FEDERAL COURT OF AUSTRALIA

Nona on behalf of the Badu People (Warral & Ului) v State of Queensland [2020] FCA 983

ORDERS

THE COURT ORDERS THAT:

1.    Pursuant to section 64(1) of the Native Title Act 1993 (Cth), the applicant is granted leave to amend the Form 1 Application for a determination of native title in accordance with the Form 1 Amended Application annexed as “DJK19” to the affidavit of David John Knobel affirmed 9 April 2020.

2.    Pursuant to section 66B(1)(a)(i) of the Native Title Act 1993 (Cth), the applicant Victor Nona be replaced as applicant in the proceeding as amended pursuant to order 1 by Titom Nona, James Ahmat, George Morseu, Harry Nona, Saila Savage, Michael Solomon, Donald Namai, Garagu Kanai and Jean Tamwoy.

3.    By 4 pm on 20 July 2020, the applicant file and serve a re-engrossed copy of the amended application and the affidavits of the replacement applicant pursuant to section 62 of the Native Title Act 1993 (Cth).

4.    On the filing of the amended application:

(a)    Mr Elizah Wasaga and Mr Thomas Savage each cease to be Indigenous respondent parties to the proceeding pursuant to section 84(8) of the Native Title Act 1993 (Cth); and

(b)    Albert Bernard Bowie, George Henry Nona, Ronnie Nomoa, Walter Tamwoy and Tommy Willie Tamwoy be joined to these proceedings pursuant to section 84(5) of the Native Title Act 1993 (Cth).

5.    There be no order as to costs.

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

REASONS FOR JUDGMENT

MORTIMER J:

Introduction and summary

1    This proceeding concerns an application for a determination of native title in relation to two islands in the Torres Strait, Warral and Ului, including all land and waters within the high-water mark of the islands. In its current form, the application is brought by Mr Victor Nona on behalf of the Badu people (or Badulgal) who are asserted to have exclusive proprietary and beneficial rights in the claim area. The proceeding has been on foot in this form for 18 years. Several members of the claim group and the proposed new applicant share surnames, so although I will refer to Victor Nona as Mr Nona in these reasons, I will otherwise refer to members of the claim group and proposed new applicant by their full names, without intending any disrespect.

2    There are three applications before the Court.

3    First, the applicant, which I will refer to as the Badu applicant, seeks leave to amend its claim for a determination of native title under s 64(1A) of the Native Title Act 1993 (Cth).

4    Second, and relatedly, there is an application under s 66B of the Native Title Act to replace the existing applicant with an applicant constituted by different individuals. The proposed new applicant reflects the changes proposed by the amended claim for a determination of native title, and the underlying structure of the amended claim as one made by three groups of people: the Badulgal, Mualgal and Kaurareg people. Resolution of who holds native title in these islands has been the subject of discussion and negotiation since early 2014, and there have been Kaurareg respondents to this proceeding since late 2003.

5    Third, there is a joinder application brought by five Badulgal, all members of the claim group, who claim that their native title interests are affected by the proposed amendment and any determination of the amended claim in its proposed form. They are Albert Bowie, George Nona, Ronnie Nomoa, Walter Tamwoy and Tommy Tamwoy. In summary, these individuals dispute that the Mualgal and Kaurareg people hold native title over the islands in the way contended in the proposed amended application.

6    The three applications were dealt with together. I considered the most effective and efficient process was for the Court to deal with all three matters at once, and to permit the joinder applicants to adduce evidence and be heard on the s 64 and s 66B applications. I took this approach taking into account the current restrictions imposed by the COVID-19 pandemic and emergency situation, the fact the joinder applicants were assisted but not formally legally represented, and the costs and resources involved for all parties. Otherwise, the applications would have had to be heard separately, one after another. Aside from the costs and resource implications, such a process also ignores the way the three applications are, in substance, intertwined.

7    For the reasons that follow there will be orders pursuant to s 64 and s 66B of the Native Title Act to allow amendment of the native title claim over Warral and Ului to make it a shared claim, but there will also be orders joining the five joinder applicants to the amended claim.

Background to the first two applications

8    It is appropriate to begin by providing some geographical and historical context for the applications currently before the Court.

9    Warral and Ului lie in the Torres Strait, between the islands of Badu and Moa to the north and the inner islands of the Torres Strait, including Murulag (Prince of Wales Island) and Ngurapai (Horn Island), to the south. Badu has been determined to be Badulgal country (see Nona v State of Queensland [2004] FCA 1578), Moa has been determined to be Mualgal country (see Mualgal People v State of Queensland [1999] FCA 157) and Murulag and Ngurapai have been determined to be Kaurareg country (see Kaurareg People v State of Queensland [2001] FCA 657).

10    Native title has been determined to exist in most of the islands in the area. That includes a determination that native title exists and is held by the Badulgal and the Mualgal over “numerous uninhabited small islands, islets and rocks” lying just north of Warral and Ului: see Nona v State of Queensland [2006] FCA 412 at [1].

11    Native title has also been determined to exist in a significant part of the sea to the north of the islands (see, ultimately, Akiba v Commonwealth [2013] HCA 33; 250 CLR 209, upholding the decision of Finn J in Akiba v State of Queensland (No 3) [2010] FCA 643; 204 FCR 1), although there remain a number of unresolved and partly overlapping sea claims, as well as one terrestrial claim, that are being case managed with this proceeding; namely:

(a)    Milton Savage & Ors on behalf of the Kaurareg People #1 v State of Queensland & Ors (QUD26/2019);

(b)    Milton Savage & Ors on behalf of the Kaurareg People #2 v State of Queensland & Ors (QUD10/2019);

(c)    Milton Savage & Ors on behalf of the Kaurareg People #3 v State of Queensland & Ors (QUD24/2019);

(d)    Lui Ned David & Ors on behalf of the Torres Strait Regional Seas Claim v State of Queensland & Ors (QUD27/2019) (TSRSC Part B);

(e)    Bernard Richard Charlie & Ors on behalf of the Northern Peninsula Sea Claim Group v State of Queensland & Ors (QUD114/2017); and

(f)    Bernard Richard Charlie & Ors on behalf of the North Eastern Peninsula Sea Claim Group v State of Queensland & Ors (QUD115/2017).

The claim area in this proceeding is bounded by the Kaurareg People #1 and TSRSC Part B claim areas, which themselves overlap.

12    The application in this proceeding was filed on 4 March 2002. On 28 November 2003, three Kaurareg respondents joined, though one has since passed. The remaining Kaurareg respondents are Thomas Savage and Elizah Wasaga, who are members of the applicant in the three Kaurareg proceedings.

13    On 17 March 2014, the Court referred this proceeding to mediation. The mediation was held in February 2015 and was attended by members of the Badulgal, Mualgal and Kaurareg people. Mr Nona has deposed that the amendment application appears to him to be consistent with what was agreed at the meeting.

14    Mr David Knobel, the solicitor with carriage of this proceeding on behalf of the applicant, has deposed that, following the 2015 mediation, many meetings were held between representatives of the Badulgal, Mualgal and Kaurareg people to implement the mediation agreement, but these were held up by unspecified delays. The meetings significant to the present applications were held on 1 February 2020 (on Badu) and 8 February 2020 (on Ngurapai). The Badu applicant’s position is that, at these meetings, the claim group authorised the applicant to bring the amendment application and the s 66B application. The meetings are discussed further below.

15    The Badu applicant filed an interlocutory application on 9 April 2020 seeking leave to amend the claim in the manner now sought. The application did not contain an application for orders under s 66B of the Native Title Act, although the amended claim provided for the replacement of the applicant. On 15 May 2020, the applicant was given leave to file an amended interlocutory application seeking, in addition, orders under s 66B. It is the 15 May 2020 application that is currently before the Court.

16    Three affidavits were filed in support of the s 64 and s 66B applications:

(a)    an affidavit of Mr Nona, filed on 9 April 2020; and

(b)    two affidavits of Mr Knobel, filed on 9 April 2020 and 30 April 2020.

17    Mr Nona’s affidavit was unsworn but was accepted for filing in accordance with paragraph 4.2 of the Court’s Special Measures in Response to COVID-19 information note.

18    Mr Nona’s affidavit concerns his desire to be replaced as applicant. He also discusses the two authorisation meetings. Annexed to his affidavit are the minutes of the 1 February 2020 authorisation meeting and a record of the resolutions of the 8 February 2020 authorisation meeting. Mr Knobel’s first affidavit addresses the lead up to and conduct of the authorisation meetings. Mr Knobel’s second affidavit sets out further information about the authorisation meetings, referring in particular to the participation of some of the joinder applicants. It also addresses earlier claims over Warral and Ului and the surrounding areas.

The nature of the proposed amendments to the native title claim

19    The key amendment to the native claim is the amendment of the claim group to include not only the Badulgal but also the Mualgal and Kuarareg people. In its current form, the claim group is described as follows:

The people of Badu, being those persons who are members of the cognatic descent groups deriving from the following apical ancestors: Getawan, Sagul, Uria, Baira, Inor, Zimoia, Newar, Sagigi, Jawa, Wairu, Paipe, Waria, Kamui, Mabua, Laza, Gainab, Walit, Namagoin, Mariget, Bazi. Ugarie, Karud. Dauwadi, Gizu, Aupau and Zarzar.

20    The proposed description is as follows:

The Badulgal, Mualgal and Kaurareg Peoples, being:

a)    the descendants of one or more of the following apical ancestors:

i)    Badulgal: Getawan, Sagul, Uria, Baira, Inor, Zimoia, Newar, Sagigi, Jawa, Wairu, Paipe, Waria, Kamui, Mabua, Laza, Gainab, Walit, Namagoin, Mariget, Bazi, Ugarie, Karud, Dauwadi, Gizu, Aupau and Zarzar;

ii)    Mualgal: Dadu, Gaia (also known as Gai), Goba, Jack Moa, Kanai (son of Bamar), Koia, Kulka, Kupad, Maga (father of Gema, Babun, Dawai, Bapi and Magena), Maiamaia, Nukau, Samukie, Tuku, Waina;

iii)    Kaurareg: Baetie, Bagie, Daiam, Dani, Serai, Kanamuri, Gaulgabiri, Api, Makaku, Buiya, Panipan, Papoose, Pau Paikai, Rattler Tom, Urui, Zagra Snr/Jack Prince of Wales; Kamur; including

b)    Aboriginal people and Torres Strait Islanders who have been adopted by the above people in accordance with the traditional laws acknowledged and traditional customs observed by those people.

21    Consequential changes are proposed, including, for example, renaming the claim as made by the Badulgal, Mualgal and Kaurareg people, and, in the draft consent determination, stating that native title is to be held jointly by separate registered native title bodies corporate representing each of the Badulgal, Mualgal and Kaurareg people.

The authorisation meetings in February 2020 and certification by the TSRA

Authorisation meeting on 1 February 2020

22    As I have noted, following the 2015 mediation, members of the current claim group held an authorisation meeting on Badu on 1 February 2020. In his affidavit at [8], Mr Nona states the purpose of the meeting “was for Badulgal to decide whether to progress with the 2015 in principle agreement to include Mualgal and Kaurareg people in the claim over Warral and Ului”. In his affidavit, and understandably, Mr Nona expresses his frustration at the delay.

23    In his first affidavit at [7]-[11], Mr Knobel sets out the steps he took to provide notification of the 1 February 2020 meeting:

(a)    In late 2019, Mr Knobel asked the Torres Strait Regional Authority Native Title Office to help provide notification of both the 1 February 2020 meeting and the 8 February 2020 meeting.

(b)    In the last quarter of 2019, he held four teleconferences with solicitors for the Kaurareg respondents, solicitors for the Mualgal, and TSRA legal representatives. He held a further two teleconferences with the same parties and a Registrar of the Court. Mr Knobel deposes that he “also had numerous conversations with many members of the native title claim group on Badu, via telephone and email, to obtain instructions about the dates for and conduct of the proposed meetings”.

(c)    On 19 December 2019, Mr Knobel emailed the TSRA Native Title Office enclosing a final version of a notice that had been agreed with the solicitors for the Kaurareg respondents and the solicitors for the Mualgal.

(d)    Copies of the notice were subsequently published in local and regional newspapers between 26 December 2019 and 9 January 2020, the notice was emailed to “stakeholders” to be posted on island noticeboards, the notice was published on the TSRA Facebook page and website, and the meeting was advertised on Torres Strait Islander Media Association radio in the two-week period leading up to the meeting.

24    The notice for the 1 February 2020 meeting has a box at the top containing key information about the meeting: the date, time and place; the purpose; and the outcome. The purpose was said to be “to authorise changes to the current application for a determination of native title in the islands of Warral and Ului”. The outcome was described as follows:

If proposed changes to the current application are authorised by the attending members of the Current Claim Group, a further authorisation meeting will be held on 8 February 2020 that will be attended by the Proposed Claim Group. A separate notice has been prepared to provide details for the 8 February 2020 meeting.

25    The remainder of the notice is divided into four sections: “Who should attend”, “Background”, “What the meeting will consider” and “Registering your interest”.

26    The notice stated that all members of the Badu claim group should attend the meeting.

27    Under the heading “Background” the following appears:

An application for a determination of native title in the islands of Warral and Ului was lodged on behalf of the Badulgal People in 2002. Research found that Badulgal People, Mualgal People and Kaurareg People all have native title rights and interests in the Warral and Ului islands.

In February 2015, representatives for each group agreed in court facilitated mediation that a joint native title determination application should be made over the islands of Warral and Ului. In May 2019, representatives of Badulgal People, Mualgal People and Kaurareg People met again and agreed to begin steps to implement the agreement.

28    Under the heading “What the meeting will consider” there is this:

The purpose of the authorisation meeting on 1 February 2020 is for members of the Current Claim Group (being those people of Badu who meet the description above) to consider whether to authorise the implementation of the in-principle agreement reached in the mediation, including to:

1.    Authorise changes to the claim group description to include Kaurareg People and Mualgal People.

2.    Change the name of the Claim.

3.    Amend the description of the claimed native title rights and interests.

4.    Agree to a process for replacing the current named applicant with a new applicant if the Claim is amended.

29    The minutes of the meeting are annexed to Mr Nona’s affidavit and Mr Knobel’s first affidavit. They show that the meeting was attended by 20 people, including four of the five joinder applicants. Also present were Mr Knobel; Dr Kevin Murphy, an anthropologist; two representatives from the TSRA; and the minute-taker.

30    According to the minutes, the attendees passed 14 resolutions, each “[c]arried unanimously on the voices”. Relevantly:

(a)    By resolution 1, the participants confirmed that only members of the claim group who had registered their attendance at the meeting were entitled to vote.

(b)    By resolution 2, the participants recorded that there was no traditional decision-making process that needed to be complied with.

(c)    By resolution 3, the participants confirmed the decision-making process to be followed, including that voting would “be either on the voices or by show of hands”, subject to any participant requesting a secret ballot.

(d)    By resolution 4, the participants confirmed that there had been a reasonable opportunity for informed discussion.

(e)    By resolution 5, the participants resolved to amend the description of the claim group in a manner consistent with the amended interlocutory application before the Court.

(f)    By resolution 6, the participants recorded their satisfaction that they were sufficiently representative of the claim group to make decisions about the claim and that sufficient notice had been given to the claim group about both the 1 February 2020 meeting and the 8 February 2020 meeting.

(g)    By resolution 7, the participants resolved to change the name of the claim.

(h)    By resolution 8, the participants resolved to change the description of claimed native title rights and interests in the claim to reflect the proposed joint claim.

(i)    By resolution 9, the participants recorded their understanding that another authorisation meeting was planned for 8 February 2020 at which the Mualgal and Kaurareg people would need to consent to their inclusion in the proposed amended claim.

(j)    By resolution 10, subject to the Mualgal and Kaurareg people consenting to their inclusion in the claim, the participants authorised the current applicant, Mr Nona, to file an interlocutory application to amend the claim.

(k)    By resolution 11, the participants authorised the current applicant to deal with matters arising in relation to the application until the determination of the application.

(l)    By resolution 12, the participants resolved to remove Mr Nona as the current applicant and replace him with an applicant to be agreed at the 8 February 2020 meeting.

(m)    By resolution 13, the participants agreed on a process for the appointment of a replacement applicant. In short, this involved each of the Badulgal, Mualgal and Kaurareg people putting forward and voting on an equal number of representatives.

(n)    By resolution 14, the participants acknowledged their “traditional laws and customs and in particular the principle of mina danalayg ngalpa kuth kabuthan inab yadayl”. Mr Knobel deposes that he “was told by several members of the Current Claim Group present at the Authorisation Meeting” that this means “true talk, or what we said today is true, to find a way to move forward positively and respectfully into the future”. The joinder applicants dispute this. Ronnie Nomoa and Walter Tamwoy depose that it means “we finish this talk good way”. George Nona deposes that it means “we’re trying to do this properly and understand all this”. The Court need not resolve the differing interpretations, but the fact that there are differences is but another illustration of the debate which underlies the joinder applicants’ application.

31    The minutes record that Albert Bowie, one of the joinder applicants, seconded resolution 5, and that Ronnie Nomoa, another of the joinder applicants, seconded resolution 14.

Authorisation meeting on 8 February 2020

32    As I have noted, the second authorisation meeting was held on 8 February 2020 on Ngurapai.

33    Notification of the 8 February 2020 meeting occurred in the same manner as notification of the 1 February 2020 meeting.

34    Like the notification for the 1 February meeting, the notification for the 8 February meeting has a box at the top containing key information, including the date, time, place and purpose of the meeting. The purpose is described as follows:

A meeting will be held to:

1.    Endorse changes to the current application and authorise the filing of an amended application for a determination of native title in the islands of Warral and Ului.

2.    Authorise the making of an application for a determination of native title in the island of Sansuit (the Sansuit Claim) to ensure native title is determined over Sansuit at the same time as Warral and Ului. This area is shown on the map below.

35    The remainder of the notice is divided into three sections: “Who should attend”, “What the meeting will consider” and “Registering your interest”.

36    The notice stated that all members of the proposed claim group should attend.

37    Under the heading “What the meeting will consider” the following appears:

The meeting will be in two (2) parts.

In Part A, the Proposed Claim Group will decide whether to:

1.    Authorise the making of the changes made by the Current Claim Group to the Warral and Ului Claim so that the claim group includes Badulgal, Kaurareg and Mualgal People (described as the Proposed Claim Group).

2.    Change the name of the claim to one that includes Kaurareg People and Mualgal People.

3.    Change the description of the claimed native title rights and interests.

4.    Consider potential Prescribed Body Corporate arrangements.

5.    Authorise persons to be the new applicant, to bring the amended application for a determination of native title over the islands of Warral and Ului on behalf of the Proposed Claim Group.

6.    Decide the scope of any new applicant’s authority to make decisions.

7.    Authorise such steps as determined necessary and desirable to progress the Warral and Ului Claim.

In Part B, the Proposed Claim Group will decide whether to:

1.    Authorise persons to be named as the new application, who will file the Sansuit Claim on behalf of the Proposed Claim Group.

2.    Determine the scope of the applicant’s authority to make decisions.

3.    Consider potential Prescribed Body Corporate arrangements.

4.    Authorise such steps as determined necessary and desirable to progress the Sansuit Claim.

38    Part B is not relevant to the applications presently before the Court.

39    The minutes of the 8 February 2020 meeting are annexed to Mr Knobel’s first affidavit. The minutes record that there were 76 participants, including one of the joinder applicants and four late arrivals. The minutes do not record the affiliation of the participants. Also in attendance were lawyers Mr Knobel, Mr James Walkley and Mr Kai Sinor; anthropologists Dr Murphy, Dr Garrick Hitchcock and Mr Ray Wood; TSRA representative Mr Garry Scott; an independent facilitator; and the minute-taker.

40    According to the minutes, in Part A of the meeting, the participants passed 11 resolutions, each by a show of hands. Relevantly:

(a)    By resolution 1, the participants confirmed that members of the proposed claim group who had registered to vote were entitled to vote.

(b)    By resolution 2, the participants confirmed that there was no decision-making process that had to be complied with under traditional law and custom, and the participants resolved that voting would be on the voices or by a show of hands.

(c)    By resolution 3, the participants confirmed that notice of the meeting was sufficient and that they were sufficiently representative of the Badulgal, Mualgal and Kaurareg people to make authoritative decisions about the business of the meeting.

(d)    By resolution 4, the participants confirmed that there had been a reasonable opportunity for informed discussion.

(e)    By resolution 5, the participants confirmed the claim group description reflected in the application before the Court.

(f)    By resolution 6, the participants resolved to change the name of the claim.

(g)    By resolution 7, the participants resolved to change the description of the factual basis for the claimed native title rights and interests to reflect the joint nature of the claim.

(h)    By resolution 8, the participants authorised the applicant to file an interlocutory application to amend the claim.

(i)    By resolution 9, the participants resolved to remove Mr Nona as the applicant.

(j)    By resolution 10, the participants resolved to appoint nine named people as the applicant for the proposed amended application. It is not apparent on the face of the resolution what the affiliation of each person is, although the minutes record that, before resolution 10 was passed, “[t]he meeting participants formed into their clan groups, including their respective lawyer, to discuss and nominate a representative Applicant from each group”.

(k)    By resolution 11, the participants resolved that the authority of the replacement applicant was subject to certain terms and conditions annexed to the minutes.

Certification by the TSRA

41    On 13 March 2020, Mr Knobel sent a letter to the TSRA requesting that it exercise its certification function under s 203BE(1)(a) of the Native Title Act in respect of the proposed amended application. The TSRA certified the application on 6 April 2020.

The proposed replacement applicant

42    By the s 66B application, the Badu applicant seeks an order replacing Mr Nona with nine people: Titom Nona, James Ahmat, George Morseu, Harry Nona, Saila Savage, Michael Solomon, Donald Namai, Garagu Kanai and Jean Tamwoy.

43    It appears that Titom Nona, James Ahmat and George Morseu are Badulgal, but the affiliation of other members of the proposed applicant is not apparent on the face of the relevant resolutions, nor in the other material. It is, however, apparent that the proposed applicant is intended to reflect equal representation of each of the Badulgal, Mualgal and Kaurareg people.

44    Resolution 13 at the 1 February 2020 meeting has already been referred to. Paragraph (b) of that resolution states:

i.    the Replacement Applicant is to be authorised by the Proposed Claim Group at the authorisation meeting on 8 February 2020;

ii.    The Badulgal, Kaurareg People and Mualgal will each nominate representatives of their respective groups as members of the Replacement Applicant; and

iii.    those members of the Proposed Claim Group present at the authorisation meeting on 8 February 2020 will:

•    agree on the number of representatives from each of the groups to make up the Replacement Applicant;

•    ratify the nominations of each of the groups; and

•    vote on the members of the Replacement Applicant where such vote must be by significant majority.

iv.    If the number of nominated Badulgal representatives referred to at subparagraph (a)i) of this Resolution 13 is less than the number of representatives of each group agreed to make up the Replacement Applicant under subparagraph (b)(iv) of this Resolution 13, the Badulgal present at the authorisation meeting on 8 February 2020 will be given an opportunity to nominate further representatives to be considered for inclusion as members of the Replacement Applicant.

45    The process by which the replacement applicant was constituted is not explained in detail in the minutes of the 8 February 2020 meeting. However, as I have noted, the minutes record that “[t]he meeting participants formed into their clan groups, including their respective lawyer, to discuss and nominate a representative Applicant from each group”. The resolution by which the participants at the 8 February 2020 meeting resolved to appoint the replacement applicant passed with 68 votes for, 1 against and 1 abstention.

The joinder application

46    The joinder application was filed on 4 March 2020. The interlocutory application seeks orders that the joinder applicants be joined to the proceedings and that the matter proceed to trial instead of a consent determination.

47    The interlocutory application includes the following statement of the grounds for making the application:

6.    It is imperative to note that we are not disputing the Applicant’s claims to native title, nor the factual basis upon which the Badulgal claim is made.

7.    On the contrary, we seek to reinforce the factual basis for the Applicant’s original claim.

8.    If the Mualgal and the Kaurareg people are granted equal rights with the Badulgal, via a consent determination, they will obtain greater rights post-determination than they would have had under customary law.

9.    As the primary owners of the islands in the region, including Warral & Ului, our rights under customary law will be diminished in favour of Mualgal and Kaurareg people, whom we have conquered in battle, actively defending our rights to primary ownership.

10.    To share a claim with the respondents would disrespect the efforts of our ancestors in their defence of Warral & Ului.

11.    A shared claim and consent determination with Mualgal and Kaurareg people ignores our cultural and historical affiliation with Mabiuag people.

48    The joinder applicants have been assisted in the preparation of their application by Ms Mareshah Bowie. A case management hearing was held in Cairns on 10 March 2020 at which Ms Bowie informed the Court that she is on the Supreme Court Roll but is not practising at present. She was granted leave to appear on behalf of the joinder applicants. At the time, she anticipated that the joinder applicants would obtain legal representation for the hearing of the joinder application. However, the joinder applicants were unable to obtain legal representation, and Ms Bowie was granted leave to appear on their behalf at the hearing.

49    Fifteen affidavits were filed in support of the joinder application:

(a)    three affidavits of Albert Bowie, filed on 4 March 2020, 8 May 2020 and 15 May 2020;

(b)    three affidavits of George Nona, filed on 4 March 2020, 8 May 2020 and 15 May 2020;

(c)    three affidavits of Ronnie Nomoa, filed on 4 March 2020, 8 May 2020 and 15 May 2020;

(d)    two affidavits of Tommy Tamwoy, filed on 4 March 2020 and 8 May 2020;

(e)    two affidavits of Walter Tamwoy, filed on 4 March 2020 and 8 May 2020;

(f)    an affidavit of Tala Nona, filed on 8 May 2020; and

(g)    an affidavit of Wolfgang Laza, filed on 15 May 2020.

50    The affidavits filed on 15 May 2020 were unsworn but were accepted for filing in accordance with paragraph 4.2 of the Court’s Special Measures in Response to COVID-19 information note.

51    It is appropriate to give a brief description of each of the joinder applicants. Later in these reasons I describe aspects of their evidence in more detail.

52    Albert Bowie is in his mid-fifties. He was born and brought up on the mainland but describes in his affidavit how his family ensured he maintained a connection to Badu through visits and holidays, and through learning stories about his people’s history. He attended the 1 February meeting but not the 8 February meeting.

53    George Nona is in his late forties. He grew up diving around Warral and Ului with his father, the late Morris Nona, and his brothers. His first affidavit contains considerable detail about the history of the islands, as told to him by his father and elders. He attended the 1 February meeting on Badu. He also attended a pre-authorisation meeting on Ngurapai on 7 February, but states at [21] of his first affidavit: “on the 8 February, I didn’t attend at all because I felt this was all wrong”.

54    Ronnie Nomoa is in his mid-seventies. He was born on Badu and has spent his life there, diving and working around the islands. His first affidavit also gives considerable detail about his own experiences around Warral and Ului, who he saw there, and what he was told about whose land it was. Ronnie Nomoa is recognised as a Badulgal elder. He attended the 1 February meeting on Badu and also the 8 February meeting on Ngurapai.

55    Tommy Tamwoy is in his early seventies. Although he does not say so expressly, I infer from his evidence that he grew up on Badu. He deposes to going out in a sailing dinghy with his grandfather to Tuin island, and to some of the other islands around Badu, including Warral and Ului. He did not attend either meeting. He deposes he was not notified of the meeting on Badu and by the time he heard about the Ngurapai meeting, the transportation was already full and he could not get there.

56    Walter Tamwoy is also in his early seventies. Again, although he does not say so expressly, I infer from his evidence that he grew up on Badu. He deposes there were “[p]lenty of times” that he and other Badulgal went fishing and for daytrips to Warral and Ului and other small islands in the area. He deposes that he attended both the 1 February and 8 February meetings, although his name is not recorded on the list of participants in the minutes of the 8 February meeting.

57    It is not a coincidence that all the joinder applicants are men. Nor is it a coincidence that the evidence about which people could not attend the 1 February meeting on Badu, which I refer to below, related predominantly to men who could not attend. Ms Bowie submitted that for Badulgal issues to do with land under customary law are traditionally handled by men, and so too traditional work such as cray fishing is carried out by men.

58    The other deponents supporting the joinder application should also be briefly described.

59    Tala Nona is in his early fifties, and has lived almost his whole life on Badu. He describes attending the 2015 mediation with his uncle, Mr Nona, the current applicant, deposing:

I recall there was about 30 people there, and about 10-15 were Badulgal. The rest were Mualgal and Kaurareg people.

60    Tala Nona attended the 1 February meeting on Badu, and gives some limited evidence about that meeting.

61    Wolfgang Laza is in his mid-fifties. I infer from his evidence that he has grown up on Badu. He has some previous involvement with the Mura Badulgal PBC. He deposes to what he has been told about Badulgal ownership of Warral and Ului. He did not attend either meeting, and deposes that he did not know about the 1 February meeting, because the only way he knows about meetings is when he sees flyers, and he did not see one for this meeting.

62    Broadly speaking, all the 15 affidavits filed in support of the joinder application concern the conduct of the authorisation meetings held on 1 February 2020 and 8 February 2020; earlier related meetings, including the 2015 mediation; the basis for the joinder applicants’ claim that only the Badulgal have native title interests in Warral and Ului; and the deponents’ apprehensions about the adverse effects for the Badulgal’s native title rights and interests over Warral and Ului of a native title determination shared with the Mualgal and Kaurareg people.

63    There were some affidavits to which objections were noted by the Badu applicant. It was agreed these could be dealt with as issues of weight rather than admissibility. There were some affidavits that did not relate to the authorisation process at all, but rather went to the joinder applicants’ substantive position on why native title on Warral and Ului is not shared with the Mualgal and Kaurareg people. An example is George Nona’s third affidavit. I have taken account of that kind of evidence only insofar as it may support the basis for the joinder.

Relevant provisions

64    Section 62A of the Native Title Act provides:

In the case of:

 (a)    a claimant application; or

(b)    a compensation application whose making was authorised by a compensation claim group;

the applicant may deal with all matters arising under this Act in relation to the application.

65    Section 64 provides:

Application may be amended to reduce land or waters covered

(1A)    An application may at any time be amended to reduce the area of land or waters covered by the application. (This subsection does not, by implication, limit the amendment of applications in any other way.)

Amendments taken to have been made in certain cases

(1B)    An application is taken to have been amended to reduce the area of land or waters covered by the application if an order is made under section 87A by the Federal Court. The area of land or waters is reduced by the area in relation to which the order is made.

(1C)    Subsection (1B) does not, by implication, limit the amendment of applications in any other way.

Amendment not to result in inclusion of additional areas

(1)    An amendment of an application must not result in the inclusion of any area of land or waters that was not covered by the original application.

(2)    However, if:

  (a)    the application is a claimant application (see section 253); and

(b)    the amendment combines the application with another claimant application or claimant applications;

subsection (1) does not prevent the inclusion of any area of land or waters covered by the other application or applications.

Application may be amended despite current action by Registrar or Federal Court

(3)    In the case of a claimant application, the fact that:

(a)    the Registrar is, under section 190A, considering the claim made in the application; or

(b)    the NNTT is, under section 190E, reconsidering the claim made in the application; or

(c)    the Federal Court is, on the application of the applicant under subsection 190F(1), reviewing the decision of the Registrar in relation to the claim;

does not prevent amendment of the application.

Federal Court Chief Executive Officer to give copy of amended application to Native Title Registrar

(4)    If an application is amended, the Federal Court Chief Executive Officer must, as soon as practicable, give a copy of the amended application to the Native Title Registrar.

66    Section 66B provides:

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.

Court order

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

Federal Court Chief Executive Officer to notify Native Title Registrar

(3)    If the Court makes the order, the Federal Court Chief Executive Officer must, as soon as practicable, notify the Native Title Registrar of the name and address for service of the person who is, or persons who are, the new applicant.

Register to be updated

(4)    If the claim contained in the application is on the Register of Native Title Claims, the Registrar must amend the Register to reflect the order.

67    Section 84(5) provides:

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.

68    Section 251B provides:

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.

Resolution: the s 64 and s 66B applications

Applicable principles on amendment

69    As I have noted, the Badu applicant seeks leave to amend its application for a determination of native title under s 64(1A) of the Native Title Act. That section, the terms of which are set out above, provides that an application may be amended “to reduce the area of land or waters covered by the application”, although it makes clear that this “does not … limit the amendment of applications in any other way”. On its face, the section is not a source of power to amend an application other than to reduce the area of land or waters covered by the application.

70    The present applicant does not seek “to reduce the area of land or waters covered by the application”. It may therefore be that the applicant should have sought leave to amend the application not under s 64(1A) of the Native Title Act but under r 8.21 of the Federal Court Rules 2011 (Cth): see Melissa Perry and Stephen Lloyd, Australian Native Title Law (Lawbook, 2nd ed, 2018) at [64.10]. However, neither the joinder applicant nor the State made any submissions about this, and I am prepared to proceed on the apparently agreed basis that s 64 is engaged.

71    Section 64 does not in its terms require there to have been any authorisation process carried out before an applicant applies to amend an application for a determination of native title or a compensation application. Read with s 62A, which is a broad and facultative provision, it would appear sufficient that a s 61 applicant applies, supported by evidence, for the amendment of an application: that is a “dealing” with the determination application within the terms of s 62A. This would certainly be the case if the source of power were r 8.21 rather than s 64.

72    In the absence of any process in the Court impugning the authorisation given by the claim group to the applicant for the purposes of s 61 of the Native Title Act, the terms of the Native Title Act would appear to provide a clear basis for such a relatively straightforward process. If on the evidence there are any concerns about an applicant’s authorisation to make the amendment application, then s 84D(1)(b) expressly empowers the Court to order the production of evidence of authorisation. As to the operation of s 84D(1)(b), and the role contemplated in the extrinsic material, see Far West Coast Native Title Claim v State of South Australia (No 2) [2012] FCA 733; 204 FCR 542 at [46]-[53]. At [50], Mansfield J noted that, by the terms of its authorisation under s 251B, a claim group may have placed limits around how an applicant may “deal with” a native title application after it has been made.

73    That said, there are amendments and there are amendments. Accepting that much will depend on the nature and extent of the authority given to those constituting the applicant, an amendment of the kind in question on these applications is plainly the kind of amendment which must be discussed and endorsed at claim group level. It is a fundamental change to the articulation of who holds native title in the islands of Warral and Ului, and on what basis.

74    It is worth observing here that the desire of a claim group closely to control those individuals it has selected to be its representatives may be counterproductive in practical terms. On the one hand, giving an applicant an extensive remit to “deal with” a determination or compensation application may appear to transfer control from the claim group to the applicant. On the other hand, requiring a full claim group meeting to authorise an applicant to undertake certain steps in a determination or compensation proceeding leads to delays, slower progress, and tremendous expenditure of money and resources. These are matters for each claim group to decide, no doubt affected by the level of trust reposed in those who constitute the applicant.

Applicable principles on s 66B

75    Section s 64 previously contained an express provision (s 64(5)) dealing with amendments which altered the individual claim group members who constituted the applicant. French J (as his Honour then was) dealt with this provision in Bolton v State of Western Australia [2004] FCA 760 at [7]. However, s 66B now expressly deals with that subject matter. There appears to be something of a debate whether other sources of power continue to exist: see Chapman v State of Queensland [2007] FCA 597; 159 FCR 507 at [13]; Sambo v State of Western Australia [2008] FCA 1575; 172 FCR 271 at [30]; Lennon v State of South Australia [2010] FCA 743; 217 FCR 438 at [32]; Murgha v State of Queensland [2011] FCA 1317 at [4]. It is not necessary to enter that debate on this application.

76    The conditions for an order to be made under s 66B were set out by French J in Daniel v State of Western Australia [2002] FCA 1147; 194 ALR 278 at [17] (see also Savage v State of Queensland [2020] FCA 231 at [13]):

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.

What is necessary to satisfy the requirements of s 251B in relation to both s 64 and s 66B?

77    In relation to the fifth requirement set out at [76], what is required for a particular “authorisation” to fall within the terms of s 251B is likely to be fact and circumstance dependent. It will also depend on which provisions of the Act are engaged by the need for the process contemplated by s 251B to be followed, including for example whether the Court retains a residual discretion in the power conferred which may enable it to look beyond the precise requirements of s 251B before the power is exercised. Such a residual discretion is present in s 66B: see Simpson v State of Western Australia [2004] FCA 1752 at [4]; NC (dec’d) v State of Western Australia (No 2) [2013] FCA 70 at [99].

78    This Court has considered what s 251B requires, and does not require, in many different circumstances. It is a question of considerable practical as well as legal significance for claim group members, and for those advising and representing them.

79    The arguments and factual circumstances on the s 64 and s 66B applications in the present proceeding illustrate some of the challenges involved. One particular challenge is how to combine, on the one hand, the need for the claim group as a whole to have the substantive control over the decision-making process which s 251B plainly embodies and, on the other, the need to have the claim group grapple with difficult and complex legal issues which may arise for its consideration. Any meeting process must be adapted to serve the cultural and customary expectations of the claim group while aligning sufficiently with the precision needed to present evidence to a court which must exercise judicial power on the basis of clear evidence.

80    As I explained in McGlade v Native Title Registrar [2017] FCAFC 10; 251 FCR 172 at [422]-[441], s 251B is a definitional provision, picking up the word “authorise” where it appears elsewhere in the Native Title Act and defining what it means. It is not a self-contained provision although it has substantive effect because it is a source of the claim group’s power to ensure those individuals who constitute the applicant deal with the determination or compensation application in a way which represents the will of the claim group, the claim group being the putative holders of native title and those constituting the applicant performing no more than a representative role.

81    Both s 84D(1)(b) and s 66B are mechanisms provided by the Act for those who constitute the applicant to be held to any limits imposed on their authority by the claim group: see Far West Coast (No 2) at [53]-[55], [57]-[59] and the authorities there referred to. There are authorities of this Court which find that s 251B impliedly extends to the revocation of authority of an applicant: see Ward v Northern Territory of Australia [2002] FCA 1477; 196 ALR 32 at [10]; Lawson v Minister for Land and Water Conservation (NSW) [2002] FCA 1517 at [14]. It is not necessary to consider that proposition in any detail for present purposes, however I would respectfully note that any such implication must arise from the circumstances in which the term “authorise” is used in the Native Title Act: for example, s 66B(1)(a)(iii) – an applicant is “no longer authorised”.

82    In Noble v Mundraby [2005] FCAFC 212 at [18], the Full Court emphasised the lack of prescription in s 251B(b) as to method:

The matter was then put to the vote. On the basis of this evidence, it was open to his Honour to conclude that by voting on the motions, those present agreed to a process of authorisation under s 251B(b) by a vote of all the members of the native title claim group. Section 251B does not require proof of a system of decision-making beyond proof of the process used to arrive at the particular decision in question. The section accommodates a situation where a native title claim group agrees to follow a particular procedure for a particular decision even if other procedures are normally used for other decisions. Nor does s 251B require a formal agreement to the process adopted for the making of a particular decision. Agreement within the contemplation of s 251B may be proved by the conduct of the parties. There was evidence in this case that the claim group conducted itself at the meeting on the basis that it agreed to a vote by the members of the group to determine the question of authorisation. All persons present voted in favour of the motion. Nobody is recorded as leaving the meeting or refusing to vote or in any other way conducting to indicate dissent from the course adopted. There was thus evidence from the conduct of the claim group on which the primary judge could base his conclusion that the requirements of s 251B were satisfied.

83    It has been observed many times that s 251B does not require a meeting to be held: see, eg, Gomeroi People v Attorney General (NSW) [2017] FCA 1464 at [46]. Meetings are a commonly used method, but that does not mean that the technicalities associated with meeting procedure are necessarily incorporated into the assessment of whether an amendment or an application was validly authorised. The touchstone remains the purpose of the definition of “authorise” in s 251B; namely, to repose the authority for the initiation and conduct of a determination or compensation application in the claim group as a whole. On the other hand, that does not render principles about meeting conduct irrelevant – see for example the discussion below about voting “on the voices” and “by a show of hands”. As Rangiah J noted in Gomeroi at [47], any alleged defects in the authorisation process must be assessed by the Court from the perspective of whether, in substance, they should be seen as affecting the authorisation said to have been given. Ultimately the question for the Court is whether, as the definitional effect of the terms of s 251B provide, it is appropriate on the evidence for the claim group as a whole to be bound by the outcome of an authorisation meeting.

84    It is for this reason that the kinds of challenges inherent in such a process, and outlined by Rangiah J in Gomeroi at [48]-[53], must be borne in mind, so that no overly technical or pedantic approach is taken by the Court: see Gomeroi at [54], quoting Lawson at [28]. That said, an assessment of the way the meeting was notified, who was present, how the decision-making process was adopted and agreed, and how the meeting was conducted may nevertheless reveal substantive difficulties which may lead the Court to determine that the claim group as a whole cannot be said to have authorised a step or application under the Native Title Act. Only human behaviour and imagination limits what might fall into this category and no defined categories of what is “substantive” and what is not can be given.

85    There is some debate, it appears, about the approach taken by French J in a number of cases to the Court’s assessment of the representativeness of meetings held to “authorise” applications to be made or decisions to be taken. In my respectful opinion, this is not some gloss or superimposed concept, but is reflective of the operation of s 251B(b), and is consistent with the context and purposes of the Native Title Act. The issue only arises in relation to s 251B(b), as s 251B(a) will either operate or not operate on its own terms, if a traditional decision-making process exists.

86    In Anderson v State of Western Australia [2007] FCA 1733 at [36], French J spoke in terms of the need for the Court to assess if

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.

87    That was an approach taken by his Honour in other decisions: see also Daniel at [18]; Anderson v State of Western Australia [2003] FCA 1423; 134 FCR 1 at [44]-[45]; Bolton at [42].

88    In Bolton at [43], French J said:

As I observed in Daniel v Western Australia at [11] it is of central importance to the conduct of native title determination applications that those who purport to bring them and to exercise, on behalf of the native title claim groups, the rights and responsibilities associated with such applications, have the authority of their groups to do so. The authorisation requirement acknowledges the communal character of traditional law and custom which grounds native title – Western Australia v Strickland (2000) 99 FCR 33 at 52; see also Moran v Minister of Land and Water Conservation (NSW) [1999] FCA 1637.

89    At [45], French J continued:

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.

90    The representativeness aspect flows from the nature of the decision being made. As French J explained at [44] (with my emphasis):

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.

91    That is why, for example, in cases such as Bolton, French J focused (see, eg, at [45]) on the need for the Court to be satisfied that it was those who fell within the claim group description who participated in the authorisation process.

92    The whole of [46] in Bolton should be reproduced (with my emphasis):

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.

93    Representativeness matters, especially in circumstances where a claim group may be composed of a number of smaller groups (whether linked by descent, or estate or language identification, or other factors). That is because the native title at issue is generally communal in nature, and what is important in authorisation is the will of the collective whole of those who hold the communal title. The will of the collective whole may not fairly be reflected in the loudest, the most Western-educated, the most mobile, those with the most dominant personalities or those who are adept at organising factions.

94    But “representativeness” of what? As the extracts above illustrate, it is not necessarily the outcome which must be “representative”; it is the composition of those who agree on and adopt a decision-making process, and how that decision-making process is implemented. A “representative” claim group meeting of 500 people could decide, under s 251B(b), to follow the course decided by three elders. Or they could decide on a majority decision-making process by show of hands of those present. Or on a postal vote. Or, to take a topical example, on voting via a Zoom meeting. Section 251B(b) is not prescriptive about the method which can be chosen. It is prescriptive about how the method can be chosen, because it expressly requires that (with my emphasis):

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 …

95    In Gomeroi at [128], Rangiah J observed that French J’s statements in Bolton needed to “be understood in light of the inadequacy of notification in that case” and also in light of Stone J’s opinion in Lawson at [25] that it is “sufficient if a decision is made once the members of the claim group are given every reasonable opportunity to participate in the decision-making process” (see generally at [126]-[140]).

96    With respect, I do not see Stone J’s remarks in Lawson as covering the field, and I do not see them as addressing the same matters as the multiple occasions on which French J used the term “representative” in various decisions. In my respectful opinion, French J had in mind the kinds of considerations to which I have adverted above. Otherwise, matters of form (which is what notice is) might triumph over matters of substance. And as Rangiah J’s reasons in Gomeroi make clear, the conduct of a meeting may also be relevant to whether there is a lawful authorisation. It is not difficult to imagine, hypothetically, a situation where the notice process and contents cannot be impugned but there is an illicit overbearing of the will of those attending a meeting so that the decision-making process as implemented cannot be said to be fairly representative of the view of the claim group. Such circumstances may well lead to the authorisation being found to be non-complaint with s 251B.

97    It has been held that the use of the word “all” in the chapeau to s 251B is not indicative of an intention that “all” members of the claim group must participate in any authorisation process: see McGlade v South West Aboriginal Land & Sea Aboriginal Corporation (No 2) [2019] FCAFC 238; 374 ALR 329 at [36]. However, the use of the word “all” in the chapeau is indicative of another matter. It indicates that Parliament intends the whole of the claim group to be bound by the decisions made, where the process required by s 251B is followed. That is one of the definitional aspects of the provision.

98    It is generally accepted that an amendment to the description of a claim group that alters the composition of the claim group must be authorised by a two-step process: first, by the existing claim group; second, by the proposed new claim group: see the authorities collected by Murphy J in Akiba v State of Queensland [2019] FCA 651 at [26]. His Honour noted that although the matter is not free from doubt, the better view is that the requirements in s 251B apply to such an authorisation, and the parties’ submissions proceeded on that basis. Accordingly, I accept the way the parties proceeded on that issue.

99    With respect to the question of notice, the State submits (and I accept) that any notice should:

(a)    alert the members of the claim group to the fact that the meeting has been called and give them sufficient time to make arrangements to attend it, if they wish to;

(b)    be sufficient to enable persons to whom it is addressed to judge for themselves whether they are included in those entitled to attend and vote; and

(c)    give fair notice to the members of the claim group of the business to be dealt with at the meeting, so that they can make an informed decision whether or not to attend.

100    The cases cited in support of these propositions are TJ v State of Western Australia [2015] FCA 818; 242 FCR 283 at [120]; Burragubba v State of Queensland [2017] FCA 373 at [32]; and Miller v State of South Australia (Far West Coast Sea Claim) (No 2) [2018] FCA 599 at [54]-[56]. I accept the State’s submissions fairly summarise the effect of these authorities.

My approach to the evidence filed in all applications

101    Unlike applications such as the one considered by Rangiah J in Gomeroi, there was no cross-examination of the deponents of the affidavits. No party sought for that to occur. As the Gomeroi decision reveals, that process itself can be productive of conflict within the claim group.

102    It is not the Court’s role to insist on cross-examination: that is a matter for the parties to raise if they wish to. There may be a variety of forensic reasons why a party would not seek to cross-examine a deponent.

103    Further, this hearing occurred at a time where a national emergency existed, in relation to the COVID-19 pandemic. This Court, like other courts, was not conducting “in person” hearings. The oral hearing for this matter was conducted over Microsoft Teams. The affidavit deponents were in their home locations throughout Queensland. It was not practicable, or consistent with s 37M of the Federal Court of Australia Act 1976 (Cth), to delay the hearing of these applications, especially given the uncertainty regarding when “in person” hearings might be able to resume, and people might be able to travel.

104    The absence of cross-examination does have some ramifications for the Court’s fact-finding. As these reasons explain, there are some matters of fact which could not assume the prominence they might otherwise have done because of the absence of cross-examination in circumstances where there was a conflict in the evidence. As best I can, where there are factual matters which are actively contested I have evaluated the reliability of the evidence on its face, and by reference to other evidence. In most cases that has been enough to make a decision as to weight – for example, see my findings about Mr Nona’s evidence at [160]-[172].

Finding on the authorisation of the amendment application and the s 66B application

105    The focus in these reasons is on what occurred at the meeting on Badu on 1 February 2020. That was certainly the focus of the joinder applicants’ submissions. It was also the focus of the State’s submissions, in the sense that the issues it raised about authorisation principally relate to that meeting. Once that meeting authorised the making of a joint claim, it was in a sense inevitable what would happen on 8 February, since the Mualgal and Kaurareg people were seeking to join a claim group they had previously not been part of. Thus, the real controversy was whether the Badulgal would allow this to occur. Further, it is clear from the evidence (and the joinder applicants highlighted this fact) that by the time of the 8 February meeting, the Badulgal attending that second meeting were likely to be outnumbered by the Mualgal and Kaurareg people, and if a majority voting approach was adopted (which it was), then the Badulgal, even if unanimous, could be outvoted.

Adequacy of the notice (process and content)

106    With some hesitation, I am prepared to find that the contents of the notice were sufficient to allow an understanding of the purpose of the meeting, and that there was a reasonable breadth of distribution of the notices to allow those who wished to attend the meeting a reasonable opportunity to do so.

107    I accept there were some periods of time in which the notices were either displayed, or posted on websites or Facebook, where claim group members may well have been occupied with other concerns, this being over the festive and holiday season in December and January. I do not consider this fact alone deprived claim group members of a reasonable opportunity to attend the meeting, or made the meeting other than fairly representative, since the notices were posted over a period of some six weeks, and that is a sufficient length of time, even accounting for some distraction because of the time of year.

108    While I accept that hindsight can render criticism unduly easy, and can lead to matters being taken out of context, in my opinion there was a lack of prominence in the text of the notice about the significance of the meeting. For example, in the boxed part of the notice next to the heading “Purpose”, the notice stated:

A meeting will be held to authorise changes to the current application for a determination of native title in the islands of Warral and Ului. These areas are shown in the map below.

109    While there is nothing inaccurate in that description of the purpose, it does not highlight what was on any view the critical aspect of the meeting; namely, the proposal to move from a claim of traditional ownership of the two islands by the Badulgal to a claim of traditional ownership of the islands jointly by the Badulgal, Mualgal and Kaurareg people. Where a notice is complicated, with a lot of text, it might be appropriate to anticipate that many people would read only the text in a box designed (it would seem) to draw their attention. For example, text along these lines in the box might have drawn more attention (cf Thornton v Shoe Lane Parking Ltd [1971] 2 QB 163 at 170):

IMPORTANT: SHOULD THE NATIVE TITLE CLAIM FOR TRADITIONAL OWNERSHIP IN WARRAL AND ULUI BE CHANGED FROM ONLY BADULGAL TO BADULGAL, MUALGAL AND KUARAREG PEOPLE?

110    This critical aspect of the meeting was referred to further down the notice, but as the State submits, even there it could have been articulated more clearly. The notice stated that “representatives for each group [had] agreed … that a joint native title determination application should be made” and that one matter that would be considered at the meeting was whether to “[a]uthorise changes to the claim group description to include Kaurareg People and Mualgal People”. Again, this was not inaccurate; however, terms such as “traditional ownership”, or “customary ownership”, when used in conjunction with the term “native title”, could not have been justly criticised and may have conveyed the core message more clearly.

111    I also note that no warning was given to claim group members that if they did not attend, it was likely a decision would be made in their absence. Giving claim group members a clear indication that if they do not attend the meeting they might surrender their chance to be heard on the issue may also have emphasised the importance of the meeting. There is some force in what Ronnie Nomoa stated at [15(b)(i)] of his second affidavit:

They should get someone to tell the boys, ‘this is what will happen if you’re not [at these types of meetings].

112    The danger in not doing so can be seen from [22(a)] of Tala Nona’s affidavit:

I did not know that any Badulgal, who were not at the meeting, don’t get any say in this claim.

113    However, it is apparent that the notice was widely enough distributed, and sufficiently clear, that a reasonable number of people who were opposed to the proposal were able to attend: the evidence is that at least five of the people who attended the 1 February 2020 meeting (four of the joinder applicants and Tala Nona) support the position taken by the joinder applicants.

114    There is evidence from Wolfgang Laza and Tommy Tamwoy that they did not know about the meeting and did not see the notices in any of the places they were published. Albert Bowie deposed that he only found out about the meeting because he was driving past the community hall and saw all the cars. I accept all of that evidence. It is enough to find that the notices were not wholly effective. This evidence, combined with the findings I make in the next section of these reasons, has caused me some concern.

The level of attendance at the meeting

115    The joinder applicants contend the level of attendance at the meeting was low, and that there were several obvious reasons for this, which could and should have been avoided. They point to the ineffectiveness of the notices, including the holiday-period issues I have discussed above, as well as the timing of the meeting.

116    George Nona gave evidence that he spoke to many Badulgal who did not attend the meeting. He produced a document which explained what those people told him about why they did not attend. There was no objection to this document and no submissions that it was unreliable.

117    The document, which is Annexure GN-2 to George Nona’s second affidavit, sets out the names of several Badulgal, their signatures, the reason for their not going to the 1 February meeting, and then their opinions about the question “Should Badulgal share our claim with Kaurareg & Mualgal? … Why?” This document is relevant to the issues the Court is determining for two different reasons: first, its capacity to establish how many Badulgal were not at the 1 February meeting and why; second, its capacity to establish whether the position of the joinder applicants enjoys broader support amongst Badulgal. I consider the second issue below.

118    I am satisfied the document establishes, as the joinder applicants submit, that approximately 54 Badulgal did not attend the meeting, in contrast to the 20 Badulgal who did. Of those who did, the evidence shows 5 Badulgal attendees opposed the proposed shared native title model. Thus, no more than 15 attendees, on the evidence, were in favour of it. Whereas George Nona’s survey establishes that more than three times that number have given plausible explanations for not attending, despite almost all of them – when asked – being opposed to the proposed shared model.

119    The joinder applicants contended:

The 1 February meeting was held on first day of cray fishing season when crayfishermen are allowed to use the hookah (breathing apparatus), with the first opening only continuing until 5 February 2020. This is a very busy time on Badu as Badu is a major cray fishing community in the Torres Strait and cray fishing is a significant source of income for many Badu families.

…

There were 54 names of Badu men from traditional owner families that did not attend the 1 February meeting because of other commitments. Of these:

a.    11 specifically said they were crayfishing

b.    3 said they were hunting

c.    21 said they were working (which may or may not have been crayfishing), and

d.    12 said they did not know about the meeting.

This indicates that 47 more people might have contributed to the discussion and been able to put forward their views at the 1 February meeting.

120    Those submissions have force. In particular, however adequate the notice, if the date chosen for the meeting is one which clashes with an activity that takes precedence for reasons of both livelihood and a small window of opportunity (as the hookah cray fishing time is), then it is challenging to describe the claim group as having had a “reasonable opportunity” to attend the meeting. As Ms Bowie submitted:

A lot of men rely on cray fishing for their livelihood and we would put it to the court that it just simply isn’t fair to ask people to choose between focussing on their livelihood versus coming to a native title meeting.

121    Mr Knobel’s evidence contains no detail about why this date was chosen, aside from contending he had conversations with “people on Badu” about the date.

122    If this were the only evidence and contention, it would be challenging to see what occurred at the meeting as an outcome which should be deemed under s 251B as an authorisation by the entire Badu claim group of the shared native title proposal.

123    In contrast to these points made about the lack of attendance, in terms of the participation of those who did attend, Mr Knobel’s second affidavit paints a somewhat different picture. At [21]-[23], he deposes:

Four of the five Joinder Applicants were present at the authorisation meeting #1 held on 1 February 2020 - Albert Bowie, George Nona, Ronnie Nomoa and Walter Tamwoy. Only Tommy Tamwoy was absent.

From my own recollections, assisted by the Minutes of the meeting (DJK9) I observed that:

a.    Mr Nona abstained only from the first resolution identifying the Warral and Ului claim group and who was entitled to vote at the meeting, (p 51, DJK9);

b.    Mr Albert Bowie abstained from the second resolution adopting the decision making process (p 52, DJK9);

c.    Mr Albert Bowie seconded the fifth resolution adopting the proposed amended claim group description to include the apical ancestors of the Badugal [sic], Mualgal and Kaurareg peoples in a joint claim to the Warral and Ului islands, (p 55, DJK9); and

d.    Mr Ronnie Nomoa seconded the fourteenth resolution acknowledging traditional laws and customs, (p 66, DJK9).

Apart from the two abstentions to Resolution 1 and Resolution 2 noted above, all resolutions were passed by the attendees at the meeting unanimously and without objection.

124    I note Mr Knobel is here not only relying on the minutes but on his recollection. As an officer of this Court, he can be assumed to understand the significance of deposing to facts in an affidavit and I am confident he does. There is no reason not to accept his evidence.

125    His evidence suggests a rather more active and positive participation by at least three of the four joinder applicants who were present at the 1 February meeting (Albert Bowie, George Nona and Ronnie Nomoa). Therefore, even if there were some who supported their position but who could not attend (because they were cray fishing, for example), their position was represented. The absence of people could well have affected the voting, and I accept that is a separate issue.

126    Even if there was objectively active participation, that is not necessarily inconsistent with the positon now taken by the joinder applicants. Much might depend on what each individual understood, or did not understand, when participating. It is also possible that some of the resolutions were, independently, matters on which some of the joinder applicants could agree, without agreeing to the overall outcome of a shared native title claim. These kinds of nuances are simply not able to be resolved on the evidence, when no participant sought to test the evidence given.

Dr Murphy’s opinion

127    Dr Murphy’s opinion tends against the evidence of the joinder applicants about the nature of the attendance at the 1 February meeting. His opinion was annexed to Mr Knobel’s first affidavit. Dr Murphy has been the anthropologist working with the Badu claim group on their native title claims since 2000. As [1] of the report indicates, Dr Murphy produced this report to assist the TSRA “in its deliberations on whether to certify the authorisation”, for the purposes of registration. As the State noted, the TSRA’s certification is not relevant to the Court’s exercise of power under s 64 and s 66B.

128    Dr Murphy was involved in the earlier Badu claims, and the Torres Strait Regional Sea Claim Part A, as well as in the 2015 mediation about Warral and Ului. He also referred in his report to his involvement in the authorisation process in relation to changes to the TSRSC Part B in 2018, and advice he gave to various legal representatives at that time. From [14] onwards of his report, Dr Murphy deals with the two February 2020 authorisation meetings. At [14] he states:

Further, both meetings were preceded by a meeting of a smaller group the day before. At the Badu meeting on 31 January, those who attended were the office bearers of the PBCs and a few elders who normally take a prominent role in dealing with native title matters at Badu.

129    Dr Murphy does not identify who he is speaking about in these passages, which limits the weight which can be given to what he says.

130    At [15]-[16], Dr Murphy states:

The authorisation meeting at Badu on 1 February was attended by only 20 people, and there were several families who did not have any family members present; however, this was not for lack of knowledge that the meeting was being convened (it should be noted that the meeting was held on the first day after the lifting of the seasonal hookah ban, so some people who otherwise may have attended were said to be out crayfishing). As it is normally the case that the people who do make the time and effort to attend such meetings take on the responsibility of making decisions on behalf of the broader group, in my opinion they did have the authority under traditional law and custom to make the decisions that were made at that meeting.

Similarly, and as noted in paragraph 11 above, it is normal practice that people may be appointed to attend meetings with representatives of other groups and are expected to make decisions on behalf of their own group. This is what occurred in relation to the Badulgal on 1 February for the meeting on 8 February.

131    Insofar as he suggests that everyone who wished to attend the meeting did so, or is likely to have authorised someone to attend on their behalf, Dr Murphy’s opinion is not consistent with the evidence of the joinder applicants. This is the kind of issue it is difficult to resolve without any testing of any of the evidence. Although Dr Murphy asserts the lack of attendance was “not for lack of knowledge”, the information collected by George Nona, and Albert Bowie’s evidence, might suggest otherwise.

132    On balance, I consider the Badulgal themselves are in a better position to inform the Court about the state of knowledge about the meeting on the island, and about why people did not attend. Dr Murphy’s evidence is generalised, does not name any individuals and is somewhat speculative.

133    However, it is true Dr Murphy has been working with at least some people on Badu for a long time, and I infer he knows those who have been active in the native title claim in particular. How many people that is, or who they are, are not matters revealed by the evidence. I give some, but not determinative, weight to Dr Murphy’s report.

The private discussion

134    At the 1 February meeting, the claim group members who were present requested an opportunity to discuss the proposal for a shared claim in private, without lawyers, TSRA staff or the minute-taker present. Under the heading “Claim group consultation and discussion” the minutes record the following:

The representatives, TSRA staff and minute-taker left the meeting at 11am to provide an opportunity for the Claim Group discussion. The meeting resumed at 2.30pm. Kevin [Dr Murphy] reminded the Claim Group that if they chose not to move forward with an agreement that this decision would have an impact on the current Sea Claim Part B. David provided further legal advice and answered questions at the conclusion of the Claim Group’s discussion. He explained the Mediation Agreement (Warral and Ului Claim).

The Claim Group considered withdrawing the Claim, however, in the interest of fulfilling the court order and in respect of the Kaurareg People and Mualgal apical ancestry evidence, they decided to move forward with an agreement.

135    There was no evidence from the joinder applicants about what happened during this part of the meeting, nor even whether they all attended this part. It is also unclear whether the private discussion was recorded, and if so whether this recording was used for the minutes or whether the outcome of the private discussion was announced to the minute-taker and other participants afterwards. On this point, Albert Bowie’s evidence at [15(g)] of his second affidavit was:

Then David Knobel said, “We can leave the room, so you can discuss it.” Then I asked, “but what about that?” (pointing to the recorder) “will that still be on?” David Knobel said, “oh well, that’s only for the minutes.”

136    Ms Bowie noted that the period of 3 1/2 hours extended over the lunch break, and the Court should not infer the meeting necessarily lasted that long. I accept that submission. There is no evidence at all about what happened during the meeting other than what the minutes record about the consideration of withdrawing the claim and ultimate decision to move forward, and also what Dr Murphy says about this part of the meeting.

137    At [19] of his report, Dr Murphy states:

On the issue of whether there were any “particular differences of position between the groups” it is noteworthy that at the meeting on 1 February at Badu there was an extended discussion (during which all non-Badulgal were asked to leave the meeting) over whether they should go along with the agreement that was reached in 2015, or alternatively seek to pursue an exclusive Badulgal claim over the islands. In the course of the meeting leading up to that discussion there were a few people who had not been involved in the discussions and meetings leading up to the 2015 agreement who promoted the latter position. After lengthy discussion among themselves it was agreed that they should proceed in honouring the 2015 agreement, and take the steps necessary to bring it into effect. One of the people who promoted the alternative course, arguing that the Badulgal should pursue an exclusive claim to the islands, attended the meeting on 7 February but did not come to the authorisation meeting the following day.

138    It was not clarified to whom Dr Murphy was referring in his last sentence, although it may have been George Nona (see [53] above).

139    I accept the evidence demonstrates the Badulgal who attended the meeting spent a significant period of time talking amongst themselves about what decision should be made on the joint claim proposal. It is not possible on the evidence to make a finding about how many people were involved in this discussion. It is likely to have been a number less than 20, since some people had left the meeting (see [148]-[159] below). However, this factor tends in favour of the conclusion that the endorsement of the joint claim at the meeting was a considered endorsement.

Voting by “on the voices” at the 1 February meeting

140    The joinder applicants submit (at [74] and [107]):

At the 1 February meeting, voting was done ‘on the voices’, and yet the minutes do not clarify whether or how the method for determining the presence or absence of voices (for the purpose of passing resolutions) was obtained. The minutes also fail to clarify whether or how the electronic recording was used to assist in determining votes, if at all.

…

The 1 February meeting does not accurately reflect the numbers of those who were in favour or against the resolutions. The fact that resolutions were carried on the voices does not mean necessarily mean they were carried unanimously, or that objections made in other ways could not be counted (or were unverifiable). Whilst the Joinder Applicants did not expressly disagree with the voting method at the time, they did not think of how an objection should be counted and expected contrary views to be reflected in the minutes. This did not happen.

141    It can be seen that this factor is linked to the criticism about the minutes of the meeting, which I deal with below.

142    The State also raises this issue (at [32]-[35]):

The above resolution indicates that the meeting could elect whether to conduct voting “on the voices” or by a show of hands. Whilst Mr Knobel states that voting was done “on the voices”, he does not explain how that came about. There is no evidence as to whether the meeting chose this method of voting or whether it was imposed upon the meeting by others.

The minutes record every resolution put to the meeting as having been “[c]arried unanimously on the voices”, with “Nil” objections, and one abstention on two separate occasions. However, there is no evidence as to what was actually involved in voting “on the voices”, or, more importantly, whether any explanation or instructions were provided to the meeting about how to vote “on the voices”. For example, were attendees simply asked to express agreement? If so, how? Were they required to positively voice their agreement (such as by saying “agreed” or “yes”), or was silence assumed to be agreement? If the latter, by what means was an attendee to indicate disagreement? (cf. Joinder Applicants’ submissions at [107]-[108]).

The evidence of the Joinder Applicants regarding voting at the meeting is that:

(a)    Albert Bowie, George Nona, Ronnie Nomoa, and Walter Tamwoy, all state that they did not vote for sharing the claim with the Mualgal and Kaurareg people (implicitly by staying silent during the vote).

(b)    George Nona believes that voting “on the voices” does not give a proper reflection of who actually supports the resolution. He recalls shaking his head at most of the resolutions, and thought that voting on the voices meant that, by not saying anything, Mr Knobel would understand that he did not agree, and that this would be reflected in the minutes. Albert Bowie makes a statement to similar effect.

The opacity of the evidence regarding the way in which voting was conducted at the Badu meeting stands in contrast to the transparency of the voting procedure used at the subsequent authorisation meeting of the Proposed Claim Group on 8 February 2020. A resolution passed at that meeting similarly provided that “voting will be on the voices or by show of hands of those entitled to vote”. Yet, at that meeting, voting occurred “by show of hands of those entitled to vote”, with the votes being tallied and recorded electronically so they were visible to the meeting. Moreover, precise vote counts were recorded in the minutes of the meeting for each resolution. This is despite the fact that there is no evidence that the attendees at the 8 February meeting themselves chose to use this method rather than “voting on the voices”.

(Footnotes omitted.)

143    I accept the State’s submissions about the absence of evidence about how “voting on the voices” in fact occurred at the 1 February meeting. It seems common ground it was not a method expressly agreed to by those present at the meeting. The evidence also discloses that those who did not agree were unsure about how their disagreement was to be registered, and recorded. The adoption of this process means it is not possible to ascertain, through the minutes or otherwise, how many people voted in favour of a particular resolution.

144    As the State submits, however, the joinder applicants do not expressly submit that there was not a majority at the 1 February meeting for the key resolutions about the shared native title claim. I accept that if the joinder applicants, and their witnesses, had believed there was in fact no majority, they would have said so in their evidence.

145    In the circumstances, although there may have been a well-intentioned reason to use the method of “voting on the voices”, the lack of understanding about how agreement or disagreement was to be expressed, the absence of any recording in the minutes of what a result actually meant, in terms of agreement or disagreement in the room (eg it could have been “ayes 12, noes 6, 2 people did not express a vote”) and the uncertainty created by the situation in the context of such an important issue, was undesirable and has left room for real doubt about how the resolutions were passed at the 1 February meeting. The use of this methods tends against satisfaction that there was a clear vote of a fairly representative section of the claim group in favour of the shared native title proposal.

146    In contrast, the “show of hands” method is well understood. In NC, McKerracher J said at [85]:

To the extent that there was a requirement for a show of hands, this is, of its nature, a process which is meant to be by simple majority. As noted in Horsley’s Meetings (at [14.12]) the show of hands is defined at common law as being:

each person present and entitled to vote has one vote and one vote only, and those who wish to vote do so by a show of hands … Under this method the voting does not take into account variations and sizes of shareholdings or other entitlements, nor the presence of representatives of absent persons entitled to vote. (citations omitted)

147    The show of hands method was used at the 8 February 2020 meeting and resulted in clearer and more certain recording of the views of those present.

The fact that people left the 1 February meeting

148    The point raised by the joinder applicants on this matter is that several claim group members left before the resolutions were put to the floor. This included Mr Nona, the present applicant. However, the evidence is that other elders also left, that at least one person (Ipad Nona) left in protest, and that others left with him. By the time the resolutions came to be voted on, even the rather small number of 20 claim group members had dwindled significantly.

149    George Nona’s evidence was (at [12] of his second affidavit, with bracketed insertions in the original):

I do not believe that all resolutions were passed unanimously.

i.    From my recollection, even the number of people were not enough to speak for Badu anyway. Before resolutions were being passed, two of our elders had already left, and so had Ipad Nona, Sarieo Kusu and Tui Nomoa [refer to the above paragraph 5(g)].

ii.    I didn’t agree with the resolutions either, mostly because I did not understand them the way they were written.

150    At [5(g)] George Nona deposed:

Some people on the attendance register had already left by the time resolutions were being passed. This included two of the main elders – Uncle Victor Nona and Uncle Richard Bowie, who left together some time in the mid-afternoon. Resolutions were passed in the late afternoon.

151    And at [18(e)] George Nona said (with bracketed insertions in the original):

In relation to Ipad leaving the meeting, “That’s true, but not only him, there was Sarieo, Tony boy and Tui. And remember [Ipad] is a leader for them young boys too.”

152    Albert Bowie’s evidence was (at [4(g)] of his second affidavit):

Some people on the attendance register had already left by the time resolutions were being passed. This included some of the elders – Uncle Victor Nona and Uncle Richard Bowie left together at 3:10pm. Uncle Tom Jack Baira left in the early afternoon.

153    The Badu applicant did not contradict this evidence. Recalling that it is agreed there were only about 20 Badulgal at the meeting to begin with, this means by the time the resolutions were being passed, only 14 people at the most remained. Of these, on the evidence at least 5 were opposed to the resolutions endorsing the shared native title proposal. On the evidence, around 54 Badulgal men were not there, and some would have been if they had known about the meeting, or had not been working.

154    George Nona explained what standing up and leaving meant, in Badulgal culture (at [12(c)]–[12(d)] of his second affidavit):

In our way, which we call “danalaig” (meaning our lifestyle), when a Badulaig disagrees with something, he doesn’t want to be a part of it. He stands up and walks out. Usually, in a gathering of our people, I would get up and walk out when I don’t agree, but for this native title, I partly understand that I should stay, even if I don’t want to – even if it is against what I believe. This is a hard thing for me to do, as a Badulaig.

I tried to do this at the meeting on 1 February 2020, but it still didn’t do anything. My view was not reflected in the minutes. So this court did not get a chance to know my view until now, when our group filed this interlocutory application.

155    George Nona also expressed his observations of what was happening at the meeting by the time the resolutions came to be passed (at [19(e)], with bracketed insertions in the original):

ii.    David Knobel and Kevin Murphy said it was already decided, so we’re just passing resolutions, but nobody understood what was happening. People just wanted to ‘quick one’ agree so our elders can go home.

iii.    When it came to the time to pass resolutions, no one wanted to pass it. [Everyone in the meeting] was saying, “ay c’mon, quick, pass it so we go house.”

156    In Gomeroi at [169], Rangiah J found that the fact that claim group members left an authorisation meeting (apparently in protest) had no effect on the validity of the authorisation. His Honour said:

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

157    Obviously that was a finding made on the evidence before his Honour. Equally obviously, a number of people leaving an authorisation meeting before resolutions are put cannot be used as some kind of sabotage tactic, to deprive the meeting of its validity.

158    That is not this case. The evidence shows people left for a variety of reasons – some were elderly, and tired (such as Mr Nona); some (such as Ipad Nona) were indicating their disagreement in a culturally acceptable way, and other were supporting Ipad Nona. It may well be some had other reasons for leaving. What this does show is that leaving resolutions (the core function of the meeting) to the end of a very long day is another organisational flaw which, with the comfortable but sometimes unrealistic perspective of hindsight, would have been better avoided. The better course may have been to leave the decision-making until the following morning, when people were fresh and perhaps better attendance might have been secured. If it was the case that people discussed issues overnight and changed their minds, then that is no more than the decision-making process of the group at work.

159    The fact that people left the meeting, including elders and at least one key Badu man who disagreed with the shared native title proposal, does in my opinion cast some doubt on whether, at the time the resolutions were passed, the meeting can be said to be sufficiently “fairly representative” of the Badu claim group to fix the entire claim group with the outcome of voting on the voices at the end of that day.

Mr Nona’s evidence

160    Mr Nona is the only person who currently constitutes the applicant in the Badu proceeding. He is a very senior Badu man, and is now in his late seventies. It is plain from part of his evidence, which I accept, that he wishes now to hand over responsibility to the next generation of Badulgal. This claim has been on foot for almost 18 years, and his position is entirely understandable. He deposed (at [18] of his affidavit):

My aim is to get the claim into a good shape by putting in place the 2015 agreement as much as possible, and to then step down and allow the agreed and authorised representatives of each of Badulgal, Mualgal and Kaurareg to take my place as the Applicant.

161    I accept that evidence.

162    This is also consistent with Albert Bowie’s evidence about Mr Nona’s attitude at the 1 February 2020 meeting (at [18(e)] of his second affidavit, with bracketed insertions in the original):

I recall that Uncle Victor said, “Take my name off this thing [application], I’ve finished [with it] now. Give it to someone else.” Then he looked at me.

163    However, there are other aspects of his evidence on which I have placed less weight.

164    The joinder applicants’ submissions emphasised the respect they have for Mr Nona and his family. Ms Bowie was careful to couch her submissions about Mr Nona’s affidavit evidence in a most measured and respectful way. However, the joinder applicants contended the Court should be cautious in accepting every aspect of Mr Nona’s affidavit, given his advancing age and what I understood were concerns about whether his capacity to make decisions had some fragility about it.

165    George Nona gave the following evidence in his second affidavit at [17(d)] (with bracketed insertions in the original):

In relation to the part that talks about Uncle Victor’s request [to step down], Him and Uncle Richard, them two made me sorry because half the time, they were turning around to us, and asking, “what’s happening?”, “what’s he saying?”

166    How much of the detail of both the 1 February meeting and the shared claim proposals Mr Nona understood is something of an open question. I accept that conscientious efforts were made by the applicant’s lawyers to explain matters to him, and to assist him in understanding them. Nevertheless, I retain some doubt about how successful those efforts were.

167    On the material question of how accurate the minutes are, and how many people attending the meeting really agreed with the shared native title proposal, Mr Nona deposed (at [10]):

I have been read a copy of the Meeting Minutes #1 by my lawyer, Michael Neal. I attended most of the meeting, but it was a very long meeting and I am not a young man anymore. I left the meeting in the late afternoon. I agree that the Meeting Minutes #1 are a reliable record of that part of the meeting that I attended, and I also agree with all of the resolutions that were passed, even after I left. The meeting was a proper Badulgal meeting even after I left.

168    As I noted during argument, having seen the minutes of the 1 February 2020 meeting, if a lawyer had read those minutes to me, my eyes would glaze over very quickly. Again, while not doubting the conscientious efforts of the lawyers concerned, I am sceptical about how much Mr Nona would have absorbed from having the minutes read to him. To absorb it all would have been a feat of concentration and memory beyond most people, let alone an elderly man who I infer, like many Badulgal, does not have English as his first language.

169    Further, without more detail about what made the meeting, by the time the resolutions were passed and there were only about 14 people left, a “proper” Badu meeting, I am unable to accept this hearsay assertion in Mr Nona’s affidavit.

170    Nevertheless, Mr Nona’s affidavit was clear in expressing his support for the shared native title model. At [12]-[13] he said:

The Badulgal present at the Badulgal authorisation meeting resolved to authorise me to make the Amended Application and deal with matters arising in relation to it in accordance with the above decision-making process. I support that.

My aim is to put the 2015 agreement with our Mualgal and Kaurareg neighbours into practice, and to get through all of the legal steps to do that, and then step down.

171    It was not suggested by the joinder applicants that this was anything but Mr Nona’s personal view: that is, that he supported the shared claim proposal. I accept that he does.

172    Thus, Mr Nona’s evidence supports the s 64 and s 66B applications to some extent, but cannot be taken at face value.

The minutes point

173    There was substantial debate about the minutes at the hearing of the interlocutory applications. The minutes were taken by an independent minute-taker, and there was no suggestion but that the minute-taker had performed the task professionally, and had attempted to be comprehensive. There was no evidence about the decisions that were made about what to include, and what to leave out.

174    Two initial and general observations should be made. It may be appropriate for these matters to be considered in future planning for authorisation meetings. Those two observations relate to the absence of a recording available to the parties and the Court, and the absence of any opportunity for the claim group members to check and verify the minutes, as participants in a meeting would usually be able to do.

175    An audio recording was made, and I infer it was used to produce the minutes. Mr Knobel deposes that the meeting was informed that the audio recording would be destroyed after the meeting. I find it somewhat surprising, to say the least, that in the context of a meeting where it was obvious there was substantive opposition to the proposal which was approved, the recording was destroyed after the minutes had been approved. As I noted at the hearing that deprived the Court and the parties of the best evidence about what happened at the meeting. In Gomeroi, Rangiah J was able to view a video recording of the contested authorisation meeting, and his Honour made specific findings about the meeting based on that recording: see, eg, at [152]. While it is understandable that people may be reticent to be filmed, where there is any anticipation of a dispute about an authorisation meeting, a video recording provides an unequivocal and independent record which can be accessed by the Court, and by those who are debating what occurred and why.

176    Second, the only checking of the minutes was, the evidence reveals, undertaken by the TSRA. There is evidence the TSRA paid for the attendance of the minute-taker and the preparation of the minutes. That is no doubt an essential aspect of its facilitation and assistance function as a representative body, and claim group members are entitled to expect no less for an important authorisation meeting, as this was. The joinder applicants contended, and the Badu applicant did not contest, that Mr Scott from the TSRA was the person who “verified” the minutes, although he did not attend the meeting.

177    However, as I have noted, and again inexplicably, the people most centrally concerned with the accuracy of the minutes – the claim group whose comments and discussions and resolutions were being recorded – were not given any opportunity to check or verify the minutes, and certainly were not asked to certify them as accurate. While I accept that communication with claim group members, especially on an island such as Badu, presents challenges, I do not consider this is a complete excuse for not giving those who attended the meeting an opportunity to confirm that the record of the meeting was accurate. First, that is basic meeting procedure. Second, it enhances the control and autonomy of the claim group members who attended the meeting, consistently with the purpose of authorisation. Third, the minutes become an important evidentiary record for the Court in applications arising from an authorisation meeting, whether those applications are contested or not. The Court should be able to rely on them knowing that those who participated in the meeting have agreed they are accurate and complete.

178    One further matter should be noted. As the joinder applicants submitted, having the TSRA involved in the finalisation of the minutes (as the evidence reveals it was) meant that the TSRA had access to information that was subject to legal professional privilege as between the applicant’s lawyers and the applicant and the claim group. There is a substantial part of the minutes which, on the version adduced in evidence, was redacted. The Court was informed that portion contained legal advice given to the claim group. However, if there were communications at the meeting which were subject to legal professional privilege, and which were to be recorded in the minutes, it is obviously inappropriate that the TSRA should have access to such information. Subject to waiver on an informed basis by a native title applicant and/or the claim group, a representative body such as the TSRA has no entitlement to see advice subject to legal professional privilege as between a native title applicant and their lawyers. If that is what occurred, it should not have. Conversely, the fact that the minutes as presented to the clients (that is, the claim group in this case, rather than just Mr Nona as the applicant) were redacted is not consistent with any claim for legal professional privilege. In the present case, as legal advice was obviously given to all who attended the meeting as members of the claim group, they (including the joinder applicants) are the very people entitled to see the legal advice as it is recorded as given.

179    The State had expressed a particular difficulty with one aspect of the minutes; namely, that they mistakenly recorded the State’s position on the connection material provided for the Warral and Ului claim. It was unclear whether that was a difficulty with the taking of the minutes, or with what was said at the meeting. Either way, it is a concrete indication of some substantive difficulty with what is recorded in the minutes.

180    Another concrete example of inaccuracy is the fact that the minutes record George Nona as being nominated as a representative of Badulgal for inclusion as a member of the proposed replacement applicant. George Nona (at [19(h)] of his second affidavit) and Albert Bowie (at [17(a)] of his second affidavit) both swear the correct individual was George Morseu, who is in fact a member of the proposed replacement applicant. I accept that. Quite apart from the fact that it was George Morseu, not George Nona, who attended the 8 February 2020 meeting and was nominated as a member of the replacement applicant at that meeting, it would be fundamentally inconsistent with George Nona’s opposition to the proposed joint claim for him to agree to be nominated as a member of the proposed replacement applicant.

181    Aside from those matters, the joinder applicants also contended that the minutes:

(a)    did not appear to record some of their objections to the shared claim proposal;

(b)    were not detailed enough;

(c)    were inaccurate in that they recorded some matters which were not discussed, or inaccurately recorded matters (such as the mix up between George Nona and George Morseu);

(d)    did not clarify who was present when resolutions were put, and how many were present; and

(e)    did not record people leaving the meeting as a culturally appropriate form of objection to the resolution, although “their dissent was clear by the manner in which they exited the meeting”.

182    Some of these contentions have been covered in the other topics I have dealt with above. Most stem from the general difficulty I have discussed at [177]; namely, that those who attended the meeting were not given an opportunity to review the minutes for accuracy.

183    For the purposes of the applications under s 64 and s 66B, the function of the minutes is, as I have explained, to provide the Court with an accurate and reliable record, in an evidentiary sense, of the process which is submitted to fulfil the requirements of s 251B. They have been professionally prepared and, as far as they go, are clear. They describe the progress of the meeting throughout the day, who spoke and what they said, and they disclose the text of the resolutions put to the meeting at the end of the day. They show who proposed and seconded each resolution, and have been established by the evidence to be inaccurate only in one respect. Together with the evidence of Mr Knobel, and that of Dr Murphy, and Mr Nona, I am not prepared to say there is an insufficient evidentiary foundation for the Court to assess compliance with s 251B.

The Coyne point: no proportionality requirement?

184    Some emphasis was placed in the State’s written submissions, and in oral submissions, on passages from the decision of Siopis J in Coyne v State of Western Australia [2009] FCA 533, which have been endorsed since (see, eg, Wilson v State of South Australia (No 2) [2016] FCA 812 at [75]), about the absence from s 251B of any notion of proportionality between the size of the claim group and the number of people who may attend a meeting and vote in favour of a step such as claim amendment or authorisation of a new native title application and/or applicant. The approach can be summarised by extracting some passages from the reasons of Gilmour J in Roe v State of Western Australia (No 2) [2011] FCA 102 at [14]:

Although a meeting to replace an applicant should be attended by persons fairly representative of the claim group, authorisation can nonetheless be validly given by a small percentage of the whole claim group provided that the process leading to that authorisation has been appropriately notified and conducted. In Coyne v Western Australia [2009] FCA 533, for example, a meeting of 72 people (including 29 people opposed to its outcome) was able to authorise the change of applicant for a broader claim group of between 5,000 and 20,000. His Honour, Siopis J at [51] concluded that because the meeting had been widely notified, including that the meeting could consider changing the applicant, it could be inferred that:

Those who decided not to attend the meeting were content to abide by any decision made by those who did attend the meeting and … accordingly, the decisions made at the meeting were the legitimate binding expression of the view of the … claim group as a whole.

185    It should be noted that Gilmour J prefaces what he says by reference to the attendance at the meeting being “fairly representative” of the claim group, harking back to the observations of French J which I have discussed earlier. In my respectful opinion, that qualification is necessary and appropriate.

186    In NC, McKerracher J said at [96]:

It is a recurring theme for the respondents to the application that the majority was too slim and not only had majority decision-making not been properly agreed, but that it required agreement by all people or almost all people. I do not consider this to be the case. In Coyne v State of Western Australia [2009] FCA 533, a meeting of 72 people was held to be able to authorise the replacement applicant where 29 people opposed the motion. Given the division present within the Yindjibarndi native title claim group, to suggest that unanimous or near unanimous approval of the decision-making process was required would ‘make it extremely difficult if not impossible for a claimant group to progress a claim’: see Lawson (at [25]) per Stone J and P.C. (at [22]) per Bennett J.

187    I accept that there is no proportionality requirement to be implied into s 251B(b). I accept the reasons for this are explained by McKerracher J in NC. I also accept that there is no implication in s 251B(b) that the outcome of whatever decision-making process is agreed and adopted must be a unanimous outcome, or without substantial dissent. However, as I have explained, that is because what s 251B(b) does contemplate, and require, is that, first, the notification of meeting, and processes for attendance, be capable of giving those who wish to attend a reasonable opportunity to attend, and second, notice of that nature having been given, it can be said that the agreement to and adoption of a process of decision-making (the first step in any authorisation process) was undertaken by persons who are “fairly representative” of the claim group.

188    That said, some assessment of proportionality in the assessment of an authorisation process for a step in a native title claim, or a compensation claim, may not be a prohibited consideration. In one sense, proportionality is inherent in the concept of attendance at a meeting, or participation in a decision-making process, being “fairly representative” of the claim group as a whole. These concepts are important because the effect of s 251B, being definitional and having a deeming aspect to it, is that the whole claim group is bound by the outcome. While, as some of the authorities have emphasised, this may mean individual claim group members must take personal responsibility for keeping an eye out for notices published, and should make informed and active decisions whether or not to participate in an authorisation process (whether that is attending a meeting, as it usually is, or some other process), to reduce s 251B to debates over contents of notices in my respectful opinion gives insufficient prominence to the focus of s 251B on the agreement and adoption of a process by the claim group which is intended to bind the claim group. It is this latter aspect which means it is vital that those who oppose proposed steps in a claim attend and participate.

Language

189    At [85]-[86] of their submissions, the joinder applicants contend:

In both meetings there was a significant language barrier, as English is the fourth language for many Badulgal. Mr. Knobel was speaking “Legal English” for most of the 1 February meeting, and most attempts to translate the important things, like resolutions, into plain English were not done very well.

At the 1 February meeting there was no interpreter to explain the resolutions, what they meant and how they could impact Badulgal. The Joinder Applicants contend that even the bilingual Badulgal were not very effective at explaining important points, such as the wording and impact of resolutions.

190    Albert Bowie’s evidence at [4(a)]-[4(e)] of his first affidavit was:

I really tried to understand the wording of resolutions at the meeting, but David was reading through them quickly, and there’s a lot of words that I don’t understand.

I don’t understand legal English. This is really what David Knobel was speaking in the meeting – legal English.

There should have been a translator to help in the meeting, but I thought David Knobel would explain it to us in plain English.

Since our group has started this interlocutory application, Mareshah Bowie, who has legal training, has helped me to understand the resolutions of the authorisation meetings, and what they mean in English.

If David Knobel had explained these properly, I could have made a more informed decision about the resolutions.

191    George Nona gave similar evidence at [5(a)]-[5(e)] of his second affidavit, as did Walter Tamwoy at [5(a)]-[5(e)] of his second affidavit, both noting that English is their fourth language.

192    Ronnie Nomoa’s evidence at [4(a)]-[4(c)] of his second affidavit was (with bracketed insertions in the original):

English is my fourth language.

Even in the meeting, when David was reading the words, I still didn’t understand what was being said.

Even some of the [younger generation] don’t understand. My generation [is] way back [on understanding], so if they can’t understand, [my generation is] not going to understand.

193    At [15] he said (with bracketed insertions in the original):

Never in the meetings did someone put anybody there to explain all these things to us [in language], or even anyone to explain like Mareshah did here now. Never.

194    The joinder applicants’ evidence was that these language difficulties were exacerbated by the length of the meeting, and what they describe as a rushed end to the meeting.

195    Albert Bowie’s evidence at [13]-[14] of his first affidavit was:

The meeting started around 8.45am and did not finish until after 6.00pm. It was a very long meeting and some of the people who were there in the beginning were not there by the end.

By the time the group were making resolutions, the lawyer was talking through them very quickly, and I could hardly keep up. Some resolutions were changed as we went along.

196    The other joinder applicants gave similar evidence.

197    This evidence must be balanced against Mr Knobel’s evidence of reasonably active participation by four of the joinder applicants in the 1 February meeting, and by the language used in their affidavit material. I accept that the joinder applicants have been assisted by Ms Bowie to understand some of the documents from the meeting, and the minutes, and the fact they needed such assistance indicates that they have struggled in what, as the submissions note, might be a fourth language for them. Any person working in native title would have experienced the reverse situation; namely, being present when a group of Aboriginal people or Torres Strait Islanders are speaking in language. It needs little imagination to understand what it would be like to experience a decision-making process in that environment, with an outcome which would bind the person who did not fully understand the language being spoken. This is an issue over which great care needs to be taken, and no assumptions made.

198    However, on the material before the Court, and again without that material having been tested, I am not persuaded this evidence about language difficulties should dislodge the evidence of the resolutions being passed in the form they were, by the people in attendance. Further, and importantly on this issue, as the Badu applicant submits, there was a private component to the 1 February meeting where only Badulgal met, and spoke in language, and the outcome of this was an endorsement of the proposal. As I have noted, aside from the fact of that private meeting, its announced outcome as seen in the minutes and Dr Murphy’s report, the Court has no evidence about what happened during that meeting. I accept the applicant’s submission that the fact this private meeting occurred, and occurred in language, counterbalances some of the evidence from the joinder applicants. There was a sustained and meaningful opportunity for those who were at the meeting to explore, in language, any meanings or consequences about what was being discussed that they did not otherwise understand.

The 8 February 2020 meeting on Ngurapai

199    As I have observed, and understandably, there was less focus by the joinder applicants on this meeting and whether it constituted an authorisation within the terms of s 251B. Indeed in some respects the joinder applicants positively contended the process ahead of that meeting was a better one – for example, the fact that many Kaurareg were notified of the meeting by a door-to-door, person-to-person notification process. As with the 1 February meeting, pre-meetings were held for the Kaurareg people and Mualgal, as well as for Badulgal who travelled to Ngurapai for this meeting.

200    This meeting was attended by all three anthropologists working in this region – Dr Murphy, Dr Hitchcock and Mr Wood, and each gave an opinion which was in evidence that those attending would be considered to have authority to make decisions on behalf of each of the three groups. There was no challenge by way of evidence or submission to the authority of those Mualgal and Kaurareg people who attended to make decisions on behalf of their respective groups.

201    As I have noted, according to the minutes, of the joinder applicants, only Ronnie Nomoa attended the meeting, although Walter Tamwoy deposed that he also attended. Tala Nona, who swore an affidavit in support of the joinder applicants’ application, also attended the meeting. Therefore, there is less direct evidence in contradiction to the Badu applicant’s account than there is for the 1 February meeting.

202    As I have also noted, this meeting agreed to and adopted a process of decision-making which included voting by show of hands, and this was the process used. Thus there is more reliable detail about numbers of people who voted in favour of each resolution, or who voted against or abstained.

203    Against this, some of the points made in respect of the 1 February meeting still apply. The criticisms of the minutes not being verified by those who attended the meeting is the same, but as I have found, since fewer Badulgal who opposed the share claim attended, there is less direct evidence about why the minutes might not be accurate.

204    There is a complaint made about there being limits on the numbers of Badulgal who were funded to attend the 8 February meeting on Ngurapai. However there was no evidence that if different funding arrangements had been made, more people opposing the shared claim would have attended, and the outcome might have been different.

Discretionary issues

205    As I have noted, it is well established the Court has a residual discretion under s 66B to refuse to exercise the power conferred to replace the applicant, even if the s 66B application and the change is found to be validly authorised. No specific matters were put forward as discretionary issues, but many of the matters I have discussed above could also be considered under this aspect.

206    A not insignificant factual point is that the only existing claim over Warral and Ului is that of the Badulgal. This highlights the significance of the amendment application, and the three-way agreement said to lie behind it. It is not a compromise of three existing claims which overlap; it is the alteration of an existing claim from a claim that native title is held by one group to a claim that native title is held by three groups. Whether it is one or more “native titles” over the same area remains to be explored: see Drury v State of Western Australia [2020] FCAFC 69 at [35]-[37] and [76]-[80].

207    I have considered whether this feature means additional weight should be given to some of the matters raised by the joinder applicants: that is, the seriousness of a circumstance where two groups are incorporated into a native title determination application despite having never formally lodged a claim over the land concerned. However, in my opinion it was tolerably clear from the content of the notice, and what was said at the meeting on Badu, that this was the effect of accepting the shared claim proposal.

208    I do not consider any of the matters raised by the joinder applicants warrant a discretionary refusal to exercise the powers under s 64 and s 66B. Further, with the exception of James Ahmat, unsworn affidavits for each of the proposed new members of the applicant have been filed deposing to having been authorised by the proposed new claim group, and I give weight to that evidence. At the hearing the Court was informed that efforts to communicate with James Ahmat are ongoing and his affidavit will be filed as soon as it is available.

Conclusion on the applications under s 64 and s 66B

209    With some reservations, and incorporating the observations I have made on the joinder application below, I am nevertheless satisfied on the balance of probabilities that each of these applications has been authorised in accordance with s 251B of the Act, and that it is otherwise appropriate that the orders sought by the Badu applicant be made.

Resolution: the joinder application

210    Referring to the three elements in s 84(5) of the Native Title Act, the Badu applicant accepts that the joinder applicants “have an interest in the claim area satisfying the first element of the test”; however, the Badu applicant “contend[s] that that interest will not be adversely affected by a determination in the terms sought … but rather confirmed”. This is said to be relevant to the third element of the test; namely, whether it is in the interests of justice for the applicant for joinder to be joined as a party.

211    The basis for this contention that the joinder applicants’ interests will not be adversely affected by the determination sought is summarised at [61] of the Badu applicant’s written submissions:

The Applicant submits that the proposed amendment to the claim recognises the rights and interests Badulgal hold as coexistent with those held under the same system of laws and customs by Mualgal and Kaurareg. The Applicant contends that such recognition will not interfere with the Joinder Applicants’ rights and interests which are also co-existent with the rights and interests of other parties such as the State and Commonwealth, the public and other persons holding rights and interests under the laws of the State and the Commonwealth such as fishing licence holders.

212    The Badu applicant notes that 17 years have passed since the notification period and submits that the joinder applicants have failed to provide “a satisfactory explanation for any delay connected with their application and the prejudice that may be caused to existing parties to the proceeding if they are joined as a party”.

213    The State, which supports the joinder applicants’ application, distinguishes between “complaints about the procedural conduct of a native title claim” and “a substantive dispute about who holds the native title in the claim area or how it is held”. The State submits that the joinder applicants fall into the second category, as they are asserting “a different and inconsistent basis of native title”. The State submits that, contrary to the Badu applicant’s submissions, the joinder applicants’ interests will be adversely affected by the determination sought, because the joinder applicants claim that the Badulgal enjoy a native title that is exclusive of, or at least superior to, that of the Mualgal and Kaurareg people, while the Badu applicant seeks a determination that the Badulgal enjoy native title jointly with the Mualgal and Kaurareg people.

Applicable principles on joinder applicants claiming their native title interests are affected

214    The principles on joinder were recently summarised by Rangiah J in Bell v State of Queensland [2020] FCA 695. As his Honour observed at [23], s 84(5) contains three elements:

 (a)    whether the applicant for joinder has an interest;

(b)    whether that interest may be affected by a determination in the proceedings; and

(c)    whether it is in the interests of justice for the applicant for joinder to be joined as a party.

215    At [24], his Honour stated that “[t]he first two elements of s 84(5) of the NTA require consideration of whether the applicant for joinder has established a prima facie case that they have an interest that may be affected by a determination of native title in the proceedings”. At [25], citing Byron Environment Centre Incorporated v Arakwal People [1997] FCA 797; 78 FCR 1 at 6, 18 and 40, his Honour stated that “an interest for the purposes of s 84(5) of the NTA is a broad conception, and is not limited to the matters within the definition of ‘interest’ in s 253 of the NTA” (although such an interest would clearly suffice).

216    With respect to the question whether it is in the interests of justice for an applicant for joinder to be joined as a party, at [26], his Honour stated:

The third element of s 84(5) requires that the joinder is in the interests of justice. In Gamogab v Akiba (2007) 159 FCR 578, the Full Court observed that the factors relevant to assessing the interests of justice include the following:

(1)    Whether the applicant for joinder could have been joined as of right if he or she had applied in time: in such a case, the principal issue is to assess the prejudice occasioned to the other parties and the Court by the delay in applying to be joined (at [59]).

(2)    It would be odd in this day and age if delay in applying, in itself, were to radically prejudice a potential party (at [59]).

(3)    It is fundamental that an order which directly affects a third person’s rights or liabilities should not be made unless the person is joined as a party (at [60]).

(4)    Considerable weight should be given to the statutory intention of having all parties whose interests may be affected before the Court at the one time to be dealt with by the one determination (at [64]).

(5)    If necessary, conditions may be imposed upon a joinder (at [63]).

Findings on the joinder application

217    The evidence very clearly demonstrates that the joinder applicants have an interest, as Badulgal, in the shared native title claim. It is an interest which is affected, in their contention adversely, by the structure of the shared claim. I accept that position. I have also given weight to the State’s position, which is to support the joinder application, for carefully articulated reasons.

218    The basis of the change resulting from the addition of the Mualgal and Kaurareg people as claimed native title holders can be ascertained by extracting the description in the amended form 1 under the heading “Association Between the Claim Group, their Ancestors and the Area Covered by the Application”:

1.    At the time of acquisition of sovereignty over the Torres Strait by the Crown ancestors of the applicant’s claim group ancestors possessed the claim area.

2.    At the time of acquisition of sovereignty ancestors of the claim group were associated with the claim area through their presence at and responsibilities for the claim area under traditional law and custom.

3.    The applicants’ claim group’s rights and interests in the land making up the Claim Area were inherited from their ancestors in accordance with traditional laws (lore) and customs which continue, somewhat altered but uninterrupted, until the present time.

4.    The applicants claim group continues to acknowledge traditional laws (lore), observe traditional laws (lore) and customs and exercise rights and interests in relation to the claim area that derive their source from the traditional laws (lore) and customs.

219    It is clear from the evidence of the joinder applicants that they dispute each of these propositions, as they are alleged to apply in the same way to the Mualgal and Kaurareg people as to Badulgal.

220    While the system of law and custom relied on in the proposed amended application (see the entries under the heading “Traditional Laws And Customs On Which Native Title Rights Are Based”) is that recognised in Akiba (No 3), as the State contended in its submissions, the working out of what kinds of interests are held by various groups within the Torres Strait is not necessarily straightforward.

221    However, it is clear on the evidence that the joinder applicants are asserting the native title held over Warral and Ului is a substantively different native title to that for which the shared claim contends. The joinder applicants have provided ample evidence at this interlocutory stage to support that contention.

222    What may or may not have been said in previous consent determinations in the region is not, in my opinion, determinative, at least not at the stage of the Court considering joinder. No doubt the terms of those consent determinations may need to be weighed in the balance in any final determination by the Court about the nature and content of the native title held in these islands.

223    There were many examples in the affidavits provided by the joinder applicants of why Badulgal history and custom favoured the position they were putting forward. I set out a sample here, to illustrate the depth and breadth of the evidence given.

224    George Nona stated (at [32]-[33] and [48]-[49] of his first affidavit):

Me and my brothers used to dive around all these islands with my father, the late Morris Nona. He told me that Badu people used to live on these islands. He was born in 1924 and knew a lot of history and he planted some gardens on Warral (Hawkesbury Island) and Ului (West Island).

My father told me about how they used to work seasonally on pearl shell boats. He was a skipper, and when I asked him, “whose island is this?” he told me, “all these islands, there’s a line here that goes right down all the way through between Moa and Badu, right down to the end of POW. The islands on the west of the line belongs to Badu, and on the other side, that belongs to the Aborigines (probably meaning the Kaurareg people).”

…

From my knowledge, we never gave permission to anyone to use Warral and Ului for anything. They knew Badu owned these islands before time. These ‘new’ people are saying we gave them permission when we didn’t at all.

All our life we knew that Warral and Ului were occupied by Badulgal. Gardens were planted and kept. Turtle eggs gathered, camping, waterholes, fishing. All Badu families from Badu only would go there because it was already inside our borders.

225    After setting out the accounts he had been told by his elders about ownership and control of the islands south of Badu, including Warral and Ului, Tommy Tamwoy stated (at [26] of his first affidavit):

If the Mualgal and Kaurareg people have equal rights with Badulgal, then it will be like they get those rights without a battle, which is against customary law.

226    Ronnie Nomoa stated (at [18] of his first affidavit):

I do not wish to share our claim with the Mualgal and Kaurareg people because it means that I will disrespect what my grandfathers have told me about our ownership of Warral and Ului.

227    At [28]-[39] he explained what he had been told, and what he had seen and heard himself about which people under customary law own Warral and Ului:

Our grandfathers told us stories, but the main grandfather who told us stories is Simina Baira (sic). He told stories about the grandfathers, great-grandfathers, and maybe even further back in time. He said they took the foods from Badu to replant on the other small islands, because we had bandicoots and wild pigs here on Badu island.

By my grandfather’s time (his name is Numa, known as Nomoa) he used to plant in Ului and other Badu families planted in Warral.

Athe Jackonia and his wife Aka Mary lived on the sandbeach on the southern end of Warral. When they lived there, they planted when they were young. When their first son was born, Tom Jackonia, they moved back to Badu for health reasons. If you stand on the beach where they lived and look outside into the blue (deep) water, you can see the stone ‘Pitouli’.

The Kaurareg elders have always said that Pitouli is in the deep water, now the Kaurareg young generation says that Pitouli is on the beach.

Once, I asked Kevin Murphy (Anthropologist) if he thinks it’s possible for a rock to move from the ocean to the reef? His response was that he didn’t know.

When Athe Jackonia lived on the southern end of Warral, Athe Lama and Aka Manama, his wife, lived on the Sansuit Island. Buzi was their surname. They planted all the coconut trees there. On the northern end of Warral, some other families planted there, but this was before I was born.

The neighbouring island to Sansuit and Warral is Dadalai and it was occupied by Athe Sagi, known as Sagigi, and there is also a grave on the island where a Badu man named Jimmy Wakaid was buried.

Back in 1963, we were working together on the Pearl Lugger name ‘Tilona’ and the skipper was Benjamin Nona Snr. This was the crew: Benjamin Nona Snr. - Skipper; Whap Charlie; Phillip Wasaga; Ponky, known as Poung; Nagibu; Oza Bosen; Akitau and Alua Savage (two brothers); Souli Charlie (Whap Charlie’s Son) (dec.); Passi Namai; Guru Phiniasa; Athe Tui Sapua Nomoa; Myself – Ronnie Nomoa; Bettie Andrew Warria; Waria Wigana and Maia Au - 15 of us altogether.

At that time we were working on the northside of Badu, on the Jervis Reef, and Phillip Wasaga and Whap Charlie told us and showed us (mainly us Badu People), that there is a line that runs between Badu Island and Moa Island to the point Bumpulaid, Prince Of Wales point, they call it Badukut, meaning “this is where Badu ends”.

At the time when I travelled with Athe Israel Baira, I was still a young boy. When we went over the small islands, including Warral and Ului, we never saw people from Moa Island come to plant gardens there, it was just us, Badu People.

When the elders would plant and keep the gardens on the small islands, our warriors were always present and they knew they were safe and secure. While they worked, they knew they were safe, even when they couldn’t see the warriors.

This is why I believe that as Badulgal, we are the only group that can claim ownership of Warral and Ului according to customary law.

228    George Nona’s third affidavit also deals with these kinds of matters, and engages directly with Dr Murphy’s anthropological report on connection, and the work of Mr Wood, none of which was before the Court. I have not taken account of the descriptions of those anthropological opinions given by George Nona. What I have taken into account is evidence such as the following (at [11] and [12] of that affidavit, with bracketed insertions in the original):

At paragraph 116, Kevin Murphy says that he did not want to intervene with an anthropological argument that might “endanger the agreement” [that was made in February 2015]. I think he has not sat and took Badulgal seriously in our story. It’s like he’s going against Badu in this case, and he is supposed to work for Badulgal.

Maybe this is not important to white people, but to us [Badulgal] the different versions are very important. Our history has always depended on the stories being accurate.

229    The Court makes no findings at all about contentions such as this, but these are the kinds of matters which, at the moment, strongly suggest a trial may be required. Subject to s 13(1)(b) of the Act (revocation and variation applications), a determination of native title is a final pronouncement of who holds native title for an area. It is good against the whole world. It is vitally important the Court makes the correct determination.

230    As the State submitted, the joinder applicants contend for the status quo which has prevailed for more than 17 years, where the native title claim is made only on behalf of Badulgal. The Badu applicant submits the Court should give weight to the fact the joinder applicants only came forward now after more than 17 years. I reject that submission. The existing Badu claim over Warral and Ului reflects the joinder applicants’ understanding of customary law; they had no reason to object to anything until earlier this year when the authorisation meetings were held so as to change that position. I consider they have acted promptly, and properly. That is a further reason that it is in the interests of the administration of justice for them to be joined. While the claim over Warral and Ului has sat effectively idle for a long time, that is not the fault of the Badu claim group, or the joinder applicants. When a step was taken likely to affect their interests adversely, they acted: that is what the Court expects and they are to be commended, with Ms Bowie, for the way they have developed their application.

231    The State submitted at [67]:

In the State’s submission, it is tolerably clear that the Joinder Applicants assert that the relevant claim area is subject to native title held by Badulgal only, with the other groups having, at best, some kind of personal rights under traditional law and custom within the second or third category of “sharing” identified by Finn J in Akiba Part A. The State apprehends this to be consistent with the references in the Joinder Applicants’ submissions to Badulgal as “the underlying native title owners of Warral and Ului according to customary law” (at [15], [128]), and to “Badu’s underlying ownership of native title” (at [21]).

232    I accept this is a possible characterisation of the joinder applicants’ position. It is certainly sufficient to order joinder. Time will tell whether this is how it is ultimately put.

233    In the reply submissions made by the joinder applicants there was a point I found particularly persuasive. At [41(e)], Ms Bowie on their behalf said:

Post determination, the Applicant’s lawyers and the anthropologist will not be there to defend the conduct of the group who (according to the interlocutory application for amendment) “decided for everyone” at the 1 February meeting, but the Joinder Applicants will be.

234    This submission emphasises who it is that must live with the long-term consequences of a native title claim, especially one which is settled by compromise. Where there are genuine and substantive issues raised about who holds native title, it is a matter to which considerable weight should be given in the Court’s determination of the appropriate process for a claim.

235    It is important to emphasise that the Court’s findings on joinder, and the observations made, are made only in the context of its view that it is appropriate for the five individuals to become parties to the proceeding as respondents. No view at all is expressed about the ultimate issue in the proceeding; namely, who holds native title over Warral and Ului.

Conclusion

236    The evidence and argument on these applications has meant the issues presented have been difficult to resolve. The course the Court has chosen has an element of pragmatism about it. While acknowledging the very real issues with the authorisation process and the meeting on Badu in particular, it seems to me the position being advanced (seriously and genuinely) by the joinder applicants and those who support them will not be prejudiced by the making of orders under s 64 and s 66B, so long as the joinder orders are also made and the matters the joinder applicants seek to raise can be fully ventilated in an appropriate way, probably through a trial of some kind.

237    There are a range of considerations which have persuaded me orders under s 64 and s 66B should be made, notwithstanding the concerns I have expressed. First, although it expressed some disquiet with aspects of the process, ultimately the State submitted it was open to the Court to be satisfied of the requisite matters for the purposes of s 64 and s 66B, and I have given some weight to the State’s position on those matters. Second, there was no aspect of the authorisation process which so fundamentally contravened the applicable legal principles, or the Act, that the Court should feel compelled to reject the interlocutory applications under s 64 and s 66B. On the other hand, a great deal of expense and resources has been applied to complete these processes, and they had already been delayed for a considerable period of time. The legal representatives for the Badu claim group have, I accept, acted professionally and with the best of intentions. The same can be said of the anthropologists involved, and no doubt also the TSRA and its staff and contractors. There has been no deliberate undermining or attempts to frustrate the authorisation process. In such circumstances, the Court would have to have a formidable justification for refusing the orders if there were other ways the concerns raised by the State and the joinder applicants could be addressed.

238    I am satisfied there are other ways. That is through the joinder of the joinder applicants and the establishment of processes which will allow the ventilation of their issues of substance – issues which the State has also responsibly accepted may have a real basis, or at least one which should be fully explored.

239    This approach also relieves Mr Nona of the burden of being the only Badu man who comprises the Badu applicant, a burden which on the evidence he is no longer prepared to carry, which is understandable.

240    Taking this approach, and having spent some time in these reasons exploring the contentions put on behalf of the joinder applicants about the conduct of the 1 February 2020 meeting in particular, it is to be hoped that lessons can be learned about the future conduct of authorisation meetings. Some of the matters raised go to fundamental issues about the control of these processes by Aboriginal and Torres Strait Islander people, and about the possibility of making unconscious assumptions stemming from Western cultural norms about decision-making. Recognising there will be challenges in reforming such processes, that is not an excuse not to listen to the matters raised by the joinder applicants, which are in my respectful opinion worthy of attention.

241    The orders sought by the Badu applicant under s 64 and s 66B will be made. Immediately upon those orders taking effect, Albert Bernard Bowie, George Henry Nona, Ronnie Nomoa, Walter Tamwoy and Tommy Willie Tamwoy will be joined as respondents to the amended claim. There will be orders listing the matter for case management as soon as practicable. Orders have been made requiring all Torres Strait parties to progress their claims substantially in accordance with specified timetables. Some modifications to those timetables were sought, and were the subject of a mediated process before Judicial Registrar Grant. The parties then committed to those modified timetables by filing them with the Court. Orders have not been made reflecting those modified timetables, given these interlocutory applications. While the steps in the claim over Warral and Ului will now have to be modified to take account of a likely trial or separate question process, those modifications should be considered and discussed as soon as possible. Only minor definitional changes will be necessary to the remaining timetables, and the Court expects all other parties in all other proceedings to continue the work to which they have committed.

242    I note the joinder applicants have been ably assisted by Ms Bowie to this point, but they will now require formal legal representation. No doubt this is a matter which can be taken up with the TSRA, taking into account the Court’s observations about the genuine substantive position they have put forward.

Associate:

Dated:    15 July 2020

SCHEDULE OF PARTIES