allowed to register after 12:00 pm on Day 1, and there is no evidence before the Court of anyone in the claim group having that understanding. To the contrary, there is evidence that some 43 members of the claim group registered on Day 2, and they must have understood that they would be permitted to do so. In my opinion, ordinary members of the claim group are likely to have understood that the purpose of having time set aside for registration before the commencement of the meeting was that the overall process of registration was likely to be lengthy, rather than understanding that a deadline had been imposed for registration. Any persons who were confused or uncertain about the position are likely to have made an enquiry of NTSCORP, as the convenor of the meeting. However, there is no evidence that there were persons who were confused or uncertain, or that any such enquiries were made.

81    The Current Applicant submits that it is significant that new arrivals on Day 2 did not have the benefit of the debate on Day 1. However, there could be no requirement that anyone listen to the debate on Day 1. People were entitled to walk out of the meeting at any time and return when they chose. It was not a requirement of attendance on Day 2 that people had to attend on Day 1 so that they could listen to the debate.

82    In G v H (1994) 181 CLR 387, Brennan and McHugh JJ said at 390:

An inference is a tentative or final assent to the existence of a fact which the drawer of the inference bases on the existence of some other fact or facts. The drawing of an inference is an exercise of the ordinary powers of human reason in the light of human experience; it is not affected directly by any rule of law.

83    The facts proved must give rise to a reasonable and definite inference, not merely to conflicting inferences of equal degree of probability so that the choice between them is a mere matter of conjecture: Jones v Dunkel (1959) 101 CLR 298 at 304, Girlock (Sales) Proprietary Limited v Hurrell (1982) 149 CLR 155 at 161-162, Trustees of the Property of Cummins v Cummins (2006) 227 CLR 278 at [34].

84    The closest margin by which any of the resolutions was carried was 51 votes for Resolution #11. The question is whether I should infer that there were at least 51 people who did not attend the meeting because they believed that they would not be permitted to register after 12:00 pm on the Day 1. Otherwise, neither the outcome of Resolution #11 nor any other resolution, will have been affected by the ambiguity of Meeting Notice. On the evidence before the Court, that prospect is speculative and I am unwilling to draw such an inference.

Whether Meeting Notice was misleading by stating that a large number of requests to call the meeting had been received

85    The Current Applicant next submits that the Meeting Notice was misleading when it stated that there had been a “large number of requests” to call a meeting. In this respect, they submit that the only request that had been received by NTSCORP was in the form of the petition. They make the further submission that the petition may have been fabricated.

86    Leslie (Phil) Duncan gave evidence that he prepared the petition. He signed the first page and emailed it to his cousin, but had no further involvement with it. He did not speak to NTSCORP about the petition. Under cross-examination, it was pointed out that his signature is not on the copy of the petition that is in evidence, but he said that a page of signatures must be missing from that copy. It was also pointed out that he had not mentioned the petition in his affidavit.

87    The Current Applicant submits that there is a lack of evidence as to how the petition reached NTSCORP and whether any steps had been taken to verify that the signatories were Gomeroi People. Further, when the petition is cross-referenced with the Claim Group List, 134 out of the 139 signatories did not attend the 2016 Authorisation Meeting. In fact, most of the signatories do not appear on the Claim Group List maintained by NTSCORP.

88    Mr Priestly deposes that there was another petition concerning Santos and Terry Hie Hie circulating amongst the Gomeroi People in the Moree area at the same time. The Current Applicant submits that the petition was not genuine and contained signatures taken from the Santos petition coupled with new introductory paragraphs.

89    Mr Duncan gave evidence at the hearing and was cross-examined. I have reservations about one aspect of his evidence. His affidavit was in almost identical terms to the affidavits of the other 18 members of the Replacement Applicant. Yet, Mr Duncan maintained that the words in the affidavit were his own words. I think that this is unlikely, and that his recollection of the process by which his affidavit was obtained is faulty. However, he was unshaken upon his evidence that he prepared and signed the petition. That evidence is consistent with statements made by him during the 2016 Authorisation Meeting. I assess him as being an honest witness and I accept that aspect of his evidence as being reliable.

90    It is odd that so many of the signatories on the petition did not attend the 2016 Authorisation Meeting. It may be that many of the signatories did not attend because they are not members of the claim group, but that does not explain why they signed the petition given to NTSCORP. There was no evidence from any of the signatories that they had not signed the petition. I am not prepared to find that Mr Duncan or someone else took the signature pages from the Santos petition and attached them to the petition. The evidence does not go far enough to support such a proposition.

91    Mr Chalmers provided two affidavits and was cross-examined at the hearing. He gave evidence that NTSCORP had received the petition on 30 November 2015 and had also received “a number” of telephone calls from claim group members who wanted a meeting to be held, including Mr Duncan. He said that it was his normal practice to keep file notes of his conversations about such matters, but they were unable to be located. Mr Chalmers was criticised for his failure to produce file notes supporting his evidence. Despite this, I consider that his evidence was honest and reliable. I accept his evidence.

92    Ms Rotumah also gave evidence that NTSCORP had received such requests. I accept her evidence.

93    The petition can be considered to be a request to call a meeting made by each of the individuals who signed it.

94    I find that the Meeting Notice was accurate, and not misleading, when it said that NTSCORP had received a large number of requests from members of the claim group to call the meeting.

Whether the Meeting Notice was misleading by failing to disclose NTSCORP’s motives for calling the meeting

95    The Current Applicant submits that the Meeting Notice was misleading because it failed to disclose that the motivating purposes of NTSCORP were to have itself reinstated as the lawyers for the claim group and to provide a reason to refuse to hand over the file relating to the native title determination application to Mr Hegney. Further, they submit that the Meeting Notice failed to disclose the substantial interest NTSCORP had in the outcome of the 2016 Authorisation Meeting. Associated with these submissions is a further submission that the 2016 Authorisation Meeting was not convened for a purpose permitted by the Act.

96    The Meeting Notice refers to NTSCORP having received requests from members of the claim group to call a meeting and continues:

Based on these requests, NTSCORP is assisting in the notification and organisation of this meeting. This is in accordance with NTSCORP’s statutory facilitation and assistance in dispute resolution functions under s 203BB and s 203BF of the Native Title Act 1993 (Cth).

97    The Current Applicant submits that the purpose of NTSCORP holding the meeting was not the purpose stated in the Meeting Notice, but was instead for the purpose of having itself reinstated as the solicitors for the claim group and to provide a reason to refuse to hand over the files to Mr Hegney. This is said to be an improper purpose, leading to the consequence that the decision to convene the meeting was invalid. The meeting itself and the resolutions made at the meeting are also said to be invalid. The Current Applicant submits, in the alternative, that the improper purpose is a sufficient basis for the Court to dismiss the interlocutory application in the exercise of the Court’s discretion.

98    A discretionary statutory power must be exercised for a purpose for which the power was granted, and not for an ulterior purpose: Thompson v The Council of the Municipality of Randwick (1950) 81 CLR 87 at 105-106; Samrein Pty Ltd v Metropolitan Water Sewerage and Drainage Board (1982) 41 ALR 467 at 468. It is enough to invalidate a decision if an improper purpose was a substantial purpose of the power: Thompson at 106, Samrein at 468.

99    Section 203BB of the Act provides, relevantly:

203BB    Facilitation and assistance functions

General

(1)    The facilitation and assistance functions of a representative body are:

…

(b)    to assist registered native title bodies corporate, native title holders and persons who may hold native title (including by representing them or facilitating their representation) in consultations, mediations, negotiations and proceedings relating to the following:

(i)    native title applications;

…

(v)    any other matters relating to native title or to the operation of this Act.

Facilitation and assistance functions only exercisable on request

(2)    A representative body must not perform its facilitation and assistance functions in relation to a particular matter unless it is requested to do so.

100    Section 203BF of the Act provides, relevantly:

203BF    Dispute Resolution functions

Dispute Resolution functions

(1)    The dispute resolution functions of a representative body are:

(a)    to assist in promoting agreement between its constituents about:

(i)    the making of native title applications; or

(ii)    the conduct of consultations, mediations, negotiations or proceedings about native title applications…or about any other matter relating to native title or the operation of this Act; and

(b)    to mediate between its constituents about the making of such applications or the conduct of such consultations, mediations, negotiations or proceedings.

Meaning of constituent

(2)    In this section:

constituent means:

(a)    a person on whose behalf the representative body is acting or may act; or

…

(d)    a person who may hold native title in that area.

101    There was very little argument upon the question of whether a representative body seeking to have itself (or the solicitor it funded) reinstated as lawyers for the claim group and to avoid handing over files to new lawyers are not purposes for which the powers under ss 203BB and 203BF were granted. There seemed to be an assumption by the parties that such purposes would be improper, but those questions must depend upon construction of the provisions and the particular facts and nuances of the case. I am prepared to assume, without deciding, that such purposes would be improper.

102    Mr Chalmers accepted that NTSCORP had refused Mr Hegney’s requests to hand over the files concerning the Gomeroi native title determination application. It was not suggested to Mr Chalmers in cross-examination that the exercise of NTSCORP’s facilitation and assistance and dispute resolution functions was not a purpose of convening the 2016 Authorisation Meeting. Neither was it suggested that it was a substantial purpose to have NTSCORP reinstated and to provide a reason to refuse to hand over the files. In any event, I accept that Mr Chalmers gave his evidence honestly and that NTSCORP did receive a number of requests to call a claim group meeting because of concerns over the Current Applicants’ conduct. These requests, and the provision of assistance to the group, were NTSCORP’s primary motivation for calling the meeting.

103    Ms Rotumah gave evidence that it was her decision to call the 2016 Authorisation Meeting and she did so because of requests received from members of the claim group. She accepted that when the decision was made, she saw one of the “pros” of holding the meeting as being that it could enable NTSCORP to withhold its file from the Current Applicant. I accept Ms Rotumah’s evidence.

104    I accept that it must have been a part of NTSCORP’s motivation for calling the meeting that it (or, at least, the legal practice it funded) had been removed as lawyers for the claim group and it wished to regain its position. That motivation seems to have stemmed principally from the Current Applicant acting contrary to the stated expectations of the claim group as a whole and in circumstances where Resolution #10 indicated that the persons comprising the applicant may be replaced for acting contrary to those expectations. I also accept that part of NTSCORP’s motivation was to avoid handing over its file. However, I reject the Current Applicant’s submission that “the motivating purpose” of NTSCORP was to have itself reinstated as the lawyers for the claim group and to provide a reason to hand over the file. While I accept that those matters were part of NTSCORP’s purpose, they were not a substantial purpose. In my opinion, the dominant purpose of NTSCORP in calling and facilitating the 2016 Authorisation Meeting was to assist the claim group following receipt of a number of requests to do so by exercising its facilitation, assistance and dispute resolution of functions under ss 203BB and 203BF of the Act.

105    I therefore reject the Current Applicant’s submission that NTSCORP acted for an improper purpose.

106    For completeness, I reject the Replacement Applicant’s submission that Resolution #5 under s 203BB(2) of the Act contained a standing request to NTSCORP to exercise its facilitation and assistance functions. That reading of Resolution #5 is simply not open.

107    The interest that NTSCORP had in the outcome of the 2016 Authorisation Meeting was demonstrated in the Meeting Notice itself. The meeting was expressly stated to be convened because of concerns which included the removal of NTSCORP as the lawyer representing the Gomeroi People. The Meeting Notice indicated that there was to be discussion and a decision on who the claim group wished to retain as its legal representative for the future. It was apparent from the face of the Meeting Notice that NTSCORP was convening the meeting and stood to be reinstated as the lawyers for the claim group. I do not accept that the Meeting Notice was misleading by failing to disclose the interest NTSCORP had in the outcome of the meeting.

Whether the Meeting Notice was misleading by failing to identify that the Replacement Applicant would not consist of representatives of the 19 regions

108    The Current Applicant submits that the Meeting Notice was misleading because the Notice failed to identify that the Gomeroi applicant would no longer consist of representatives of the 19 regions.

109    At the 2016 Authorisation Meeting, the following motion was carried as Resolution #9:

The Gomeroi People native title claim group resolve that the 19 people to be elected and authorised has their Applicant in native title determination application in NSD2308/2011 come from the floor of the meeting and represent the Gomeroi people, and not the regions.

110    The Current Applicant submits that if the Meeting Notice had said it was proposed that the applicant would no longer consist of representatives of each of the 19 regions, it is likely that more members of the claim group would have attended the meeting to oppose the motion.

111    In Butchulla People v Queensland (2006) 154 FCR 233, Kiefel J (as her Honour then was) said at [31]:

31    The application for native title determination filed in this matter referred to the claim group adopting a contemporary process of decision-making, one which had regard to the Elders’ viewpoint and attempts at consensus. The group had agreed to and adopted such a course for the purpose of the prior authorisation meeting. It did not however thereby become an immutable law or custom and could be changed by the process of agreement again.

112    The Meeting Notice stated that there would be discussion and the making of decisions on whether the claim group wished to continue to authorise the Current Applicant or replace the Current Applicant, and if the latter, the claim group would consider resolutions to authorise a new applicant. The 2013 Authorisation Meeting had resolved to elect the applicant so as to represent each of the 19 regions. However, the 2013 Resolution was not binding upon those who attended the 2016 Authorisation Meeting. It was always possible that if the claim group decided to authorise a new applicant, the new applicant would not be chosen on the same basis as in 2013.

113    Further, the proposal that the new applicant would not represent the regions seems to have stemmed from the floor of the 2016 Authorisation Meeting. It does not appear that there was some pre-conceived plan for this to occur. In these circumstances, it is unsurprising that the Meeting Notice did not specifically refer to this change in the composition of the applicant. In my opinion, the Meeting Notice was not misleading by failing to indicate that the meeting could decide upon a different basis for electing the new applicant.

114    I am satisfied that one of the allegations made by the Current Applicant that the Meeting Notice was misleading has been made out. The notice was misleading because it was ambiguous as to whether registration would be permitted after 12:00 pm on Day 1. However, I am not satisfied that this matter, nor any of the other allegations if made out, are likely to have made a difference to the outcome of the 2016 Authorisation Meeting.

Whether the 2016 Authorisation Meeting was adequately advertised

115    The Current Applicant submits that the 2016 Authorisation Meeting was not adequately advertised, but has not developed that submission.

116    The adequacy of advertising is relevant to the issue of whether members of the claim group have been given every reasonable opportunity to make an informed decision as to whether to attend the meeting and to participate in the decision-making process.

117    NTSCORP advertised the 2016 Authorisation Meeting by posting the Meeting Notice to the persons on its Claim Group List. It also advertised the meeting in the Koori Mail and the Moree Champion newspaper and on the Gomeroi Dreaming Facebook page. It provided a copy of the Meeting Notice to Mr Hegney, the solicitor appointed by the Current Applicant.

118    It is practically impossible for every member of the claim group to be notified of an authorisation meeting. There may be, for example, people who do not know that they are members of the claim group. There may be children or other people who lack capacity. What is required is that reasonable attempts be made to notify all the members of the claim group who have the capacity to participate in decision-making: cf Frank on behalf of the Mayala People v State of Western Australia (No 3) [2016] FCA 1255 at [10].

119    It is relevant that there is no evidence that any member of the claim group was unaware of the fact that the 2016 Authorisation Meeting had been called and of the business to be dealt with at that meeting. I am satisfied that the advertising of the meeting was adequate.

120    The Current Applicant submits that there is evidence that suggests that notices of the 2016 Authorisation Meeting were not posted to all persons who had previously received mail from NTSCORP concerning the native title application. They submit that at a minimum, notice should have been sent to all such persons.

121    Mr Priestly deposes that he did not receive the Meeting Notice in the post, despite having received correspondence from NTSCORP at his address in the past. Despite this, he did attend the 2016 Authorisation Meeting.

122    Mr Munro deposes that the Meeting Notice was sent to his previous address, despite his having notified NTSCORP of his change of address. He also attended the 2016 Authorisation Meeting.

123    I accept that NTSCORP did post the Meeting Notice to the persons on the Claim Group List. Given the number of notices that were posted, it is possible that mistakes were made. However, the evidence before the Court reveals only definite error, namely that the notice was sent to Mr Munro’s previous address. It is not clear whether Mr Priestly did not receive the Meeting Notice because it was not posted to him, or because it was lost in the mail. In any event, neither of these errors was material, given that Mr Priestly and Mr Munro attended the meeting. I am not prepared to infer that other persons did not attend the meeting because they did not receive the Meeting Notice and did not find out about the meeting and the business to be discussed from some other source.

124    The Current Applicant submits that NTSCORP’s conduct caused at least one Gomeroi person who wished to attend the 2016 Authorisation Meeting to be unable to attend. Maureen Sulter is a member of the Current Applicant. She deposes that she contacted NTSCORP by telephone and asked that accommodation be provided for her and for her daughter. She was told that someone would get back to her, but nobody called back and no accommodation was arranged for her. She is an elderly woman and was concerned about not having anywhere to stay in Tamworth. Therefore, she did not attend the meeting.

125    I accept Ms Sulter’s evidence. However, she was the only witness who gave evidence of being unable to attend the meeting because of NTCORP’s failure to make accommodation arrangements. While it is unfortunate that she was unable to attend, there is nothing to suggest that her presence is likely to have affected the outcome of the relevant resolutions. I am not prepared to infer that others were unable to attend for any similar reason.

Whether the composition of the persons attending the 2016 Authorisation Meeting was appropriately representative of the Gomeroi Claim Group

126    The Current Applicant submits that the composition of the persons attending the 2016 Authorisation Meeting was not appropriately representative of the Gomeroi Claim Group.

127    The Current Applicant relies on Bolton on behalf of the Southern Noongar Families v State of Western Australia [2004] FCA 760, where French J said at [45] – [46]:

45    …And even if it be accepted that each of the members who attended each of the meetings was a member of the relevant native title claim group, it is not established that they were in any sense representative of the various components of the native title claim group concerned.

46    In my opinion, each of the motions for amendment under s 66B suffers from the same fatal deficiency. The evidence is insufficient to demonstrate that there has been notification to members of the native title claim group as defined or that those who attended belonged to it. A fortiori, there is no evidence that the meetings were, in any sense, fairly representative of the native title claim groups concerned...

128    That passage must be understood in light of the inadequacy of notification in that case and opinion expressed by Stone J in Lawson at [25] that:

It is sufficient if a decision is made once the members of the claim group are given every reasonable opportunity to participate in the decision-making process.

129    The Current Applicant submits that the composition of the 2016 Authorisation Meeting was not fairly representative of the Gomeroi claim group, or of the various components of it, in accordance with Gomeroi laws and customs.

130    Elaine Binge is a member of the Current Applicant. Ms Binge gave evidence that it is a traditional custom or law of the Gomeroi people that only the right people should speak for the country, in the sense of making decisions about the land. Her evidence was that the right people to speak for a part of Gomeroi country are those who: have an apical ancestor who could speak for that country; whose family has lived in that part of the country since at least white explorers arrived; and who know the traditional laws, customs and culture for that part of the country. Ms Binge stated that it is highly disrespectful and contrary to traditional law and custom for someone to speak for a part of Gomeroi country who is not the right person.

131    Ms Binge stated that the Current Applicant consists of representatives of each of 19 regions in Gomeroi country so that, together, the Current Applicant can speak for all of Gomeroi country. Her opinion is that the 2016 Authorisation Meeting was not sufficiently representative to make decisions for the whole of the Gomeroi country.

132    Anthony Munro gave evidence similar to that of Ms Binge. He stated that if people from all of the 19 regions are not present at a meeting, then the meeting cannot make decisions about all of the Gomeroi country. He referred to Gomeroi country as consisting of 19 regions and states that ten of the regions were not represented at the meeting.

133    Mr Alfred Priestly also gave evidence similar to that of Ms Binge. He deposed that the division of Gomeroi country into 19 regions is not a traditional division, but satisfies the traditional tests for speaking for country.

134    Under cross-examination, Ms Binge gave evidence that it was NTSCORP’s idea to divide Gomeroi into 19 regions for the purpose of representation for the native title claim. I understand Ms Binge to have accepted that the divisions were not traditional divisions but were adopted for the native title application. Ms Binge accepted that in 2013 when she had been appointed as a member of the Current Applicant she had sworn an affidavit in which she said that there was no traditional decision-making process that, under traditional laws and customs, must be complied with by the Gomeroi People.

135    James Rose, an anthropologist employed by NTSCORP, deposed that it was his professional opinion that the 19 regions do not accurately reflect traditional boundaries within Gomeroi country. I understand Dr Rose to indicate that the 19 regions are not reflective of traditional boundaries or areas in accordance with Gomeroi laws and customs. I accept that evidence.

136    In both the 2013 Authorisation Meeting and the 2016 Authorisation Meeting, the majority of the claim group agreed that there was no mandatory traditional process of decision-making and accepted that there would be an agreed process for authorisation of a claimant. Ms Binge confirmed this in her 2013 affidavit (in light of a concession that no Browne v Dunn point would be taken, it was not put to Mr Munro and Mr Priestly that there was no mandatory traditional process of decision-making). The conduct of the persons attending a meeting can be taken into account in deciding whether there is any traditional law or custom that must be complied with in relation to decisions about authorisation: Dingaal Tribe v State of Queensland [2003] FCA 999 at [30].

137    On the evidence available, I do not accept that there was a mandatory traditional process of decision-making that had to be followed at the 2016 Authorisation Meeting involving decision-making by persons who together could speak for all of the Gomeroi country. It was therefore open to the claim group to agree upon the process of decision-making.

138    In Coyne v State of Western Australia [2009] FCA 533, Siopis J said at [23] – [24]:

23    I have treated this statement in the affidavit of each of Mr Miller and Mr Smith as a contention that each of the family groups comprising the claim group was entitled to be represented by a person among the persons comprising the applicant, and that each could not, therefore, lawfully be removed as a person comprising the applicant, by the claim group, without the consent of his family group.

24     In my view, the respondents’ contention cannot be accepted. There is no provision in the Act which provides that the applicant must be comprised of representatives from each of the family groups within the claim group.

[See also Combined Mandingalbay Yidinji-Gunggandji Claim v State of Queensland [2004] FCA 1703 at [24]; Doctor on behalf of the Bigambul People v State of Queensland at [66]].

139    I do not accept that it was necessary for there to be representatives of each of the 19 regions in attendance at the meeting. All that was required was that the members of the claim group be given every reasonable opportunity to participate in the decision-making process. They were given that opportunity.

140    The Current Applicant submits that motions concerning the adequacy of representation of the claim group were raised but never put to a vote. This is said to support the Current Applicant’s contention that the meeting was not sufficiently representative. I cannot see how the second part of the submission follows from the first. It is not clear why the motion was not put to a vote, but the conduct of the majority of persons at the meeting in proceeding with the meeting and voting in favour of other resolutions indicates that they considered the meeting to be sufficiently representative of the claim group.

Whether the conduct of the 2016 Authorisation Meeting was irregular and/or unfair

141    The Current Applicant submits that the conduct of the 2016 Authorisation Meeting was irregular and/or unfair. They raise a large number of complaints in support of this submission.

Whether meeting degenerated into chaos and whether Mr Bergmann was not independent

142    The Current Applicant submits that order was not maintained and the meeting was allowed to degenerate into chaos. They submit that Mr Bergmann failed to keep control of the meeting and that “the true will of the people wasn’t able to permeate through the meeting”. The Current Applicant also complains that the meeting itself was invalid, or at least rendered unreliable and unsafe, because there were insufficient NTSCORP staff available, and that security staff were sought by the Current Applicant but were not provided.

143    Ms Binge deposes that on Day 2, a group of 94 or more people walked out of the meeting. That group, of which Ms Binge was part, was generally supportive of the Current Applicant. She states that the group walked out because they were not being allowed to speak, and if they spoke they were shut down. She says they were not getting a fair hearing and there was no point in staying.

144    Mr Munro deposes that at the 2016 Authorisation Meeting, people were shouting at each other, shouting over each other, swearing at each other and making serious allegations without permitting any response.

145    Mr Priestly states that Mr Bergmann failed to conduct the meeting in a fair and proper manner. He says the meeting was very rowdy and Mr Bergmann permitted people to engage in shouting, yelling, swearing and abusive behaviour without once being cautioned or given a warning. On occasions, people trying to speak were subjected to sustained shouting, drowning them out to the point where they gave up trying to speak. On other occasions microphones were turned off.

146    Mr Priestly observed NTSCORP staff passing round microphones to persons who wished to speak. On most occasions Mr Bergmann would decide who the microphone would be passed to by pointing to the person or nodding at them. Mr Priestly says that more often than not a person who was opposed to the Current Applicant was permitted to speak, rather than any other person. He says that this, combined with the shouting that drowned people out, meant that some people who wanted to speak in favour of the Current Applicant did not get a chance to speak.

147    Mr Bergmann resides in Broome, Western Australia, and is admitted as a barrister and solicitor. He was engaged by NTSCORP to act as the facilitator of the 2016 Authorisation Meeting. His role involved chairing the meeting, reading the group’s proposed resolutions and coordinating the counting of votes. Mr Bergmann and Dr Prichard, who was engaged as an independent legal advisor, prepared their joint report following the meeting. That report, amongst other things, sets out the resolutions that were carried.

148    In response to Mr Priestly’s allegation that Mr Bergmann favoured those opposed to the Current Applicant when distributing microphones during the meeting, Mr Bergmann said that he had not met any of the members of the claim group previously, and was not in a position to assess whether an individual was sympathetic to the Current Applicant or not. He said that he instructed the staff of NTSCORP to distribute the microphones based on the order in which meeting attendees raised their hands to indicate that they wanted to speak. He expressed the opinion that all those attendees who wanted to say something at the meeting were given an opportunity to speak.

149    Under cross-examination, Mr Bergmann acknowledged that the meeting was very difficult to run and that it was challenging to keep order. He said that people were emotional. It was suggested that Mr Bergmann was not independent, and conducted the meeting in a manner designed to assist NTSCORP with assistance to remain or become the lawyers for the claim group and to assist those opposed to the Current Applicant. He was taken to comments he had made during the meeting, as well as conduct such as allowing a barrister engaged by NTSCORP to speak and allowing a number of motions to be put after someone at the meeting had made a comment about proceeding quickly because a bus of the Current Applicants’ supporters was on the way. There were a number of other questions directed to issues of Mr Bergmann’s independence. Mr Bergmann maintained that he had acted independently and conducted the meeting in an impartial way.

150    Having observed Mr Bergmann giving evidence and the video recording, I have no doubt that he was an honest and reliable witness. I accept his evidence. I consider that he acted independently and impartially in the way that he conducted the meeting. It was, as Mr Bergmann accepted, a challenging meeting to run. Mr Bergmann had to balance the task of keeping order with avoiding inflaming people’s emotions while doing so. In my opinion, he acted fairly.

151    Dr Prichard provided an affidavit. She was not required for cross-examination. She drafted the resolutions that were put to the meeting and provided independent legal advice in relation to questions from the claim group, as well as assisting Mr Bergmann to coordinate the counting of votes. I accept that she, like Mr Bergmann, acted independently and impartially in her role at the meeting.

152    My further observations upon watching the video tape of the meeting and reading the agreed transcript are as follows.

153    I agree with Mr Priestly’s description that the large majority of the people at the meeting were divided into two groups, namely those sympathetic to the Current Applicant and those opposed to the Current Applicant. There were also some people who appeared to be in neither camp.

154    It is evident that emotions ran high at the meeting. Many people were angry. There was swearing and verbal abuse of others at times. People talked over each other at times. Speakers were heckled. The mood was angry at times and the atmosphere was generally unpleasant.

155    On Day 1, the members of the Current Applicant were invited to address the meeting. Michael Anderson took up that opportunity. He was interrupted and heckled at times. Mr Bergmann intervened a number of times to encourage people to let him have his say. Mr Anderson was able to explain at length, amongst other things, why the Current Applicant was dissatisfied with NTSCORP and had retained a new solicitor and explained their dealings with gas and mining companies. Mr Anderson was asked a number of questions from the floor of the meeting, which he answered. Mr Munro addressed the meeting at some length and was asked a number of questions. Mr Priestly also addressed the meeting. Mr Hegney addressed the meeting and was interrupted and heckled, resulting in a motion being put to the meeting that Mr Hegney not be permitted to attend or speak. That motion was defeated. Dianne Waters addressed the meeting. These were the main speakers supporting the Current Applicant.

156    Ms Rotumah addressed the meeting on Day 1. She responded to a number of the allegations made about NTSCORP’s conduct. She was also interrupted and heckled at times, including by Ms Binge.

157    At the commencement of the meeting on Day 2, a motion was proposed that the claim group withdraw their consent and instructions for NTSCORP to have any further involvement with the native title determination application. Mr Munro and Clifford Toomey spoke in favour of the motion. They were interrupted and heckled, but had an adequate opportunity to address the meeting. Mr Duncan, Stephen Talbott, Don Craigie and Marcus Waters spoke against the resolution, and they were also interrupted and heckled. The motion was put to the meeting and defeated by 157 votes to 71, with 7 abstentions (Resolution #3).

158    Shortly after that, Mr Waters is recorded as saying that he had been asked to move a motion now in regard to nominations because the Current Applicant’s supporters had “a bus coming for numbers”. There were some further speakers addressing the meeting about issues such as intellectual property in records held by NTSCORP and water flows.

159    A motion was put to the effect that the claim group resolve to remove Mr Hegney and engage NTSCORP as its legal representative in relation to the native title application and any future act matters. No one spoke in favour of or against the motion. The resolution was carried with 138 in favour, 5 against and 8 abstentions (Resolution #5).

160    A motion was put to the effect that the claim group remove the Current Applicant. The resolution was carried with 130 in favour, 6 against and 10 abstentions (Resolution #6). The members of the Current Applicant indicated that they did not consent to their removal and that was noted.

161    Mr Bergmann then called a half-hour break. When the meeting recommenced, a number of the members of the Current Applicant and their supporters walked out of the meeting. Mr Bergmann and Dr Prichard then left the room and apparently spoke to those who had walked out. When he returned, Mr Bergmann read out the following statement made by those persons:

The applicant are leaving the meeting because they consider it not valid. Not fair and just, removing the applicants as a group. They don’t accept the recording process, the registration process. People shouldn’t have been registered, people shouldn’t have been able to register today. That there’s a lack of respect for the applicant for Sorry Business not buried yet. Auntie Elaine’s evidence, Alf, Tony, Clifford not to be given to any new applicant. So they are leaving the member meeting and they are saying “we taking 140 people with us”.

162    The meeting then proceeded in the absence of the Current Applicant and their supporters.

163    I do not accept the Current Applicant’s submission that the meeting descended into chaos. The issues were emotive and the meeting was certainly not as civil and orderly as desirable. However, Mr Bergmann was able to maintain a reasonable measure of control over the meeting. People on both sides who wished to speak were given a reasonable opportunity to do so. It may be that not everyone who wished to speak had the opportunity to do so, but that can be the position, given the exigencies of time, in even the most civil of meetings. The voting took place in a reasonably orderly manner and the outcome of the voting was readily discernible. The conduct of the meeting must be considered in light of the fact that supporters of both sides were guilty of poor behaviour and the use of unpleasant language. I do not accept the Current Applicant’s submission that the meeting descended to such chaos that the outcome failed to reflect the decisions of the claim group as a whole.

164    Ms Binge, Mr Munro and Mr Priestly state that they and their supporters walked out of the meeting because they were not allowed to speak and was shut down and their opponents were shouting, yelling, swearing and engaging in abusive behaviour. In my opinion, it is not the case that they were not allowed to speak. It is true that those speakers supporting the Current Applicant were the subject of heckling, interruption and abuse while they were speaking, but that was equally true of those who spoke against the Current Applicant. The poor conduct was not confined to one side or the other, so, for example, some of the language used by Ms Binge to denigrate her opponents was particularly colourful. I consider that the Current applicant and their supporters had a reasonable opportunity to state their case to the meeting.

165    I note that the statement given to Mr Bergmann following the walkout did not include any complaint about the Current Applicant or the supporters not being allowed to speak or about yelling, swearing and abusive behaviour. The chronology of events makes it much more likely that the Current Applicant and their supporters walked out because the voting had gone against them on Day 2. First, the motion for NTSCORP to have any further involvement with the native title determination application was defeated by 157 votes to 71. Second, the resolution to remove Mr Hegney and engage NTSCORP as the claim group’s legal representation was carried with 138 in favour and 5 against. Third, the resolution that the Current Applicant be removed had been carried by 130 votes to 6. The walkout seems to me to have been self-serving in the sense of attempting to create doubt about the validity of the meeting and the resolutions that were carried.

166    The reasons given by Ms Binge, Mr Munro and Mr Priestly for the walkout seem artificial. I do not accept that not being allowed to speak and poor conduct of those at the meeting formed part of the reason for the walkout. I accept that the Current Applicant was disgruntled about issues such as the registration process, but their remedy lay in persuading the claim group to retain them as the applicant, or resisting the application under section s 66B of the Act (as they have done). The solution was not to walk out of the meeting.

167    Neither do I accept the Current Applicant’s submission that their treatment at the meeting was such as to cause them to walk out of the meeting, so that the outcome of the meeting did not reflect the decision of the claim group as a whole. It was only necessary that the Current Applicant and their supporters have every reasonable opportunity to attend and participate in the meeting. They were given such an opportunity but elected to remove themselves from the meeting. It was their own conduct that deprived them of the opportunity to seek reappointment as members of the applicant.

168    I cannot see any basis for the Current Applicant’s complaint that there should have been twice the number of NTSCORP staff present. In my opinion, the number of staff provided by NTSCORP was adequate. I do not accept the Current Applicants’ submission that the meeting was unfair or invalid because security staff were not provided. While there was abusive language, there is no evidence of any assaults or serious threats to physical safety. Ms Binge, Mr Munro and Mr Priestly did not give evidence that any part of the reason for the walkout was that they feared for their safety. Further, police officers were in attendance for the majority of the meeting. I do not accept that the presence of security staff would have made any difference to the conduct or outcome of the meeting.

Alleged defects in the system of registration and record keeping

169    The Current Applicant alleges that the system of registration and record keeping at the 2016 Authorisation Meeting was defective, such that:

(a)    people were allowed to register outside the times indicated in the Meeting Notice;

(b)    there is no evidence before the Court which accurately records which attendees were verified as members of the claim group - the Attendance List and attendance sheets for Day 2 being unreliable;

(c)    the Claim Group List is conceded to have at least two pre-existing errors, casting doubt on the accuracy of the verification process;

(d)    at least five persons who were ineligible to vote were given a green wristband;

(e)    at least 22 persons were recorded on the attendance list as registered voters without there being any signed record of their attendance;

(f)    at least 21 persons recorded as registered voters are duplicates of other registrations, which means that at least 21 wristbands were issued in excess of requirements;

(g)    at least 3 persons signed attendance sheets and were not marked as observers, but were also not recorded or registered as voters or observers;

(h)    at least 2 persons were assessed as being members of the claim group, but are not otherwise recorded, and whether they were issued with green wristbands is unknown;

(i)    at least 2 persons with observer status successfully participated (and are assumed to have voted) in the meeting;

(j)    an unknown number of people were issued with replacement wristbands, but no record (other than Dr Bennett’s two file notes of entries) was kept of this;

(k)    a number of persons registered twice, and three times in one case;

(l)    people without green wristbands were able to vote.

(m)    the green wrist bands were not fixed to the wrists of persons verified to be eligible to vote, nor were bands of a different colour or design issued to verified persons on the second day, so as to prevent inappropriate use of the wristbands;

(n)    at least one non-Gomeroi person, Gwen Griffen, obtained and wore a green wristband.

170    I will consider each of these matters.

Whether there was an error in allowing people to register outside the times stated in the Meeting Notice

171    As to the complaint that persons were allowed to register outside the times indicated in the Meeting Notice, I have already concluded that the meeting notice was ambiguous as to whether claim group members would be allowed to register after 12:00 pm on Day 1. I have rejected the submission that the Meeting Notice clearly indicated that registration would not be permitted after that time. In my opinion, the interpretation of the Meeting Notice that the organisers took was clearly open to them, and was, in my opinion, the correct interpretation in the context. It follows that there was no defect or error in permitting registration throughout the meeting.

172    Further, the Current Applicant initially submitted that failing to close registrations was a matter of substantial importance because 56 or 58 people registered for the first time on the second day, which was more than the margin of success (51 votes) for Resolution #11 by which the Replacement Applicant was appointed. However, in closing submissions they submitted that the number of members of the claim group who registered for the first time on Day 2 was 43. Therefore, even if new registrations had been refused on Day 2, it would have made no difference to the outcome of the voting.

173    The Current Applicant’s next submission is that there is no evidence before the Court which accurately records which attendees were verified as members of the claim group, the Attendance List attached to the report of Mr Bergmann and Dr Pritchard and attendance sheets being unreliable. They submit that there is no evidence as to how the Attendance List relied on by the Replacement Applicant was created, but ample evidence that it was defective.

174    At this stage it is necessary to consider the process of registration and the distribution of wristbands to members of the Gomeroi claim group. Mr Chalmers describes the process on Day 1 as follows.

175    Two NTSCORP staff sat at a table placed immediately outside the meeting venue. There were two main entry doors to the venue. A sign reading “Pre-Confirmed” was fixed above the northern door and a sign reading “Research Enquiries” was fixed above the southern door.

176    The NTSCORP staff members at the front desk each had a printed copy of the Claim Group List kept by NTSCORP. As people approached the meeting venue, they were asked by the staff at the front desk for their names, which was then checked against the Claim Group List. Those persons whose names were on the Claim Group List (and whose names were not highlighted in yellow) were asked to enter through the northern door. A table was set up immediately inside the northern door and NTSCORP staff would issue each of the persons entering with a green wristband and ask them to sign an attendance sheet.

177    The persons whose names were not on the Claim Group List, or whose names were highlighted in yellow, were directed by NTSCORP to enter via the southern door and speak to a member of the NTSCORP research staff. It was the role of the NTSCORP research staff to talk with these persons and verify, based on NTSCORP’s genealogical data base and the list of apical ancestors, whether or not that attendee was a member of the Gomeroi claim group. The people who were verified as members of the claim group were issued with a green wristband and asked to sign an attendance sheet.

178    The persons attending the meeting were asked to sign attendance sheets (the attendance sheets) on both Day 1 and Day 2.

179    The persons issued with a green wristband were informed by NTSCORP that the wristband entitled them to participate in any decisions made at the meeting and they should leave the wristband on overnight. The persons who were not confirmed as Gomeroi Claim Group members were permitted to attend the meeting as observers. They were provided with yellow wristbands and informed that they could not participate in any decisions made at the meeting.

180    The counting of votes was conducted by four NTSCORP staff members. They were instructed to only count the votes of those people wearing green wristbands. The joint report of Mr Bergmann and Dr Pritchard indicates that only the votes of those with raised hands wearing green wristbands were counted.

181    The Attendance List was included in the joint report of Mr Bergmann and Dr Pritchard. It contains the names of 363 people identified as members of the claim group and 28 observers. It is not clear who compiled the Attendance List or how it was compiled, although it seems that the attendance sheets must have been used. There are inaccuracies or discrepancies in the Attendance List. For example, as the Current Applicant points out, there are 21 people whose name appears more than once in the Attendance List. There are people who appear on the Attendance List who did not sign the attendance sheets. The Current Applicant has variously described the number of such people as 16, 22 and 29. There also appear to be some people who attended the meeting but whose names are not in the Attendance List. Some people signed attendance sheets on Day 1, but failed to do so on Day 2.

182    The Current Applicant submits that there was inconsistency in the evidence as to who was issued with green wristbands. Mr Chalmers accepted under cross-examination that the 363 people on the Attendance List were given green wristbands. Dr Bennett said that only people who signed the attendance sheets got green wristbands and that it was a condition of receiving a wristband that they sign the attendance sheets. Dr Rose said that only those people whose identity had been verified had been provided with wristbands, but he did not know how that related to signing attendance sheets and could only assume that all those on the Attendance List got green wristbands.

183    The Current Applicant submits that there is no accurate record as to which attendees were issued with green wristbands and yellow wristbands and no evidence which accurately records which attendees were verified as claim group members. The Current Applicant’s submission is correct. But it is important to remember that the ultimate issue is whether the Court can be satisfied that the claim group as a whole withdrew the authorisation of the Current Applicant and instead authorised the Replacement Applicant. It can be accepted that the attendance sheets were intended to identify all those who attended the meeting on each day and their status as verified claim group members or observers, but failed to do so accurately. This probably reflects some of the difficulties I have identified earlier with the administration and conduct of claim group meetings. However, the important questions are whether any people who were not members of the claim group were issued with green wristbands, how many such people there are likely to be and whether those people are likely to have used the wristbands in order to vote. That is because I accept that only the votes of those whose hand were raised and wore green wristbands were counted (subject to some possible errors which I will discuss later).

184    The procedure adopted by NTSCORP was that only those who were initially verified as members of the claim group from the Claim Group List were directed to enter to the northern door, and those people were then given green wristbands. Those who were not on the Claim Group List or whose names were highlighted were directed through the southern door, where they were either confirmed to be claim group members and issued with green wristbands, or issued with yellow wristbands as observers. It was the NTSCORP staff who issued the wristbands. I accept that it is unlikely that they issued green wristbands to people who had not been verified as members of the claim group. In a process of this kind, it is of course possible that mistakes might be made. The Replacement Applicant conceded that one mistake had been made and a green wristband had wrongly been issued to Gwen Griffen, as she had been wrongly included in the Claim Group List. However, the error was discovered before any voting took place. Despite this error, the process seems to me to have been generally reliable and I am not prepared to infer that green wrist bands were erroneously issued in such numbers as to affect the outcomes of the voting at the meeting. Further, like Kiefel J in Butchulla at [29], I find it difficult to believe that members of the claim group would not have immediately spoken out if they observed persons not within the claim group who were voting. I am not satisfied that the defects in record keeping pointed to by the Current Applicant concerning the attendance records reflected broader problems with voting by claim group members or had any material impact on the voting outcomes of the meeting.

185    The Current Applicant submits that the use and purpose of the attendance sheets on Day 2 is unexplained in the evidence. They submit that it is possible that all those who signed in on Day 2 received an additional wristband, rather than only those who attended for the first time on Day 2 receiving a wristband. This is said to underscore the unreliability of registration, voting and record-keeping. However, the possibility raised by the Current Applicant seems to me to be speculative. Further, to influence the outcome of the voting using these supposedly additional wristbands, enough people would have had to: receive an additional green wristband; take it without having it fastened to their wrist; give it to someone else who was not a member of the claim group; and have that person fraudulently vote without the deception being detected by anyone. That seems most improbable.

186    The Current Applicant submits that at least 21 persons recorded as registered voters were duplicates of other registrations, which means, on Mr Chalmer’s evidence, that at least 21 wristbands were issued in excess of requirements. Mr Chalmers agreed under cross-examination that the people on the Attendance List were each issued with green wristbands. However, Mr Chalmers was asked only a general question and was not taken to the duplicate entries and asked whether two wrist bands were issued in respect of such entries. I place little weight on Mr Chalmer’s answer. I also accept the Replacement Applicant’s submission that at least most of the 21 names refer to individuals who signed the attendance sheets on Day 1 and Day 2, in some cases using a variation of the name. It seems improbable that these people were issued with a second green wristband. Further, the submission suffers from the same difficulty that it is improbable, for the reasons I have given, that any such error affected the outcome of the voting.

187    The Current Applicant submits that a number of persons registered twice, and three times in one case. This submission, as I understand it, is essentially the same allegation that there are duplicate entries recorded on the attendance sheets. The submission is rejected for the same reasons.

188    The Current Applicant submits that at least five persons (Jennifer Griffen, Ethel Davis, Darren Dodd, Edward Morgan and Raymond Whealer/Wheeler) who were ineligible to vote must have, on the evidence of Mr Chalmers, been given a green wristband. These people are said not to appear on the Claim Group List. Further, an anthropologist, James Rose, responsible for verifying whether attendees were members of the claim group could not confirm that two of them are members, although, they appear on the Attendance List as members of the claim group.

189    Again, this submission is based, in part, on Mr Chalmers agreement under cross-examination that the people on the Attendance List were each issued with a green wristband. Again, I give little weight to this aspect of Mr Chalmers’ evidence.

190    I accept that Jennifer Griffen is on the Claim Group List as “Jenny Griffen” and she was therefore eligible to vote. Ms Davis and Mr Dodd were not confirmed by Dr Rose to be members of the claim group. Mr Whealer/Wheeler spoke to Dr Bennett, but was not confirmed as a member of the claim group and was given a yellow wristband. Mr Morgan was recorded in the attendance sheets as attending as an observer. I consider it unlikely that these four people were issued with green wristbands. The problem again seems to me to be one of record keeping, rather than reflecting the actuality of the distribution of green wristbands.

191    The Current Applicant submits that there are 29 people who appear on the Attendance List who did not sign the attendance sheets (although the number stated in oral submissions was 22). It is probable that they were asked to sign attendance sheets, but omitted to do so. It is again unlikely that they would have been issued with green wristbands without being verified as members of the claim group.

192    The Current Applicant submits that an unknown number of people were issued with replacement wristbands, but no record (other than Dr Bennett’s two file note entries) was kept of this. This submission was not developed. There is no evidence suggesting that the issuing of replacement wristbands was likely to have made a difference to the outcome of the voting.

193    The Current Applicant submits that three people (Rebecca Brown, Janice Ward, and Patrick Binge) signed attendance sheets and were not marked as observers, but were also not recorded as registered voters, further reducing confidence in the registration process. Patrick Binge appears in the Claim Group List, but I accept that the Current Applicant has exposed another deficiency in the record-keeping for the meeting. Again, I do not accept that it had any material impact upon the distribution of green wristbands.

194    The Current Applicant submits that at least two persons with observer status (John Roberts and Marjorie/Magoree Vale) participated in the meeting and should be assumed to have voted. The evidence of the involvement of these persons in the meeting was that they nominated and seconded an individual during the process of nominating members of the replacement applicant. It is most unlikely that they were issued with green wristbands. There is no evidence that they voted.

195    The Current Applicant submits that the Claim Group List is conceded to have at least two pre-existing errors, casting doubt on the accuracy of the verification process. I am not satisfied that two errors should lead to the conclusion that the Claim Group List is so deficient that it is likely to have affected the issues of authorisation arising at the meeting.

Whether people were able to remove green wristbands or vote without green wristbands

196    The Current Applicant relies on the evidence of Matthew Priestly that he was given a green wristband, rather than the wristband being placed on his wrist. Mr Munro gives evidence to the same effect. The Replacement Applicant points to the evidence of Marcus Walters, Steven Talbott and Mr Duncan that wristbands were affixed to their wrists by NTSCORP staff. Mr Duncan also said that although he is a strong man, he could not physically pull the wristband of his wrist and it had to be cut off at the end of Day 2.

197    NTSCORP staff may have been inconsistent as to whether they gave green wristbands to persons verified as members of the claim group or affixed the wristbands to their wrists. The Current Applicant submits that this leaves open the possibility that many people in the meeting who had green wristbands were not members (or at least were not verified to be members) of the claim group. However, I am satisfied that green wristbands were only given to or affixed to the wrists of people who had been verified as members of the claim group. Again, it is possible that there were some mistakes, but I am not satisfied that any such mistakes were likely to be of such magnitude that the voting outcome is likely to have been affected. It seems unlikely that members of the group gave their green wristbands to non-members who then fraudulently used the wristbands to vote, while those members procured a second wristband which they used to vote.

198    Mr Matthew Priestly gave evidence that after Day 1, his wristband came off when he had a shower. He says he did not get a new wristband on Day 2, but still raised his hand to vote. He saw a NTSCORP staff member pointing to each person whose vote she was counting, and she pointed to him. The Current Applicant seeks to have an inference drawn that if Mr Priestly was able to vote without having a green wristband on, other people may have been able to also vote in the same way. It is unclear why Mr Priestly did not simply ask for another green wristband, but his action does not seem rational. I do not think that an inference should be drawn that other people would act in the same way as Mr Priestly and attempt to vote without a green wristband. Assuming that his vote was in fact counted, the reason why it was counted is not apparent from the evidence. It may be that the counter recognised him as a member of the claim group who had voted the previous day with a green wristband on. It may simply have been a mistake. It seems to me that if a significant number of people were attempting to vote without wristbands, that it is likely to be noticed by the counters and by other members of the claim group. I am not satisfied that enough people are likely to have attempted to vote without a green wristband and to have had their votes counted to be able to influence the voting outcomes.

199    The Current Applicant submits that there may have been inappropriate use of the green wristbands as they were not fixed to the wrists of persons verified to be eligible to vote, nor were bands of a different colour or design issued to verified persons on the second day. The first part of this submission suggests that: people who were verified may have provided their green wristband to someone who was not; obtained a second green wristband; and both then voted. It seems to me that this scenario is quite improbable. The second part of the submission suggests that people who had fixed a green wristband to their own wrist on the Day 1 so they could vote: removed it; gave it to someone else; obtained another green wristband; and both then voted. The scenario also seems to me to be quite improbable.

Other alleged defects in the conduct of the 2016 Authorisation Meeting

200    The Current Applicant alleges that there were the following further defects in the conduct of the 2016 Authorisation Meeting:

(a)    Resolution #1 was ambiguous in that it did not make it clear whether all further resolutions required a majority of those who voted, or a majority of those registered to vote at the meeting;

(b)    on any interpretation of Resolution #1 the meeting was not conducted in accordance with that resolution;

(c)    Resolution #8 was not validly seconded;

(d)    a motion concerning sufficient representativity of the group was mooted twice by Mr Bergmann but was never put to a vote;

(e)    there was no transparency in the counting of votes, in that the vote counters handed small pieces of paper to Mr Bergmann and no one checked Mr Bergmann’s totalling of the votes;

(f)    Mr Bergmann was actively working in support of NTSCORP’s interests and against the Current Applicant’s interests by shutting down a vote on Resolution # 3 near the end of Day 1 at a time when he believed it would have succeeded.

(g)    Marcus Waters indicated that he had been asked to move a motion because there was a bus coming with supporters of the Current Applicant and Mr Bergmann did not act independently when he then facilitated Mr Waters moving Resolution #6;

(h)    NTSCORP’s legal advisor, Tom Keely SC, was given an opportunity to address the meeting, when neither the Current Applicant nor any of its legal advisers were afforded a similar opportunity; and where the meeting was already provided with an independent legal advisor;

(i)    Mr Keely “impermissibly” advised the meeting that when deciding the composition of the replacement applicant, the claim group should consider whether they were people who can work with NTSCORP, and that advice was not later corrected by anyone;

(j)    no written agenda was available at the meeting, and the meeting did not follow the “agenda” in the Meeting Notice;

Whether Resolution #1 was ambiguous

201    Resolution # 1 was, relevantly, in the following terms:

The Gomeroi People native title claim group have agreed to and adopted the following process of decision-making for the purposes of the native title claim:

1.    the decision to be made will be put in the form of a clearly worded written motion;

2.    the motion will be read out to the meeting;

3.    the motion must be moved and seconded by members of the group before it is decided on;

4.    the decision will then be made by the group by a show of hands;

5.    a decision of the majority in relation to the motion shall be a decision of the meeting.

202    The Current Applicant submits that Resolution #1 was ambiguous because it was not clear whether the decision was to be made by a majority of those who registered to vote at the meeting or all those who were present at the time the vote was taken.

203    I accept that the resolution carried the ambiguity described by the Current Applicant. However, the manner in which the decision would be made was clarified shortly after the resolution was passed by Mr Bergmann who said:

Yeah, only people in the room are gonna be counted.

204    Later on the morning of Day 1, Mr Bergmann said:

I just want to note, the people that are leaving, the meeting will go on if you guys are leaving. If youse wanna note your objection to the meeting or anything please note it. But the meeting is gonna go ahead and decisions made here are going to bind everyone.

205    In Noble v Mundraby, Murgha, Harris and Garling [2005] FCAFC 212, the Full Court said at [18]:

The matter was then put to the vote. On the basis of this evidence, it was open to his Honour to conclude that by voting on the motions, those present agreed to a process of authorisation under s 251B(b) by a vote of all the members of the native title claim group. Section 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. The section accommodates a situation where a native title claim group agrees to follow a particular procedure for a particular decision even if other procedures are normally used for other decisions. Nor does s 251B require a formal agreement to the process adopted for the making of a particular decision. Agreement within the contemplation of s 251B may be proved by the conduct of the parties. There was evidence in this case that the claim group conducted itself at the meeting on the basis that it agreed to a vote by the members of the group to determine the question of authorisation. All persons present voted in favour of the motion. Nobody is recorded as leaving the meeting or refusing to vote or in any other way conducting to indicate dissent from the course adopted. There was thus evidence from the conduct of the claim group on which the primary judge could base his conclusion that the requirements of s 251B were satisfied.

206    There was no dissent from Mr Bergmann’s statements at the meeting. The resolutions were declared to be carried by majority of those present at the time the vote was taken, and there was no objection to that course by anyone at the meeting.

207    Mr Munro and Ms Binge depose that they understood Resolution #1 to mean that the votes of more than half of those registered to vote were required in order for a motion to be carried. Neither of them raised this as an issue during the meeting. I do not accept that this was their understanding in view of Mr Bergmann’s clear statements. Even if this was truly their understanding, I do not accept that it was shared by others in light of Mr Bergmann’s statements and the way the meeting was then conducted.

208    The claim group as a whole must be understood to have agreed that the decision of the majority present in the room would be taken to be a decision of the meeting.

Whether Resolution #8 was valid

209    The Current Applicant’s written submissions stated that Resolution #8 was not validly seconded, but this argument was not developed. Even if there was an irregularity in the seconding of the motion, I am satisfied that it did not materially affect the decision of the meeting to support Resolution # 8.

Failure to put a motion concerning representativity to a vote