FEDERAL COURT OF AUSTRALIA

Savage on Behalf of The Kaurareg People #1 v State of Queensland [2020] FCA 231

ORDERS

THE COURT ORDERS THAT:

1.    Milton Seeka Savage, Donald Paul Marou, Thomas Ned Savage, Paul Tom and Elizah Wasaga jointly replace the current applicant.

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

ORDERS

THE COURT ORDERS THAT:

1.    Milton Seeka Savage, Donald Paul Marou, Thomas Ned Savage, Paul Tom and Elizah Wasaga jointly replace the current applicant.

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

ORDERS

THE COURT ORDERS THAT:

1.    Milton Seeka Savage, Donald Paul Marou, Thomas Ned Savage, Paul Tom and Elizah Wasaga jointly replace the current applicant.

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

REASONS FOR JUDGMENT

RANGIAH J:

1    Three applications for determinations of native title have been brought on behalf of the Kaurareg People. In each proceeding, an interlocutory application has been filed seeking an order pursuant to s 66B(1) of the Native Title Act 1993 (Cth) (the NTA) that:

Milton Seeka Savage, Donald Paul Marou, Thomas Ned Savage, Paul Tom and Elizah Wasaga jointly replace the current Applicant.

2    I will refer to the persons currently named as the applicant in each of the native title determination applications as the Current Applicant and the persons named in the interlocutory applications as the Replacement Applicant.

3    The interlocutory applications are opposed by Harry Seriat, who is a member of the Current Applicant in each native title determination application.

4    The Replacement Applicant relies upon resolutions to replace the Current Applicant that were carried unanimously at a meeting of members of the claim group held on 27 July 2019.

5    Mr Seriat contends that in Bolton on behalf of the Southern Noongar Families v State of Western Australia [2004] FCA 760, French J (as his Honour was then) held that the persons attending an authorisation meeting must be “fairly representative” of the native title claim group in order for the meeting to make a valid decision. The basis of Mr Seriat’s opposition to the interlocutory applications is his claim that the attendees at the meeting were not sufficiently representative of the claim group.

6    At the claim group meeting, a resolution was passed that the people present were sufficiently representative of the Kaurareg People to make authoritative decisions about the notified business. Mr Seriat submits that there is evidence that contradicts that assertion. He submits that the Kaurareg People are descended from twelve apical ancestors, but that 29 of the 55 people who attended represented one descent-line, or family group. He submits that five family groups had no representation at the meeting at all. Mr Seriat alleges that no members of his family group attended the meeting, although that is in dispute.

7    The disaffection of Mr Seriat’s family group (or perhaps some members of that group) with the native title claims stems from dissatisfaction with the involvement of the Torres Strait Regional Authority (TSRA). In particular, Mr Seriat complains about the TSRA’s conduct in arranging an authorisation meeting in 2014 which resolved to change the legal representation of the claim group. He asserts that the TSRA acted in contravention of s 203BB(2) of the NTA, which provides that a representative body must not perform its facilitation and assistance functions in relation to a particular matter unless it is requested to do so. Mr Seriat and a group of other elders walked out of the 2014 meeting to protest the intervention of TSRA and subsequently wrote a letter of protest to TSRA. Mr Seriat asserts that this dissatisfaction caused a number of claim group members to become less involved with the claims and, ultimately, to not attend the 2019 claim group meeting.

8    Although Mr Seriat makes a number of other complaints about the authorisation meeting in his affidavit, his submissions as finally presented rely only upon the ground that the authorisation meeting was not sufficiently representative of the claim group.

The legislation

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

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

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

11    Section 66B of the NTA deals with replacement of an applicant and provides, relevantly:

66B Replacing the applicant

Application to replace applicant in claimant application

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

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

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

(ii)    the person has died or become incapacitated;

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

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

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

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

Court order

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

…

12    Section 251B provides for the process of authorisation of an applicant by a native title claim group:

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.

Consideration

13    The conditions that must be satisfied in order for an applicant to succeed in an application under s 66B of the NTA were described by French J in Daniel v State of Western Australia (2002) 194 ALR 278; [2002] FCA 1147 at [17]:

1.     There is a claimant application.

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

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

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

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

14    The dispute in the present case is as to the third and fifth conditions. Mr Seriat’s submission is that the claim group could only make decisions that the Current Applicant is no longer authorised and that the Replacement Applicant is authorised if the persons attending the authorisation meeting were adequately representative of the whole of the claim group.

15    In Bolton there were six applications by different claim groups for determinations of native title covering the south-west of Western Australia. Each of the six claim groups held a meeting which purported to authorise amendments that would allow the combination of the applications into a single application. The principal issue was whether the proposed amendments had been authorised by each native title group. Justice French held:

42    …Provided that the decision is made by a representative or other collective body exercising authority on behalf of the group under customary law or, absent applicable and mandatory customary law, by an agreed process, that will suffice to prove the decision-making processes required by s 66B.

…

44    If, as may well be the case, there is no relevant and mandatory traditional decision-making process applicable to the making and conduct of a native title determination application then a process ‘agreed to and adopted by the persons in the native title claim group’ will suffice as the source of authority for applicants representing members of the group. That is no light requirement. It means that the authorisation process must be able to be traced to a decision of the native title claim group who adopt that process. The conferring and withdrawal of authority for the purposes of a s 66B application must be shown as flowing from the relevant native title claim group.

45    In relation to the present motions I regret to say that the 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. Rather it was reported as an asserted self-identification. Mrs Morich made some statements from the bar table doubting the representativeness of those who attended at the Southern Noongar meeting. Her statements might be right or wrong. They were not evidence. But my inability to make any judgment about them illustrates the inadequacy of the evidence as it presently stands for the purposes of a s 66B application. And even if it be accepted that each of the members who attended each of the meetings was a member of the relevant native title claim group, it is not established that they were in any sense representative of the various components of the native title claim group concerned.

46    In my opinion, each of the motions for amendment under s 66B suffers from the same fatal deficiency. The evidence is insufficient to demonstrate that there has been notification to members of the native title claim group as defined or that those who attended belonged to it. A fortiori, there is no evidence that the meetings were, in any sense, fairly representative of the native title claim groups concerned. In so saying I do not wish to be taken to be critical of the SWALSC. It may be that there is a chronic difficulty that cannot be overcome despite its most heroic efforts because of the apathy, lack of interest, or divided opinions held by members of the relevant native title claim groups. If that be so, then that may be a reason for reconsidering whether the applications should proceed at all. It is not a basis for accepting a constructed ‘decision-making’ process which cannot be demonstrated, to reflect in any legitimate sense, the informed consent of the members of the native title claim group or persons properly representing them as a substitute for the authorisation required by the Act.

(Emphasis added.)

16    In Coyne v State of Western Australia [2009] FCA 533, Siopis J considered a submission that an insufficient number of people attended the meeting to allow those attending to be fairly representative of the relevant claim group. The submission relied upon Bolton at [46]. Justice Siopis observed that French J had again considered that issue in Anderson v Western Australia [2007] FCA 1733 and had held at [36]:

I am satisfied that the process of decision-making which was followed in this case was agreed and adopted to by a sufficiently representative section of the native title claim group for the purpose of dealing with matters arising in relation to the application. In coming to that conclusion, I have regard to the wide ranging notification, both targeted and general, of the proposed meeting and what it was being asked to decide.

17    Justice Siopis said at [48], in relation to the passage at [36] of Anderson:

…[I]n determining whether the Ballardong meeting was sufficiently representative of the claim group, French J did not have regard to the proportion of those attending the meeting compared to the number of the potential members of the claim group. What was significant to French J was the extent of the distribution of the notice of the meeting and its terms.

18    Similarly, in Gomeroi People v Attorney-General (NSW) [2017] FCA 1464, I observed that the passages in paras [45]–[46] in Bolton, must be understood in light of the inadequacy of the notification of the authorisation meetings.

19    Section 251B(b) requires authorisation by a process agreed by, “the persons in the native title claim group”. In Bolton, French J held, relevantly, that the evidence failed to demonstrate that there had been adequate notification of the business of each meeting to the persons in each native title claim group. His Honour considered that it followed that the evidence did not demonstrate that the meetings were, “in any sense, fairly representative of the native title claim groups”. I understand French J to have reasoned that since the authorisation meetings were not attended by all the members of the relevant claim group, it had to be shown that those who did attend and made the relevant decisions represented the claim group as a whole. I also understand his Honour to have reasoned that if there had been adequate notification of the meeting and its business to the members of the claim group, it could be inferred that those who did not attend chose to leave the decision-making for the claim group to those who did attend: cf Dingaal Tribe v State of Queensland [2003] FCA 999 at [32]; Coyne at [51]. In other words, if it could be inferred that members of a claim group had made an informed choice not to attend, those who did attend could be seen as representing the claim group as a whole. However, French J held that the inadequacy of notification of the claim group meetings meant that those who attended had not been demonstrated to be “fairly representative” of the claim groups.

20    I accept that my understanding of French J’s reasoning in Bolton does not marry perfectly with his Honour’s comment that it was not established that the persons who attended the meetings were, “representative of the various components of the native title claim group concerned”. However, I do not interpret that comment as suggesting that there is some free-standing requirement under s 251B that for there to be an effective decision by a claim group, there must be an adequate number of persons present from each of the various clans, family groups or other cross-sections of the native title claim group. In Anderson at [36], French J confirmed that what is important is adequate notice of the meeting and its terms to the claim group as a whole.

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

22    Section 251B of the NTA sets out two processes by which the claim group can authorise the applicant or withdraw authorisation. The first, in para (a), applies only where the claim group has a mandatory traditional process of decision-making in relation to authorisation. The second, in para (b), allows the claim group to authorise the applicant, or withdraw authorisation, in accordance with a process of decision-making agreed to and adopted by the persons in the native title claim group. In a particular case, there may be either a mandatory traditional decision-making process, or an agreed decision-making process, that requires representatives from each clan or family group or other segment of the claim group to participate in the decision-making.

23    Apart from such circumstances, there is no requirement that decisions can only be made where there is adequate representation at an authorisation meeting of the various components of a claim group. A construction of s 251B as imposing such a requirement would be inconsistent with 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, where Stone J held at [25]:

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

24    The Full Court endorsed this principle in McGlade v South West Aboriginal Land & Sea Aboriginal Corporation (No 2) [2019] FCAFC 238, holding at [36]:

The cases concerning authorisation within the meaning of s 251B(b) (for the purposes of an application to replace an applicant under s 66B of the NTA) have reiterated the principles that s 251B(b) does not require that “all” of the members of the relevant claim group be involved in making the decision. The key question will be whether a reasonable opportunity to participate in the decision-making process has been afforded by the notice for a relevant meeting.

25    The relevance of the members of the native title claim group being given a reasonable opportunity to participate in the decision-making process was described by Cooper J in Dingaal at [32]:

…I am satisfied on the balance of probabilities that the extent and nature of the notice of meeting, the agenda and the explanatory memoranda, were such that all members of the claim group had notice of the meeting and notice that it was the business of the meeting to consider resolutions which were intended to affect and bind them as members of the claim group. I am satisfied that those who did not attend, for whatever reason, knew and accepted that the question of the authority and replacement of Gordon Charlie and Jonathon Charlie, as the current applicants in respect of the native title claim, would be decided by those attending the meeting in a way which would bind the claim group as a whole, and accepted that process.

26    To similar effect, Siopis J held in Coyne at [51]:

Accordingly, I am satisfied that there was sufficient notice of the intention to hold the meeting and of the business to be transacted at the meeting to infer those who decided not to attend the meeting were content to abide by any decision made by those who did attend the meeting, and that, accordingly, the decisions made at the meeting were the legitimate binding expression of the view of the Wagyl Kaip claim group as a whole.

27    What is required by s 251B(b) of the NTA is that the members of a native title claim group be given a reasonable opportunity to attend and participate in any authorisation meeting. Subject to any agreed or mandatory traditional decision-making process to the contrary, there is no requirement that all the members or clans or family groups or other components of the claim group must actually participate in the decision-making process in order for there to be a decision by, “the persons in the native title claim group”. Any construction of s 251B(b) to the contrary would mean a segment of the claim group could effectively veto any decision-making by the claim group by failing or refusing to attend an authorisation meeting. As Stone J said in Lawson at [28]:

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

Section 251B(b) should not be construed so as to allow an outcome of that kind.

28    In this case, Mr Seriat does not suggest that there was inadequate advertising or notification of the claim group meeting or of the decisions to be made. The claim group was notified that the meeting would consider whether to replace the applicant. Mr Seriat and his family group were given a reasonable opportunity to attend the meeting and participate in the decision-making process. They chose not to attend, but by making that choice, they left it to those who did attend to represent the whole of the claim group when making the relevant decisions. In my opinion, the decisions were made “by the persons in the native title claim group” for the purposes of ss 66B(1) and 251B(b) of the NTA.

29    I am satisfied that the Current Applicant is no longer authorised by the claim group to make the application and to deal with matters arising in relation to it, and that the Replacement Applicant is authorised by the claim group to make the application and to deal with matters arising in relation to it. Accordingly, I will order that the Replacement Applicant replace the Current Applicant in each of the three native title determination applications.

Associate:    

Dated:    2 March 2020

SCHEDULE OF PARTIES