FEDERAL COURT OF AUSTRALIA

Fourmile on behalf of the Gimuy Walubara Yidinji People v State of Queensland [2018] FCA 572

ORDERS

THE COURT ORDERS THAT:

1.    The interlocutory application dated 6 October 2017 to strike out the main application is dismissed.

2.    Alternatively, the Court hear and determine the main application, despite any defect in authorisation.

3.    Each party bear their own costs.

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

REASONS FOR JUDGMENT

ROBERTSON J:

Introduction

1    By interlocutory application dated 6 October 2017, Jeanette Singleton, George Skeene and Kerri Sheppard (the Yirrganydji interlocutory applicants) seek interlocutory orders pursuant to s 84C(1) of the Native Title Act 1993 (Cth) that the Gimuy Walubara Yidinji People’s native title determination application be struck out. This is on the claimed basis that, contrary to s 61(1) of the Native Title Act, the native title determination application has not been authorised by all the persons who, according to their traditional laws and customs, hold native title in the application area. Section 61 deals with the basic requirements for applications. Section 62 is also relevant. The Yirrganydji interlocutory applicants also seek an order for costs, pursuant to s 85A(2) of the Native Title Act.

2    The applicants listed in the further amended claimant application for a determination of native title on behalf of the Gimuy Walubara Yidinji People are Mr Gerald Fourmile, Mr Seith Hardy, Mrs Henrietta Marrie, Mr Gregory Fourmile, Mr Allan Oliver and Mr Peter Hyde. I shall refer to them as the claim applicant.

The statutory provisions

3    Section 84C is in the following terms, so far as relevant:

84C    Striking out applications for failure to comply with requirements of this Act

Strike-out application

(1)    If an application (the main application) does not comply with section 61 (which deals with the basic requirements for applications), 61A (which provides that certain applications must not be made) or 62 (which requires applications to be accompanied by affidavits and to contain certain details), a party to the proceedings may at any time apply to the Federal Court to strike out the application.

Note:    The main application may still be amended even after a strike-out application is filed.

Court must consider strike-out application before other proceedings

(2)    The Court must, before any further proceedings take place in relation to the main application, consider the application made under subsection (1).

(3)    …

Other strike-out applications unaffected

(4)    This section does not prevent the making of any other application to strike out the main application.

4    Section 61 provides, so far as relevant:

61    Native title and compensation applications

Applications that may be made

(1)    The following table sets out applications that may be made under this Division to the Federal Court and the persons who may make each of those applications:

Applicant in case of applications authorised by claim groups

(2)    In the case of:

(a)    a native title determination application made by a person or persons authorised to make the application by a native title claim group;…

(b)    …;

the following apply:

(c)    the person is, or the persons are jointly, the applicant; and

(d)    none of the other members of the native title claim group or compensation claim group is the applicant.

Applicant’s name and address

(3)    An application must state the name and address for service of the person who is, or persons who are, the applicant.

Applications authorised by persons

(4)    A native title determination application… that persons in a native title claim group… authorise the applicant to make must:

(a)    name the persons; or

(b)    otherwise describe the persons sufficiently clearly so that it can be ascertained whether any particular person is one of those persons.

Form etc.

(5)    An application must:

(a)    be in the prescribed form; and

(b)    be filed in the Federal Court; and

(c)    contain such information in relation to the matters sought to be determined as is prescribed; and

(d)    be accompanied by any prescribed documents and any prescribed fee.

5    Section 62 provides, so far as relevant:

62    Information etc. in relation to certain applications

Claimant applications

(1)    A claimant application (see section 253):

(a)    must be accompanied by an affidavit sworn by the applicant:

(i)    that the applicant believes that the native title rights and interests claimed by the native title claim group have not been extinguished in relation to any part of the area covered by the application; and

(ii)    that the applicant believes that none of the area covered by the application is also covered by an approved determination of native title; and

(iii)    that the applicant believes that all of the statements made in the application are true; and

(iv)    that the applicant is authorised by all the persons in the native title claim group to make the application and to deal with matters arising in relation to it; and

Note:    Section 251B states what it means for the applicant to be authorised by all the persons in the native title claim group.

(v)    setting out details of the process of decision-making complied with in authorising the applicant to make the application and to deal with matters arising in relation to it; and

(b)    must contain the details specified in subsection (2); and

(c)    may contain details of:

(i)    if any member of the native title claim group currently has, or previously had, any traditional physical connection with any of the land or waters covered by the application—that traditional physical connection; or

(ii)    if any member of the native title claim group has been prevented from gaining access to any of the land or waters covered by the application—the circumstances in which the access was prevented.

Note:    The applicant will be the registered native title claimant in relation to the area claimed if and for so long as the claim is entered on the Register of Native Title Claims.

Details required by paragraph (1)(b)

(2)    For the purposes of paragraph (1)(b), the details required are as follows:

(a)    information, whether by physical description or otherwise, that enables the boundaries of:

(i)    the area covered by the application; and

(ii)    any areas within those boundaries that are not covered by the application;

to be identified;

(b)    a map showing the boundaries of the area mentioned in subparagraph (a)(i);

(c)    details and results of all searches carried out by or on behalf of the native title claim group to determine the existence of any non-native title rights and interests in relation to the land or waters in the area covered by the application;

(d)    a description of the native title rights and interests claimed in relation to particular land or waters (including any activities in exercise of those rights and interests), but not merely consisting of a statement to the effect that the native title rights and interests are all native title rights and interests that may exist, or that have not been extinguished, at law;

(e)    a general description of the factual basis on which it is asserted that the native title rights and interests claimed exist and in particular that:

(i)    the native title claim group have, and the predecessors of those persons had, an association with the area; and

(ii)    there exist traditional laws and customs that give rise to the claimed native title; and

(iii)    the native title claim group have continued to hold the native title in accordance with those traditional laws and customs;

(f)    if the native title claim group currently carry on any activities in relation to the land or waters—details of those activities;

(g)    details of any other applications to the High Court, Federal Court or a recognised State/Territory body, of which the applicant is aware, that have been made in relation to the whole or a part of the area covered by the application and that seek a determination of native title or a determination of compensation in relation to native title;

(ga)    details of any notifications under paragraph 24MD(6B)(c), of which the applicant is aware, that have been given and that relate to the whole or a part of the area;

(h)    details of any notices under section 29 (or under a corresponding provision of a law of a State or Territory), of which the applicant is aware, that have been given and that relate to the whole or a part of the area.

Note:    Notices under paragraph 24MD(6B)(c) and section 29 are relevant to subsection 190A(2).

…

6    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.

7    Section 84D provides:

84D    Proceedings affected by possible defect in authorisation

(1)    The Federal Court may make an order requiring:

(a)    a person who, either alone or jointly with another person, made an application under section 61, to produce evidence to the court that he or she was authorised to do so; or

(b)    a person who has dealt with a matter, or is dealing with a matter, arising in relation to such an application, to produce evidence to the court that he or she is authorised to do so.

(2)    An order under subsection (1) may be made:

(a)    on the Federal Court’s own motion; or

(b)    on the application of a party to the proceedings; or

(c)    on the application of a member of the native title claim group or compensation claim group in relation to the application.

(3)    Subsection (4) applies if:

(a)    an application does not comply with section 61 (which deals with the basic requirements for applications) because it was made by a person or persons who were not authorised by the native title claim group to do so; or

(b)    a person who is or was, or one of the persons who are or were, the applicant in relation to the application has dealt with, or deals with, a matter arising in relation to the application in circumstances where the person was not authorised to do so.

Note:    Section 251B states what it means for a person or persons to be authorised to make native title determination applications or compensation applications or to deal with matters arising in relation to them.

(4)    The Federal Court may, after balancing the need for due prosecution of the application and the interests of justice:

(a)    hear and determine the application, despite the defect in authorisation; or

(b)    make such other orders as the court considers appropriate.

8    Section 85A provides:

85A    Costs

(1)    Unless the Federal Court orders otherwise, each party to a proceeding must bear his or her own costs.

Unreasonable conduct

(2)    Without limiting the Court’s power to make orders under subsection (1), if the Federal Court is satisfied that a party to a proceeding has, by any unreasonable act or omission, caused another party to incur costs in connection with the institution or conduct of the proceeding, the Court may order the first-mentioned party to pay some or all of those costs.

The evidence

9    The Yirrganydji interlocutory applicants submitted that the claim should be struck out on the basis that it had not been authorised by all the persons who, according to their traditional laws and customs, held the particular native title claimed, as required by s 61(1) Item 1.

10    They relied on the following eight affidavits:

Anne Lillian English affirmed and filed 6 October 2017;

Brian Andrew Fourmile affirmed and filed 24 October 2017;

Delwyn Leroy Fourmile affirmed and filed 24 October 2017;

Dell Schrieber affirmed and filed 24 October 2017;

Di Yeatman affirmed and filed 24 October 2017;

Kallin Louise Quarry affirmed and filed 24 October 2017;

Dell Schrieber affirmed and filed 29 November 2017; and

Brian Andrew Fourmile sworn 17 March 2018 and filed 5 April 2018.

11    They also relied on the following material:

Evidence filed in the Gimuy Walubara Yidinji Claim:

a.    the Gimuy Walubara Yidinji Form 1, particularly Schedule R and its attachments and the s 62 affidavits of each of the persons comprising the claim applicant filed 6 February 2015 (Exhibit A);

b.    the affidavit of Vincent Mundraby (deceased), Yidinji native title holder, affirmed and filed 28 October 2014;

c.    the affidavit of Martin Ellis Doré, Principal Legal Officer of North Queensland Land Council Native Title Representative Body Aboriginal Corporation (NQLC), affirmed and filed 28 October 2014; and

d.    a schedule entitled “Cairns Region NTA Claims Chronologically” (Exhibit B).

12    The claim applicant read the affidavit of Clare Anne Norris filed 2 November 2017 and sought leave to rely on a further affidavit of Clare Anne Norris sworn 13 December 2017. The claim applicant also relied on Exhibit A.

13    The Yirrganydji interlocutory applicants objected to the admissibility of the further affidavit of Ms Norris, not on the ground that it was filed and served out of time but, first, on the basis that it purported to annex a December 2017 report of an anthropologist, which report was not compliant with the expert evidence practice note and, secondly, that it was not relevant since, it was submitted, the Yirrganydji interlocutory applicants’ entire argument concerned a meeting that was held in 2012 whereas the proposed evidence was dated December 2017.

14    Counsel for the claim applicant submitted, as to the form of the report, he did not rely upon it as expert evidence but as reputation evidence as to age and family history under s 73 of the Evidence Act 1995 (Cth). Although the report referred to Dr Powell’s opinion, counsel said he did not rely on that expression of opinion. As to the objection based on relevance, counsel submitted that it answered the submissions of the Yirrganydji interlocutory applicants that there were names in common as between other determinations in the region and those that underlay the claim applicant’s Form 1. The report identified that those names did not reflect the same persons.

15    In my opinion, the material in the affidavit is plainly relevant, on the basis put by counsel for the claim applicant. Further, the affidavit is admissible in these interlocutory proceedings pursuant to s 75 of the Evidence Act. In substance it is hearsay evidence where evidence of its source is given. I do not find it necessary to consider s 73 as it was not fully argued, but it is not easy to see that the report is couched in terms of reputation: see Cvetkovic v R [2010] NSWCCA 329 at [353]. I admit the affidavit.

The submissions

16    The Yirrganydji interlocutory applicants submitted that the principles relevant to the Court’s exercise of its discretion under s 84C of the Native Title Act had been considered on many occasions and the power should be exercised only where the claim as expressed was untenable and upon the version of the evidence favourable to the respondents to the strike out application.

17    They submitted that their objection as to lack of proper conferral of authority on the claim applicant had two elements to it. One was that a native title claim can only be made on behalf of a properly constituted group, and that was where the description of the people who comprised the native title claim group was so important. The second was the propriety and the conduct of the meeting purporting to confer the authority, turning on such things as the notice given that a meeting for that purpose was being held.

18    They submitted that a native title claim cannot be made on behalf of a group that was not properly described. They submitted that the group must be all those people who hold the particular native title claimed over the area subject to the claim. Before a claim can be authorised, the claim group must be identified.

19    They referred to Harrington-Smith on behalf of the Wongatha People v Western Australia (No 9) [2007] FCA 31; 238 ALR 1 at [1192] where Lindgren J said:

How does s 84C, which assumes that it may be possible for an application to be struck out prior to the final determination of an application, accommodate the fact that the native title claim group is defined to mean the actual holders of the particular native title claimed? In my opinion, the answer is that the striking out remedy is available once it clearly appears that, if the application were to succeed according to its own terms, the applicants would not have been authorised by all those persons the Court would determine to be the actual holders of the particular native title claimed, that is to say, by all the members of the ‘claim group’ (all the ‘claimants’).

20    The Yirrganydji interlocutory applicants submitted that the Gimuy Walubara Yidinji Claim had been filed on behalf of people described in Part A of the Form 1 as follows:

1.    Descended from the Apical Ancestors listed below; or

2.    Adopted as members of the claim group in accordance with the group’s traditional law and custom.

Apical Ancestors

Jiritju of White Rock

Katui and his wife Jarindju

Jalgar (Charlie Woree)

David Dundee/Dandii/Fourmile

Andrew Dabah

Nellie (mother of Walter Fourmile and Charlie Fourmile)

Jimmy and his wife Giddie

Culum Jack and his wife Dolsi

John and his wife Maudie

Mandiruma (Annie) (wife of King Ji:mi (Ye-i-nie) of Cairns)

A person is adopted under traditional law and custom if the person is effectively raised as a child by other members of the group who are descended from the apical ancestors and the person is recognised by the group as having been adopted under traditional law and custom.

21    The Yirrganydji interlocutory applicants submitted, at [24], that in the area in respect of which the Gimuy Walubara Yidinji application had been filed there had been 20 native title claims filed, between 1994 and 2016, on behalf of peoples sharing some ancestors in common with those identified in the Gimuy Walubara Yidinji Form 1, and two non-claimant applications.

22    They submitted, at [29], that the presence of shared apical ancestors in claims and determinations demonstrated that forebears of people now calling themselves Gimuy Walubara Yidinji had variously been identified as the source of native title rights and interests in areas overlapping and abutting the Gimuy Walubara Yidinji Claim. On the basis of that shared ancestry the people who were part of the Gimuy Walubara Yidinji Claim group belonged with those neighbouring groups to whom they were related, as members of a regional system of laws and customs which was the source of the rights and interests they asserted in the Gimuy Walubara Yidinji Claim area.

23    They submitted, at [30], that, if the members of the Gimuy Walubara Yidinji Claim group had any native title rights and interests in the claim area, they must derive from the regional system of which they formed a part. That nexus to the society bound by the normative system on which the asserted rights depended, meant the people by whom the claim applicant must be authorised were all the people who held native title rights for the claim area under that normative system. The Yirrganydji interlocutory applicants submitted that must include other Yidinji people who were the descendants of the apical ancestors named.

24    Exclusion of other Yidinji descendants from the processes leading to the filing of the Gimuy Walubara Yidinji Claim was at the heart of the matters deposed by Mr Mundraby in his affidavit of 28 October 2014 and relevant to the concerns of Mr Doré in his affidavit of 28 October 2014.

25    The lack of notice and disputed integrity of the Gimuy Walubara Yidinji authorisation meeting was deposed to in six affidavits of descendants of Gimuy Walubara Yidinji ancestors.

26    On that basis, it was submitted that the Gimuy Walubara Yidinji Claim did not comply with s 61, through holding an authorisation meeting which was not brought to the attention of all of the persons holding the common or group rights and interests over the area claimed. That meant the Gimuy Walubara Yidinji Claim had not been brought on behalf of a properly defined native title claim group.

27    On the basis of the matters deposed to in the affidavit of Anne Lillian English from [18]–[24], the following were identified by the Yirrganydji interlocutory applicants as flaws in the authorisation process followed when authorising the Gimuy Walubara Yidinji Claim:

a.    The Statement provided as Attachment R to the Gimuy Walubara Yidinji Form 1 did not provide a description of who the Gimuy Walubara Yidinji People were, nor provide a basis which could establish how each of the persons authorised to be an applicant was a member of the claim group.

b.    The notice relied upon to provide information regarding the Gimuy Walubara Yidinji authorisation meeting did not contain any description of the Gimuy Walubara Yidinji People in order to enable persons to determine whether they ought to attend the meeting. Counsel submitted that attachment R1, the notice in the Cairns Post dated 11 October 2012, should have included the material in schedule A to Form 1, setting out the apical ancestors of the Gimuy Walubara Yidinji People.

c.    In the attendance sheet, information was not provided by the signatories to describe in what capacity they attended the meeting nor how they were Gimuy Walubara Yidinji People.

d.    In the record of resolutions passed at the authorisation meeting, there was no resolution passed adopting a claim group description for the purpose of the claim the meeting purported to authorise.

e.    In the s 62 affidavits filed by each of the persons authorised to be the applicant for the Gimuy Walubara Yidinji Claim, which were deposed in identical terms, none of the deponents deposed that they were a member of the claim group nor otherwise described the Gimuy Walubara Yidinji People so that it could be ascertained whether and how they were each a member of the Gimuy Walubara Yidinji Claim group.

28    These defects, so the submission went, led to flaws in the authorisation of the claim. The Yirrganydji interlocutory applicants submitted that, due to the failure to define who should attend, the authorisation meeting did not allow for the attendance of the descendants of the holders of native title in the area over which the claim was to be filed, meaning the Gimuy Walubara Yidinji Claim was not authorised in the manner required by s 61.

29    Counsel for the Yirrganydji interlocutory applicants did not ask me to conclude that, for example, Mr Peter Hyde was not a member of the claim group. What counsel was putting was that Mr Hyde, for example, did not say that he was a member of the claim group or how he was a member. Counsel said that the Court could draw the inference that Mr Hyde regarded himself as a member of the claim group and it appeared that others who were at the meeting regarded him as a member of the claim group but the resolution did not provide information of who comprised the claim group. Counsel accepted that Mr Hyde would appear to be a member of the claim group but that was an inference drawn from the conduct of the proceedings. It was not stated and was not something he deposed to in his affidavit. For example, the fourth resolution lacked a description of the claim group.

30    The Yirrganydji interlocutory applicants submitted that the limitation on the category of people invited to attend and the limited form of public notice before the meeting meant that the meeting could not be fairly representative of the (proper) native title claim group.

31    They submitted, at [37], that the Court should not be satisfied that the actual native title holders were sufficiently identified to determine whether there had been a proper decision taken to authorise the Gimuy Walubara Yidinji Claim. Nor could the Court be satisfied, given the manner of notification of the meeting, that adequate notice was given of the specific purpose of the meeting or that those people affiliated with the land were put on notice of the holding of the meeting. They submitted there was failure to adequately identify members of the claim group and failure to convene the meeting in a proper manner.

32    The Yirrganydji interlocutory applicants submitted, at [39], that on the basis of the defects in the process followed to authorise the Gimuy Walubara Yidinji Form 1 and on any view of that material in a manner which was as favourable as it could be in all the circumstances to the claim applicant, the Gimuy Walubara Yidinji Claim was not validly authorised by all the persons holding the particular native title claimed, was therefore untenable and a clear case for summary dismissal had been made.

33    The Yirrganydji interlocutory applicants submitted, at [40], that proper authorisation was fundamental to the legitimacy of native title applications and where, as here, authority did not derive from a properly described claim group or adequately notified meeting, the flaws in the authorisation could not be retrospectively cured by amendment: Reid v State of South Australia [2007] FCA 1479 at [29].

34    As to costs, the Yirrganydji interlocutory applicants referred to the matters summarised in McKenzie v State of South Australia [2006] FCA 891 at [8] and submitted that extensive efforts had been made by the parties and the Court to resolve the problems caused by the overlapping claims between the Yirrganydji People and the Gimuy Walubara Yidinji. The Experts Conference convened by the Court on 15 and 16 May 2017 led to a report to the Court where there was substantial agreement between the experts with respect to 7 of 8 propositions. A mediation was convened by the Court on 28–29 September 2017, informed by the Report from the Experts Conference, where no resolution was achieved. They submitted that the claim applicant’s conduct in filing the Gimuy Walubara Yidinji Claim in the manner set out above and of the proceedings was unreasonable so as to warrant an award of costs against the claim applicant.

35    The NQLC submitted that before proceeding to strike out, the Court would need to turn its mind to whether it was appropriate to exercise the discretion arising from s 84D which allowed the Court to proceed with a matter notwithstanding a failure to comply with the Native Title Act, including a failure in authorisation.

36    The NQLC submitted that factors that the Court should have regard to when considering s 84D included:

a)    The nature and extent of the failure (for example - if the Court was to find that only one or two persons were not notified).

b)    The possibility that even if the claim were struck out, a similar claim (authorised properly) were filed at a later date on behalf of the same claim group (the new claim).

c)    If such possibility existed, NQLC submits that factors that the Court should consider should include whether by failing to make a section 84D order it would:

(i)    Only serve to delay the ultimate resolution of the assertions of the claim group that they hold Native Title in the claim area.

(ii)    Cause a waste of monies and in particular put respondents to extra and unnecessary expense when they have to respond to the new claim in due course.

(iii)    Represent a waste of the Court's time and public monies dealing with the new claim in due course.

(iv)    To the extent that any of the parties are funded from the public purse represent a waste of public monies.

d)    Whether failure to make such an order runs contrary to the principles embodied in sections 22, 37M and 37N of the Federal Court Act, namely the timely and final resolution of disputes.

e)    Whether concessions that were made in Case Management would be “lost” if new proceedings were instituted.

37    The State of Queensland (the State) submitted that in Ashwin on behalf of the Wutha People v State of Western Australia (No 2) [2010] FCA 1472; 191 FCR 549 at [12], Siopis J observed that, by introducing s 84D, Parliament intended that the Court was to have discretion to determine whether a defect in the authorisation of a native title determination application was to be conclusive as to the fate of that application. Accordingly, since the enactment of s 84D, it did not axiomatically follow from a determination that a native title claim had not been lawfully authorised, that the claim must, on that account, be dismissed. Rather, such a finding gave rise to the further question of whether it was in the interests of justice to proceed to hear the native title determination application, notwithstanding the defect in authorisation.

38    In the State’s submission, it was relevant for the Court to take into account the following matters when determining whether a proper basis had been established to strike out the Gimuy Walubara Yidinji Claim as a “sub-group” claim:

(a)    The Yirrganydji respondents have not pointed to any evidence emanating from the GWY claimants themselves which suggest that any of them regard the claim group as only a sub-set of the Yidinji people who can assert native title rights in the claim area. That includes the five GBY claim group members who provided affidavits to the Yirrganydji respondents, none of whom asserted that the composition of the GWY claim group is deficient: see affidavits filed 24 October 2017 by Brian Andrew Fourmile, Dell Schreiber, Delwyn Leroy Fourmile, Di Yeatman, and Kallin Louise Quarry.

(b)    Contrary to the usual approach in strike out applications, the Yirrganydji respondents seemed to be asking the Court to accept as correct factual matters asserted in the affidavits filed by (now deceased) respondent Vincent Mundraby, and by Martin Doré of NQLC; cf. YS [3], [31]; affidavit of Anne Lillian English filed 6 October 2017 (English) at [28], [31].

(c)    To the extent that the Yirrganydji respondents assert that there are “shared apical ancestors” between the GWY claim group on the one hand, and determined Yidinji claims on the other hand, the correspondence between the descriptions of the apicals in question is not readily apparent: [24]–[27], Annexure C.

(d)    There does not appear to be any evidentiary basis for the contentions at YS [29]–[30] regarding the laws and customs of the GWY claim group and the broader Yidinji cultural bloc. In contrast to what is said in those paragraphs, in one of the determined Yidinji claims, Johnson on behalf of the Tableland Yidinji People #1 v State of Queensland [2012] FCA 1417, Dowsett J quoted anthropologists Hafner and Weiner’s description of Yidinji country, and the nature of Yidinji landholding, as follows:

Yidinyji country stretches from the Cairns and coastal region south of Cairns up through the Goldsborough Valley and Mulgrave River regions to the Atherton Tablelands. Yidinyji territory has previously been described as divided into separate ecological zones, with a corresponding division of the social world … Indigenous groups identifying as Yidinyji comprise five separate native title claim groups, each claiming specific right to speak for a portion of country traditionally recognised as being encompassed by the Yidinyji language-culture complex. The claimants distinguish themselves from other Yidinyji social groupings thus defined, although like them, they describe themselves as members of the “Yidinyji tribe”. The claimants are identified by other Yidinyji people as “Tableland mob” … or as “Top End Yidi” … , in distinction to other Yidinyji groups: the people of the Cairns region (“Gimuy”), Yarrabah (“Mandingalbay”), Lower Coastal, and the Goldsborough Valley (“Valley mob”, or “Dulabed” and “Malanbarra”) with whom they share a common tribal linguistic identity.

    (footnotes omitted.)

39    The State submitted that relevant principles for the content of the public notice were:

(a)    While the authorisation that ensues from an authorisation meeting conducted for the purposes of s 251B of the NTA must be that of the whole of the claim group concerned, it is not necessary that the notice of the meeting must result in all the members of the claim group attending the meeting. Rather, it is necessary that all the members be offered a reasonable opportunity to decide whether to attend. Accordingly, the notice of an authorisation meeting must be expressed in a form, and promulgated in a manner, that is likely to result in all the members of the native title claim group being offered a reasonable opportunity to decide whether to attend the meeting and to participate in its deliberations: Burragubba (obo Wangan and Jagalingou People) v State of Queensland (2017] FCA 373 at [31]-[32] and the cases there cited.

(b)    There were decisions where the Court has found a notice of meeting to be defective because it did not sufficiently describe the native title claim group: see for example, Bolton obo the Southern Noongar Families v State of Western Australia [2004] FCA 760 at [45] (the notice referred only to the generic title of the native title applications in question and not to a list of apical ancestors); Collins obo the Wongkumara People v Harris obo the Palpamudramudra Yandrawandra People [2016] FCA 527 at [31] (the notice referred only to persons “who hold or may hold native title in relation to the lands or waters in the claim area”); TJ v Western Australia (2015) 242 FCR 283 at [77]-[80] (the notice did not identify with any precision the persons who were comprised in the expression “Yindjibarndi #1 native title claim group”).

(c)    The ameliorative effect of s 84D must always be kept in mind. In Far West Coast Native Title Claim v State of South Australia (No 6) [2013] FCA 1270 at [46]-[47], Mansfield J indicated (obiter) that a case for proceeding under s 84D(4)(b), notwithstanding a defect in authorisation, was particularly strong where there had been two recent meetings of the claim group which endorsed a consent determination of native title, and there was “no good reason why the alleged failure to notify some claimants of meetings that occurred close to a decade ago” should be raised only weeks before a consent determination.

40    The State submitted it was relevant for the Court to take into account the following matters when determining: 1) whether a proper basis had been established to find that the Gimuy Walubara Yidinji Claim was not authorised because of a defect in the public notice; and if so, 2) whether the Court should nonetheless exercise the discretion under s 84D to allow the Gimuy Walubara Yidinji Claim to continue on foot:

(a)    The submissions of the Yirrganydji respondents do not address the evidence adduced by the GWY Applicant regarding the 2012 authorisation meeting: YS [34]; cf. affidavit of Clare Anne Norris filed 1 November 2017.

(b)    Four of the five GWY claim group members who provided affidavits to the Yirrganydji respondents in support of the interlocutory application deposes to having first learned about the GWY claim about three years ago in 2014, yet none explain why they had not taken steps until now to strike out the claim or raise any concerns about the efficacy of the 2012 authorisation of the claim.

(c)    The Yirrganydji respondents have not provided any explanation for their delay in raising concerns about the efficacy of the 2012 authorisation of the claim.

(d)    The public notice did in fact lead to Yidinji man Vincent Mundraby joining the proceeding as a respondent, and agitating his interest.

(footnotes omitted.)

41    The State also agreed with the NQLC submissions set out at [36] above.

42    The claim applicant submitted that the application of the Yirrganydji interlocutory applicants rested on a false premise – that the claim group description for the main application referred to apical ancestors already included in adjacent Yidinji native title determinations, and so the authorisation of the main application was not directed to a sufficiently broad group of people. The claim applicant disputed that submission, contending that the available facts supported a conclusion that it was wrong, and submitted that at an interlocutory stage the evidence of the claim applicant should be accepted at its highest such that the main application should not be struck out.

43    The claim applicant submitted that it was uncontroversial that the main application existed in a wider region in which many Yidinji land holding groups had successfully achieved determinations of native title. The claim was that Gimuy Walubara Yidinji People represented a distinct land holding group, much like the other Yidinji determinations.

44    The Yirrganydji interlocutory applicants pointed to the native title claim group description in Form 1 in the main proceeding and alleged that the claim group was defined by reference to some apical ancestors referred to in other Yidinji native title determinations. On the basis of those alleged facts, the Yirrganydji interlocutory applicants advanced a submission that persons properly entitled to attend the 1 November 2012 authorisation meeting for the Gimuy Walubara Yidinji Claim were “excluded”.

45    The claim applicant disputed the factual premises of this submission. The report of Dr Fiona Powell, annexed to the affidavit of Clare Anne Norris filed 13 December 2017 was relied upon. The claim applicant submitted that the apical ancestors referred to in Schedule A of the Gimuy Walubara Yidinji Claim (descent from whom defined the native title claim group of the Gimuy Walubara Yidinji Claim) were not persons named as apical ancestors in any other Yidinji native title determination.

46    The claim applicant submitted that the Yirrganydji interlocutory applicants’ submissions, in that respect, attempted to align the Gimuy Walubara Yidinji Claim with the circumstances in Landers v State of South Australia [2003] FCA 264; 128 FCR 495 at [32] as a native title claim group description which on its face excluded part of the group of persons on whose behalf a claim was made. On the evidence advanced by the claim applicant it was sufficiently clear for interlocutory purposes that the Gimuy Walubara Yidinji Claim was not the same as that in Landers.

47    The claim applicant submitted there could be no complaint that the authorisation meeting was not properly notified to persons descended from apical ancestors recorded in other Yidinji native title determinations.

48    The claim applicant submitted that none of the submissions identifying what was said to be “flaws in the authorisation process” should be accepted. Reference was made to Burragubba on behalf of the Wangan and Jagalingou People v State of Queensland [2017] FCA 373 at [31] to the effect that it was not necessary that the notice of the meeting must result in all the members of the claim group attending the meeting, but it was necessary that all the members be offered a reasonable opportunity to decide whether to attend.

49    As to whether Attachment R to the Gimuy Walubara Yidinji Form 1 did not describe the Gimuy Walubara Yidinji People, see [27a] above, the claim applicant submitted the attachment was for the purposes of addressing s 190C. The attachment was not evidence of the adequacy, or otherwise, of the authorisation process for the Gimuy Walubara Yidinji Claim. Despite this, the factual material contained at Attachment R (which was in four parts named “R-1” through to “R-4”) clearly did address the description of the claim group. Attachment R-4 comprised a written account of the meeting given by anthropologist Bruce White which described the claim group’s careful consideration of the claim group description: see the affidavit of Clare Anne Norris filed 1 November 2017, Annexure CAN6.

50    As to whether the notice for the authorisation meeting for the Gimuy Walubara Yidinji Claim did not describe the Gimuy Walubara Yidinji People, so as to enable a person to determine whether they should attend the meeting, see [27b] above, the claim applicant submitted that the witnesses whose evidence was relied upon by the Yirrganydji interlocutory applicants instead deposed to not having seen the authorisation meeting notice at all. Despite this, the authorisation meeting notice provided a general invitation, in addition to the invitation to Gimuy Walubara Yidinji People, to “other people who assert that they hold native title in the proposed claim area” to attend the meeting. The claim applicant submitted that if any person was unsure of whether they should attend the meeting or not (which was not admitted) the notice encouraged their attendance in any case.

51    As to whether the attendance sheets for the authorisation meeting did not record the “capacity” in which persons attended the meeting, see [27c] above, the claim applicant submitted that attendance sheets were not evidence of the adequacy of an authorisation meeting. There was no requirement for such “capacity” descriptions to be set out in meeting attendance sheets. They submitted the capacity issue was irrelevant.

52    As to whether no resolution was passed at the meeting adopting a claim group description for the Gimuy Walubara Yidinji Claim, see [27d] above, the claim applicant submitted that the claim group description was contained in the draft Form 1 that was shown to the meeting and discussed. A separate list containing proposed ancestor names was handed around during the meeting for discussion and also projected onto a screen. The meeting then resolved to adopt the Form 1 discussed at the meeting.

53    As to whether the s 62 affidavits of the members of the applicant did not record that each of them was a member of the claim group, see [27e] above, the claim applicant submitted that there was no requirement in the Native Title Act that a s 62 affidavit contain this information. In any event, it was submitted, the claim applicant for the Gimuy Walubara Yidinji Claim consisted of members of the claim group, and a resolution confirming that fact was passed at the authorisation meeting.

54    As to whether the “limitation on the category of people invited to attend”, and the “limited form of public notice” for the authorisation meeting, meant that the meeting was not fairly representative of the native title claim group, the claim applicant submitted that the public notification for the authorisation meeting included public radio announcements, social media communications, personal communications and a newspaper advertisement. In any event, the notice of the Gimuy Walubara Yidinji authorisation was clearly directed to any person asserting a native title interest in the Gimuy Walubara Yidinji Claim area.

55    The claim applicant adopted the submissions of NQLC and the State in relation to s 84D.

56    As to costs, the claim applicant submitted that none of the matters raised in submissions amounted to an “unreasonable act or omission” or unreasonable conduct. To the extent that the Yirrganydji interlocutory applicants relied on their dissatisfaction with the outcomes from mediation, that was an inappropriate basis upon which to argue for costs in the present interlocutory application. In the event that they were successful, the Yirrganydji interlocutory applicants should not have their costs under s 85A.

The evidence

57    I turn now to consider the evidence. For the purposes of this interlocutory application, I take the evidence of the claim applicant at its highest.

58    Ms English is the legal representative of the Yirrganydji interlocutory applicants. In her affidavit sworn 6 October 2017, Ms English deposed that the three Yirrganydji interlocutory applicants are jointly the applicant for two Yirrganydji native title determination applications, QUD 602 of 2012 and QUD 337 of 2015 (the Yirrganydji Claims), the southern portions of which are overlapped by the northern portion of the Gimuy Walubara Yidinji Claim:

a.    Yirrganydji (Irukandji) People QUD 602/2012, was filed on 29 October 2012 over discrete parcels from Port Douglas to Cairns, registered from 20 December 2012 and notified from 24 April to 23 July 2013 (‘the 2012 Yirrganydji Claim’); and

b.    Yirrganydji (Irukandji) People #2 QUD 337/2015, was filed on 12 May 2015. The discrete parcels of the 2012 Claim lie within its external boundary. It was registered on 22 January 2016 and notified from 22 February to 22 May 2017 (‘the 2015 Yirrganydji Claim’).

59    The Gimuy Walubara Yidinji Claim was filed on 6 November 2012. It was registered on 20 December 2012 and notified from 24 April to 23 July 2013.

60    On 10 May 2013, within the notification period, the three Yirrganydji interlocutory applicants filed a Form 5 to be joined as parties to the Gimuy Walubara Yidinji Claim on the basis of their interests in the area subject to the Gimuy Walubara Yidinji Claim as the applicant in the 2012 Yirrganydji Claim.

61    Ms English then deposed to an Experts Conference on 15 and 16 May 2017. One expert was retained by NQLC, the second by the Yirrganydgji, and the third by Gimuy Walubara Yidinji. She says that the outcome of the Experts Conference, set out in a report to the Court and relevant parties signed by all three anthropologists on 16 May 2017, expressed their substantive agreement with respect to 7 of 8 propositions. I do not see the relevance of this material, except, perhaps, to explain the motive for this interlocutory application.

62    Ms English referred to an unsuccessful mediation on 28-29 September 2017. As to the relevance of this, I repeat what I have said at [61] above.

63    Annexure ALE-1 is Attachment R to the Gimuy Walubara Yidinji Form 1, which is the same as Exhibit A. That document stated that not only was the meeting of 1 November 2012 publicly advertised in the Cairns Post on 11 October 2012 but also that notice of the meeting was given by word-of-mouth by two named claim applicant members, spread by other claimants and through the use of social media and telephone and door-to-door contact in Yarrabah and that group members arranged for community announcements of the meeting to be made over indigenous community radio network both the day before the meeting and on the day of the meeting.

64    After a number of submissions, Ms English’s affidavit continued, at [26], by stating that there were five native title determinations made by consent on behalf of Yidinji People. She then set out the descriptions of Yidinji people forming part of the orders made by the Court in those determinations.

65    Ms English then referred, at [28], to the affidavit of Vincent Mundraby, one of the applicants on behalf of Mandingalbay Yidinji people in two of the five determinations setting out his interests in the Gimuy Walubara Yidinji Claim area which was, in part, on the basis that:

a.    he is a descendant of Mandingalbay Yidinji people who are part of the wider regional grouping known as Yidinji (at [5]-[7]);

b.    the GWY Claim covered areas in which he asserted native title rights and interests as a Madingalbay Yidinji person (at [10] (sic);

c.    GWY people do not have native title rights and interests in all of the area claimed (at [11]); and

d.    The GWY Claim area included areas which are 'shared country' for all Yidinji people (at [13]).

66    Ms English then stated, at [29], that Mr Mundraby’s name was not included on the list of people who authorised the Gimuy Walubara Yidinji Claim. On the basis that there were some names in common between some of these descriptions of Yidinji People and the Gimuy Walubara Yidinji People, the three Yirrganydji interlocutory applicants said that the Gimuy Walubara Yidinji Claim cannot have been authorised in the manner required by s 61(1).

67    Ms English then referred, at [31], to the affidavit of Martin Doré, Principal Legal Officer of the NQLC, the native title representative body for the area covered by the Gimuy Walubara Yidinji Claim. She referred to [5] of that affidavit to show that the NQLC had been approached by at least two other groups wishing to lodge further overlapping claims to part or all of the area of the Gimuy Walubara Yidinji Claim; that the NQLC suspected there may be others who will seek NQLC support; and that the NQLC had concerns as to whether the Gimuy Walubara Yidinji Claim was properly constructed and whether it covered the correct geographical area. I note that Mr Doré’s affidavit was made for the purposes of the NQLC then remaining a party.

68    Ms English stated, at [32], that there were two other Cairns regional claims, which she identified, which appeared to have some ancestors in common with the Gimuy Walubara Yidinji Claim.

69    Mr Brian Fourmile, in his affidavit sworn on 24 October 2017, deposed that he is a descendant of Mandiruma (Annie) (wife of King Ji:mi (Ye-i-nie) of Cairns) who was his grandmother and one of the apical ancestors for claim group members in the Gimuy Walubara Yidinji native title determination application. He said that in 2012 he was living in Yarrabah. He deposed that he first learnt that a claim had been filed, that included the name of his grandmother, about three years ago in 2014. He did not receive any notice that a meeting was being held in Gordonvale on 1 November 2012 to authorise a claim over the Cairns area from the Barron River in the north, south almost to Gordonvale, on behalf of descendants of his grandmother. He deposed that he did not authorise a claim to be filed by the claim applicant over the area subject to the Gimuy Walubara Yidinji Claim on behalf of the descendants of his grandmother.

70    Mr Brian Fourmile said he had spoken to other members of his family about the filing of the claim on behalf of the descendants of their grandmother and none of them told him they had authorised the filing of the claim or attended the 1 November 2012 meeting.

71    He deposed that he had been shown a copy of the attachments to Schedule R of the Gimuy Walubara Yidinji Form 1 which were: Attachment Ra “Statement for the purposes of section 190C(5) of the Native Title Act 1993 Cth” ; Attachment R-1, the notice published in the Cairns Post on Thursday, 11 October 2012; Attachment R-2, a copy of the attendance sheet signed by persons who attended the authorisation meeting; and Attachment R-3, a copy of the resolutions passed at the authorisation meeting held on 1 November 2012.

72    He deposed that he had never seen the notice relied upon to provide information regarding the Gimuy Walubara Yidinji authorisation meeting which is Attachment R-1.

73    He deposed that he had reviewed the list of names on the attendance sheet which was Attachment R-2. There were signatures from people who were related to him but they were not representatives of their family for such important cultural business.

74    In his second affidavit, Mr Brian Fourmile said that: “I was told to sign the affidavit with an explanation saying that I do not support Gimuy Walubara Yidinji” and “I signed the affidavit along with the other three family members Delwyn Fourmile, Diane Yeatman and Dell Fourmile.” He deposed that he would like the Gimuy Walubara Yidinji to change the application name to “Yidinji” representing the nation of “Yidinji” not the clan group that is known on the current claim, and for his name to be added as an applicant. He said that he believed that his son Brian Fourmile Jnr, his niece Gail Fourmile and his nephew Keith Fourmile should also become the current applicants on the Gimuy Walubara Yidinji Claim. He said he did not support the Yirrganydji interlocutory applicants in their claim. He said he would not support the Gimuy Walubara Yidinji “unless we come to an agreement to change the applicant’s name to include the mentioned names above and to change the title from Gimuy Walubara Yidinji to “Yidinji” which is the original name of the Tribal Nation”.

75    The affidavit of Delwyn Fourmile, sworn on 24 October 2017, is to the same effect as Mr Brian Fourmile’s 24 October 2017 affidavit, although she said that Mandiruma (Annie) (wife of King Ji:mi (Ye-i-nie) of Cairns) was her great-great-grandmother.

76    The affidavits of Dell Schreiber and of Di Yeatman, both sworn on 24 October 2017, are also to the same effect although they deposed that Mandiruma (Annie) (wife of King Ji:mi (Ye-i-nie) of Cairns) was their great-grandmother.

77    In a second affidavit sworn 29 November 2017, Dell Schreiber responded to an affidavit of the solicitor, Ms Clare Norris, for the claim applicant concerning a claim group meeting on 24 February 2017 at Hambledon House in Edmonton. Dell Schreiber deposed that neither she nor any member of her family were formally invited to that meeting. She deposed that she did not actually know that Ms Norris was working on the Gimuy Walubara Yidinji Claim. She and other members of her family, namely her brother Delwyn, her Aunty Patricia Dianna Yeatman “Dinah”, her uncle Brian Fourmile, Brian Fourmile Jnr and his wife Nerida, Gail Fourmile, Linda Bird and Elaine and Darryl Pollard attended to meet Ms Norris. Henrietta Fourmile came out and she seemed to be shocked to see Dell Schreiber and the other members of her family out there and she went to put her arm around Dell Schreiber’s Aunty Dinah and asked them to come into the meeting. They all went into the meeting. Dell Schreiber deposed that as they had not been formally invited to the meeting they felt like gatecrashers. They remained present at the meeting whilst two anthropologists from NQLC spoke to the group. Dell Schreiber deposed that she and members of her family left before the meeting had finished. She deposed that they did not raise their concerns in the meeting because nobody said anything about the 2012 authorisation meeting; and Henrietta Fourmile became angry and agitated and “we felt uncomfortable and left the meeting”.

78    Kallin Quarry, in her affidavit sworn on 24 October 2017, deposed to being a descendant of Andrew Dabah or Dabar, one of the apical ancestors for claim group members in the Gimuy Walubara Yidinji native title determination application. She deposed that she first learnt that a claim had been filed that included the name of Andrew Dabar, her great-great-great-grandfather, on the date of her affidavit, 24 October 2017. Ms Quarry deposed that she did not receive any notice of the 1 November 2012 meeting to authorise a claim over the Cairns area from the Barron River in the north, south almost to Gordonvale on behalf of descendants of her great-great-great grandfather. She deposed to having spoken to other members of her family about the filing of the claim on behalf of the descendants of their great great-great-grandfather and none of them told her they had authorised the filing of the claim or attended the 1 November 2012 meeting. She had reviewed the list of names on the attendance sheet and to her knowledge there were no members of her family present. She deposed to being a member of the Djabugay-Bulway-Yirrgay-Nyakali-Guluy and Cairns Regional Claim claims through her descent from her great-great-great-grandfather.

79    The claim applicant relied first on the affidavit of Ms Norris, sworn on 31 October 2017, a solicitor employed by p&e Law and having the day to day carriage of the matter. The claim applicant also relied on a second affidavit of Ms Norris, sworn on 13 December 2017.

80    In her first affidavit, Ms Norris deposed that in or about early August 2012 p&e Law received instructions to act for the Gimuy Walubara Yidinji People both as respondent parties (by a number of individuals) to a non-claimant application filed by Cairns Regional Council and in relation to a substantive native title claim filed partly as a result of that Council’s non-claimant application. The deadline prescribed by the operation of various provisions under the Native Title Act for the filing of the Gimuy Walubara Yidinji native title claim was 7 November 2012.

81    On 11 October 2012 advertisements were displayed in the Cairns Post providing public notification of an authorisation meeting to be held on 1 November 2012 at the CWA Community Hall in Gordonvale. She deposed that the public notice provided a written description of the proposed claim area and an invitation for all Gimuy Walubara Yidinji People to attend the meeting. It also stated that “Other people who assert that they hold native title in the proposed claim area are also invited to attend the meeting.”

82    Ms Norris recalled being advised by several members of the Gimuy Walubara Yidinji Claim group that they had held informal telephone and personal discussions with other members of the claim group, about the meeting.

83    She deposed that in addition to the public notice given in the Cairns Post and prior to 1 November 2012, members of the Gimuy Walubara Yidinji Claim group consulted with neighbouring traditional groups such as Yidinji people not identifying as Gimuy Walubara Yidinji, Wayurr Majay people, Djungan people, Kuku Djungan people, Gunggandji people, Kungi people and people identifying as both Yidinji and Djabugay and Yidinji and Jirrabal. Those people signed a series of documents to indicate their support for the proposed Gimuy Walubara Yidinji native title claim. She annexed a copy of each of the three documents containing the signatures of neighbouring groups to Gimuy Walubara Yidinji.

84    During the authorisation meeting on 1 November 2012, the proposed Form 1 Application for the Gimuy Walubara Yidinji Claim was shown to and discussed by the meeting. Ms Norris annexed the agenda, as follows:

Meeting opened and welcome by Elder

Summary of background to claim development (CRC non-claimant application)

Outline of contents of Form 1 Application document

Discussion of draft resolutions and decision making to enable Form 1 to be filed in Federal Court by 6 November 2012

Summary of steps to occur after Form 1 is filed

Funding applications made/to be made

Other business

85    The draft Form 1 contained a list of the proposed apical ancestors for the Gimuy Walubara Yidinji Claim. She deposed that that list was discussed in detail by the meeting. She annexed a copy of the list handed around at the meeting and also projected onto a screen for better display.

86    She deposed that it was decided to move the ancestor Mandirruma (Annie), wife of king Ji:mi of Cairns from the “Mediating” list of ancestors to the “Apical” list. The meeting passed a resolution that the claim be filed generally in accordance with the Form 1 Application discussed at the meeting.

87    Resolution 4(a) passed at the authorisation meeting confirmed that the people authorised to be the applicant and to make the main application were members of the claim group. She annexed a true copy of the resolutions passed by the meeting on 1 November 2012.

88    She deposed to being present for the entire duration of the authorisation meeting. At no point during the meeting did anyone raise any objections to the business of the meeting or the resolutions passed.

89    After the filing of the Form 1 Application with the Court on 6 November 2012, Ms Norris prepared additional material to be provided to the Registrar, National Native Title Tribunal in support of the registration of the claim. Relevant for present purposes, this material included a report on the authorisation meeting by Mr Bruce White, anthropologist. She annexed a true copy of the report by Mr White.

90    At paragraph 3, Mr White said that the Gimuy Walubara Yidinji Peoples consist of in excess of 50 existing families (and family names), numbering in excess of 500 adults, whose joint wish to apply for a Federal Court determination that native title exists over their country has been under discussion for more than 20 years and is not new to the Gimuy Walubara Yidinji families. Mr White then gave further details. At paragraph 4, Mr White said that in 2012 it would seem that the Gimuy Walubara Yidinji People’s wish to make an application to the Federal Court was familiar to most (if not all) Gimuy Walubara Yidinji families following discussions going back two decades and that the family group membership of the Gimuy Walubara Yidinji Peoples had pretty well been settled and genealogically defined as part of Dr Powell’s work in 2000. At paragraph 8b) on page 5 of his report, Mr White confirmed that “there was strong familiarity amongst all of those present as to the purpose of the meeting, the nature of the claim group, the area to be claimed, the membership of the claim group and more (in a manner that would be expected for an application for a native title determination that had been long under discussion. (sic)”

91    Ms Norris deposed that on 20 December 2012 after consideration of all the material provided in support of the claim and the authorisation process, the Delegate of the National Native Title Registrar made a decision to register the claim. She annexed a true copy of the Delegate's decision.

92    Ms Norris deposed that the Court convened confidential and without prejudice mediation between the Walubara claim applicant, Mr Vince Mundraby, Ms Allison Halliday and the Djabugay Native Title Aboriginal Corporation RNTBC (DNTAC) in mid-June 2015. As a result of that mediation the issues in dispute between those parties were resolved.

93    She deposed that amendment of the Gimuy Walubara Yidinji Form 1 Application had been delayed in order to include further amendments that may have resulted from the anticipated mediation of issues in dispute between the Gimuy Walubara Yidinji People and the Yirrganydji People.

94    Ms Norris deposed that the Court convened confidential and without prejudice mediation between the Walubara claim applicant and the Yirrganydji #1 and #2 applicant on 28 and 29 September 2017 in Cairns. That mediation did not result in resolution of the issues in dispute between those parties.

95    On Friday, 24 February 2017 the Gimuy Walubara Yidinji People convened a claim group meeting at Hambledon House in Edmonton. Ms Norris attended that meeting. The meeting was convened for the primary purpose of discussing the overlap between the Yirrganydji #1 and #2 claims and the Gimuy Walubara Yidinji Claim, confidential information provided to both groups by the NQLC and the anticipated mediation to be held later in the year. Claim group members Delwyn Leroy Fourmile, Dell Schrieber and Brian Andrew Fourmile attended that meeting. Ms Norris annexed a true copy of the attendance record of that meeting showing their signatures. She deposed that none of Delwyn Leroy Fourmile, Dell Schrieber or Brian Andrew Fourmile raised any issue regarding the 2012 authorisation of the claim at the 24 February 2017 meeting.

96    Ms Norris deposed that p&e Law had been the solicitor on the record since the filing of the Form 1 in this matter. At no time, until the making of the s 84C interlocutory application, had a member of the claim group, or any other Aboriginal person, raised a concern with the authorisation process with her, or with her firm.

97    In her 13 December 2017 affidavit, Ms Norris deposed that in early December 2017 she sent a copy of the Yirrganydji submissions to anthropologist Dr Fiona Powell and requested that she consider and provide her views whether the ancestors Jimmy, Nellie and Annie named at Annexure C to the Yirrganydji interlocutory applicants’ submissions as a “GWY common ancestor” were the same people as the Nellie, Jimmy and Annie included in the list of Gimuy Walubara Yidinji apical ancestors at schedule A to the Form 1.

98    Ms Norris annexed to her affidavit Dr Powell’s report dated 12 December 2017.

99    In her report, Dr Powell stated that the materials relied upon to compile her summaries comprised various written sources, including records of deaths and marriages, records made by Norman Tindale and Joseph Birdsell during the Harvard-Adelaide Universities Expedition of 1938-39, and information supplied by Community and Personal Histories, and also her notes made during an interview in 2003 with the late Mrs Mavis Royee.

100    Dr Powell stated, in relation to the Tableland Yidinji People #3 claim QC2004/010 there was no evidence that linked Jinny Pott’s mother to the Gimuy Walubara Yidinji ancestor Nellie, who was born almost a generation later.

101    In relation to the Combined Mandingalbay Yidinji-Gunggandji claim QC1999/039, Dr Powell stated that the differences between the Nellie of QC1999/039 and the Gimuy Walubara Yidinji apical ancestor Nellie (mother of Walter Fourmile and Charlie Fourmile) showed that these women named Nellie were two different women.

102    As to the name Jimmy, in relation to the Tableland Yidinji People #3 claim QC2004/010, Dr Powell gave her opinion that, taking into account the differences between the Gimuy Walubara Yidinji ancestor Jimmy and the Tableland Yidinji People #3 ancestor Jimmy with respect to (1) their estimated year of birth, (2) the place associations of their children (Jack Stewart and his sister were born on the Atherton Tableland, while the Gimuy Walubara Yidinji ancestor’s children were born at the coast in the Cairns Freshwater-Edmonton region) and (3) the names of their spouses, the evidence in the available materials showed that the Stewart family's forebear Jimmy was not the same person as the Gimuy Walubara Yidinji ancestor Jimmy (who was the husband of Giddie).

103    In relation to the Combined Mandingalbay Yidinji-Gunggandji claim QC1999/039, Dr Powell also was of the opinion that the GWY ancestor Jimmy was not old enough to have fathered Tommy Reid (b.c. 1878), Maggie, Fred (who was born c.1879 Cape Grafton or c.1883) and Amie (who was born c.1888) and that therefore he was not the same person as Jabulum Mandingalpai (aka Jimmy).

104    In relation to “Mandiruma (Annie) (wife of King Ji:mi (Ye-i-nie) of Cairns)” Dr Powell stated, in relation to the Tableland Yidinji People #3 QC2004/010, that the Annie referred to in “The ROSAS/GILLUMROBIN family, being descendants of Johnny and Annie”, was too young to be the same person as the Gimuy Wulubara Yidinji ancestor Annie, who was the mother of Edward/Teddy Fourmile, who was himself born circa 1889.

105    In relation to the Combined Dulabed and Malanbarra Yidinji Claim QC2001/014 and the reference to “7. descended from Annie”, Dr Powell stated that there was no evidence that that Annie, the mother of Minnie (the mother of Alex/Alec Locke), was the same person as the Gimuy Walubara Yidinji ancestor Annie.

106    In relation to the Tableland Yidinji People #3 QC1999/036 and the reference to “(e) Annie known as Lucy Tanna”, Dr Powell stated her opinion that, assuming this to be Grace Annie Tanna, she was too young to be Gimuy Walubara Yidinji ancestor Annie, who was represented on the Yarrabah Sheet 55 as the mother of Ted Fourmile, who was born c. 1889.

Consideration

107    There seems to be no doubt that the three Yirrganydji interlocutory applicants are “a party to the proceedings” within the meaning of s 84C(1). By s 84(3) a person other than the applicant under s 61 “is a party to the proceedings” if, relevantly, “the person claims to hold native title in relation to land or waters in the area covered by the application” and the person notifies the Court, in writing, that the person wants to be a party to the proceeding, within the period specified in the notice under s 66.

108    The Yirrganydji interlocutory applicants submitted, with reference to Walker v State of South Australia [2014] FCA 962 at [19], that it was appropriate to apply the statutory test under s 31A of the Federal Court of Australia Act 1976 (Cth) and referred to Spencer v Commonwealth of Australia [2010] HCA 28; 241 CLR 118. The relevant principle is stated at [58]-[60], per Hayne, Crennan, Kiefel and Bell JJ.

109    In Velickovic v State of Western Australia [2012] FCA 782 at [31]-[34], McKerracher J said:

It is necessary to treat any application under s 84C(1) NTA in the same cautious manner as applications under the previous O 20 r 2 of the former Federal Court Rules or now under r 26.01 of the Federal Court Rules 2011 (FCR) even though the 2011 Rule has also replicated the provision under s 31A of the Federal Court Act which “lowers the bar” for strike outs. Despite availability of the lower test (as in Brown v South Australia [2009] FCA 206), I have approached this application on the basis that the court’s power should be exercised only where the claim is untenable and on the version of evidence favourable to the respondents to the strike out application. A clear case must be made out even though extensive argument may be necessary to adduce evidence to establish the futility of a case…

Section 84C(1) NTA has been considered on a number of occasions. The relevant principles are well established. They have been set out helpfully in Brown by Besanko J (particularly at [10]–[20])…

…

As is evident from Brown (at [19]), a native title determination application does not comply with s 61 NTA if it is clearly established that is not made by a native title claim group consisting of all the persons who according to their traditional laws and customs, have common or group rights or interests comprising the particular native title claimed. A subset of part of “what truly constitutes” a native title group cannot itself be a claimant group for the purposes of s 61 (see for example Reid v State of South Australia [2007] FCA 1479) but equally caution should be applied in readily concluding that an alleged group is only a subgroup or part of a group for s 84 purposes as noted by O’Loughlin J in Risk v National Native Title Tribunal [2000] FCA 1589 (at [60]–[61]).

110    So far as possible I shall consider the claim that not all persons who hold the common or group rights and interests comprising the particular native title claimed authorised the claim applicant separately from the claims of “flaws in the authorisation process”.

111    As to the former, the issue is factually distinct from Landers since, as noted by Mansfield J at [18] and [29], the native title claim group in that case specifically excluded all of those people listed as being the applicant group in the particulars of claim filed in another matter in the Court, being “the Dieri People Angas Warren and Others, whilst those people’s names appear as members of that applicant group.”

112    In my opinion, the interlocutory application has a technical air, in that none of the deponents of affidavits relied upon by the Yirrganydji interlocutory applicants say that they do not know what “Gimuy Walubara Yidinji People” means or is and there is no other evidence to that effect. In light of the evidence of the conduct of the meeting and the absence of any evidence as to the uncertainty of the meaning of “Gimuy Walubara Yidinji People”, I do not regard this as being a case where the membership of the native title group or the identity of the group was not demonstrated or rested as an asserted self-identification. I am not persuaded that the native title claim group is a “novel creation”: Neowarra v State of Western Australia [2003] FCA 1402 at [395]. That part of the interlocutory application concerning the requirement of certainty or of a properly constituted group seems to me to be a matter of form rather than substance.

113    I reject the submission on behalf of the Yirrganydji interlocutory applicants that “Gimuy Walubara Yidinji People” is uncertain in meaning or the related submission that, in order to be effective, Attachment R-1 needed to state the members of the Gimuy Walubara Yidinji People by reference to the apical ancestors. This is not to say that I accept the submission by counsel for the claim applicant that before the filing of a Form 1 the Native Title Act does not engage the term “native title claim group”, if that submission was intended to have consequences in terms of authorisation.

114    I also observe that I do not regard the words “all the persons” in s 61 as involving an absolute or literal number as a requirement or precondition to the validity of the application being made by the relevant person: see Lawson the Minister the Land and Water Conservation (NSW) [2002] FCA 1517 at [25]. This was common ground.

115    It appears from direct evidence that five people, Brian Fourmile, Delwyn Fourmile, Dell Schreiber, Di Yeatman and Kallin Quarry, were not aware of the meeting held on 1 November 2012. There is also reference in those affidavits to other members of the deponents’ families not in fact attending the meeting. The five deponents say that they did not authorise a claim to be filed by the claim applicant.

116    Whether those persons answer the description “all the persons… who, according to their traditional laws and customs, hold the common or group rights and interests comprising the particular native title claimed” and are “also included in the native title claim group” within the meaning of s 61 seems to me to depend on disputed evidence which it is not appropriate to resolve on an interlocutory hearing to strike out the claim. I take the claim applicant’s evidence at its highest.

117    I find that the claim is not self-evidently, or self-confessedly, a sub-group or sub-set claim.

118    I also find that the correspondence between the descriptions of the apicals in the “shared apical ancestors” asserted as between the Gimuy Walubara Yidinji Claim and the determined Yidinji claims is not sufficiently clear to provide a basis for striking out the Gimuy Walubara Yidinji Claim.

119    It does not clearly appear that, if the Gimuy Walubara Yidinji application were to succeed according to its own terms, the claim applicant would not have been authorised by all those persons the Court would determine to be the actual holders of the particular native title claimed: see Harrington-Smith on behalf of the Wongatha People v Western Australia (No 9) per Lindgren J which I have quoted at [19] above.

120    Each case must turn on its own facts. In my opinion, the decision of French J in Bolton on behalf of the Southern Noongar Families v State of Western Australia [2004] FCA 760 is distinguishable when regard is had to the advertisement his Honour set out at [12] and to his Honour’s reasoning at [45].

121    Similarly, I regard the decision of Jagot J in Booth on behalf of the Kungardutyi Punthamara People v State of Queensland [2017] FCA 638 as distinguishable, particularly in light of her Honour’s reasoning at [30] where the identification of the members of the group was exclusively as the descendants of four confined lines of descent.

122    As to the certainty of the existence of the group, I also take into account the anthropological evidence of Mr White which I have referred to at [90] above.

123    I turn then to the claimed flaws in the authorisation process.    

124    First, “Attachment R” is, according to its terms, a statement for the purposes of s 190C(5). That sub-section requires that that the application includes a statement to the effect that the applicant is a member of the native title claim group and authorised to make the application, and to deal with matters arising in relation to the application, by all the other persons in the native title claim group. The application must also briefly set out the grounds on which the Registrar should consider that the requirement in s 190C(4)(b) has been met. In my opinion, for the purposes of the present strike-out application, the application includes what is required by s 190C(5). If it be necessary to do so, taking the evidence at its highest, and taking into account Attachment R-4, I find that there is material providing an adequate description of how the persons authorised to be an applicant are a member of the claim group.

125    Secondly, the notice published on 11 October 2012 in the Cairns Post identified the proposed claim area and stated: “All persons who are members of the Gimuy Walubara Yidinji group are encouraged to attend the meeting. Other people who assert that they hold native title in the proposed claim area are also invited to attend the meeting.” For the purposes of the present strike-out application, I am not persuaded on the present state of the evidence that the published notice meant that people were not able to determine whether they ought to attend the meeting. The terms of the published notice do not bear this out and the affidavits relied on by the Yirrganydji interlocutory applicants did not establish this contention.

126    I do not accept the submission that, due to the failure to define who should attend, the authorisation meeting did not allow for the attendance of the descendants of the holders of native title in the area over which the claim was to be filed. Similarly, I do not accept the submission that the limitation on the category of people invited to attend and the limited form of public notice before the meeting meant that the meeting could not be fairly representative of the native title claim group. In light of the number of families and the number of adults, as referred to at [90] above, the small number of deponents who were not aware of the meeting does not establish that it was not fairly representative.

127    Similarly, that there are some names which appear to be in common between some of the descriptions of Yidinji People and the Gimuy Walubara Yidinji People does not establish that the Gimuy Walubara Yidinji Claim cannot have been authorised in the manner required by s 61(1).

128    Further, I do not accept the submission that the actual native title holders were not sufficiently identified to determine whether there had been a proper decision taken to authorise the claim and I do not accept the submission that the Court could not be satisfied that adequate notice was given of the specific purpose of the meeting or that those people affiliated with the land were put on notice of the holding of the meeting.

129    Thirdly, I am not persuaded that it is necessary that the attendance sheet describe in what capacity the signatories attended the meeting nor how they are Gimuy Walubara Yidinji People. It is not suggested that the signatures are not genuine or that those who signed the attendance sheet were not at the meeting. For the purposes of the present strike-out application, I would infer, in the absence of other evidence, that the persons who signed the attendance sheets were persons who were members of the Gimuy Walubara Yidinji group or persons who asserted native title in the proposed claim area.

130    Fourthly, for the purposes of the present strike-out application and with reference to the evidence of Ms Norris in her first affidavit, I find that the draft Form 1 contained a list of the proposed apical ancestors for the claim, that that list was handed around at the meeting of 1 November 2012 and projected onto a screen and that list was discussed in detail by the meeting.

131    Ms Norris deposed at [13] of her first affidavit that resolution 4(a) passed at the authorisation meeting. That resolution was to the effect that: “The claim group authorises the following people, who are members of the claim group, to be the Applicant for the claim, to make the Application and to deal with all matters arising under the Native Title Act 1993 (Cth) in relation to the Application”. The names of the people there stated were Gregory Fourmile, Henrietta Marrie, Gerald Fourmile, Seith Fourmile, Peter Hyde and Allan Oliver.

132    Resolution 1 was to the effect that the Gimuy Walubara Yidinji People present at the meeting confirmed that they were sufficiently representative of the Gimuy Walubara Yidinji group to make native title decisions including authorising the filing of the native title determination application. That resolution went on to say that the Gimuy Walubara Yidinji People present at the meeting were all descended from one or more of the apical ancestors listed in the proposed claim group description. I do not accept the submission that there was no resolution passed adopting a claim group description for the purpose of the claim.

133    I find that a process of decision-making was agreed to and adopted, for the purposes of s 251B(b).

134    Fifthly, I am not persuaded that the affidavits filed under s 62 are required to state that the deponents are a member of the claim group or otherwise describe the Gimuy Walubara Yidinji People. Each of the affidavits says that the deponent had been authorised by the Gimuy Walubara Yidinji People, referred to the authorisation meeting and to the decisions made at that meeting. For the purposes of this strike-out application, read in their context, the affidavits contain the information and details required by s 62.

135    In light of these findings, and in the alternative, I turn next to consider s 84D. The Court may hear and determine the claim application, despite the defect in authorisation. Relevant to the exercise of the discretion is the nature of the claimed defect in authorisation and the point reached, whether preliminary or advanced, in the claim proceedings. I take into account that the authorisation meeting took place as long ago as 1 November 2012.

136    In Sandy on behalf of the Yugara/Yugarapul People v State of Queensland [2012] FCA 978 at [45]-[48] Reeves J said:

In this case, the Turrbal People have urged me to proceed under s 84D(4)(b) and require the Yugarapul People to conduct a fresh authorisation process for their application. All the other parties have urged me to proceed under s 84D(4)(a) to hear and determine the substantive dispute between these two native title claim groups. For the reasons that follow, I consider the course urged by the Yugarapul People and the other parties to these proceedings is the most just and appropriate course. I have reached this conclusion on the assumption (without deciding) that the Yugarapul People’s application does not comply with s 61 and/or s 251B of the NTA.

…

To require the Yugarapul People to conduct a fresh authorisation process will be expensive and time-consuming. If it were thought to be justified, it would be perverse not to delay these proceedings while it was carried out and the outcome of it determined. But whatever that outcome, that fresh authorisation process will not result in the resolution of the substantive dispute which, it is universally accepted, exists between these two native title groups.

So, the net result of embarking on the s 84D(4)(b) course urged by the Turrbal People will be expense for the Yugarapul People, further delay in these proceedings and no timely resolution of the substantive dispute. As I have noted above (at [45]–[46]), on every aspect, this net result is the direct opposite of the overarching purpose in Pt VB of the Federal Court of Australia Act 1976 (Cth) and the due prosecution/interests of justice factors described in s 84D(4). Further, as I have also noted above, s 84D(4) was introduced to the NTA with the express purpose of overcoming this sort of result. That being so, I consider this case presents the perfect occasion for that section to be put to positive use. That is, to proceed to hear and determine the substantive dispute between these two native title groups without further expense or delay being devoted to the validity of the authorisation process for the Yugarapul People’s claim.

137    No doubt much depends on the circumstances of each case. I accept, as submitted on behalf of the Yirrganydji interlocutory applicants, that the discretion in s 84D(4) is particularly likely to be exercised in cases where a final hearing is imminent and there is no suggestion that that is the present position with the present main application. I also accept, as pointed out by counsel for the State, that the discretion is not available unless the application does not comply with s 61 because it was made by a person or persons who were not authorised by the native title claim group to do so. For that reason, I am proceeding in the alternative.

138    In the present case, I note in particular that it is uncontroversial that the main application exists in a wider region in which many Yidinji landholding groups have successfully achieved determinations of native title.

139    I also note in particular the overlap in the claim areas and that the Gimuy Walubara Yidinji Claim covers areas the subject of claims by other traditional owners.

140    I further note that there is a dispute as to whether persons properly entitled to attend the 1 November 2012 authorisation meeting were entitled to attend but were excluded. The difficulty is that this dispute, more particularly the question of whether those persons are or should be included in the native title claim group, depends upon a further dispute, that is, whether the apical ancestors referred to in Schedule A of the Gimuy Walubara Yidinji Claim are or are not persons named as apical ancestors in other Yidinji native title determinations.

141    In my opinion, given the nature of the claimed defects and my findings in relation to them, these are matters best dealt with at final hearing, assuming any negotiations beforehand fail.

142    I am not persuaded that the Yirrganydji interlocutory applicants or those they represent or any other Yidinji groups would be prejudiced by such a course. So far as prejudice was identified, it seemed to be that claims by the Yirrganydji people in the Cairns Region had been on foot for many years, that the resolution of the overlapping claims had proved very difficult and that therefore progress of other claims in the area had been stalled. Those matters can be addressed at and resolved by a final substantive hearing and do not suggest that the remedy of strike-out or summary dismissal should be deployed on other than an orthodox basis.

143    Pursuant to s 84D(4)(a), having balanced the need for due prosecution of the interlocutory application and the interests of justice, I decide that the Court shall hear and determine the claim application, despite any defect in authorisation.

144    In light of s 84C(2), it is necessary to consider the application made under s 84C(1), which I have done. It is also appropriate, in case there be any doubt that further proceedings may not otherwise take place in relation to the main application, to dismiss that strike-out application. That order would also be an order included in “such other orders” pursuant to s 84D(4)(b).

Costs

145    The question is whether the Court should make an order under s 85A of the Native Title Act displacing the default position that each party to a proceeding must bear his or her own costs. One basis for making such an order is identified in s 85A(2), where the Court is satisfied that a party has, by any unreasonable act or omission, caused another party to incur costs in connection with the institution or conduct of the proceeding.

146    I do not accept the submission on behalf of the Yirrganydji interlocutory applicants that the claim applicant has acted unreasonably and thereby caused the Yirrganydji interlocutory applicants to incur costs in connection with the conduct of the proceeding.

147    Neither am I satisfied that, in the exercise of the discretion conferred by s 85A, there is any other basis for departing from the position that each party must bear their own costs.

Conclusion and orders

148    Pursuant to s 84D(4) of the Native Title Act I dismiss the strike-out application brought under s 84C. In the alternative, I decide that the Court hear and determine the claim application despite any defect in authorisation. I make no order as to costs.

Associate:    

Dated:    27 April 2018