Federal Court of Australia
Melville on behalf of the Pitta Pitta People v State of Queensland [2022] FCA 387
ORDERS
DATE OF ORDER: |
THE COURT ORDERS THAT:
1. The interlocutory application filed on 17 August 2021 by the State of Queensland be dismissed.
2. The interlocutory application filed on 3 September 2021 by the Pitta Pitta Aboriginal Corporation RNTBC be dismissed.
3. The proceeding be listed for case management at a date to be fixed in May 2022, for the purposes of listing the matter for trial in 2023, and making programming orders.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
MORTIMER J:
Introduction
Background
1 An application for compensation in relation to extinguishment or impairment of native title has been filed with the Court, on behalf of the Pitta Pitta People. It relates to land and waters in western Queensland around the township of Boulia. The two principal respondents to the compensation application, the State of Queensland, and the Pitta Pitta Aboriginal Corporation RNTBC, have filed interlocutory applications seeking summary dismissal of the compensation application, or alternatively the striking out of the compensation application in whole or in part.
2 For the reasons that follow, the interlocutory applications will be dismissed, and the compensation application may proceed.
The basis for the interlocutory applications
3 On 28 August 2012, this Court determined by consent that the Pitta Pitta People hold native title over land and waters in western Queensland around the township of Boulia: Aplin on behalf of the Pitta Pitta People v State of Queensland [2012] FCA 883 (Pitta Pitta CD).
4 At the same time, the Court made an order pursuant to s 56 of the Native Title Act 1993 (Cth) that the native title was to be held in trust by the Pitta Pitta RNTBC “upon the determination taking effect”. As the determination was conditional upon the registration of numerous indigenous land use agreements (ILUAs), it did not take effect until 17 January 2014.
5 This proceeding was commenced on 22 October 2020 by a compensation applicant comprising Florence Melville, Neville James Aplin, Jean Jacks, Carmel Belford, and Noel Doyle. The compensation application is expressed to be authorised by the compensation claim group. I take this to be a reference to item 2 in the table in s 61(1) of the NTA, relating to compensation applications. The compensation claim group is defined in the s 61 application in the following way:
The persons on whose behalf the Application is made are the biological descendants from one or more of the following Apical Ancestors:
a. King Bob ‘Walpa Currie’;
b. King Bob ‘Wheelpoolie’;
c. Dinah Aplin nee Craigie;
d. Geraldine Craigie aka ‘Cherida Craigie’ aka ‘May Cherita’;
e. Juno;
f. Linda ‘Junnaburri’ Allen;
g. Jacob ‘Tulikamali’ Cameron;
h. Joseph ‘Joe’ Allen; or
i. Pilot Jack.
Being the persons described in Schedule 2 of the earlier native title proceedings being QUD 6025/1999, Aplin on behalf of the Pitta Pitta People v State of Queensland [2012] FCA 883 (Aplin) as the Pitta Pitta people, who are the native title holders of the lands and waters that make up the area covered by the application (compensation claim group).
(Original emphasis.)
6 Save for one matter, which I do not consider to be of any real consequence on these interlocutory applications, and which could be the subject of an amendment, this description accords with the description of the native title holders in the Pitta Pitta CD.
7 The State seeks summary dismissal of the whole of the compensation application pursuant to s 31A(2) of the Federal Court of Australia Act 1976 (Cth), or that the compensation application be struck out in its entirety pursuant to s 84C(1) of the NTA, on the ground that the compensation applicant is not authorised to make the compensation application.
8 The State contends:
(a) the compensation applicant relies on authorisation by way of a traditional decision-making process within the terms of s 251B(a) of the NTA;
(b) the requirements of s 251B(a) are only met if there is a mandatory traditional decision-making process for authorising “things of that kind” (here, a compensation application); and
(c) taken at its highest, the evidence before the Court is not capable of demonstrating that there exists, as a matter of Pitta Pitta traditional law and custom, a mandatory decision-making process for authorising anything analogous to an application for compensation for the extinguishment or impairment of native title.
9 In the alternative, the State seeks an order that the compensation application be struck out in part pursuant to s 84C(1) of the NTA, on the basis that the compensation applicant does not have standing under s 61(1) of the NTA to make an application for compensation for any acts done on or after 17 January 2014. The only entity which has standing after that date is, the State contends, the Pitta Pitta RNTBC.
10 The State read the affidavits of:
(1) Roy Gary Harvey, sworn on 16 August 2021 and filed on 17 August 2021; and
(2) Tarquin Terence Nesbitt-Foster, sworn on 16 August 2021 and filed on 17 August 2021.
11 A couple of weeks after the State’s application, the Pitta Pitta RNTBC also filed an interlocutory application seeking summary dismissal of the compensation application pursuant to s 31A of the Federal Court Act, or strike out pursuant to s 84C(1) of the NTA. Like the State, it advanced two bases, but in a different order. Its first basis was standing, submitting only the Pitta Pitta RNTBC had standing to bring a compensation application. The second basis was that the compensation applicant is not authorised to make the compensation application. The Pitta Pitta RNTBC sought a further alternative order pursuant to s 84D(1) of the NTA to require the compensation applicant to produce evidence to the Court that it had been authorised to make the compensation application.
12 The Pitta Pitta RNTBC read the affidavits of:
(1) Pearl Eatts, affirmed and filed on 2 September 2021;
(3) John Craig Reiach, affirmed and filed on 2 September 2021;
(4) Timothy John Wishart, affirmed and filed on 2 September 2021; and
(5) Anthony James Eales, affirmed and filed on 23 November 2021.
13 In response, the compensation applicant read, or at least relied upon, the affidavits of:
(1) Peter Matus, affirmed on 22 October 2020 and filed on 23 October 2020;
(6) Noel Doyle, affirmed and filed on 7 October 2021;
(7) Carmel Belford, affirmed and filed on 7 October 2021;
(8) David Stevenson, affirmed and filed on 7 October 2021;
(9) David Stevenson, affirmed and filed on 6 December 2021; and
(10) Neville James Aplin, unsworn.
14 All parties referred to the affidavits which accompanied the compensation application, namely the affidavits of:
(1) Florence Melville, affirmed on 2 October 2020 and filed on 23 October 2020;
(2) Jean Jacks, affirmed on 6 October 2020 and filed on 23 October 2020;
(3) Neville James Aplin, affirmed on 16 October 2020 and filed on 23 October 2020;
(4) Noel Doyle, affirmed on 4 October 2020 and filed on 23 October 2020; and
(5) Carmel Belford, affirmed on 2 October 2020 and filed on 23 October 2020.
15 I take those affidavits as also read on the interlocutory applications.
Strike out and summary dismissal: applicable princIples
16 Section 84C of the NTA empowers the Court to strike out an application on the basis that, inter alia, it “does not comply with s 61 (which deals with the basic requirements for applications)”. The existence of s 84C does not preclude the operation of any other power of summary dismissal that is available to the Court: NTA s 84C(4). Thus, under s 31A of the Federal Court Act, a proceeding can be summarily dismissed if the Court is satisfied that the applicant has no reasonable prospect of successfully prosecuting the proceeding (or part of it). Neither the State nor the Pitta Pitta RNTBC submitted the compensation application was an abuse of process.
17 In this case, the State and the Pitta Pitta RNTBC bear the burden of satisfying the Court that it is appropriate to strike out or summarily dismiss the compensation application. The settled principles under s 84C of the NTA are expressed with relative strictness: the Court should only exercise the power of summary dismissal in “a very clear case” – namely, where the claim as expressed is untenable upon the version of the evidence favourable to the applicant (and generally without any weighing up of conflicting evidence or of the inferences which might be drawn therefrom): McKenzie v South Australia [2005] FCA 22; 214 ALR 214 at [26]; Thardim v Northern Territory of Australia [2016] FCA 407 at [97]. Nevertheless, in Thardim at [97], Mansfield J said:
The mere complexity of an issue, or the fact that extensive argument may be necessary to demonstrate that the claim is untenable, is not a reason not to dispose of an application summarily.
18 Section 31A of the Federal Court Act imposes a less onerous requirement for summary dismissal, while still recognising that summary dismissal is an exceptional remedy: see Spencer v Commonwealth of Australia [2010] HCA 28; 241 CLR 118 at [56]; Foster v Northern Territory of Australia [2015] FCA 38 at [15]; Corunna v South West Aboriginal Land and Sea Council [2015] FCA 491; 235 FCR 40 at [22]. The need for caution, while still acknowledging the threshold under s 31A is intended to cast a wider net, was explained by McKerracher J in Buurabalayji Thalanyji Aboriginal Corporation v Onslow Salt Pty Ltd (No 2) [2018] FCA 978 at [3], and by Griffiths J in Harkin on behalf of the Nanatadjarra People v State of Western Australia (No 2) [2021] FCA 3 at [12]-[14]. I respectfully agree with both those summaries.
19 In my opinion, the need for some caution in determining whether summarily to dismiss a proceeding is especially prominent in the context of compensation applications under the NTA, which comprise a relatively undeveloped area of law, in comparison to claimant applications under s 61 of the NTA.
20 In Polar Aviation Pty Ltd v Civil Aviation Safety Authority (No 4) [2011] FCA 1126; 203 FCR 293 at [7]-[18], Kenny J set out the applicable principles for both strike out applications under r 16.21 of the Federal Court Rules 2011 (Cth) and summary dismissal under s 31A of the Federal Court Act, including the distinction in the approach in principle to a strike out of the way a claim is pleaded, and summary dismissal. I respectfully agree with and adopt her Honour’s description. However, I apprehend despite in their form referring to striking out “in part”, in substance neither of the moving parties on these interlocutory applications are raising any point about the pleadings in the s 61 application, such as they are. They are not contending, in other words, that even if there is a cause of action disclosed, the cause of action is so inadequately pleaded that it should be struck out. Rather, they are making contentions which go to the maintenance of the proceeding in any form (as to authorisation), and the maintenance (at all) of a portion of the pleaded claim (namely, the standing contention).
Dismissal or strike out on the basis of no authorisation
Authorisation generally
21 There are numerous judicial statements highlighting the central importance to the conduct of claimant applications that those who purport to bring such applications on behalf of a group of asserted native title holders have the authority of that group to do so: see, e.g., Brown v State of South Australia [2009] FCA 206 at [22], citing Daniel v Western Australia [2002] FCA 1147; 194 ALR 278 at [11]. The State submitted that the same approach should be applied to those who bring compensation applications, because the entitlement to compensation under the NTA is a communal or group entitlement (see Northern Territory v Griffiths [2019] HCA 7; 269 CLR 1 at [229]), and – pursuant to s 49 of the NTA – compensation is only payable once for any compensable act.
22 Section 251B of the NTA defines the term “authorise” for the purposes of, amongst other matters, s 61 of the NTA:
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;
(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.
(Original emphasis.)
23 See, generally, my reasons in McGlade v Native Title Registrar [2017] FCAFC 10; 251 FCR 172 at [423]-[430].
24 Thus, recalling the provision is definitional, s 251B(a) can be engaged only where there are traditional laws or customs which deal with a compensation group authorising “things of that kind”. Textually, that is a widely expressed aspect of the definition.
25 As the State acknowledged, that section seems to allow for a measure of analogy, given that traditional laws and customs are unlikely to have explicitly contemplated making decisions about matters such as the institution of native title proceedings: see Daniel at [14]; Risk v Northern Territory of Australia [2006] FCA 404 at [87]. That proposition is an understatement of considerable proportions. By definition, law and customs which have been handed down for generations, in an oral tradition, will not have as one of their processes any norms about authorising the filing of court proceedings under statute. These are all post-colonial processes. Therefore, the context of s 251B(a), and in particular the structural and substantive role played by traditional law and custom in the NTA, informs the meaning to be given to the text of s 251B(a), and in particular the phrase “things of that kind”. The fact that the Parliament has provided for a traditional decision-making method as one of the two authorisation processes discloses a legislative policy to afford due weight to traditional decision-making processes, as they existed prior to European sovereignty. The paragraph may not necessarily require a search for equivalent concepts to claimant applications and compensation applications in customary law. Indeed, the words “things of that kind” might be understood to mean no more than matters of significance to the group as a whole, native title being primarily a set of communal rights. These are large questions for the operation of the compensation aspect of the NTA.
26 In Daniel, French J (as his Honour then was) observed that, in the context of authorising a claimant application, it may be sufficient for the purposes of s 251B(a) to identify traditional decision-making processes applicable to the exercise of responsibility for, or authority over, the land or waters in question. Nevertheless, his Honour cautioned that:
it should not be surprising if there is some difficulty in applying traditional decision-making processes, albeit by closest analogy, to the conferring of the kind of authority contemplated by s 251B.
27 The State submitted that the limits of analogies are demonstrated by the decision of Barker J in Kimberley Land Council Aboriginal Corporation (ICN 21) v Williams [2018] FCA 1955. Although his Honour was there dealing with the authorisation of an ILUA under s 251A of the NTA, paragraph (a) of that section also focuses on the question of whether there is a traditional process of decision-making that must be complied with in relation to authorising “things of that kind”. In that case, the ILUA to be authorised involved the surrender of native title. At [62], Barker J considered whether “things of that kind” in s 251A(a) should be understood as a reference to:
(a) the authorising of an agreement like an ILUA generally; or
(d) the authorising of an ILUA specifically dealing with the surrender of native title.
28 His Honour preferred the latter approach, reasoning that the content of any agreement assists in its proper characterisation:
Substance must come before form on this question. Depending on what an ILUA deals with, there may or may not be a relevant traditional decision-making process to cover it.
29 Applying that approach to the ILUA in question, the difficulty, in Barker J’s view, was that native title is inalienable, so that the idea that it might be surrendered under traditional law and custom was not easily reconciled with the common law or NTA understanding of the nature of native title; native title may be surrendered only because the NTA provides a mechanism for it to be surrendered. As a result, the idea that there might be a traditional law providing the process for authorising an agreement whereby native title is surrendered, presented “a challenge”: Williams at [66]-[67].
30 Importantly, Barker J found that whether or not there was a traditional decision-making process was a question that fell to the group of native title claimants themselves to decide (at [71], [73]), and the claim group had not specifically addressed that question (at [105], also [99]):
As a result, regrettably the authorisation of the ILUA will have to be reconsidered by the claimants. It will be for them to decide, by reference to s 251A(a) of the NTA, if there is a relevant traditional decision-making process that “must be complied with” in relation to the ILUA surrendering native title over the six parcels of land. If there is, the ILUA must be authorised “in accordance with that process”. If there is not, then a process agreed and adopted by the claimants may be followed, as provided by s 251A(b). It is for them to decide those questions as a group, as a whole.
(Emphasis added.)
31 In the State’s submission, Barker J’s decision stands as authority for the proposition that, when the subject matter of an authorisation under s 251A of the NTA (and by parity of reasoning, s 251B) is not readily analogous to anything dealt with under traditional law and custom, it is the people who acknowledge and observe those traditional laws and customs who must determine – as a group, as a whole – whether their laws and customs do, in fact, provide for “things of that kind”.
32 With great respect to Barker J, I find myself unable to agree with the approach taken by his Honour in this case. Section 251A, like s 251B, is definitional. It is not formulated, in its text, by reference to the formation of an opinion or a state of satisfaction. In its definition, it provides that “where there is a process of decision-making” under traditional law and custom that must be followed, that process must be used. The definition requires the existence of such a process as a matter of objective fact. Of course, evidence from native title holders will be crucial in establishing that objective fact. However, the provision does not require the group as a whole to form an opinion and for that opinion to operate as the definition.
33 The meaning I prefer can be tested by reference to s 251B(b). That part of the definition requires a process “agreed and adopted by” the claim or compensation group to make a decision. As all the decisions of this Court where the existence of such a process is examined demonstrate, the Court does not ask whether the group holds an opinion that it has agreed or adopted a process. The Court looks at the evidence and decides, as a matter of objective fact, whether the group “agreed and adopted” a process. The same approach applies to s 251B(a).
34 I would have respectfully declined to follow this aspect of his Honour’s reasoning if it had been critical to the outcome of these applications. Since I am dismissing the interlocutory applications, I do not need finally to determine the correctness of the approach taken in Williams.
Authorisation of this compensation application
35 Unlike a Form 1, by which a claimant application is made, a Form 4 compensation application requires neither certification from a body that represents the claimants, nor particularisation of the process by which the application was authorised.
36 However, affidavits to be provided pursuant to s 62(3)(a) of the NTA from each of the persons comprising the compensation applicant are required to set out those details. In the present case, five such affidavits were filed and served. Relevantly, the affidavits depose:
(a) There are only twelve surviving Pitta Pitta Elders (Elder Group), all of whom support the applicant making the compensation application on behalf of their people.
(e) There are only three Elders left in Boulia – Jean Jacks, Florence Melville and Neil Major – who “all get together and discuss what’s happening and discuss what decisions need to be made” on behalf of their people.
(f) The “traditional process” is a process for significant decisions affecting country. It is for “Elders who are recognised to speak for country to form a consensus where a majority agree and then all abide by the decision”. Each Elder is said to reach their decision by speaking to family and other Elders, taking advice or just listening to views. Once an Elder has decided their view, it is “binding on their people, being their family or even whole tribe, if they are the sole Elder of that tribe”.
(g) As for the compensation application in question:
(i) Between January and August 2020, Ms Jacks communicated to “the Pitta Pitta Elders” by various means that she wished to bring the compensation application with other Elders. She was assisted in this process by Aunt Frances Melville. Aunt Frances Melville is a recognised Elder but not a member of the applicant.
(ii) The decision to seek compensation for native title is a “significant decision”, and it forms part of the decision-making that “the Elders, so recognised as leaders, would make for the People”.
(iii) In speaking to and meeting with Elders, Ms Jacks obtained their consent and approval to make the compensation application.
37 As I explain below, the contention at [36(a)] was contested by the State and the Pitta Pitta RNTBC. Nevertheless, it is sufficiently clear on the evidence that half or perhaps more than half of the surviving Elders support the compensation application, and further those Elders were either members of the applicant in the Pitta Pitta claimant application, or witnesses whose evidence was relied upon for the Pitta Pitta CD (or both). The only positive evidence about lack of consultation with an Elder (and inferred lack of support) comes from Ms Eatts, and relates to her mother.
38 In response to the State’s interlocutory application, the compensation applicant provided further affidavits from Carmel Belford and Noel Doyle (each affirmed and filed on 7 October 2021), and a further, but unsworn, affidavit of Neville James Aplin. No objection was taken to reliance on Mr Aplin’s second affidavit on the basis it was unsworn (or not formally filed).
39 Ms Belford’s further affidavit and Mr Aplin’s unsigned affidavit are identical in content, and relevantly state as follows:
4. The Pitta Pitta People have traditional laws and customs, including in relation to compensation although it is in different forms and compensation has not been paid in money but [in] other ways and we have practiced those traditional laws and customs for thousands of years.
5. An example of our traditional laws and customs is one member of a family takes something from another family member or another family then the Elders will discuss the way that the family member will be paid back or compensated.
…
13. We are following traditional laws and customs in this compensation claim because under our traditional laws and customs, compensation has been part of our society and culture for thousands of years. For example, when one person takes something from another person, the person who has lost that thing receive[s] another thing in return.
14. So to be clear, I as an Elder have been raised and follow traditional decision making for compensation in our lives on an everyday basis. We may not call it compensation but it is exactly what it is.
40 Mr Doyle’s further affidavit relevantly states:
4. The Pitta Pitta People have traditional laws and customs, including in relation to compensation although it is in different forms and although we do not call it compensation it is actually compensation because we have for thousands of years made sure under traditional law and customs that when someone takes something from another person in the Mob that the person who has had that thing taken is paid back for that loss.
41 In his 7 October 2021 affidavit, the compensation applicant’s solicitor, David Maurice Stevenson, states that he met with Noel Doyle, Aaron James and Frances Melville on or about 20 January 2020, and they told Mr Stevenson that:
[T]hey [were] definitely following traditional laws and customs, particularly with respect to compensation matters because it is part of their society that when someone takes something from another person that the Elders gather and decide how that first person is to be paid or how restitution was to be made.
Past practice: authorisation of the Pitta Pitta native title determination application
42 The State and the Pitta Pitta RNTBC relied on the differences between the process by which the compensation application was authorised and the way the Pitta Pitta claimant application was authorised.
43 The Pitta Pitta claimant application was described as authorised “according to Pitta Pitta custom and tradition” at two meetings in Mt Isa, the first occurring on 20-22 May 1999, and the second on 21 August 1999 (the latter being the meeting at which decision-making actually took place). The associated s 62 affidavits were all identical in form and stated that “many Pitta Pitta people” attended the meeting, where the Pitta Pitta people and Elders “discussed land business”. There was said to be a decision-making process that must be complied with under traditional law and custom when “the PITTA PITTA People want to make decisions about land business”. This process was said to involve discussions amongst Elders and talks with other members of the Pitta Pitta community, with consensus being reached amongst the Elders who live on and maintain attachment and connection to Pitta Pitta country that binds all members of the Pitta Pitta people, including those who have been removed and have not been able to maintain their physical connection with country. It was said that, at the Pitta Pitta People meeting, a consensus was reached about their native title application.
44 When the Form 1 was amended on 2 August 2010, the Pitta Pitta claimant applicant was represented by Queensland South Native Title Services. The members of the claimant applicant noted on the amended Form 1 application are identical to the members of applicant on the compensation application, save that the claimant applicant included Mr A Nathan. The amended claimant applicant was said to have been authorised “at a notified meeting of the members of the native title claim group held on 19-20 June [2010] at Boulia Town Hall, Boulia”. The application was not certified by QSNTS. Section 62 affidavits were again all in identical form and deposed to a traditional method of decision-making being followed to authorise the applicant. The method of decision-making was said to involve discussion amongst those Elders who lived on Pitta Pitta country, and those Elders who maintained attachment with or connection to Pitta Pitta country and did not live on country, and with other members of the Pitta Pitta claim group, resulting in consensus being reached amongst those Elders.
45 The Form 1 was further amended on 13 June 2012. On that occasion, QSNTS certified the application but did not explicitly state whether authorisation was under s 251B(a) or (b) of the NTA. The authorisation is said to have taken place at a publicly notified meeting of the Pitta Pitta People native title claim group, held in Mt Isa on 26 May 2012 and attended by “a broad cross-section of the Pitta Pitta People”. At the meeting, a resolution was passed which “re-appointed and confirmed” six persons as the Pitta Pitta applicant. Relevantly, the resolutions passed at the meeting included the following:
That having received advice as to the meaning of section 251(B) of the Native Title Act those present confirm that there is no process of decision-making, that under the traditional laws and customs of the Pitta Pitta People that must be complied with for making decisions of the kind relating to authorising a native title determination application.
(Emphasis added.)
46 In this proceeding, the State submitted that the compensation applicant appears to put in issue whether QSNTS provided advice to the Pitta Pitta People about the content of s 251B of the NTA, either at the meeting on 26 May 2012 or at any other time during the course of the native title determination application. It contended that controversy need not be resolved for the purposes of the interlocutory application. Rather, in the State’s submission, the salient (and undisputed) feature of the decision-making processes used to authorise the claimant applicant for the native title determination application is that, on each occasion, the authorisation decisions were made at a meeting of the broader Pitta Pitta community.
The State’s submissions in summary
47 The State submitted that the compensation applicant’s original evidence of authorisation of the compensation application was devoid of important detail. In the State’s submission, whilst there is said to be a traditional process of decision-making which involves Elders reaching a consensus, only seven of the twelve surviving Elders are identifiable, it is unclear how many of the twelve surviving Elders were involved in the decision-making, and there is no indication of what family each of the Elders represents, or whether all Pitta Pitta families were represented.
48 The State submitted that the most fundamental defect is that the original evidence of authorisation made no attempt to demonstrate any basis upon which “seeking compensation for native title” could be characterised (by analogy) as something dealt with by traditional law and custom, let alone being the subject matter of a mandatory process of decision-making under traditional law and custom. In the State’s submission, to label a decision to institute a compensation application under the NTA as a “significant” decision does nothing to address the requirement in s 251B(a) that there be a mandatory process of decision-making in relation to authorising things of that kind.
49 The State submitted that the further evidence of authorisation of the compensation application is assertive rather than descriptive. In the State’s submission, apart from bare statements that the Pitta Pitta People have traditional laws and customs “in relation to compensation” (a proposition the State characterises as so general as to be meaningless), the only example given is that when one person/member of a family “takes something” from another person/family member/family, the first person is “paid back” for that loss. According to the State, that is, at best, an example of recompense for the unauthorised taking (theft) of a chattel, which the State submitted has no analogical value when it comes to answering the question posed by s 251B(a) of the NTA. According to the State, what must be shown to exist under traditional law and custom is a mandatory process of decision-making for something that is closely analogous to compensation for the lawful deprivation of rights in land held by the community as a whole, or for the lawful interference with the exercise or enjoyment of such rights.
50 The State submitted that whether a sufficiently analogous counterpart could ever exist under traditional law and custom is not something that needs to be determined by the Court – it is enough that one has not been demonstrated to exist in this case, even on the version of the evidence most favourable to the compensation applicant. In the circumstances, the State submitted that the approach of Barker J in Williams is apposite, and it is a matter for the Pitta Pitta People to determine whether the traditional laws and customs which they acknowledge and observe provide for “things of that kind”. The State submitted that there is no evidence that the Pitta Pitta People as a whole (being the members of the putative compensation claim group) have ever been afforded an opportunity to consider, let alone address, that question.
51 Finally, the State submitted that the decision-making processes used to authorise the claimant applicant during the native title determination application proceeding are not determinative of whether there is a traditional process of decision making for authorising the making of a compensation application, given the different nature of the two applications. Consequently, the State submitted that any conflicts in the evidence about those historical decisions do not need to be resolved by the Court for the purposes of determining the State’s interlocutory application. In the State’s submission, what is significant (and uncontroversial) about those earlier authorisation decisions is that, even on those occasions where it was asserted that a traditional decision-making process (involving consensus amongst Elders) was used to decide “land business”, the decision about the appropriate process still took place at a meeting of the broader Pitta Pitta community. Thus, while ultimate decisions were said to be made by the Elders, the decision-making process occurred in a context of wider engagement and collective discussion with members of the native title claim group at a meeting of the group and, by inference, ratification by those present that it was appropriate for the Elders to make decisions of that kind, on that occasion. The State contrasted that process with the decision-making process used in this case.
The Pitta Pitta RNTBC’s submissions in summary
52 The Pitta Pitta RNTBC submitted that the compensation applicant had not been authorised by all persons who claim to be entitled to the compensation in accordance with s 251B of the NTA. In its submission, decisions such as the decision to authorise a claimant application are taken in accordance with the kind of process of decision-making that was adopted by the Pitta Pitta People at an authorisation meeting on 26 May 2012 and, by inference, agreed over a period of time. The Pitta Pitta RNTBC emphasised that, at the authorisation meeting on 26 May 2012, those present confirmed that there was no process of decision-making that under the traditional laws and customs of the Pitta Pitta People must be complied with for making decisions of the kind relating to authorising a claimant application.
53 In the Pitta Pitta RNTBC’s submission, the authorisation meeting of 26 May 2012 adopted a process of voting by consensus and, where consensus could not be reached and only as a last resort, voting by a majority on a show of hands. The Pitta Pitta RNTBC submitted that this process is largely reflected in Rule 7.11 of the Rule Book of the Pitta Pitta RNTBC as approved by the Delegate of the Registrar on 17 September 2021 (Rule Book).
54 The Pitta Pitta RNTBC submitted that the compensation applicant did not follow the process as outlined in Rule 7.11 of the Rule Book to commence and maintain the compensation application. Accordingly, the Pitta Pitta RNTBC submitted that the compensation applicant is not authorised pursuant to the decision-making process agreed to and adopted by the persons comprising the compensation claim group, namely the process as outlined in Rule 7.11 of the Rule Book, to commence and maintain the compensation application.
55 In the alternative that the Court accepts the compensation applicant’s submission that there is an applicable decision-making process under traditional law and custom, the Pitta Pitta RNTBC submitted that nonetheless the compensation applicant is not authorised by all of the compensation claim group. In the Pitta Pitta RNTBC’s submission, there is no evidence before the Court that the compensation applicant gave the compensation claim group a reasonable opportunity to participate in the authorisation process: Harrington-Smith on behalf of the Wongatha People v State of Western Australia (No 9) [2007] FCA 31; 238 ALR 1 at [1265]; Lawson on behalf of the ‘Pooncarie’ Barkandji (Paakantyi) v Minister for Land and Water Conservation for the State of New South Wales [2002] FCA 1517 at [25]; Moran v Minister for Land and Water Conservation for the State of New South Wales [1999] FCA 1637 at [41]. These authorities all deal with the authorisation of claimant applications by the process in s 251B(b) of the NTA.
56 Further, the Pitta Pitta RNTBC submitted that the evidence before the Court does not address the substance of the criteria listed by O’Loughlin J in Ward v Northern Territory of Australia [2002] FCA 171 at [24]. The Pitta Pitta RNTBC submitted that while the evidence of the compensation applicant describes various meetings between members of the compensation applicant, themselves Pitta Pitta Elders, and other Elders, it does not identify:
(a) who convened the meetings and who attended the meetings;
(h) who was given notice of the meetings and why it was given;
(i) what the agenda for the meetings was;
(j) who attended the meetings and their authority;
(k) who chaired the meetings or otherwise controlled the meetings and their right to do that; or
(l) what decisions were made at the meetings and whether they were unanimous and if not, who voted for and against the decision or decisions.
57 The Pitta Pitta RNTBC accepted that the Court should exercise its power under s 84C sparingly and with caution, and only when the Court is satisfied that the moving party has made out a clear case that the applicant has not complied with the relevant section and cannot, by amending the application, comply. The Pitta Pitta RNTBC submitted that this is a clear case where the applicant has not complied with s 251B, citing Williams v Grant [2004] FCAFC 178 at [48], [49] and [57].
58 The Pitta Pitta RNTBC acknowledged that the note to s 84C assumes that a party might respond to the strike out application by amending the application to comply with the requirements of the NTA. The Pitta Pitta RNTBC, however, submitted that the deficiency about authorisation cannot be cured by amendment.
59 The Pitta Pitta RNTBC submitted that the protocol of decision-making that prevailed before the authorisation meeting in 2012 involved discussions among Elders, and between Elders and the members of their respective kin or communities. The Pitta Pitta RNTBC relied on the affidavits attached to the original Pitta Pitta Form 1 application filed on 27 September 1999, and a further affidavit affirmed on 2 September 2021 by a Pitta Pitta native title holder and RNTBC director, who is also the great-grandniece of a member of the applicant. On that evidence, the Pitta Pitta RNTBC submitted that the compensation applicant had excluded certain descent groups, kinship groups and native title holders from its consultations about the compensation application, and disregarded a significant senior relative and Pitta Pitta Elder, Joslin Eatts. Although the Pitta Pitta RNTBC disputed that a decision about making a compensation claim under the NTA could be made according to this process, it submitted that – even if that decision-making process were relevant – the compensation applicant could not demonstrate that it had been complied with.
60 In the alternative, the Pitta Pitta RNTBC sought an order under s 84D(1) of the NTA to require the compensation applicant to produce evidence to the Court that it was authorised by all persons who claim to be entitled to the compensation. It appeared in oral submissions that this was not pressed, on the basis that the evidence relied on by the compensation applicant demonstrated it could not (presently) provide any better evidence, so a s 84D(1) order would be futile.
The compensation applicant’s response
61 In response, the compensation applicant submitted that:
(a) compensation was and remains a part of the traditional law and customs of the Pitta Pitta People;
(m) only the Elders have authority to make decisions under Pitta Pitta traditional law and custom to make decisions concerning compensation, and this has been part of traditional culture for “thousands of years”; and
(n) the terms of s 251B(a) of the NTA have been met, and the calling of the meetings of all of the Elders of the Pitta Pitta People in the relevant areas was sufficient. The whole compensation claim group did not need to meet for s 251B(a) to be satisfied.
Traditional laws and customs
62 The compensation applicant submitted that the further affidavit evidence of Noel Doyle and Carmel Belford makes clear that, under the traditional laws and customs of the Pitta Pitta People, only the Elders have the authority to make a decision about things such as compensation. Accordingly, the compensation applicant submitted that the authorisation of the compensation application only required the consent of the Elders of the Pitta Pitta People.
63 The compensation applicant relied on the affidavits of Carmel Belford as proving, at least to the level to reject the interlocutory applications, conformity of the authorisation of the compensation application with Pitta Pitta traditional decision-making processes. What Pitta Pitta law and custom required was the Elders coming together to meet in person and make a decision after talking to one another. The compensation applicant submitted that Elders would meet in “various ways and places” to ensure that all the families’ and mobs’ Elders were aware and involved in important decisions. In the compensation applicant’s submission, under traditional laws and customs with respect to compensation, the Elders are the decision-makers and follow that process. The compensation applicant submitted that there are only twelve remaining Pitta Pitta Elders, and all of them knew about the meetings to authorise the compensation applicant to commence the claim.
64 The compensation applicant submitted that compensation “has been part of Aboriginal culture for thousands of years and is not simply a term that is adopted and used by the NTA”.
65 In support of this proposition, the compensation applicant referred to a paper published by Dr Diane Smith, a native title anthropologist, titled “Valuing native title: Aboriginal, statutory and policy discourses about compensation”. In the compensation applicant’s submission, Dr Smith’s paper noted that anthropologists have acknowledged traditional laws and customs regarding compensation across a wide range of peoples and areas, and have acknowledged a number of fundamental points about Aboriginal traditional laws and customs with respect to compensation, including:
(a) that compensation is an accepted part of traditional Aboriginal laws and customs and is a ritual process governed by ritual authority and in consideration of “dreaming and the culture”;
(o) “Aboriginal conceptualisations of compensations are … complex, and correlated to a fundamental relationship posited between the individual, group, land and the eternal law of the Dreaming”; and
(p) “[m]any Aboriginal groups across the country continue to exercise varying compensatory rights, interest and responsibilities that are derived from Aboriginal Law and custom and are directly relevant to native title over land and waters.”
66 I note the State submitted that the article published by Dr Smith was not tendered in evidence in the proceeding and therefore cannot be used by the Court as proof of the content of Pitta Pitta law and custom, or the likelihood of that content: citing Aytugrul v The Queen [2012] HCA 15; 247 CLR 170 at [68]-[70]. The Pitta Pitta RNTBC submitted that Dr Smith’s article is not informed by any specific research with the Pitta Pitta people, and in any event the article acknowledges the differences between the concept of compensation in Aboriginal cultures and the concept of compensation in native title law and the regime of the NTA.
The exercise of the Court’s s 84D(4) discretion
67 In the alternative, the compensation applicant submitted that the Court should exercise the discretionary power conferred by s 84D(4) of the NTA to hear and determine the claim notwithstanding an alleged defect in authorisation.
68 Section 84D(4) of the NTA provides:
The Federal Court may, after balancing the need for due prosecution of the application and the interests of justice:
(a) hear and determine the application, despite the defect in authorisation; or
(b) make such other orders as the court considers appropriate.
69 According to the compensation applicant, matters relevant to the exercise of the Court’s s 84D(4) discretion include:
(a) the expense and inconvenience that a party is likely to suffer if the application is struck out and required to be brought afresh;
(b) the public interest in litigation being conducted just and as quickly, inexpensively and efficiently as possible;
(c) the potential for delay in the determination of the existence or otherwise of the claimed native title rights; and
(d) the likelihood that a further application will be pursued if the application before the Court is struck out: citing Miller v State of South Australia (Far West Coast Sea Claim) (No 2) [2018] FCA 599 at [93], [97].
70 The compensation applicant submitted that striking out the claim would be a waste of the effort and resources expended on the preparation of the claim over the past one and a half years. In its submission, this effort has involved community consultation with common law holders, Elders, anthropologists, legal representatives and others. The compensation applicant submitted that, in these circumstances, the Court should exercise its discretion under s 84D(4) to the extent necessary to hear and determine the compensation claim despite any defect in the compensation applicant’s authorisation.
71 The State responded to this by contending there was no evidentiary basis to support the making of an order under s 84D(4) of the NTA. In the State’s submission, the facts of the present case are “[i]n stark contrast to the facts considered by White J” in Miller at [95]-[97], because the compensation applicant has not demonstrated any attempt at authorising the compensation claim since it was filed.
Resolution: Authorisation
72 The compensation applicant relies on an authorisation said to be compliant with s 251B(a); therefore, the question to be resolved is whether, authorisation having been put in issue by the State and the Pitta Pitta RNTBC, the compensation applicant has no reasonable prospects of establishing it has been authorised in accordance with that provision, as properly construed.
73 While I accept that the threshold set by s 31A is not as high as “hopeless” or “bound to fail”, in the context of a native title compensation application such as the present one, I nevertheless consider there must be a very clear case for summary dismissal. That is because:
(a) compensation jurisprudence is new and developing, unlike claimant application jurisprudence;
(q) there is little or no authority about the proper construction of s 251B(a);
(r) the proper construction of this provision is a large question, of general importance;
(s) the compensation claim is fact intensive, including facts relating to traditional law and custom, proof of which involves complex and time consuming preparation of evidence; and
(t) in this case, the complexity of the evidence may also go to the question of authorisation.
74 The question posed at [72] above does not have a clear answer. First, there is the challenging question of the proper construction of s 251B(a). At a preliminary level, I see no difficulty with attributing to the words “things of that kind” a very broad meaning, which need not be restricted to – to take the current example – an application for compensation, but which could be understood to mean no more than things affecting the collective rights of the group in their country, or serious decisions affecting the interests of the whole of a native title holding group. This is a construction question entirely unsuitable to summary determination on a strike out application. It is not the way new jurisprudence in the Court’s native title compensation jurisdiction should be made.
75 Similarly, even if a construction were arrived at which was a narrower one – that is, that “things of this kind” means, relevantly, things related to compensation – applying that meaning to the evidence for the purposes of deciding authorisation (or for that matter, whether s 84D(4) should be applied) is also a task entirely unsuitable for summary determination. It is the kind of matter on which there should be the usual opportunity to gather and adduce evidence (which may be lay and expert), and there should be the usual opportunity for the full testing of that evidence.
76 As I have observed, the people comprising the compensation applicant are recognised as Pitta Pitta Elders. At least some of them were members of the Pitta Pitta claimant applicant (see Pitta Pitta CD at [2]), and three were also witnesses whose evidence was relied upon in the consent determination: see Pitta Pitta CD at [23], [24] and [25]. If their evidence was good enough, and reliable enough, to be put forward as part of the consent determination process for the State and the Court to rely upon, their evidence about traditional decision-making processes should not be summarily dismissed as wrong, inaccurate or insufficiently probative.
77 Further, there is likely to be some value in understanding expert opinion on this matter. I accept the article put forward by the compensation applicant was not adduced in the appropriate way. Nevertheless, the Court can take account of the fact that such opinion exists. The contentions of the compensation applicant in this proceeding might provide a rare example of how s 251B(a) might be given a real operation, it being seldom invoked. The actual existence of some expert opinion, and the real possibility that there may be more expert opinion available, also tends against summary dismissal, and in favour of a trial on all these matters.
78 I do not consider that arguments and evidence about Pitta Pitta decision making on prior occasions during the claimant application process establishes, one way or the other, whether for the purposes of s 251B(a) a traditional decision-making process under Pitta Pitta law and custom objectively exists for “things of that kind”. As the 7 October 2021 affidavit evidence of Mr Doyle illustrates (see [13]-[14]), there may be real factual debates about whether, and how, the Pitta Pitta claim group were informed about which of paragraphs (a) and (b) in s 251B ought to be used for the claimant application. I do not decide between the varying factual accounts – but their existence is another reason these issues should not be summarily determined.
79 There is no doubt from the jurisprudence in this Court that it is almost always the case that a meeting-based approach, and voting by majority (whether by show of hands or secret ballot) is the most frequent method of authorisation decision making adopted by claimant groups. The NTA does not require, or even expressly contemplate, that such a method be adopted, but it is well-recognised in the jurisprudence as a permissible method. Whatever be the correct historical narrative about authorisation decisions made during the Pitta Pitta claimant application process, the eventual decision-making processes adopted may carry little probative value in the exercise of deciding whether there is, under Pitta Pitta traditional law and custom, a decision-making process which must be complied with for authorising ‘things of the kind’ of a compensation application. It is also neither efficient nor cost effective for the Court to launch into some kind of historical inquiry into what people were told, by whom and when, about how they could or should make decisions as a group about their native title claimant application.
80 Section 251B(a) is concerned with whether there exists, as a matter of objective fact, a process under traditional law and custom that must be complied with in the present circumstances. That is a triable issue.
Dismissal or strike out on the basis of no standing
The State’s contentions
81 Putting aside questions of authorisation, the State submitted that the compensation applicant lacks standing to make an application for compensation in relation to 136 of the 784 asserted compensable acts that are listed in Schedule I of the Form 4 application. On that basis, the State sought to have the compensation application struck out in part, pursuant to s 84C(1) of the NTA, to the extent that it relates to those 136 acts.
82 In the State’s submission, the absence of standing arises as follows. Each of the 136 acts was done on or after the date the Pitta Pitta CD came into effect (17 January 2014), and was done in relation to land or waters where native title was determined to exist. It follows that, at the time each of the 136 acts was done, any native title rights and interests affected by the acts were held in trust by the Pitta Pitta RNTBC. In the State’s submission, the scheme for compensation under the NTA is such that:
(a) an entitlement to compensation (if any) for each of those 136 acts arose at the time the act was done (in all 136 instances, a date after 16 January 2014); and
(u) any entitlement to compensation for those acts vested directly in the Pitta Pitta RNTBC on and from the date of the compensable act (and not in the natural persons for whom the Pitta Pitta RNTBC holds the native title in trust). On the proper construction of s 61(1) of the NTA, only the Pitta Pitta RNTBC may make an application for compensation for the effect of those acts on the native title.
83 The State’s submissions depended in considerable part on the terms of s 224 of the NTA, which provides:
The expression native title holder, in relation to native title, means:
(a) if a prescribed body corporate is registered on the National Native Title Register as holding the native title rights and interests on trust—the prescribed body corporate; or
(b) in any other case—the person or persons who hold the native title.
(Original emphasis.)
84 In most, if not all, places in the compensation provisions of the NTA, the plural expression is used – “native title holders”. The difference may or may not be textually and contextually significant. The State submitted it was not, and relied on s 23(b) of the Acts Interpretation Act 1901 (Cth) to contend that the singular form in s 224 includes the plural in the other provisions.
85 The State also contended that by reason of the inclusions of the words “on trust” in s 224, an agent RNTBC was also excluded, as were the natural persons identified in a native title determination as the holders of the native title – that is, the ‘common law holders’, to use the term provided in s 56 of the NTA – if paragraph (a) applied. In respect of any entitlements to compensation that arise prior to the making of a determination of native title, the State contended those entitlements vest in the community or group of natural persons who hold the native title rights in question (albeit at this point their native title was not yet recognised).
86 The State submitted that an entitlement to compensation arose:
(a) under s 20(1) of the NTA in respect of past acts attributable to the State, upon the enactment of s 15 of the Native Title (Queensland) Act 1993 (Qld) (which validated past acts attributable to the State);
(v) under s 22G(1) of the NTA in respect of intermediate period acts attributable to the State, upon the enactment of s 8A of the NTQA (which validated intermediate period acts attributable to the State); and
(w) under s 23J of the NTA, in respect of previous exclusive possession acts and previous non-exclusive possession acts attributable to the State, if there was further extinguishment caused by confirmation of the acts, upon the enactment of ss 20, 21 and 23 of the NTQA (which confirmed extinguishment for certain acts attributable to the State).
87 The above compensation entitlements all vested in the respective native title holders by 3 September 1998 (being the date of enactment of ss 8A, 20, 21 and 23 of the NTQA).
88 The State particularised that the 784 asserted compensable acts in Schedule I of the compensation application are divided into the following categories:
(a) Part A lists acts (done between 31 October 1975 and 13 November 2019) in relation to areas of land or water “included in” the Pitta Pitta CD, being areas over which a positive determination of native title has been made. The State identified 19 of these acts as having been done on or after 17 January 2014 (noting that all acts in Part A are in determined areas).
(x) Part B lists acts (done between 31 October 1975 and 19 July 2018) in relation to areas of land or water “excluded from” the Pitta Pitta CD, being areas that had been subject to a previous exclusive possession act, and, therefore, over which no determination of native title was made. The State submitted none of these acts fall within the category for which the compensation applicant lacks standing.
(y) Part C lists acts consisting of the grant of water licences between 18 June 2019 and 7 October 2019. The State identified 37 of these acts as having been done on or after 17 January 2014 in determined areas.
(z) Part D lists acts consisting of the grant of mineral tenements. With the exception of two acts, all were done between 4 December 1975 and 26 April 2019. The State identified 78 of these acts as having been done on or after 17 January 2014 in determined areas.
(aa) Part E lists acts consisting of boreholes done between 1 December 1975 and 14 September 2014. The State identified two of these acts as having been done on or after 17 January 2014 in determined areas.
(ab) Part F lists acts “relating to infrastructure”, the majority of which are not given specific dates of construction or establishment, but all of which are asserted to have been built after 31 October 1975. The State was unable to identify whether the compensation applicant has standing to claim compensation in relation to any of these acts until such time as particulars of the dates the acts were done are known. The State reserved its position in relation to this category of acts.
89 In summary, the State submitted that, properly construed, s 61(1) of the NTA operates so that, in this case:
(a) The compensation applicant has standing to make a compensation application for:
(iv) acts done in undetermined areas; and
(v) acts done in determined areas prior to 17 January 2014.
(b) The compensation applicant does not have standing to make a compensation application for acts done in determined areas on or after 17 January 2014. Only the Pitta Pitta RNTBC has standing to make a compensation application for those acts. The State identified 136 asserted compensable acts that fall within this category.
90 The State sought an order striking out the compensation application to the extent that it relates to the 136 acts which it contends occurred on or after 17 January 2014.
The Pitta Pitta RNTBC’s submissions
91 The Pitta Pitta RNTBC submitted that the compensation applicant does not have standing under s 61(1) of the NTA at all, because the applicant is not the RNTBC and, on that basis, the compensation application ought to be dismissed. Where there is an approved determination of native title and the RNTBC holds the native title rights and interests in trust under s 56 of the NTA, the applicant does not have standing to make the compensation application for the following reasons. Thus, its contentions were much broader than those of the State.
92 The Pitta Pitta RNTBC submitted that reg 6(1)(a) of the Native Title (Prescribed Bodies Corporate) Regulations 1999 (Cth) provides that a prescribed body corporate that holds native title rights and interests on trust has the function to manage the native title rights and interests of the common law holders of those rights and interests. The Pitta Pitta RNTBC submitted that its management of the native title rights and interests held on trust engages an obligation on it to manage decision making to commence a compensation application by ensuring compliance with the relevant decision-making processes: referring to Walmbaar Aboriginal Corporation v State of Queensland [2009] FCA 579; 177 FCR 42. In the Pitta Pitta RNTBC’s submission, this means that the decision to institute the compensation application ought to have been made in accordance with the decision-making requirements of the RNTBC’s Rule Book.
93 Accordingly, the entire compensation application ought to be dismissed pursuant to s 31A of the Federal Court Act.
Resolution: Standing
94 Section 61(1) of the NTA identifies the person or persons who may invoke the jurisdiction of the Court by making one of the kinds of application with which the section is concerned; that is, it identifies those who have standing to make those applications. Relevantly, and as at 22 October 2020, s 61(1) provided the person or persons who have standing to bring a compensation application under s 50(2) of the NTA were:
(1) The registered native title body corporate (if any); or
(2) A person or persons authorised by all the persons (the compensation claim group) who claim to be entitled to the compensation, provided the person or persons are also included in the compensation claim group.
(Original emphasis.)
95 The State did not rely on any authority to submit this Court was bound to take the approach to standing for which it contended. Neither did the Pitta Pitta RNTBC. Their respective contentions have a profound effect on the operation of compensation applications under the NTA. In effect, they confine the terms of s 61 in a way the words of s 61 do not. The State, alternatively the Pitta Pitta RNTBC, may be correct, but this is a matter which should be determined at trial, in the proper context of a full consideration of all the compensable acts, and (amongst other matters) the likely real effect of a construction which means that significant amounts of monetary compensation can only be paid to an RNTBC.
96 In Griffiths at [43], the High Court confirmed that the date for the assessment of the compensation is the date of the compensable act.
97 At [40]-[42], the plurality said:
After an entitlement to compensation has been established, the compensation payable under Div 2, 2A, 2B, 3 or 4 of Pt 2 of the Native Title Act in relation to an act is payable only in accordance with Div 5 . As has been seen, the compensation payable to the Claim Group arises under either Div 2 or Div 2B of Pt 2 of the Native Title Act, and accordingly, s 51(1) applies in relation to determining the compensation claims in these appeals.
Section 51(1) is the core provision. It provides that:
“Subject to subsection (3), the entitlement to compensation under Division 2, 2A, 2B, 3 or 4 is an entitlement on just terms to compensate the native title holders for any loss, diminution, impairment or other effect of the act on their native title rights and interests.” (emphasis added)
Specific aspects of s 51(1) must be recognised at the outset. It is the native title holders – relevantly, the person or persons who hold the native title – who are entitled to compensation on just terms. And those native title holders are entitled to compensation for any loss, diminution, impairment or other effect of the act on their native title rights and interests. Relevantly, an act is an “[a]ct affecting native title” if it extinguishes the native title rights and interests.
98 The phrase in bold was footnoted to s 224.
99 And further at [45]-[46]:
Both aspects are addressed in terms by s 51(1) providing for an entitlement on just terms to compensation to the native title holders for “any loss, diminution, impairment or other effect of the act on their native title rights and interests” (emphasis added).
Section 51(1) thus recognises that the consequences of a compensable act are not and cannot be uniform. The act and the effect of the act must be considered. The sub-section also recognises not only that each compensable act will be fact specific but that the manner in which the native title rights and interests are affected by the act will vary according to what rights and interests are affected and according also to the native title holders’ identity and connection to the affected land. As the trial judge held, s 51(1) does not in its terms require that the consequence directly arise from the compensable act. The court’s task of assessment under s 51(1) is to be undertaken in the particular context of the Native Title Act, the particular compensable acts and the evidence as a whole.
100 I accept the facts in Griffiths concerned an area outside the applicable determination of native title, and so the circumstances were not the same as the present proceeding. Nevertheless, these passages illustrate the wide ramifications of the State’s standing submission. Even more acutely, the contentions of the Pitta Pitta RNTBC. It is apparent that, even though the High Court’s attention may not have been focussed on the meaning and effect of s 224, the construction for which the State and the Pitta Pitta RNTBC contend was not self-evident to their Honours, because their Honours were speaking of the native title holders (plural) as equivalent to the common law holders. It was “their” native title right for which compensation was payable; it was the loss (cultural and economic) of “their” native title rights and interests to which s 51(1) was directed. There are difficult questions of construction that arise before the contentions of the State and the Pitta Pitta RNTBC can be resolved. They are important triable issues, and they are unsuitable for summary determination.
101 The construction advanced by the State, and more so the Pitta Piita RNTBC, may work to the real disadvantage of the common law holders where there is a dysfunctional or divided RNTBC. Indeed, it might be said this proceeding is an example of precisely that (latter) situation.
102 Unlike the Pitta Pitta RNTBC, the State’s position was that only some of the compensable acts were matters about which the compensation applicant had no standing. Even in this category, lack of information meant it could not identify all of them. This is a further reason that summary determination of these questions is inappropriate – the State could not identify every compensable act it contended should be struck out for lack of standing, though it could nominate 136 acts.
103 Further, the State submitted that the amendments to ss 61, 62 and 63 of the NTA enacted by Schedule 4 to the Native Title Legislation Amendment Act 2021 (Cth) (2021 Amending Act) were not relevant to the question of standing, because the compensation application was filed before the 2021 Amending Act came into force. It relied on s 10(2) of the 2021 Amending Act. The 2021 amendments allow an RNTBC to make a compensation application over certain areas where native title has been wholly extinguished, and thus where there has been no determination that native title exists. The Pitta Pitta RNTBC supported this interpretation. I do not accept that the 2021 Amending Act is irrelevant to the construction question upon which the standing arguments are premised. While the operative provisions of the 2021 Amending Act may not affect this proceeding, what if anything those amendments to the NTA mean for the standing arguments is a matter which should be fully argued at trial.
104 The position of the Pitta Pitta RNTBC was less developed at a construction level, but it is answered in the same way, more emphatically. These issues are not suitable for summary determination. A matter of some weight in reaching my conclusion is that the State and the Pitta Pitta RNTBC put quite different arguments on standing, with quite different outcomes for this compensation application. The difference of approach between the two respondents illustrates why the standing arguments are unsuitable for interlocutory determination.
105 The compensation applicant’s contention is correct that s 61 contains none of the asserted qualifications sought to be imposed by the respondents. Section 61 is the standing provision of the NTA. It must be construed narrowly, and a number of words implied into it, to arrive at either of the two alternative constructions for which the respondents contend.
106 This aspect of the interlocutory applications should also be dismissed.
Discretion
107 As all parties’ submissions recognised, the Court has a discretion whether to summarily dismiss an application, or strike out parts of a pleading. While I do not accept the compensation applicant’s submissions that it is appropriate for any orders to be made under s 84D(4) of the NTA, some of the factors to which the compensation applicant pointed are material to the exercise of discretion. Even if, contrary to my opinion, the respondents’ legal arguments meant the compensation applicant had little or no reasonable prospects of success, as a matter of discretion I would not have granted the relief sought.
108 It seems likely that any summary dismissal of this compensation application would not bring an end to the debate about how a compensation application on behalf of the Pitta Pitta People should be prosecuted. As the plurality said in Griffiths (at [27]), the system established under the NTA is to operate in a “practical way” to address the consequences of acts impacting native title rights and interests. Returning to a position where there is no compensation claim on behalf of the Pitta Pitta People, and the disputes about who should bring such an application simply start again, is not giving a particularly practical operation to the NTA.
109 It is a significant and sobering fact that the upper generations of First Nations Peoples whose knowledge of traditional law and custom is often the strongest, are diminishing. Each month there is delay is another month when the risks increase that senior members of the Pitta Pitta People may become unable, or less able, to participate in the giving of evidence relevant to the compensation application. It is uncontroversial that:
the assessment of the effects of the acts causing cultural loss could not be divorced from the content of the traditional laws and customs acknowledged and observed by the Claim Group.
(Griffiths at [158].)
110 Just as critically, those Elders and senior people should be able to receive compensation, if there is a successful outcome, whether negotiated or litigated, and should be able to see their community receive that compensation. I have written on many previous occasions about the sense of urgency which should attach to the resolution of NTA proceedings for First Nations Peoples, who have often waited an extraordinarily long time for outcomes under the NTA, and who as a community experience poorer health and longevity than the rest of the Australian community. Processes under the NTA should not only be conducive to achievement of the objectives of the Act, and the important statements on behalf of the Australian community found in the Preamble to the Act; they should be conducive to the challenging circumstances experienced by First Nations communities. As s 37M and s 37N of the Federal Court Act recognise more generally, the Court should pursue an approach which facilitates the parties’ focussing on the substantive issues in dispute between them, and how those issues can be most cost effectively and efficiently resolved.
111 None of this is to diminish the general importance of some of the matters raised in the interlocutory applications. There are material questions of construction of the NTA to be decided. But this proceeding is, at base, about compensation for the loss of native title by the Pitta Pitta People, a recognised native title holding group, whose journey under the NTA commenced in 1999, more than twenty years ago. The purpose of the proceeding is to compensate the Pitta Pitta People for, amongst other matters, the “spiritual hurt” from the compensable acts, which in turn requires an inquiry into the “spiritual relationship” which the Pitta Pitta People have with their country: Griffiths at [155]. If there are questions of construction, and authority, which should be determined in order to reach the point of deciding what if any compensation is payable, the appropriate way for that to occur is in a trial context. If, in the end, there are some compensable acts for which only the Pitta Pitta RNTBC can claim compensation, then a trial should have established a firm basis for a negotiated outcome on those remaining compensable acts.
112 Further, it is clear on the evidence that there is a dispute, with a long history, between some or all directors of the Pitta Pitta RNTBC and some or all of those individuals who comprise the compensation applicant. It is clear that dispute includes an ongoing debate about which individuals should be recognised as Pitta Pitta People. It suffices here to refer to the affidavit evidence of Pearl Eatts, read in support of the Pitta Pitta RNTBC’s interlocutory application.
113 Ms Eatts identifies as Pitta Pitta and Maiawali. In 2014, after the Pitta Pitta CD, the RNTBC Board of Directors refused to accept membership applications from her, her mother and other family members. The reason given was that they “have previously identified as a member of a group other than the Pitta Pitta People”. I infer this refers to Ms Eatts’ identification as Maiawali, but it may also refer to other identifications.
114 The Pitta Pitta RNTBC Rule Book is annexed to the affidavit affirmed and filed by Mr Stevenson on 7 December 2021. At clause 5.2.2 and Schedule 4, the Rule Book prescribes that a person is eligible for membership if they are at least 18 years old and other Pitta Pitta people recognise that the person is biologically descended from a person recognised as a Pitta Pitta ancestor. The relevant point to be made from Ms Eatts’ evidence on this matter is that where the criteria are recognition, then group membership, admission to the RNTBC and also control of a RNTBC can be fraught and fluid matters (see Dhu v Karlka Nyiyaparli Aboriginal Corporation RNTBC (No 2) [2021] FCA 1496). While the NTA gives certain roles to an RNTBC, it plainly recognises the repositories of traditional law and custom are the claim group members, and (later) the common law holders. The native title is the native title of the common law holders.
115 Eventually, in 2017, Ms Eatts’ membership application was accepted, and she became a Director in 2018, a position she continues to hold. In her affidavit she describes some interactions with Pitta Pitta people, a person she identifies as an anthropologist, and another person she identifies as a lawyer. She did not view those interactions favourably. She expresses firm views that those individuals who comprise the compensation applicant have shown a “complete disregard” for the role of her mother, Joslin Eatts, as a Pitta Pitta Elder. Ms Eatts also deposes to being in a “difficult position” by reason of her role as a Director, but having family members amongst those who comprise the compensation applicant. Ms Eatts emphasises that she feels not all people who should have been consulted, have been consulted.
116 A quite different picture emerges from the material of the witnesses for the compensation applicant. For example, Neville Aplin, the lead applicant in the Pitta Pitta claimant application, and a member of the compensation applicant, deposes in his 2020 affidavit:
For the purposes of this Application and authorisation, the Pitta Pitta PBC does not represent Pitta Pitta Traditional Owners.
A lot of the current Pitta Pitta PBC members are not biological descendants of Pitta Pitta Apical Ancestors as determined in the Pitta Pitta Determination in 2012.
The current Pitta Pitta PBC Board of Directors have shown and continue to show disrespect for the Pitta Pitta Traditional Owners and Elders.
117 No party sought to cross examine any deponents. It is not possible for the Court at a summary stage to choose between these competing accounts and positions. Once again, the existence of this kind of debate, especially where the members of the compensation applicant are recognised as senior Elders of the Pitta Pitta People, suggests these are issues for trial.
118 For these reasons, at the general discretionary level, I consider the appropriate way for the question of whether the Pitta Pitta People are entitled to compensation under the NTA to proceed, is for this proceeding to continue, and to continue expeditiously. If the State and the Pitta Pitta RNTBC wish to press the matters they have raised at an interlocutory level, they may do so at trial.
Conclusion
119 The two interlocutory applications should be dismissed. These reasons should not be taken as encouraging any applications for a separate question process, lest that be seen as another way to hold this compensation application up at the hurdle of authorisation or standing. While there are many authorities of this Court expressing the view that questions of authorisation should be determined early in a proceeding, so as to avoid any waste of public funds and resources if an applicant is found not to be duly authorised, all those observations must be seen in their particular context. That context may include matters such as whether those alleging authorisation are recognised Elders or are group members who might sit outside the core, whether there are overlapping claims, how long a proceeding has been on foot, and whether the observations were made against a background of well-established jurisprudence about authorisation under s 251B(b) for a claimant application.
120 Although this was not a matter canvassed by the parties, it seems agreed that a compensation claim is capable of being made on behalf of the Pitta Pitta common law holders. This current application is all about who should bring it. In a sense, it is a lawyer’s argument. It has already occupied and consumed considerable public funds and resources, without any benefit to the Pitta Pita common law holders. Moving forward, it might be sensible for the compensation applicant and the Pitta Pitta RNTBC to put their differences to the background, and to consider whether they might pursue a compensation application in a more collaborative way. One option might be an amendment to the composition of the compensation applicant so that some individuals from the Pitta Pitta RNTBC are represented in it. There may be other options. This is not a circumstance where there is any doubt about the underlying merit – at a general level rather than at the level of specific compensable acts – of a compensation application on behalf of the Pitta Pitta People. The Court encourages all the parties to move towards resolution of the real issues in this proceeding, which revolve around the payment of compensation for acts affecting native title, and towards the pursuance of the objectives of the NTA, especially as set out in the Preamble.
I certify that the preceding one hundred and twenty (120) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Mortimer. |
Associate:
QUD 327 of 2020 | |
ERGON ENERGY CORPORATION LIMITED ACN 087 646 062 | |
Fifth Respondent: | MERLIN ENERGY PTY LTD |
Sixth Respondent: | CHINOVA RESOURCES CLONCURRY MINES PTY LTD |
Seventh Respondent: | CHINOVA RESOURCES OSBORNE PTY LTD |
Eighth Respondent: | APT PIPELINES (QLD) PTY LIMITED |
Ninth Respondent: | ANGLO AMERICAN EXPLORATION (AUSTRALIA) PTY LIMITED |
Tenth Respondent: | SUPERIOR RESOURCES LIMITED ACN 112 844 407 |
Eleventh Respondent: | SOUTH32 CANNINGTON PROPRIETARY LIMITED |
