FEDERAL COURT OF AUSTRALIA

Dargin on behalf of the Danggan Balun (Five Rivers) People v State of Queensland [2018] FCA 1889

ORDERS

THE COURT ORDERS THAT:

1.    Pursuant to s 66B of the Native Title Act 1993 (Cth), the following group of persons do replace the applicant for the Danggan Balun (Five Rivers) People native title determination application: Mr Ted Williams, Ms Roma Pregarc, Mr Ken Markwell, Mr Rory O’Connor, Mr Anthony Dillon, Mr Shaun Davies and Mr Germaine Paulson.

2.    Pursuant to r 8.21 of the Federal Court Rules 2011 (Cth), leave be granted to amend the native title determination application in accordance with the proposed amended application annexed to the affidavit of Ms Andrea Lynn Olsen, filed on 25 October 2018.

3.    Within 14 days the applicant file and serve a re-engrossed copy of the amended application bearing a statement specifying the matters mentioned in r 8.23 of the Federal Court Rules 2011 (Cth).

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

EX TEMPORE REASONS FOR JUDGMENT

REEVES J:

1    This is an application under s 66B(1)(a)(iii) of the Native Title Act 1993 (Cth) (the Act) to replace the existing Applicant for the native title determination application filed on behalf of the Danggan Balun (Five Rivers) People on 27 June 2017. That application was entered on the Register of Native Title Claims on 14 September 2017. From the affidavit material filed in support of the present application, it has been made against the following factual background.

2    On 25 August 2018, a further authorisation meeting of the Danggan Balun People was held. At that meeting, a resolution was passed which removed the authority of the existing members of the Danggan Balun Applicant and appointed nine people to act in their place. There is a commonality between the nine members of the Applicant as originally authorised and the nine members of the Applicant who were authorised at the meeting of 25 August 2018. Those persons are Mr Ken Markwell, Mr Rory O’Connor, Mr Anthony Dillon and Mr Shaun Davies.

3    The authority of those nine individuals to replace the existing Applicant was subject to certain terms and conditions, one of which provided for the ongoing authority of the remaining individuals without the need for a further authorisation meeting, if one or more of the person’s so authorised was no longer willing or able to continue to act as a member of the Applicant. Since the authorisation meeting of 25 August 2018, two matters have occurred of importance to this application. The first is that one of the persons authorised to be a member of the Applicant at that meeting, Ms Dina Paulson, has signed a document resigning from that position. The second is that another person authorised to be a member of the Applicant at that meeting, Ms Louisa Bonner, has evidenced an unwillingness to execute an affidavit under s 62 of the Act which affidavit is necessary for her to act as a member of the Applicant.

4    I am satisfied on the evidence that the resignation of Ms Paulson and the conduct of Ms Bonner demonstrate an unwillingness on each of their parts to act as a member of the Danggan Balun Applicant. Accordingly, the terms and conditions of appointment of those members adopted at the meeting of 25 August 2018 mean that the remaining members who are willing to act have the authority to be appointed without the need for a further authorisation meeting.

5    In Daniel v Western Australia (2002) 194 ALR 278; [2002] FCA 1147 at [17] (Daniel), French J set out four conditions an applicant under s 66B needed to meet. They are:

(a)    there is an extant claimant application;

(b)    each person applying for an order under s 66B is a member of the native title claim group;

(c)    the persons to be replaced as the applicant are no longer authorised by the native title claim group to make the native title determination application and to deal with matters arising in relation to it; and

(d)    the persons making the application under s 66B are authorised by the native title claim group to make the native title determination application and to deal with matters arising in relation to it.

6    Based on the factual background I have already recounted, I am satisfied that conditions (a), (b) and (c) have been met. As to condition (d), I am satisfied on the materials before me that the authorisation meeting conducted on 25 August 2018 was duly conducted in accordance with s 251B of the Act.

7    Apart from the four conditions described in Daniel there is, of course, a discretion of the Court under s 66B in an application of this kind. With respect to that discretion, I note that none of the respondents has opposed this order being made and no other reason has been advanced which would justify my not exercising my discretion to make the orders sought.

8    For these reasons, I order that:

1.    Pursuant to s 66B of the Native Title Act 1993 (Cth), the following group of persons do replace the applicant for the Danggan Balun (Five Rivers) People Native Title Determination Application: Mr Ted Williams, Ms Roma Pregarc, Mr Ken Markwell, Mr Rory O’Connor, Mr Anthony Dillon, Mr Shaun Davies and Mr Germaine Paulson.

2.    Pursuant to r 8.21 of the Federal Court Rules 2011 (Cth), leave be granted to amend the Native Title Determination Application in accordance with the proposed amended application annexed to the affidavit of Ms Andrea Lynn Olsen, filed on 25 October 2018.

3.    Within 14 days the applicant file and serve a re-engrossed copy of the amended application bearing a statement specifying the matters mentioned in r 8.23 of the Federal Court Rules 2011 (Cth).

Associate:    

Dated:    27 November 2018

SCHEDULE OF PARTIES