FEDERAL COURT OF AUSTRALIA

Miller v State of South Australia (Far West Coast Sea Claim) (No 2) [2018] FCA 599

ORDERS

THE COURT ORDERS THAT:

1.    The Applicant’s amended interlocutory application filed 10 May 2017 is dismissed.

2.    The Bunna Lawrie Parties’ interlocutory application filed 1 May 2017 is dismissed.

3.    The Court will hear from the parties with respect to the future conduct of the matter.

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

REASONS FOR JUDGMENT

WHITE J:

1    This judgment concerns two interlocutory applications in the native title proceedings known as the Far West Coast Sea Claim.

2    On 5 December 2013, the Court made a determination by consent concerning native title over land on the Far West Coast of South Australia: Far West Coast Native Title Claim v State of South Australia (No 7) [2013] FCA 1285 (the 2013 Determination). The 2013 Determination related to an area of approximately 75,249 square kms extending from the coast north of the town of Streaky Bay to the South Australian-Western Australian border and included the towns of Ceduna, Thevenard, Denial Bay, Smoky Bay, Penong, Fowlers Bay and Coorabie, but excluded the waters on the seaward side of the low water mark.

3    The 2013 Determination recognised the native title of the Far West Coast People, being, principally, those persons who are descendant through birth or adoption of one or more of identified Kokatha, Mirning and Wirangu ancestors or who are descendants by birth or adoption from any other person acknowledged by the native title holders as descendant from a Kokatha, Mirning or Wirangu antecedent who was born on or near the determination area at or around the time of sovereignty.

4    On 9 March 2016, seven persons, Leonard Miller Senior, Oscar Richards Senior, Allan Haseldine, Clem Lawrie, Penong Miller, James Peel and Arthur Catsambalas (collectively “the Applicant”) filed the Far West Coast Sea Claim seeking a determination of the native title of the Far West Coast People over the sea area which abuts the 2013 Determination area. The sea area which is the subject of the claim extends from the low water mark to (generally) the three nautical mile limit, commencing at the prolongation of the Western Australian-South Australian border in the west, and continuing to the easternmost point of Cape Bauer (just northwest of the town of Streaky Bay) in the east.

5    The notification period for the application, pursuant to s 66(8) of the Native Title Act 1993 (Cth) (the NT Act), expired on 18 January 2017.

6    On 15 November 2016, Mr Michael Laing (represented by Campbell Law) filed a Form 5 Notice of Intention to Become a Party to the application.

7    On 16 January 2017, an entity describing itself as the Indigenous Justice Advocacy Network also filed a Form 5 Notice of Intention to Become a Party on behalf of Robert Miller, Robert Lawrie, Dorcas Miller, Meegan Sparrow, Michael Laing, Rose Miller and Bunna Rupert Lawrie who it was said were acting “on behalf of the Mirning People”. For convenience, I will refer to these persons as the “Bunna Lawrie Parties”. As can be seen, Mr Laing was also included as one of the Bunna Lawrie Parties.

8    By reason of s 84(3)(b) of the NT Act, since the filing of the respective Form 5 Notices, Mr Laing and the Bunna Lawrie Parties have been treated as respondents to the Far West Coast Sea Claim. No party suggested that s 84(3)(b) did not entitle them to be so treated.

9    On 1 May 2017, the Applicant filed an interlocutory application seeking, pursuant to s 84(8) of the NT Act, the removal of Mr Laing and the Bunna Lawrie Parties as respondents to the Far West Coast Sea Claim. Later, on 10 May 2017, the Applicant filed an amended interlocutory application seeking, in the alternative, the removal of Mr Laing and the Bunna Lawrie Parties pursuant to r 9.08 of the Federal Court Rules 2011 (Cth) (the FCR).

10    Also on 1 May 2017, the Indigenous Justice Advocacy Network filed an interlocutory application on behalf of the Bunna Lawrie Parties (describing them as the “Indigenous Respondent”) seeking:

(a)    the striking out of the Far West Coast Sea Claim, pursuant to s 84C(1) of the NT Act, on the basis that it had not been properly authorised;

(b)    in the alternative, the dismissal of the proceeding pursuant to o 20 r 2 (later amended to r 26.01) of the FCR.

11    It is the application by the Bunna Lawrie Parties and the amended application of the Applicant which are the subject of the present judgment. The two applications were heard together.

12    I mention that a third interlocutory application was filed on 2 May 2017. This application was filed by Campbell Law on behalf of Mr Laing and sought the summary dismissal or striking out of the Far West Coast Sea Claim. However, it is not necessary to mention that claim further because it was withdrawn by Mr Laing on 28 June 2017.

Some relevant history

13    It is helpful for an understanding of some of the issues to which the interlocutory applications give rise to refer to some of the history concerning the 2013 Determination. Much of that history is recorded in previous decisions of the Court: Far West Coast Native Title Claim v State of South Australia [2011] FCA 24, (2011) 191 FCR 381 at [6]-[12]; Far West Coast Native Title Claim v State of South Australia (No 2) [2012] FCA 733, (2012) 204 FCR 542 at [4]-[11]; Far West Coast Native Title Claim v State of South Australia (No 5) [2013] FCA 717 at [5]-[23]; and in the reasons for the 2013 Determination [2013] FCA 1285 at [2]-[8].

14    In 1998, the Mirning People applied for a determination of native title in respect of an area of land on the Far West Coast of South Australia. At about the same time, another group identified as the Far West Coast People brought a similar claim over an area of land in the same region. There was a significant overlap in the areas which were the subject of these two claims. In addition, there were other claims brought under s 61 of the NT Act on behalf of differently described claim groups which overlapped to some degree the claims of the Mirning People and the Far West Coast People.

15    In May 2004, the Aboriginal Legal Rights Movement Inc (ALRM), which was then the relevant native title representative body for South Australia, and the Native Title Tribunal facilitated an extensive mediation at Spear Creek as a step in what was called the Central West South Australia Mediation Strategy with a view to obtaining a mediated resolution of the extensive overlaps. The mediation was largely successful and contemplated a number of steps being taken to give effect to the agreements reached.

16    Subsequently, the ALRM facilitated a series of meetings of the Mirning People and the Far West Coast People with a view to them considering and, if appropriate, authorising decisions to amend the then Far West Coast People’s application to combine it with the Mirning People’s application. Ultimately, it was agreed at a meeting at the Standpipe Hotel in Port Augusta on 19 and 20 December 2005 that a reconstituted and larger native title group should authorise the amendment of the existing claims to facilitate their combination in the terms of a proposed amended native title determination application. The amended native title determination application was then filed and it was that application which culminated in the 2013 Determination. The native title claim group on whose behalf the claim was made included the people who had previously been separate claimants as the Mirning People and the Far West Coast People.

17    In his reasons for making the 2013 Determination, Mansfield J noted, at [42]-[43], that there are three language groups within the Far West Coast determination area, being Kokatha, Mirning and Wirangu, that members of each of those language groups are constituent members of a single regional society, and that that society holds the communal rights, title and interests in the determination area. Later, at [52], Mansfield J concluded:

The proposed Consent Determination describes, in accordance with the evidence, those persons who are members of the native title holding group. The Court accepts that the description is sufficient to identify the native title holding group and its society, and satisfies the requirements of the [NT Act].

18    The progress of the Far West Coast Native Title Claim was marked by interlocutory activity, much of it seemingly reflecting a concern by some individuals within Mirning People that their interests, or those of the Mirning more generally, were not being properly represented in the processes then taking place and the view, by some, that the Mirning were a separate and distinct society and did not form part of the Far West Coast People. Amongst other things, in 2012, Mr Miller (the first named Bunna Lawrie Party) sought the reinstatement of the Mirning Native Title Claim and its de-consolidation from the Far West Coast Native Title Claim. That application was unsuccessful: Far West Coast Native Title Claim v State of South Australia (No 2) [2012] FCA 733; (2012) 204 FCR 542.

19    South Australian Native Title Services Ltd (SANTS) now has the functions of the representative body for South Australia pursuant to Pt 11 of the NT Act. It represented the Applicant in the Far West Coast Land Claim and now represents the Applicant in the Far West Coast Sea Claim.

The first authorisation meeting

20    The Far West Coast Aboriginal Corporation (FWCAC) is the prescribed body corporate for the determination area pursuant to the 2013 Determination. It was to hold its annual general meeting (AGM) on 14 February 2015 at 9.30 am. The Far West Coast People proposed holding an authorisation meeting for the Sea Claim immediately after the conclusion of the AGM.

21    Either SANTS or FWCAC caused notice of an authorisation meeting to be published in the West Coast Sentinel and the Port Lincoln Times newspapers on 22 January 2015. The written content of the published notice was as follows:

Authorisation meeting for Far West Coast Sea Claim

Far West Coast Aboriginal Corporation and

South Australian Native Title Services

will be facilitating a meeting of native title

holders to follow on from the AGM on the 14

February 2015 commencing 9.30am

at Far West Aboriginal Sporting Complex,

Bergmann Drive, Ceduna SA 5690.

The meeting is held to consider authorisation

of a native title application covering the waters

adjacent to the determined areas shown above.

The extent of the claim seaward of the

low water mark shall be considered during

the meeting.

Please note that no travel or accommodation

assistance is available for the meeting.

For any enquiries contact SANTS on Phone:

(08) 8110 2800. Free call: 1800 010 360.

22    At the top of the notice, above the heading, was a map showing the 2013 Determination area.

23    At the bottom of the notice above the name “Far West Coast Aboriginal Corporation” was another map which is indistinct but which also appears to be a map of the 2013 Determination area.

24    Mr Linde, the solicitor within SANTS with the carriage of the Far West Coast Sea Claim, deposed that personal notices of the AGM of the FWCAC were sent to members of the FWCAC. These included each of the Bunna Lawrie Parties other than Michael Laing. Mr Linde deposed that notice of the FWCAC AGM was not sent to Mr Laing because he is not regarded as a descendant of an apical ancestor of the claim group and accordingly not eligible to be a member of the FWCAC. The personal notices did not include any reference to the authorisation meeting to follow the AGM.

25    Mr Linde deposed (and I accept) that the authorisation meeting (the First Meeting) took place immediately after the conclusion of the FWCAC AGM on 14 February 2015 and that the meeting passed the following resolutions:

Those present at the meeting:

Agree that the ancestors are adequately represented through the family groups in attendance at this meeting. This meeting can make binding decisions about filing a new claim on behalf of the common law holders;

Agree that the process that must be followed in relation to authorising applicants to make the new native title claim over the sea is based on traditional laws and customs and involves consultation with senior elders present before any decision is made. After this traditional consultation process has occurred, those present at the meeting can agree to adopt a decision making process based on a majority vote;

Acknowledge that the process referred to above has been followed and that those elders present at the meeting have been consulted in relation to authorizing applicants to make the sea claim claim [sic] and those present at the meeting agree that the appointment of applicants and other decisions will be by majority vote.

Agree that a new native title claim should be filed over the areas of the sea which are contiguous with the native title determination and which extend from the low water mark out to sea to cover state waters to 3 nautical miles and take in any reefs occurring in this area, together with the islands of St Peters and the Nuyts Archipelago islands including St Francis Island, and that it should be filed on behalf of the common law holders as described in the consent determination and be called Far West Coast Sea Claim;

Agree to appoint [SANTS] to act as legal representative for the new native title claim group;

Authorise Allan Hasseldine [sic], Arthur Catsambalas, Leonard Miller, Clem Lawrie, Vernon (Purnong) Miller, James Peel Senior, and Oscar Richards to make the Far West Coast Sea Claim as applicant on their behalf and to do all things necessary to achieve a native title determination for the native title claim group, including the execution of authorisation affidavits.

26    Of the Bunna Lawrie Parties, only Dorcas Miller attended the First Meeting. She has deposed that she had thought that she was attending the AGM of the FWCAC only and had been unaware that an authorisation meeting was proposed.

27    Each of the Bunna Lawrie Parties has deposed that he or she had not been notified personally of the First Meeting; that he or she had not agreed to any decision concerning the Far West Coast Sea Claim; and that he or she had not authorised any of the seven persons constituting the Applicant to deal with matters concerning the Far West Coast Sea Claim.

The second authorisation meeting

28    Following the filing by the Bunna Lawrie Parties and Mr Laing of the interlocutory applications on 1 and 2 May 2017 respectively, SANTS resolved to convene a further meeting of the Far West Coast Sea Claim Native Title Claim Group and did so on 23 June 2017 (the Second Meeting). SANTS caused notice of the Second Meeting to be placed in the Koori Mail on Wednesday, 17 May 2017 and in both the Port Lincoln Times and the West Coast Sentinel on 25 May 2017 and again on 8 June 2017. In addition, letters giving notice of the proposed meeting were sent to over 1,400 members of the Sea Claim Native Title Claim Group on 19 May 2017 inviting them to attend the Second Meeting.

29    The letter to the Sea Claim Native Title Claim Group members gave notice that the Second Meeting would be held at the Far West Coast Sporting Complex at Ceduna at 11 am on Friday, 23 June 2017. It attached a map of the area covered by the Sea Claim together with a description of that area; gave an outline of the strike out/summary dismissal applications filed in this Court; and referred to the basis upon which the 2013 Determination had been made. The letter included the following explanation of the need for the further meeting:

In the face of opposition from members of the claim group (and Michael Laing), we need to hold this meeting to confirm that the persons who are the Applicant are authorised to make the Far West Coast Sea Claim and deal with all matters arising in relation to it.

This is because the Federal Court imposes very strict rules with how a meeting is notified to members of a native title claim group. We need to ensure that all persons have been notified of the meeting and provided with an opportunity to attend the meeting and be heard about the issues that will be discussed at the meeting. There have been recent Federal Court decisions since the authorisation meeting of February 2015, which have held that a listing of criteria for membership to the claim should be made explicit in the notification of the meeting. We attach the notice for the meeting, which describes the native title claim group in the same way as it appears on the native title claim document that was filed with the Court.

SANTS maintains that the Applicant was duly authorised in February 2015 to make the claim. To be cautious, the holding of a further meeting will put the matter beyond doubt. If this does take place, new affidavits will be obtained from the Applicants and they will be provided to the Court in an application for leave to amend the current application. The persons named above who have filed strike-out applications will then be asked to withdraw/discontinue their applications for strike-out, or risk an order for costs against them personally for maintaining their action.

30    SANTS annexed to the letter another map showing the area which is the subject of the Far West Coast Sea Claim and a notice of the native title claim group meeting. The heading to the notice was as follows:

FAR WEST SEA NATIVE TITLE CLAIM SAD71/2016

NOTICE OF NATIVE TITLE CLAIM GROUP MEETING TO AUTHORISE AMENDMENTS TO THE FORM 1 NATIVE TITLE APPLICATION

The reference in this heading to “amendments” to the native title application gave rise to a submission by the Bunna Lawrie Parties to which I will return later.

31    The notice stated that the meeting on 23 June 2017 was open to “all members of the Native Title Claim Group” and gave a description of that Group which matched the description in Schedule A to the Far West Coast Sea Claim. It continued:

The purpose of the meeting is to ratify and confirm the authority of the Applicant being, James Peel, Clem Lawrie, Arthur Catsambalis [sic], Penong (Vernon) Miller, Oscar Richards Snr, Allan Haseldine and Leonard Miller Snr to make the Far West Coast Sea Claim and deal with all matters arising in relation to it.

32    Sixty five members of the native title group attended the Second Meeting. No point was made by the Bunna Lawrie Parties about the adequacy of this number of attendees as representative of the total number in the Native Title Claim Group. In this respect, see Coyne v State of Western Australia [2009] FCA 533 at [33]-[34] and Wilson v State of South Australia (No 3) [2016] FCA 812 at [66]-[75].

33    A number of resolutions were passed at the Second Meeting. I have numbered these for ease of later reference.

1.    Those present at the meeting confirm that the persons listed as Indigenous Respondents do not represent all Mirning People and it is acknowledged that at least 38 persons today raised their hand to acknowledge that they are Mirning People too. Other Mirning families not represented by the Indigenous Respondents [who] are present today include members of the Lawrie, Peels/Stott, Coleman, Larking, Scott, Richards, Haynes, Haseldine, Scott, Sally Broome family.

Carried unanimously.

2.    Those persons present at the meeting:

a.    agree that the apical ancestors Bingi; Eliza Ellen (Ware); Maggie, mother of Jimmy Scott; Yari Wagon Billy; Koigidi and Anbing; Kulbala; Eva and Pompey; Jinnie (Dunnett); Yabi Dinah; Siblings Nellie Gray, Dhubalgurda Frank Gray and Kwana Teddy Gray; Bobby Wandrooka; Wirangu mother of Jimmy and Arthur Richards; Wirangu mother of Ada Beagle; Tjabilja (Lawrie); Sally Broome; Mark Mirka Kelly; Tommy Munia; Peter and Nellie Tjubedie; Binilya and Kaltyna; Topsy (Miller); Harry Yari Miller, son of Maggie Burilya; Maggie Inyalonga (Miller); Billy Danba (Dunbar) and Topsy; Billy Benbolt and Fanny; Judy (Struthers); Nellie (Betts); Emma (Bilney); Jimmy Blueskin; Jack McCarthy; Eva Nudicurra (Modikari); Marangali Jim Young and Lucy Mundy; Betsy (affinal links to Tjuna family); Siblings, Milaga (affinal links to Tjuna family) and Munjinya; and Toby Ngampija Roberts, son of Moonlight Lightning, and those who were born within the application area and have gained knowledge of the land and waters of the application area in accordance with the traditional laws and customs of the native title claim group or have mythical or ritual knowledge and experience of the application area and have responsibility for the sites and strings of sites within the application area that are associated with the Tjukurpa (Dreaming) are adequately represented through the family groups and individuals in attendance at this meeting.

b.    this meeting can make binding decisions to ratify and confirm that the Applicant is authorised to make the Far West Coast Sea Claim and deal with all matters arising in relation to it;

c.    agree that the process that must be followed in relation to ratifying and confirming the authority of the Applicant to make the Far West Coast Sea Claim is based on traditional laws and customs and involves consultation with senior elders present before any decision is made. After this traditional consultation process has occurred, those present at the meeting can agree to adopt a decision making process based on a majority vote;

d.    acknowledge that the process referred to above has been followed and that those elders present at the meeting have been consulted in relation to ratifying and confirming the authority of the Applicant to make the Far West Coast Sea Claim and those present at the meeting agree that the ratification and confirmation of the Authority of the Applicant and other decisions will be by majority vote.

Carried: Unanimously

3.    Those present at the meeting:

a.    ratify and Confirm that Alan Haseldine, Arthur Catsambalas, Leonard Miller Senior, Clem Lawrie, James Peel Senior, Oscar Richards Senior and Vernon (Penong) Miller were properly authorised as the Applicant to make the Far West Coast Sea Claim and deal with all matters arising in relation to it at the meeting of the native title claim group held at the Far West Coast Sporting Complex on 14 February 2015;

b.    authorise Alan Haseldine, Arthur Catsambalas, Leonard Miller Senior, Clem Lawrie, James Peel Senior, Oscar Richards Senior and Vernon (Penong) Miller as the Applicant to make the Far West Coast Sea Claim and deal with all matters arising in relation to it;

c.    direct that SANTS obtain fresh authorisation affidavits from each of the Applicants and file such authorisation affidavits if required to prevent a strike out or dismissal of the Far West Coast Sea Claim;

d.    direct SANTS to prepare any required Court documents to amend the Form 1 native title application to reflect these decisions if so required by the Court to prevent a strike out or dismissal of the Far West Coast Sea Claim;

e.    direct SANTS to prepare any required Court documents to remove Rupert Bunna Lawrie, Dorcas Miller, Robert Lawrie, Michael Laing, Rose Miller, Meegan Sparrow and Robert Victor Miller (Indigenous Respondents) as parties to the Far West Coast Sea Claim.

Carried: Unanimously.

4.    The 38 Mirning persons in attendance at the meeting confirm that the Indigenous Respondents have no authority to decide who, and who is not, a Mirning person, or authority to banish and remove their Mirning identity

Carried: Unanimously

5.    Those present at this meeting support the 38 Mirning persons in attendance at this meeting in their motion that [the] Indigenous Respondents have no authority to decide who, and who is not, a Mirning person, or authority to banish and remove their Mirning identity

Carried: Unanimously

6.    Those present at the meeting declare that no member of the Far West Coast Sea Claim has the right to deny another member’s cultural identity as a Wirangu, Kokatha, Mirning, Roberts, Yalata, or Maralinga Tjarutja person, unless such denial is supported by a majority of the individuals comprising that cultural group in attendance at any relevant meeting where such denial is being discussed

Carried: Unanimously

The summary dismissal/strike out application

34    As noted earlier, the Bunna Lawrie Parties seek the striking out or summary dismissal of the Far West Coast Sea Claim pursuant to s 84C of the NT Act and r 26.01 of the FCR.

35    Section 84C(1) provides:

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.

36    Rule 26.01(1) of the FCR provides:

26.01    Summary judgment

(1)    A party may apply to the Court for an order that judgment be given against another party because:

(a)    the applicant has no reasonable prospect of successfully prosecuting the proceeding or part of the proceeding; or

(b)    the proceeding is frivolous or vexatious; or

(c)    no reasonable cause of action is disclosed; or

(d)    the proceeding is an abuse of the process of the Court; or

(e)    the respondent has no reasonable prospect of successfully defending the proceeding or part of the proceeding.

37    Section 61 of the NT Act provides that a native title determination application may be brought 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 interests comprising the particular native title claim, provided the person or persons are also included in the native title claim group …” (emphasis added).

38    The authority of those bringing applications for the determination of native title is of “central importance” to the conduct of applications and to the exercise of the rights which follow from their registration: Daniel v State of Western Australia [2002] FCA 1147; (2002) 194 ALR 278 at [11].

39    Section 251B of the NT Act governs the manner in which a native title determination application may be authorised:

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.

40    As can be seen, there are two alternative means by which an application may be authorised, depending on whether there is a process of decision-making under the traditional laws and customs of the claim group. Section 251B(a) requires that an authorisation be given by the process of decision-making available under the traditional laws and customs of the claim group for the making of such decisions. It is only when there is no such process that the persons in the claim group may adopt an alternative process of decision-making for the authorisation of the bringing of the application. Whether the native title claim group proceeds under s 251B(a) or (b) the authorisation which ensues must be that of the whole claim group: Burragubba on behalf of the Wangan and Jagalingou People v State of Queensland [2017] FCA 373 at [22] and see the authorities therein cited.

41    A number of decisions of this Court have emphasised the importance of all members of a claim group having the opportunity to participate in the process by which the bringing of an application for the determination of native title or the replacement of an applicant is authorised. These include Ward v Northern Territory [2002] FCA 171 at [24]-[25]; Lawson on behalf of the “Pooncarie” Barkandji (Paakantyi) People v Minister for Land and Water Conservation for the State of New South Wales [2002] FCA 1517 at [25]; Bolton on behalf of the Southern Noongar Families v State of Western Australia [2004] FCA 760 at [45]-[46]; Werribone on behalf of the Mandandanji People v State of Queensland [2013] FCA 255 at [38]-[41]; Burragubba at [29]-[32]; and Booth on behalf of the Kungardutyi Punthamara People v State of Queensland [2017] FCA 638 at [28]-[31].

42    It is sufficient for present purposes to refer to the following passages in the judgment of Reeves J in Burragubba:

[29]    In order for resolution 12, or indeed any of the resolutions passed at the 19 March meeting, to be effective for the purpose of s 66B(1)(a)(iii) (condition 3), or s 66B(1)(b) (condition 5), that meeting must have been a validly convened and properly conducted meeting of the W & J claim group for the purposes of s 251B of the NTA. ...

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

… The notice must be sufficient to enable the persons to whom it is addressed, namely members or potential members of the native title claim group, to judge for themselves whether to attend the meeting and vote for or against a proposal or whether to leave the matter to be determined by the majority who do attend and vote at the meeting. …

… the proponent must give fair notice of the business to be dealt with at the meeting to all members of the claim group. The notice must be such as will fully inform the persons entitled to attend the meeting, so that they can make an informed decision whether or not to be present.

[31]    It is also important to note that, while the authorisation that ensues from an authorisation meeting conducted for the purposes of s 251B must be that of the whole of the claim group concerned (see the authorities cited at [22] above), it is not necessary that the notice of the meeting must result in all the members of the claim group attending the meeting. Rather, it is necessary that all the members be offered a reasonable opportunity to decide whether to attend … The primary purpose of the notice of an authorisation meeting for the purposes of ss 251B and 66B of the NTA, therefore, is to result in a resolution concerning the authorisation of the applicant – whether that be the original authorisation prior to the filing of a native title determination application, or a subsequent replacement authorisation under s 66B – that is both fairly representative of the views of the whole of the native title claim group on that authorisation issue and that constitutes the informed consent, or vote, of those present at the meeting … .

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

(Citations omitted and emphasis added)

43    The principles relating to the application of s 84C(1) in the present context are settled: see Williams v Grant [2004] FCAFC 178; Bodney v Bropho [2004] FCAFC 226, (2004) 140 FCR 77; Landers v South Australia [2003] FCA 264, (2003) 128 FCR 495. Those which are pertinent presently can be summarised as follows:

(a)    section 84C is concerned with matters of form and authority and not with the merits of the underlying application for determination of native title, Bodney at [33];

(b)    a strike out application under s 84C should be approached in the same way as a strike out application under r 26.01, Bodney at [50], Landers at [7];

(c)    the application should be approached with caution and allowed only when a clear case for summary dismissal is established, Bodney at [51], Williams at [48]-[49]. In Kite v State of South Australia [2007] FCA 1662, Finn J said at [24] that “the Court’s power should be exercised only where the claim as expressed is untenable upon the version of the evidence favourable to the respondent to the strike out”;

(d)    it is not for the Applicant to show that it was authorised: instead it is for those seeking to have the application struck out to establish a clear case of lack of authorisation, Bodney at [27];

(e)    the Court may receive evidence relating to the circumstances relied on for the strike out, Bodney at [52];

(f)    if the evidence establishes unequivocally that an applicant has not been authorised by the native title claim group, then summary dismissal of the application for non-compliance with s 61 may be justified, Bodney at [52].

44    In the present case, the Bunna Lawrie Parties contended that the Far West Coast Sea Claim did not comply with s 61 because it had not been properly authorised (thereby invoking s 84C) and that, in any event, it had no reasonable prospects of success (thereby invoking r 26.01). They contended first that the claim had not been properly authorised because the notice given of the First Meeting at which the Native Title Claim Group had purported to authorise the application lacked sufficient detail and, in any event, had been insufficiently circulated, so as to provide all members of the group with a reasonable opportunity in which to decide whether to attend the meeting, and, secondly, that the authorisation given by one person, Ms April Lawrie, had been ineffective because she could not, under Mirning law and customs, provide such an authority. The third contention of the Bunna Lawrie Parties was that, quite apart from matters bearing on the proper authorisation of the Applicant, the Far West Coast Sea Claim had no reasonable prospect of success, and should on that account be dismissed. This was so, it was submitted, because the people on whose behalf the Far West Coast Sea Claim is brought are not an identifiable claim group which is capable of obtaining a determination of native title.

The adequacy of the content of the notice of the First Meeting

45    The first of these contentions requires consideration of the means of notification of the First Meeting.

46    The Far West Coast Sea Claim application included a certification by SANTS pursuant to s 203BE(1)(a) of the NT Act. The certification included the following:

5.    … SANTS is of the opinion that the requirements of section 203BE(2)(a) and (b) have been met, namely, that:

a.    all the persons in the native title claim groups have authorised the applicant to make the application and to deal with matter[s] arising in relation to it.

b.    all reasonable efforts have been made to ensure that the application describes or otherwise identifies all other persons in the native title claim group.

6.    SANTS’s reasons for being of this opinion are:

7.    SANTS has worked extensively with the native title claim group since before and after their original native title claims were filed in the Federal Court; throughout the process of combining and continuing the claims into a single application Far West Coast Peoples Native Title Claim (SAD6008/1998); certified previously the authorisation of Applicants to make the combined Far West Coast Peoples Native Title Claim; and represented them throughout the process leading to the determination made in respect of SAD6008/1998 on 5 December 2013. The native title claim group for the Far West Coast Sea Claim is the same native title group that was recognised in the determination.

8.    On Saturday 14 February 2015, Far West Coast Aboriginal Corporation and [SANTS] facilitated a meeting of the native title claim group for the purpose of considering the authorisation of an Applicant/s to make the Far West Coast Sea Claim and deal with all matters arising in relation to it.

9.    …

10.    The meeting held on 14 February 2015 was well attended by members of the native title claim groups and approximately 100 claim group members attended the meeting.

47    The certificate then set out the resolutions passed at the meeting of 14 February 2015.

48    Each of the seven persons comprising the Applicant made affidavits which are attached to the application affirming that they were authorised at the meeting on 14 February 2015 to make the application and to deal with matters arising in relation to it, and that the process by which they were authorised was agreed to and adopted by the native title group at that same meeting.

49    The Bunna Lawrie Parties submitted that the notice of the 14 February 2015 meeting was deficient in the following respects:

(a)    it referred to there being a meeting of “native title holders” without identifying who those persons were;

(b)    it did not identify the area, whether sea or land, in which the persons held native title;

(c)    the notice that the meeting was to “follow on” from the AGM meant that there was insufficient precision as to the commencement time of the meeting; and

(d)    the notice said only that the meeting was being held “to consider” authorisation of a native title application, which implied only that there would be some discussion concerning an authorisation when what was required was notice of the proposed resolutions to be considered by the meeting.

50    The adequacy of the notice given of the meeting is to be assessed objectively but taking into account any particular meaning which, considered in context, it may have conveyed to its recipients. On that basis, I consider that the second and third matters raised by the Bunna Lawrie Parties lack merit. The ordinary reasonable reader of the notice would have understood it to convey that notice was being given of a meeting to begin immediately after the AGM of the FWCAC which was to commence at 9.30 am on 14 February 2015. They would not have thought that the AGM was to be a protracted affair. The fact that there was necessarily some uncertainty about the length of the AGM does not mean that readers of the notice would not understand when the meeting was to commence and when they had to be present if they wished to participate.

51    The ordinary reasonable reader of the notice would also have understood that the proposed native claim related to the area of the sea immediately adjacent to the area over which the native title determination had already been obtained. That the notice referred to a claim over the sea and not the land is evident in the heading, which referred to the Far West Coast Sea Claim, in the statement that the proposed application would cover “the waters adjacent to the determined area shown above”, and in the statement that the extent of the claim seaward of the low water mark would be considered during the meeting. In addition, the ordinary reasonable reader would have understood the map at the top of the notice to show the area over which the determination of native title had been made.

52    I also consider that an ordinary reasonable reader of the notice would have understood that the subject matter of the meeting which was to follow the AGM was the authorisation of persons to bring a native title claim over the waters adjacent to the area covered by the 2013 Determination. Such a reader would have gained this understanding from the heading to the notice “Authorisation meeting for Far West Coast Sea Claim” as well as from the passage in the notice to which counsel referred. In my opinion, while it may have been both prudent and desirable for the notice to have given, at least in summary form, further detail of the proposed resolutions, the notice given was sufficient to enable recipients to determine whether they wished to participate in the decision about the bringing of the sea claim.

53    However, there is more substance in the Bunna Lawrie Parties’ first point, namely, the lack of adequate description of the “native title holders”.

54    In my opinion, the term “native title holders” was insufficient to identify appropriately those who would be eligible to attend the meeting. The present circumstances are similar to those considered by French J in Bolton on behalf of the Southern Noongar Families and by Rares J in TJ (on behalf of the Yindjibarndi People) v State of Western Australia [2015] FCA 818. In Bolton, French J said:

[45]    [T]he evidence and the processes adopted were not adequate to meet the conditions necessary for an order under s 66B. For each of the applications there is a defined native title claim group which is set out earlier in these reasons. The connection between those who attended the various meetings referred to and the respective native title claim groups was not established either in respect of notification nor, more importantly, in respect of attendance. The native title claim groups are defined in each case by reference to apical ancestors and biological descendants of those persons and persons adopted by them. The advertisements and notices did not refer to the relevant native title claim groups except by use of the generic title of the applications in question. The membership of the native title claim group by those who attended each meeting was not demonstrated. …

55    In TJ (on behalf of the Yindjibarndi People), Rares J held that:

[80]    [T]he description in the notice “Yindjibarndi#1 native title claim group members” did not convey any criterion by which a person could identify whether he or she was a member of that group and, in particular, whether he or she was a descendant of any of the 31 apical ancestors by which the claim group was identified. …

56    I am not overlooking that some meaning to the expression “native title holders” in the notification was given by the reference in the heading to the “Far West Coast Sea Claim” and by the circumstance that the notice was given by both SANTS and the FWCAC. Those matters, together with the inclusion of the maps in the notice, would have served to inform some (perhaps many) of the contemplated native title claim group. However, I consider that, even taking these matters into account, the notification was not sufficient to enable each reader of it to form a conclusion as to whether he or she was eligible to attend and to participate in the meeting.

The adequacy of the circulation of the notices

57    The Bunna Lawrie Parties submitted that the single publication of the meeting in the Port Lincoln Times and the West Coast Sentinel newspapers on 22 January 2015 was insufficient to give proper notice of the First Meeting. The Court was not provided with any evidence concerning the circulation areas or circulation numbers of those two newspapers but I consider it appropriate to take judicial notice of the fact that the Port Lincoln Times newspaper, although centred on Port Lincoln, has a circulation over a large area of Eyre Peninsula and that the West Coast Sentinel, although centred on Ceduna, has a circulation over an area in the western region of Eyre Peninsula and in particular over much of the land adjacent to the Sea Claim. This being so, it is reasonable to infer that the notice may have come to the attention of many in the proposed claim group. That is especially so given the finding by Mansfield J in his reasons for the Far West Coast Native Title Determination, Mansfield J said, at [79]:

The Far West Coast claim is unique in South Australia for the high number of native title holders who actually live on the Determination Area. It has been estimated by Dr Palmer and SANTS that there are in the vicinity of 2000 members of the native title holding group currently living on the Determination Area.

58    In the certificate annexed to the Far West Coast Sea Claim, SANTS certified, pursuant to s 203BE(1)(a) of the NT Act, that notice of the meeting on 14 February 2015 had been provided “through community advertising, newspaper notices and letters sent to members of the native title claim group”. However, in his affidavit of 2 June 2017, Mr Linde deposed only to the notifications published in the West Coast Sentinel and the Port Lincoln Times. He deposed that the personal notices which had been circulated had concerned only the AGM of the FWCAC. That notice would not have served to put its recipients on notice of the authorisation meeting to follow. As already noted, each of the Bunna Lawrie Parties deposed that he or she had not received personal notice of the meeting.

59    There was no notification of the First Meeting published in the Koori Mail.

60    I consider that the publication of the notice of the meeting only in the Port Lincoln Times and the West Coast Sentinel was insufficient to bring the holding of the meeting to the attention of all of those who may be eligible to attend. Despite the large numbers of native title claim group members who live on the Determination Area adjacent to the area of the Sea Claim, it is reasonable to suppose that there would be many living outside that area. Counsel for the Bunna Lawrie drew attention to the fact that the addresses of six of her clients shown on the affidavits which they made in 2017 were at places located away from Eyre Peninsula. The evidence does not disclose whether these were also their addresses in 2015, but I am willing to take into account that this constitutes some evidence that members of the claim group live in places other than on Eyre Peninsula. That is in any event consistent with this Court’s experience more generally concerning the location of native title claim group members.

61    In these circumstances, it is not difficult to conclude that notices published in the Port Lincoln Times and in the West Coast Sentinel are likely not to have come to the attention of claim group members who did not reside on Eyre Peninsula. That being so, the Court cannot be satisfied that all members of the native title claim group were provided with a reasonable opportunity to decide whether to attend and participate in the First Meeting.

62    These two matters by themselves warrant a finding that the authority given to the Applicant at the First Meeting was not sufficient to satisfy the requirements of s 61(1) of the NT Act.

April Lawrie

63    The third ground by which the Bunna Lawrie Parties impugned the authority given at the First Meeting concerned the ability of Ms April Lawrie to participate in the decision-making. For the reasons which follow, I consider that this ground involves some misconceptions by the Bunna Lawrie Parties concerning the nature of Ms Lawrie’s participation.

64    The affidavits filed by the Bunna Lawrie Parties indicate their belief that the area of the Far West Coast Sea Claim is Mirning country (and only Mirning country). They believe that only the Mirning People can bring a claim for the determination of native title over the area of the Sea Claim. The Bunna Lawrie Parties noted that Ms April Lawrie is one of the persons shown as having authorised the bringing of the Far West Coast Sea Claim at the First Meeting. They seem to have assumed that Ms Lawrie did so on behalf of the Mirning People.

65    Several of the Bunna Lawrie Parties deposed to Ms April Lawrie and to Mr Clem Lawrie being no longer recognised as Mirning People because they were “disowned and banished” by a meeting of Mirning Elders on 21 November 2013.

66    The Applicant has filed an affidavit from Ms April Lawrie in which, amongst other things, Ms Lawrie deposed to her ancestry and refuted the statements made by the Bunna Lawrie Parties:

[18]    I refer to various statements in affidavits filed by the [Bunna Lawrie Parties] to the effect that I am no longer Mirning and that I have been “banished” from the Mirning People. I refute these allegations. My Mirning heritage comes through descent from my Mirning apical ancestor. I identify as a Mirning person, and I am accepted by all other Mirning People and being Mirning. I also resent the false and unfounded assertions that I have adopted Western Desert laws and customs, and abandoned my Mirning laws and customs.

67    On my understanding, the Bunna Lawrie Parties do not dispute Ms April Lawrie’s ancestry: their assertion is that she lost her status as a member of the Mirning People by reason of the decision of certain Mirning Elders in November 2013.

68    It is not possible for the Court on an application of the present kind to determine the effect of the resolution in November 2013 on which the Bunna Lawrie Parties rely. It is also unnecessary to do so. On Ms Lawrie’s description of her ancestry, which the Bunna Lawrie Parties do not dispute, she falls within Part A of the description of the native title group. Whether or not Ms Lawrie was entitled to speak on behalf of the Mirning People at the First Meeting does not alter that circumstance. The resolution of 21 November 2013 could not alter these historical facts.

69    I conclude that the involvement of Ms Lawrie in the First Meeting is not a matter which invalidates the authority given to the Applicant at that meeting.

70    Further, and contrary to the submission of the Bunna Lawrie Parties, the compliance or otherwise by the Native Title Claim Group with s 251B of the NT Act did not depend on compliance with the traditional laws and customs for authorisation of the Mirning People. The traditional laws and customs of one subgroup did not bind the members of the Far West Coast People as a whole.

The Second Meeting

71    The Bunna Lawrie Parties submitted that the Second Meeting did not “cure the defect” in the First Meeting, for three reasons:

(a)    a subsequent meeting cannot provide retrospective authorisation for a native title application, at least in the absence of evidence that those present at the later meeting had also been present at the first;

(b)    in any event, the evidence did not support the contention that the bringing of the application had been authorised at the Second Meeting; and

(c)    further, there was no authority from the Mirning People in accordance with their traditional laws and customs and, accordingly, the requirements of s 251B(a) were not satisfied.

72    The third of these submissions fails for the same reasons as did the corresponding submission in relation to the First Meeting.

73    The second of these contentions can also be addressed quite shortly. Mr Linde annexed to his affidavit of 26 June 2017 a list of the 65 claim group members who had attended the Second Meeting. He annexed to his affidavit of 1 September 2017 the claim authorisation forms completed by each of those attendees, as well as a set of the minutes of the meeting. Contrary to the submission of the Bunna Lawrie Parties, these documents do provide adequate evidence of the authority granted to the Applicant at the Second Meeting.

74    I mention two further matters raised by the Bunna Lawrie Parties. The first is that the heading to the published and circulated notice of the Second Meeting indicated that its purpose was to authorise “amendments” to the Form 1 Native Title Application. The Bunna Lawrie Parties submitted that amendment to the filed Far West Coast Sea Claim was not the intended purpose of the Second Meeting at all, evidenced by the fact that no resolution for amendment of the Sea Claim was even considered at the Meeting. Their submission was that this heading may have misled members of the Native Title Claim Group as to the true nature of the business to be addressed at the Second Meeting.

75    If there had been no further statement of the purpose of the Second Meeting, this submission may have had some force. However, the notice did go on in its penultimate paragraph to describe the purpose of the meeting more fully (and accurately). The terms of that statement have been set out earlier in these reasons, at [31]. It is improbable, in my opinion, that there would have been persons with an interest in the Far West Coast Sea Claim who would have read only the heading. Those reading the notice because of interest in the subject matter and who had an appreciation of the possible significance of amendments are likely, in my view, to have read the whole of the notice. They would have seen the express statement of purpose in the penultimate paragraph. Accordingly any tendency of the heading to mislead is likely to have been negated by the later express statement of the meeting’s purpose. Moreover, at least 1,400 members of the Native Title Claim Group had received the letter from SANTS which did describe accurately the purpose of the Second Meeting. I do not regard this shortcoming in the notice of the Second Meeting as affecting the validity of the authority it gave to the Applicant.

76    The second matter is that Dorcas Miller disputed that her sister Elma Lawrie, who is listed as one of the attendees, was at the Second Meeting. However, the matters upon which she relied in her affidavit for that claim were of a hearsay kind. I am disinclined presently to attach much weight to that evidence, given the express evidence to the contrary.

77    The question of whether retrospective ratification of the authorisation of an applicant to bring a native title determination application, at least after the application has been made, is more difficult.

78    One aspect of this question was considered by McKerracher J in Velickovic v State of Western Australia [2012] FCA 782 in which the issue was whether one claim group could by a process of ratification adopt the authority given earlier by a different set of people. McKerracher J held at [37]:

… A different set of people cannot reauthorise a claim brought on behalf of another set of people. What is required is a fresh claim. While the [NT Act] does make provision for amendment of claims which includes an amendment to the claim group or to the applicant, the difficulty is in a different group of people seeking to amend a claim originally brought on behalf of another group. The [NT Act] provides for amendment of a claim and amongst other things to the claim group itself. There could, in theory, be many reasons for such amendment – a particular person may have been overlooked, or another may have died or someone may have been mistakenly included. There might be a description of a group which requires better specificity than was originally used. But in this case when there is no evidence of any authorisation at all and when it is accepted that there was never any proper authorisation the position is different. There can not be some process of ratification or re-authorisation to ratify or confirm an authorisation which never occurred at all. There can not be as Widji describe it a ‘re-authorisation’ when the group said to be doing the authorising is differently constituted from the group who supposedly authorised the representative applicants in the first place (and there is no evidence of that original authorisation process, traditional or otherwise, in any case).

79    The NT Act does not provide for any express power of ratification. Further, there are several indications that the required authority for a s 61 application must exist at the time the application is made. Thus, as already noted, s 61(1) provides that an application may be made by a person or persons “authorised” by all persons in the native title claim group. Section 61(2) provides in relation to a native title determination application made by a person or persons “authorised” to make the application that that person or those persons are jointly “the applicant”, and none of the other members of the native title claim group is the applicant. Section 61(4) provides that an “authorised” application must either name the persons in the native title claim group or otherwise describe them sufficiently so that it can be ascertained whether any particular person is one of the persons on whose behalf the claim is brought.

80    Further, s 62 imposes certain requirements in respect of a “claimant application”. That term is defined in s 253 to mean:

A native title determination application that a native title claim group has authorised to be made, and, unless the contrary intention appears, includes such an application that has been amended.

(Emphasis added)

Section 62(1) requires that a claimant application be accompanied by an affidavit sworn by the applicant 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 (subpara (a)(iv)) and 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 (subpara (a)(v)).

81    The use of the past tense in “authorised” in these provisions implies an existing authority only.

82    There are other aspects of the scheme for which the NT Act provides which seem inconsistent with the notion that the authority for the bringing of an application may be provided by a process of ratification after the application has been made. The importance of an application being properly authorised is emphasised by the requirement that the Court consider any strike out application for non-compliance with s 61 before any further proceedings take place in relation to the main application. The power vested in the Court by s 84D(1) to require an applicant to produce evidence of his or her authority is another indication.

83    Counsel for the Applicant submitted that a power of retrospective ratification of a decision made at an earlier authorisation meeting should be found by analogy with the power of shareholders in a company to ratify retrospectively the actions of the company’s directors. She relied on Kinsela v Russell Kinsela Pty Ltd (in liq) (1986) 4 NSWLR 722 in which Street CJ said at 730:

In a solvent company the proprietary interests of the shareholders entitle them as a general body to be regarded at the company when questions of the duty of directors arise. If, as a general body, they authorise or ratify a particular action of the directors, there can be no challenge to the validity of what the directors have done.

84    In my view, the analogy with the position of shareholders is of limited assistance presently. The members of a native title claim group are not the subject of a set of rules regulating their affairs similar to those contained in a company’s articles and, in any event, the question in the present case arises under the provisions of the NT Act, and not the common law, and so is a question of statutory construction.

85    In my opinion, the NT Act does not contemplate that a native title claim group may, after the application has been made, validate by ratification an invalid authority given to an applicant. The question of whether an application has been properly authorised is to be considered by reference to the state of affairs which existed at the time the application was made. This means in the present case that the resolution of the claim group at the Second Meeting that the individual applicants had been properly authorised at the First Meeting to make the Far West Coast Sea Claim was ineffective. The claim group could, however, grant authority to the Applicant with prospective effect and, as will be seen, a subsequent ratification may be relevant to the exercise of the Court’s discretion under s 84D.

An identifiable claim group

86    By their contention that the native title claim group was not a society capable of being granted native title, the Bunna Lawrie Parties sought the summary dismissal of the Far West Coast Sea Claim pursuant to r 26.01 of the FCR. The elements of their submission were as follows:

(a)    the Far West Coast Sea Claim Group does not satisfy the description of a society capable of having native title which was given by Brennan J in Mabo v State of Queensland (No 2) (1992) 175 CLR 1 at 61:

[S]o long as the people remain as an identifiable community, the members of whom are identified by one another as members of that community living under its laws and customs, the communal native title survives to be enjoyed by the members according to the rights and interests to which they are respectively entitled under the traditionally based laws and customs, as currently acknowledged and observed.

(b)    the asserted society of Far West Coast People did not exist at sovereignty;

(c)    the Mirning People do continue as one society and they do not identify as part of any larger society such as the Far West Coast People;

(d)    it is the Mirning People who have authority over the area of the sea which is the subject of the Far West Coast Sea Claim and only they can bring a claim over the waters within the claim area; and

(e)    none of the people comprising the claim group are recognised by the Bunna Lawrie Parties as Mirning.

87    This contention of the Bunna Lawrie Parties faces a fundamental difficulty. That is that the 2013 Determination proceeded on the accepted basis that the Far West Coast People do exist as a society having native title. I referred earlier to the express finding by Mansfield J to that effect. That fact by itself means that it could not properly be held now that the Applicant has no reasonable prospects of showing the existence of such a society which is capable of holding native title. The fact that the area which is the subject of the Far West Coast Sea Claim is immediately adjacent to the area of land which was the subject of the 2013 Determination is a further indication of the difficulty which the Bunna Lawrie Parties have in establishing the demanding threshold for the summary dismissal of the application pursuant to r 26.01 of the FCR. Section 84C(1) does not avail the Bunna Lawrie Parties on this ground because, as noted earlier, it is concerned with matters of form and not substance.

Is strike out/summary dismissal appropriate?

88    The striking out of the entire application pursuant to r 26.01 of the FCR for the reason advanced by the Bunna Lawrie Parties is not warranted. The position under s 84C is more complex.

89    I consider that the Applicant was not authorised at the First Meeting to bring the Far West Coast Sea Claim and that the lack of authorisation could not be cured by the ratification resolutions at the Second Meeting. The question is whether the Court should give effect to those findings by striking out the Far West Coast Sea Claim.

90    The NT Act does not oblige the Court to strike out an application which is found to be non-compliant with s 61, although that may be the usual consequence of such a finding. The power vested by s 84C(1) is discretionary. Section 84D(3) and (4) are pertinent in this context:

(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.

…

(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.

91    The effect of these provisions is that, in circumstances like the present, the Court may decline to strike the application out and proceed to hear and determine it, having regard to the need for due prosecution of the application and the interests of justice. The Applicant submitted that, in the event that the Court found non-compliance with s 61 which had not been redressed by the resolutions of the Second Meeting, the Court should exercise the power pursuant to s 84D(4) in the present case.

92    The manner in which s 84D(4) is expressed suggests that the Court should have particular regard to matters indicating that it would be appropriate to proceed to hear and determine the application despite the identified defects in its authorisation. That is to say, the power may be exercised to secure due prosecution of the application and to serve the interests of justice: Starkey v South Australia [2011] FCA 456; (2011) 193 FCR 450 at [64]. This impression is confirmed by the passage in the Explanatory Memorandum to the Native Title Amendment (Technical Amendments) Bill 2007 (Cth) circulated by the Attorney-General in relation to the then proposed s 84D(4):

[1.285]    … Subsection 84D(4) provides that the Court may, after balancing the need for due prosecution of the application and the interests of justice, hear and determine the application, even where the claim is not properly authorised. While the requirements for an application to be properly authorised and for the applicant to be authorised by the claim group to deal with matters arising in relation to the application are very important, there may be circumstances in which the Court considers that it would be in the interests of justice to continue to hear and determine the application.

[1.286]    Determining whether it is in the interests of justice for the Court to hear and determine an application despite a defect in authorisation will be a matter for the Court to consider in the particular circumstances of the case. Relevant factors may include the nature of the defect in authorisation, whether the applicant is now authorised to deal with matters arising in relation to the application and whether the application has progressed to trial or mediation, or is still at the preliminary stages.

93    Section 84D has been considered in a number of decisions of the Court, including Akiba v Queensland [2010] FCA 643, (2010) 204 FCR 1 at [913]-[918]; Ashwin on behalf of the Wuth People v State of Western Australia (No 2) [2010] FCA 1472, (2010) 191 FCR 549 at [21]; and Sandy on behalf of the Yugara/Yugarapul People v State of Queensland [2012] FCA 978 at [44]-[46]. Those decisions indicate that the matters which may be relevant to the exercise of the discretion under s 84D(4) may include the expense and inconvenience likely to be suffered by the party if the application is struck out and the applicant required to commence the process of bringing the application afresh; the public interest in litigation in the Court being conducted justly and as quickly, inexpensively and efficiently as possible; and the potential for delay in the determination of the existence or otherwise of the claimed native title rights. It may accepted that the desirability of the Court being seen to encourage proper compliance by prospective claimants with the requirements of the NT Act is also a relevant consideration.

94    In the present case, the defect is of a substantive and not merely technical kind, in that the published notices of the First Meeting did not identify who would be eligible to attend and participate in the authorisation meeting, and did not give notice to all persons eligible to participate in that decision. Those circumstances considered by themselves point to the appropriateness of striking out the application. In addition, the Far West Coast Sea Claim is still in its preliminary stages, so that the wastage of expenditure and resources may not be so great as would be the case if the application was well advanced.

95    Counsel for the Applicant emphasised, however, that in addition to the Second Meeting having ratified and confirmed the authority of the individual applicants to make the Far West Coast Sea Claim, it had by Resolution 3(b) set out earlier in these reasons, given a fresh authority to the same individuals to make the Far West Coast Sea Claim and to deal with all matters arising in relation to it. This meant, she submitted, that the Court could be satisfied that the claim has since 23 June 2017 been properly authorised so that there is little to be gained by striking out the application. In this respect, counsel emphasised the extensive notice given of the Second Meeting and the explicit authority it had given to the Applicant. Counsel also emphasised that, if the Far West Coast Sea Claim is struck out, it will be necessary for the Far West Coast People to start all over again, thereby suffering the lapse of time associated with the registration process contemplated by s 66 of the NT Act as well as incurring expense in doing so. Counsel also referred to the saving of the incurring of unnecessary expense by the Court, the National Native Title Tribunal, and the parties themselves.

96    In these circumstances, counsel submitted that there was little to be gained, and much to be lost, by the striking out of the Far West Coast Sea Claim.

97    In my opinion, these submissions have much force. A number of matters in particular indicate that a proper exercise of the power under s 84D(4) is to proceed to hear and determine the application and not to strike it out. I take into account in particular that the Second Meeting not only confirmed the authorisation of the Applicant thought to have been given at the First Meeting, it authorised separately the Applicant to make the application. The holding of the Second Meeting was well notified. The Court can be satisfied all members of the native title claim group were given a reasonable opportunity to attend, or at least to make a decision about whether to attend and to participate in the process of decision-making. It is apparent that, whether the present application is struck out or not, the Far West Coast Sea Claim will be pursued. That being so, the striking out of the claim will result in delay in the prosecution of that claim and in the incurring of additional expense.

98    In these circumstances, I am satisfied that it is appropriate for the Court to decide to hear and determine the Far West Coast Sea Claim, despite the defects in its original authorisation.

Conclusion on strike out/summary judgment application

99    In summary, although I consider that the Bunna Lawrie Parties have established that the Far West Coast Sea Claim was not properly authorised, I decline, in the exercise of the power pursuant to s 84D(4), to strike it out. I do so having particular regard to the ratification and confirmation of the authority of the Applicant which occurred on 23 June 2017. The Court will proceed to hear and determine the claim.

The Applicant’s removal application

100    The conclusion that the Far West Coast Sea Claim should not be struck out makes it necessary to determine the Applicant’s amended interlocutory application seeking the removal of the Bunna Lawrie Parties and Mr Laing from the proceedings, pursuant to s 84(8) of the NT Act or r 9.08 of the FCR.

101    Section 84 provides (relevantly):

84 Parties

Coverage of section

(1)    This section applies to proceedings in relation to applications to which section 61 applies.

…

Affected persons

(3)    Another person is a party to the proceedings if:

(a)    any of the following applies:

…

(ii)    the person claims to hold native title in relation to land or waters in the area covered by the application;

(iii)    the person’s interest, in relation to land or waters, may be affected by a determination in the proceedings; and

(b)    the person notifies the Federal Court, in writing, that the person wants to be a party to the proceeding:

(i)    within the period specified in the notice under section 66; or

…

…

Joining parties

(5)    The Federal Court may at any time join any person as a party to the proceedings, if the Court is satisfied that the person’s interests may be affected by a determination in the proceedings and it is in the interests of justice to do so.

…

Dismissing parties

(8)    The Federal Court may at any time order that a person, other than the applicant, cease to be a party to the proceedings.

Court to consider dismissing parties

(9)    The Federal Court is to consider making an order under subsection (8) in respect of a person who is a party to the proceedings if the Court is satisfied that:

(a)    the following apply:

(i)    the person’s interests may be affected by a determination in the proceedings merely because the person has a public right of access over, or use of, any of the area covered by the application; and

(ii)    the person’s interests are properly represented in the proceedings by another party; or

(b)    the person never had, or no longer has, interests that may be affected by a determination in the proceedings.

102    Rule 9.08 provides:

9.08 Removal of parties by Court order

A party may apply to the Court for an order that a party that has been improperly or unnecessarily joined as a party, or has ceased to be a proper or necessary party, cease to be a party.

Note:    The Court may make an order for the future conduct of the proceeding.

103    The Applicant’s submissions did not indicate any basis on which r 9.08 would warrant removal when s 84(8) would not.

104    The discretion vested in the Court by s 84(8) has been held to mirror the discretion to join persons as respondents granted by s 84(5). This makes the considerations bearing on the power to join pertinent to the exercise of the power to remove: Starkey at [54].

105    The “interests” to which s 84(5) refers are not confined by the definition of the word “interest” in s 253 of the NT Act. The interests need not be of a proprietary, legal or equitable kind; must rise above an interest that an ordinary member of the public might hold; must be genuine; must extend beyond a mere emotional, conscientious or intellectual interest, and must not lack substance: Byron Environmental Centre Inc v Arakwal People (1997) 78 FCR 1 at 6-8. Ordinarily, a claim to native title is sufficient to justify joinder under s 84(5): Munn v Queensland [2002] FCA 486 at [8]; Worimi Local Aboriginal Land Council v Minister for Lands (NSW) [2007] FCA 1357, (2007) 164 FCR 181 at [10]; and Starkey at [46].

106    Although s 84(9) specifies particular circumstances in which the Court is to consider the removal of a party, it is not an exhaustive statement of the circumstances in which the power to remove may be exercised: Butterworth v Queensland [2010] FCA 325, (2010) 184 FCR 397 at [39]; Starkey at [42].

107    Persons joined to proceedings as respondents pursuant to s 84(3) or (5) cannot seek a determination of native title in favour of a particular group without making an application pursuant to s 13(1) under Pt 3 of the NT Act. This requires that they be authorised by the group on whose behalf the application is brought in the manner required by s 61(1): Commonwealth v Clifton [2007] FCAFC 190; (2007) 164 FCR 355. When more than one native title claim group seeks a determination that it holds rights and interests constituting the whole or part of the native title to an area, each group must authorise a person or persons to make an application pursuant to s 13(1) under Pt 3 of the NT Act: Clifton at [58]. When more than one such application is made, the applications must, to the extent that they cover the same area, be dealt with in the one proceeding (s 67).

108    However, the fact that respondents cannot obtain a determination of native title in their favour does not mean that they may not become or remain respondents “for the quite separate and different purposes of seeking to protect the native title rights and interests they claim to hold from erosion, dilution or discount by the process of the Court determining the claims of the [applicant]”: Bonner on behalf of the Jagera People #2 v State of Queensland [2011] FCA 321 at [17]. In Kokatha Native Title Claim v South Australia [2005] FCA 836; (2005) 143 FCR 544, Mansfield J said:

[20]    There is obviously good reason why persons who have competing claims to native title should be entitled to be parties to other competing claims for the same or overlapping area. As there can be only one determination of native title over a particular area, it is desirable that everyone who claims to be so entitled to such rights should be able to become a party to the claim or claims in which those rights may be determined.

…

[24]    … The assertion of those rights, to the extent that they are actually enjoyed by the party-applicants as individual members of the group, cannot lead in the Kokatha claim to a determination of native title rights and interests. They may however lead to a more informed decision on the Kokatha claim as to whether the native title rights and interests should be granted as expressed in that application. That is, the assertion of those rights may result in the Kokatha claim being less successful than it may otherwise be. … Where there may be a competing native title group who claim communal rights and interests which may be affected by a determination in the Kokatha Claim, but there is no application by that group over the claim area, the members of that group should not be precluded from putting forward their claim in a defensive attempt to avoid the dilution of those interests.

[25]    At least the status as a party enables that person to be heard and to adduce evidence as to whether the Kokatha Claimants do have the native title rights and interests to the extent they have claimed them. In my view, the members of the claim group whose interests may be affected by such a determination are eligible for being joined as parties to the Kokatha Claim under s 84(5).

109    A prospective or existing respondent party who can point to a clear and legitimate objective which he or she hopes to achieve by joining or remaining as a party to the proceeding will usually obtain a favourable exercise of the Court’s discretion with respect to joinder, unless there is some other factor such as delay weighing against that exercise: Far West Coast Native Title Claim v State of South Australia (No 5) [2013] FCA 717 at [37].

110    It has been said that persons who are joined to, or who remain as, respondents for this purpose cannot act in a representative capacity on behalf of others claiming the same rights or interests: Bonner at [19].

111    As noted earlier, Mr Laing and the Bunna Lawrie Parties became parties to the Far West Coast Sea Claim by reason of the Form 5 notices lodged with the Court on 15 November 2016 and 16 January 2017 respectively and by the operation of s 84(3) of the NT Act.

112    The notice filed by Campbell Law on behalf of the Mr Laing gave the following details of the interest which he claimed:

Automatic joining within 90 days pursuant to section 66(10)(c) of the Native Title Act 1993 (Cth), with 19 October 2016 being the relevant notification day, and native title rights and interests claimed.

113    Although there are some shortcomings in this manner of expression of Mr Laing’s interest, it is apparent that he was asserting that he was within the category contemplated by s 84(3)(a)(ii), namely, a person claiming to hold native title in relation to the area covered by the Far West Coast Sea Claim. No party contended that Mr Laing’s notice was insufficient to attract the operation of s 84(3), so that he had not in fact become a party: cf, Gomeroi People v Attorney General of New South Wales [2013] FCA 81 at [12].

114    The notice lodged on behalf of the Bunna Lawrie Parties gave the following (relevant) details of the interest they claimed:

1.    The named respondents: Bunna Rupert Lawrie, Dorcas Miller, Robert Lawrie and Michael Laing, are the Senior Elders who hold the law as the knowledge holders in accordance with the traditions, custom and lore of the Mirning People. The named respondents: Elders Rose Miller, Meegan Sparrow and Senior Mirning Man Robert Miller are highly respected persons within the tradition, custom and lore of the Mirning People.

2.    The Mirning People represented by the respondent party assert that they by tradition, custom and lore hold the exclusive native title rights and interests over the land and sea areas claimed within SAD71/2016.

…

115    As can be seen, the Bunna Lawrie Parties claimed that they represented the Mirning People and that the Mirning People held native title over the claim area.

116    The Applicant sought the removal of the Bunna Lawrie Parties on two different bases. In the case of Mr Laing, the Applicant contends that he does not have an interest in the area of the Sea Claim. In the case of the other Bunna Lawrie Parties, the Applicant contends that:

(i)    they are not seeking to protect the native title rights and interests they claim to hold from erosion, dilution or discount by the process of the Court;

(ii)    they cannot act in a representative capacity on behalf of others claiming the same rights or interests;

(iii)    none … [is] part of a conflicting or overlapping native title proceeding … seeking to defensively assert their native title rights and interests;

(iv)    [they] are part of the FWCSC Native Title Claim Group and their interests are being properly represented in the proceedings by the Applicant (see section 84(9)(a)(ii)); nor

(v)    [they] are part of the native title holding group for the Far West Coast Claim which is contiguous with the FWCSC and was part of a consent determination on 5 December 2013.

(Citations omitted)

117    It is convenient to defer consideration of Mr Laing’s position until after the application with respect to the other Bunna Lawrie Parties has been addressed.

The Bunna Lawrie Parties

118    The affidavits of the Bunna Lawrie Parties indicate, and it was not in dispute (other than in the case of Mr Laing), that they are Mirning People. Some (including Bunna Lawrie, Robert Lawrie and Dorcas Miller) are Senior Elders and others are Elders. The Bunna Lawrie Parties assert that the Mirning are a distinct people with a distinct language and distinct laws and customs. They deny that they form part of any larger society or group and, in particular, of the Far West Coast People. The Bunna Lawrie Parties claim that much of the area claimed in the Far West Coast Sea Claim is Mirning country – the claimed Mirning country does not extend as far east as does the Far West Coast Sea Claim but does extend further west, beyond the South Australian-Western Australia border. They assert that only the Mirning have authority to speak for, and to bring a claim for native title in respect of, this country. They dispute that the Kokatha People and the Wirangu People have any connection with their sea country and dispute that those people are entitled to claim native title in respect of it. Each of the Bunna Lawrie Parties has deposed that the Mirning People have not authorised the Far West Coast Sea Claim.

119    In short, the claim of the Bunna Lawrie parties is that it is the Mirning People, and only the Mirning People, who can have native title over a significant part of the area which is the subject of the Far West Coast Sea Claim. They dispute that the Mirning People form part of a wider society, and in particular, of the Far West Coast People in respect of the area which is the subject of the Far West Coast Sea Claim.

120    The dissatisfaction of a claim group member with the institution of proceedings or the manner of their conduct does not of itself warrant that person being joined to, or remaining as, a party to the proceedings: Kulkalgal People v State of Queensland [2003] FCA 163 at [7]-[8]. An authorisation of an applicant pursuant to s 251B does not require unanimity amongst the claim group (unless the traditional laws and customs or other agreed decision-making groups so require). That is to say, lack of unanimity, and even dissension among a claim group is a recognised prospect, but the NT Act does not contemplate that the authorised proceedings will be a vehicle for the resolutions of all such disagreements. In Starkey, Mansfield J reviewed many of the authorities and concluded, at [61], that, while there is no necessary legal impediment to a member of a native title claim group being joined, or remaining, as a respondent party to a claim, the circumstances in which a dissentient member will be permitted to become or remain a respondent party will be rare. His Honour gave a number of reasons for that conclusion which is not necessary to repeat presently. I agree, respectfully, with the analysis of Mansfield J in this respect.

121    The position may be different, however, for those persons, who although within the description of the applicant claim group, contend that their native title rights and interests exist by reason of their membership of a different and competing claim group which will be affected by a determination of native title in the proceedings.

122    This makes it necessary to have close regard to the interest asserted by the Bunna Lawrie Parties and to their purpose in seeking to remain parties to the Far West Coast Sea Claim.

123    The position of the Bunna Lawrie Parties is similar in some respects to that of the Walman Yawuru Claimants considered in Rubibi Community v State of Western Australia (No 3) [2002] FCA 876; (2002) 120 FCR 512. The Walman Yawuru claimed to have competing and conflicting native title rights and interests in respect of part of the area claimed by two applicant groups in separate proceedings. Merkel J permitted the joinder of the Walman Yawuru as respondents in the two proceedings even though they were within the description of the claim groups bringing each proceeding.

124    The position of Bunna Lawrie Parties is also similar in some respects to that of the “Indigenous Respondents” considered by North ACJ in TR (deceased) on behalf of the Kariyarra-Pipingarra People v State of Western Australia [2016] FCA 1158. In that case, the Indigenous Respondents had become parties to native title proceedings pursuant to s 84(3)(b). It seems that their interest was to challenge the composition of the claim group. Following an amendment to the claim group, an apical ancestor of the Indigenous Respondents was included so that they themselves then became members of the applicant claim group. The Applicant then sought their removal as parties.

125    North ACJ considered that in the circumstances of the Kariyarra-Pipingarra Claim, the Indigenous Respondents were not to be characterised as dissentient members of the claim group of the kind discussed by Mansfield J in Starkey. His Honour held that their interest in contesting the membership of the claim group itself was not an intra mural matter, at [36]-[37]. Although North ACJ considered that a number of discretionary considerations militated against the Indigenous Respondents remaining as parties to the proceedings, he did not order their removal as parties. The matters which pointed to removal were that the Indigenous Respondents could not seek a determination of native title in their favour in the proceedings and had not indicated any intention to institute a competing application, at [45]; having regard to s 67(1) of the NT Act and the principles of finality and avoidance of multiplicity of proceedings implicit in s 22 of the Federal Court of Australia Act 1976 (Cth), they may well be forever precluded from bringing such an application, at [45]; the State supported the view of the two anthropologists on whom the Applicant relied for the composition of the claim group, at [47]; and the continuation of the Indigenous Respondents as parties to the proceedings had the potential to delay the finalisation of the application and to be productive of further expense at a time when the Applicant and the State were otherwise relatively close to agreement on a consent determination, at [48]. The decisive consideration which led to the refusal of the removal applications was that the position of the Indigenous Respondents with respect to the society which they claimed held the native title rights and interests was supported by a third anthropologist. This meant that the Indigenous Respondents had raised an arguable case in support of competing native title which it was appropriate to have resolved in a substantive hearing, at [50].

126    Ultimately, the question of whether the Bunna Lawrie Parties should be permitted to remain parties to the Far West Coast Sea Claim turns on the interests of justice. The Applicant submitted that in the present case, consideration of the interests of justice required regard to be had to the interlocutory activity instigated or supported by the Bunna Lawrie Parties which preceded the 2013 Determination.

127    The relevant interlocutory activity commenced with an application made on 15 June 2010 by Mirning Community Incorporated (MCI) to be joined as a respondent party. MCI had been incorporated on 20 November 2009 with the primary objects of encouraging, promoting and cultivating an appreciation of Mirning language, culture, history and heritage. Its rules confined eligibility in MCI to descendants of several named persons. The first members of the MCI Board were Bunna Lawrie, Robert Lawrie, Iris Burgoyne, Dorcas Miller and Michael Laing. All but Iris Burgoyne are one of the Bunna Lawrie Parties.

128    Mansfield J rejected the application for joinder, holding that MCI itself did not have a sufficient interest for the purposes of s 84(5) to be joined as a respondent party: Far West Coast Native Title Claim v South Australia [2011] FCA 24; (2011) 191 FCR 381 at [29]. In doing so Mansfield J referred, at [18], to the apparent intra-mural dissension which lay behind the application:

It is therefore clear enough that MCI, and those persons who support the application on behalf of MCI and who are its members, seek to use MCI as a vehicle to protect or enforce their claimed native title rights and interests in the claim area as a subgroup as against other members of the claim group. Potentially, to a degree, there may be a departure from the consensus previously reached (this being that the combined claim reasonably promptly should progress towards determination) because there are (inter alia) assertions that the “Mirning Community” still claims that the land and waters identified in the original Mirning Peoples claim is solely Mirning land. I suspect that MCI may assert that part of the present claim area, which previously was subject of the Mirning Peoples claim, is in fact an area of land in which a different and smaller claim group than the combined native title claim group occupies and enjoys native title rights and interests to the exclusion of others. There are assertions in the affidavit material that the “Mirning community” would not have given away their registered claim and agreed to combine unless their concerns were met. There are assertions that, if the claim is progressed in its present form, the “Mirning People” will not have any right to manage their own land. There are also concerns, interestingly, having regard to my provisional understanding that not all persons who previously identified as Mirning People as a separate claim group are eligible for membership of MCI, that there is some disagreement within the Mirning People community (to use a neutral term) and within the wider claim group, as between the Mirning People or some of them and the wider claim group, as to how the claim should be managed and progressed to finality.

129    The next interlocutory application was brought by Robert Miller (one of the Bunna Lawrie Parties) on 30 September 2011. When filed, this application sought the reinstatement of the Mirning Native Title Claim and its de-consolidation from the Far West Coast Native Title Claim. Mr Laing was one of the deponents who provided an affidavit relied upon by Mr Miller in support of his application. As noted earlier, the application for reinstatement and de-consolidation was unsuccessful: [2012] FCA 733; (2012) 204 FCR 542. Mansfield J referred again to the intra-mural dissension underlying the application:

[12]    The present application is another step in the attempt to advance the perceived interests of some of the Mirning people, reflecting the discontent or the concerns expressed above. It is not clear how extensive that discontent is. The evidence suggests that a significant section of the Mirning people do not support the position Mr Miller seeks to adopt, but on the other hand, there are a number of Mirning people who share Mr Miller’s concerns.

130    Next, in Laing v State of South Australia (No 2) [2012] FCA 980, Mansfield J dismissed an application, called the Naley Native Title Claim, over an area of land on the western side of the South Australian-Western Australia border brought by Mr Laing. This was because the claimant group was a subgroup of a native title group, as the application itself recognised.

131    In Graham on behalf of the Ngadju People v State of Western Australia [2012] FCA 1003, Marshall J dismissed interlocutory applications by Mr Laing, Bunna Lawrie and Rose Miller to be joined as parties to the native title claim brought on behalf of the Ngadju People in respect of the area of land on the western side of the South Australian-Western Australia border abutting the area claimed by the Mirning in their 1998 proceedings. Marshall J had particular regard to the lateness of the applications.

132    Next, in Far West Coast Native Title Claim Group v State of South Australia (No 4) [2012] FCA 1468, Mansfield J dealt with further aspects of the interlocutory application of Robert Miller brought on 30 September 2011. His Honour refused to allow Mr Miller to amend the interlocutory application so as to include a claim that the authorisation for the Far West Coast Native Title Claim was defective, a claim that the proposed consent determination provide for the establishment of a Mirning Aboriginal Corporation with matters concerning the Mirning to be referred to it, and for the claim group to be redefined to include the descendants of Gordon Charles Naley as part of the Mirning People. Mansfield J refused each of these applications. His Honour noted, at [10], that the status of the descendants of Gordon Charles Naley had been a matter of considerable debate during the course of the Far West Coast Native Title Claim. As will be seen, Mr Laing claims that Mr Naley was Mirning and that he is a Mirning person by reason of his descent from Mr Naley.

133    Next, in Far West Coast Native Title Claim v State of South Australia (No 5) [2013] FCA 717, Mansfield J dismissed an interlocutory application by Mr Laing by which he sought an order that he be joined as a respondent to the Far West Coast Native Title Claim. Essentially, this was because in the circumstances then before the Court, Mr Laing’s interest could be seen to be no more than that of a dissentient member wishing to be involved in the proceedings. Mansfield J summarised some of the history just set out and said, at [23]:

The joinder application can therefore be seen as yet a further step in a lengthy process by which Mr Laing has sought to directly interpose himself in the conduct of the claim by the applicant, or to support Mr Miller or Mirning Community Inc to do so.

134    On 3 October 2013, McKerracher J refused an application by Mr Laing to be joined as a respondent to native title proceedings brought by the Mirning People in the Western Australian Registry of the Court (relating to land on the western side of the South Australian-Western Australian border): AD (deceased) on behalf of the Mirning People v Western Australia (No 2) [2013] FCA 1000. The refusal turned on a close analysis of the claim of the Mirning People and of the area to which it related, on the one hand, and the basis of Mr Laing’s claimed connection with that land, on the other.

135    In late 2013, Mr Miller sought to amend further his interlocutory application of 30 September 2011 so as to permit him to challenge the authorisation for the Far West Coast Native Title Claim as well as other relief. On 4 December 2013, Mansfield J declined to grant leave to amend holding, amongst other things, that Mr Miller lacked standing to bring the proceedings (Mr Miller not having pursued his own earlier application to be joined as a respondent to the proceedings): Far West Coast Native Title Claim v State of South Australia (No 6) [2013] FCA 1270. The 2013 Determination was made on the following day.

136    I accept that the assessment of the interests of justice in relation to the application for the removal of the Bunna Lawrie Parties should take account of this course of interlocutory activity and, in particular, the intra-mural dissension manifested in it.

137    There are other matters to which the Applicant referred to which it is also appropriate to have regard. The first is that, although the Bunna Lawrie Parties assert in their Form 5 notice filed on 16 January 2017 that they are acting on behalf of the Mirning People, the evidence they have provided does not support that contention. There is no evidence of any decision having been made by all the Mirning People authorising them to so act. The mere fact that some of the Bunna Lawrie Parties are Senior Elders, and others are Elders, is not sufficient for this purpose. Dorcas Miller acknowledged as much in her affidavit of 30 June 2017 when she deposed that the authority to make decisions binding the Mirning People rested with the Mirning Council of Elders (of which she is a Senior Elder). None of the Bunna Lawrie Parties deposed that the Mirning Council of Elders had made any decision with respect to the lodgement of the Form 5 notice, and the strong inference from the affidavits of the Bunna Lawrie Parties is that it has not. Dorcas Miller, for example, referred only to the views of some of the members of the Mirning Council of Elders. Meegan Sparrow claimed only that the Bunna Lawrie Parties represented the Mirning “by the mere fact that they are representatives of the Mirning Council of Elders”.

138    The Court was not told of the persons who are recognised as making up the Mirning Council of Elders.

139    Bunna Lawrie deposed to the decision-making process of the Mirning People in a way which differed from Dorcas Miller. He deposed:

[46]    Mirning People under Mirning laws, practices and customs have [a] decision-making process to meet as family groups when any decision would affect the family group.

[47]    In the decision-making process the family groups would prefer to agree or not agree and if that does not happen a majority can be accepted on circumstances and conditions.

[48]    After the decision is made by the Mirning People the head of the Mirning family groups meet and state what their family group decision [is].

[49]    Where each of the head[s] of the Mirning family group [do] not agree then the decision-making begins again.

140    Robert Lawrie described a similar process in his affidavit of 1 May 2017, although his description would allow that a decision could be made by a majority both at the family group level and by the heads of the family groups when meeting together. He also deposed that “[a]ll eligible Mirning People must be given the best chance to participate in any decision-making process”.

141    Whether this process differs from that described by Dorcas Miller is not critical for present purposes. What is significant is that none of the Bunna Lawrie Parties claims that the filing of the Form 5 notice occurred in accordance with this process of decision-making. As I have said, the strong inference is that it did not.

142    I record that Dorcas Miller deposed that she had authority as matriarch of one family group consisting of 110 Mirning People. It is apparent, however, that, even if this be the case, the 110 are likely to be a small proportion only of the total numbers of Mirning as Mr Linde deposed to the numbers of the Mirning being “in the hundreds”.

143    Further, the minutes of the Second Meeting record that some 38 attendees identified themselves as Mirning and resolved expressly that the Bunna Lawrie Parties do not represent all Mirning People.

144    Another matter bearing on the interests of justice in the removal application is the alternatives available to the Bunna Lawrie Parties. Counsel for the Applicant submitted that they had two alternatives:

(a)    seek the removal of the current applicant pursuant to s 66B of the NT Act by seeking the authority of the entire claim group for such an application; or

(b)    bring their own application for a determination of native title, providing that they can obtain the authority of all the Mirning People to do so.

145    The Bunna Lawrie Parties have not pursued any of these alternatives in relation to the Far West Coast Sea Claim and have not provided any explanation for their omission to do so. They have not provided any evidence of a decision made by the Mirning Council of Elders, or of the Mirning more generally, of a kind which would satisfy the requirements of s 251B of the NT Act. None of the Bunna Lawrie Parties attended the Second Meeting even though all (other than Mr Laing) had been notified appropriately that it was to be held and of the matters to be addressed by the meeting. There is no evidence of any attempts to resolve internally the intra-mural disputes within the meeting.

146    Further, in contrast to the action of the Indigenous Respondents in TR (deceased) on behalf of the Kariyarra-Pipingarra People to whom reference was made earlier, the Bunna Lawrie Parties have not adduced on the present applications any anthropological evidence to support the interest which they contend warrants their retention in the proceedings. The Bunna Lawrie Parties may well be sincere in the beliefs which underpin their wish to be involved in the Far West Coast Sea Claim. One may accept for the purposes of determining the present application that that is so. However, ordinarily, a person wishing to become or remain a party to native title proceedings must show more than sincere belief. A prima facie case in relation to the asserted interest is usually required: Wakka Wakka People (No 2) v State of Queensland [2005] FCA 1578 at [35]; Far West Coast Native Title Claim v State of South Australia (No 5) [2013] FCA 717 at [34]. That being so, the absence of anthropological evidence by the Bunna Lawrie Parties has particular significance.

147    It seems that the Far West Coast Sea Claim has been contemplated for some time. To my mind, it is pertinent that, despite that time, the lengthy period during which the Far West Coast Native Claim was on foot, and the extensive interlocutory activity which occurred in relation to that claim, the Bunna Lawrie Parties have still not (apparently) sought authority from the Mirning People to bring a separate claim for the determination of native title over the sea area or otherwise to achieve a consensual resolution and have not adduced any anthropological evidence.

148    In my view, a number of these matters have substance. However, I am not satisfied on balance that I should accede to the Applicant’s removal application with respect to the Bunna Lawrie Parties. Although there is an intra-mural dispute, its subject matter is the composition of the claim group as the party asserting native title, and not the manner of conduct of the claim. It cannot be assumed that, if native title exists in relation to the sea area, it is held by the same group recognised as having native title over the adjacent land. That recognition is likely to be an important factor in the determination of the sea claim but it is not decisive. It is open to the Bunna Lawrie Parties to contend that the native title is held by a more confined group. It has been recognised that when the sub-group of a community sharing traditional laws and customs alone possesses rights and interests in a particular area, that sub-group may itself constitute a native title claim group: Kite v State of South Australia at [22]. That tends to confirm that the Bunna Lawrie Parties may have an interest to be defended in the present proceedings.

149    The Bunna Lawrie Parties have not delayed in seeking to be joined in the proceedings. Although they have not so far adduced any anthropological evidence, each has deposed to matters which may underpin such evidence. It may be appropriate in due course to make programming orders which require the Bunna Lawrie Parties to provide at an early stage any anthropological evidence on which they do intend to rely.

150    I accept that the Bunna Lawrie Parties have the alternatives under the NT Act to which the Applicant referred but they may not exhaust the means by which they may obtain a judicial determination of their underlying grievance.

151    Accordingly, I decline to order that the Bunna Lawrie Parties, other than Mr Laing, be removed as parties. His claim will have to be considered separately.

Mr Laing’s claim

152    Mr Laing claims to be a Mirning person by reason of his descent from Gordan Charles Naley. The question of whether Mr Naley was a Mirning person is a matter of contention.

153    The Applicant contends that Mr Laing should be removed as a party to the proceedings as he “is not and never has been a member of any native title claim group covering any of the [sea claim] or [the] determined [land claim]”.

154    Mr Linde referred to the applications brought by Mr Laing in respect of the Far West Coast Sea Claim, the Western Australian Mirning Claim and the Ngadju Claim and submitted that the Court had determined in these applications that his interests were not sufficient to warrant joinder as a respondent to the proceedings.

155    In my opinion, that submission involves an over simplification of the position. The reasons for Mr Laing’s lack of success in his previous applications have been various, including delay, lack of sufficient evidence to support the interest claimed, and the circumstance in at least one instance that his interest was that of a dissentient claim member seeking to interpose himself into the conduct of the proceedings. I consider that Mr Laing’s position in relation to the Far West Coast Sea Claim is to be assessed by reference to the circumstances of the present application and is not concluded by those pertaining in his earlier applications. The reason for Mr Laing’s lack of success in previous applications may be relevant, but cannot be decisive. Further, the circumstance that Mr Laing is not, and never has been, a member of a native title claim group in relation to the area covered by the 2013 Determination or the Far West Coast Sea Claim, is not, by itself, a reason to remove him as a party. The question is whether Mr Laing claims to hold native title in the area covered by the present sea claim. Further again, Mr Laing’s complaint is that he has been wrongly excluded from the group which is making the claim.

156    In Starkey at [68], Mansfield J mentioned a circumstance in which a particular person wishes to be recognised as a member of a claim group, but has not been included, as a possible case in which permitting the person to become or remain a respondent party may be appropriate. A dispute of this kind gives rise to complex issues, as the decision of Dowsett J in Aplin on behalf of the Waanyi Peoples v State of Queensland [2010] FCA 625 indicates. See also Edwards on behalf of Wongkumara People v State of Queensland [2014] FCA 282. The decision of McKerracher J in AD (deceased) on behalf of the Mirning People in relation to Mr Laing’s own application for joinder is an indication by itself of the complexity which may be involved.

157    As I have said, it is apparent that there is a real issue as to whether Mr Laing is a Mirning person at all and, even if so, whether he has any interest as a native title holder in the area which is the subject of the Far West Coast Sea Claim. They are not matters which can be determined on an interlocutory application of the present kind, especially given the limited evidence and submissions presented by the parties. They should instead be determined in a more substantive hearing. At such a hearing, account may be taken of the way in which the claim group in the Far West Coast Sea Claim is defined: as descendants of named apical ancestors or by recognition.

158    In my opinion, it is also appropriate to take into account that, in at least one previous application, Mr Laing has provided the Court with some anthropological and historical evidence supporting his claimed status as Mirning: AD (deceased) on behalf of the Mirning. That being so, I consider that it would be inappropriate presently to regard Mr Laing’s claim as baseless or, in the language used in the authorities, as lacking substance. Taken in combination, the circumstances that Mr Laing claims, on an articulated basis, to be Mirning, that in other proceedings at least he has provided some evidence to support that claim, and that there is an issue as to whether native title, if it exists, can be that of the Far West Coast People or only that of the Mirning, is sufficient to warrant Mr Laing being retained as a party to the proceedings for the time being.

Two further matters

159    I mention two further matters. First, the Applicant submitted (I thought somewhat faintly) that the involvement of the Bunna Lawrie Parties and of Mr Laing in the Far West Coast Sea Claim constituted an abuse of the Court’s process. The submission was only barely developed. To the extent that the submission was pursued, it is rejected. The Far West Coast Sea Claim is a new claim over a different area from that considered in the previous litigation. That being so, there is an obvious difficulty for the Applicant in establishing that the involvement of the Bunna Lawrie Parties and of Mr Laing, however inconvenient and vexatious to the Applicant, constitutes an abuse of the Court’s process.

160    Secondly, the Applicant submitted that the Bunna Lawrie Parties had not been validly joined as parties, by reason of an irregularity in the Form 5 filed by the Indigenous Justice Advocacy Network on 16 January 2017. I referred to the irregularity in my earlier judgment on the question of whether leave should be granted to the Bunna Lawrie Parties to be represented by a lay advocate: Miller v State of South Australia (Far West Coast Sea Claim) [2017] FCA 790 at [24(d)]. It was that Mr Oshlack of the Indigenous Justice Advocacy Network had, after deleting the printed alternatives for signature by persons other than the legal representative of the party wishing to be joined, signed the form as though he was the legal representative even though he is not, and never has been, a legal practitioner.

161    Counsel for the Applicant submitted that the effect was that the Bunna Lawrie Parties had not complied with the requirements of r 34.104 of the FCR (which requires a notice of intention to become a party under s 84(3) of the NT Act to be in accordance with Form 5) and that that non-compliance invalidated the notice.

162    The submission was barely developed. It is not every non-compliance with a condition regulating the exercise of a statutory power which invalidates the act: Project Blue Sky Inc v Australian Broadcasting Authority (1988) 194 CLR 355 at [91]; Forrest & Forrest Pty Ltd v Wilson [2017] HCA 30, (2017) 346 ALR 1 at [61]-[62]. The question is whether there can be discerned in the legislation, regulation or rule imposing the condition an intention to invalidate an act done in non-compliance with the condition. Given the express power in the Court to dispense with compliance with the requirements of the FCR contained in r 1.34, such an intention cannot be found in this case. This contention of the Applicant is rejected.

163    It will be appropriate to raise with the parties the manner in which the issues raised by the retention for the time being of the Bunna Lawrie Parties and Mr Laing as parties to the proceedings may be addressed.

Conclusion

164    In summary, each of the strike out/summary judgments and removal application fails and each is dismissed.

165    I will hear from the parties as to consequential orders.

Associate:

Dated:    2 May 2018

SCHEDULE OF PARTIES