FEDERAL COURT OF AUSTRALIA

Mann on behalf of the Bigambul People #2 v State of Queensland [2023] FCA 450

ORDERS

THE COURT ORDERS THAT:

1.    The proceeding be struck out pursuant to s 84C of the Native Title Act 1993 (Cth), or alternatively summarily dismissed pursuant to r 26.01 of the Federal Court Rules 2011 (Cth).

2.    The parties provide the Judicial Registrar – Native Title with draft case management orders in respect of costs and any further matters within 14 days of the date of these Orders.

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

REASONS FOR JUDGMENT

COLLIER J:

INTRODUCTION

1    Before the Court is an interlocutory application filed on 4 November 2022 in proceeding QUD 281 of 2022 Leah Mann & Ors on behalf of the Bigambul People #2 & State of Queensland & Ors (Bigambul #2 Claim). The Native Title Applicant in the Bigambul #2 Claim comprises Leah Mann, Katherine Hippi, Justin Saunders and Lynn Trindall on behalf of the Bigambul People (Bigambul #2 Applicant).

2    This interlocutory application was filed by the Native Title Applicant in another proceeding, QUD 290 of 2017 (Gamilaraay Claim), comprising Darryl Hippi, Leroy Connors, Garry Saunders, Reginald (Reg) McGrady and Deidre Flick on behalf of the Gamilaraay People (Gamilaraay Applicant).

3    In this interlocutory application the Gamilaraay Applicant has sought the following orders:

1.    That pursuant to s 84(5) of the Native Title Act 1993 (Cth), the Applicant in proceeding QUD290/2017 be joined as a party to the proceeding;

2.    That:

a.    The proceeding be struck out pursuant to s 84C of the Native Title Act 1993 (Cth), or alternatively, summarily dismissed pursuant to rule 26.01(d) of the Federal Court Rules 2011 (Cth), or s31A of the Federal Court Act 1976 (Cth);

b.    Pursuant to rule 2.28(1)(c)(i) and/or rule 2.28(1)(c)(ii) of the Federal Court Rules 2011 (Cth), the Form 1 filed on 18 August 2022 in proceeding be removed from the Court file; and

c.    The Applicant in the proceeding pay the costs of the Applicant in proceeding QUD290/2017.

3.    The hearing of the application for the orders referred to at [1] and [2] to be listed on a date to be fixed, but not before 15 December 2022, and be heard together with the joinder application filed on 12 August 2022 in QUD290/2017.

4.    …

5.    Such other orders the Court considers just and necessary.

4    On 15 November 2022 the Gamilaraay Claim and the Bigambul #2 Claim came before me for case management. On that date I made the following orders in the Bigambul #2 Claim joining the Gamilaraay Applicant to the proceedings.

5    Paragraph 2 of the relief sought in the interlocutory application came before me for hearing on 31 January 2023 and 14 February 2023

BACKGROUND

6    It is first helpful to set out relevant background facts.

7    On 4 March 2017 the claim group in the Gamilaraay Claim held an authorisation meeting, at which members of the claim group authorised the bringing of a native title determination application pursuant to s 61(1) of the Native Title Act 1993 (Cth) (Native Title Act).

8    On 12 June 2017 the Gamilaraay Applicant filed a native title determination application. The determination claim area in the Gamilaraay Form 1 can be summarised as commencing at the intersection of the Queensland and New South Wales Border, extending generally north-easterly, roughly past Nindigully and as far east as Bungunya (although not encompassing Bungunya) (Gamilaraay Claim Area). Thallon and Talwood are encompassed in the Gamilaraay Claim Area.

9    On 24 April 2022, an authorisation meeting for the purported authorisation of the Bigambul #2 Claim took place in Goondiwindi (Bigambul Authorisation Meeting).

10    On 30 June 2022 a Native Title Registrar of the Federal Court made Orders setting down the Gamilaraay Claim for an on country consent determination before me in Thallon, Queensland, on 9 September 2022.

11    On 3 August 2022 Just Us Lawyers, the solicitors for the Bigambul #2 Applicant, caused a letter to be sent to the State of Queensland advising the State that the solicitors held instructions to make an application for joinder to the Gamilaraay Claim, and foreshadowed the filing of an overlapping claim over part of the Gamilaraay Claim Area (3 August 2022 Letter).

12    On 5 August 2022 the Gamilaraay Claim came before me as part of the Queensland Southern Callover. At the callover, the Native Title Applicant brought to the attention of the Court the 3 August 2022 Letter. Mr Hardie made an appearance at the callover on behalf of the Bigambul #2 Applicant.

13    At the callover I made the following Orders:

1.    Any joinder application, supporting affidavit/sand submissions (limited to 15 pages) be filed and served by 4.00pm 12 August 2022.

2.    Any submissions in respondent (limited to 15 pages) and supporting affidavit/s to be filed and served by 4.00pm on 18 August 2022.

3.    Any joinder application filed in accordance with Order 1 of these Orders be listed for hearing at 9.00am on 19 August 2022 for half a day.

14    On 12 August 2022 the Bigambul #2 Applicant filed its foreshadowed interlocutory application in the Gamilaraay Claim pursuant to Order 1 above (Bigambul Joinder Application).

15    On 18 August 2022 the Bigambul #2 Applicant filed a native title determination application. Relevantly, the Bigambul #2 Form 1 provided:

AUTHORISATION

The applicant is entitled to make this native title determination application as authorised by the native title claim group (“the claim group”) at a meeting in Goondiwindi on 24 April 2022.

…

The Applicant is aware of one Application referred to above. Details of the Application are set out in the table below:

16    In summary, the Bigambul #2 claim area commences at the intersection of the New South Wales and Queensland Border, extends generally north-westerly, and generally south-westerly as far north as roughly Yarrandine, and encompasses Thallon and Talwood (Bigambul #2 Claim Area).

17    On 18 August 2022, the day before the proposed hearing of the Bigambul Joinder Application, the Bigambul #2 Applicant submitted in correspondence to the Court that the Bigambul Joinder Application was now “otiose” as the Bigambul #2 Applicant could now “agitate for recognition of their native title rights and interests directly [in the Bigambul #2 Claim] rather than making an application for joinder to the Gamilaraay Native Title Claim as a defensive measure”.

18    On 19 August 2022 the parties came before me. I made Orders referring both the Gamilaraay Applicant and Bigambul #2 Applicant to mediation, and listing the matters for case management on 30 August 2022.

19    On 30 August 2022 I made further Orders that the proceedings remain in mediation. Given the status of the Bigambul #2 Claim, the consent determination hearing listed for 9 September 2022 in the Gamilaraay Claim was vacated.

20    On 4 November 2022 the Gamilaraay Applicant filed the interlocutory application presently before the Court.

21    At the 15 November 2022 case management hearing, the Bigambul #2 Applicant confirmed it would only press the Bigambul Joinder Application if this interlocutory application was successful:

MR HARDIE: Well, except that I’ve said to the court – in open court, that should their strike-out application be unsuccessful, my clients will not press joinder.

HER HONOUR: And if they’re – and if they’re - - -

MR HARDIE: Successful.

HER HONOUR: I see.

MR HARDIE: We will press joinder. But it does save a lot of complications, but – look, I’m in the court’s hands. I’m just trying to get - - -

EVIDENCE

22    The evidence provided by the parties in this matter was extensive and detailed.

Gamilaraay Applicant

23    The Gamilaraay Applicant relied on the following affidavit evidence:

(1)    Affidavit of Melita Jane Henderson filed 11 January 2023;

(2)    Affidavit of Timothy John Wishart filed 11 January 2023;

(3)    Affidavit of Sheree Sharma filed 4 November 2022;

(4)    Affidavit of Leonard Charles Saunders filed 11 January 2023;

(5)    Affidavit of Ralph Edwin Rigby filed 11 January 2023;

(6)    Affidavit of Gregory Bruce Saunders filed 11 January 2023;

(7)    Affidavit of Danielle Nicole Saunders filed 11 January 2023;

(8)    Affidavit of Kristina Gay Saunders filed 11 January 2023;

(9)    Affidavit of Stephen Henry Saunders filed 11 January 2023;

(10)    Affidavit of Deidre Flick filed 20 January 2023; and

(11)    Affidavit of Amanda Lang filed 23 January 2023.

Affidavit of Melita Jane Henderson filed 10 January 2023

24    Ms Henderson is a solicitor employed by Queensland South Native Title Services Limited (QSNTS). Ms Henderson has day to day carriage of the proceedings on behalf of the Gamilaraay People.

25    Relevantly, Ms Henderson deposes that on 20 August 2021 a Senior Native Title Case Manager at the Federal Court sent an email to a number of email addresses, including Mr Colin Hardie, advising the matters listed for the Southern Callover on 3 September 2021.

26    Ms Henderson gave evidence relating to that Callover. In particular, she deposed that Mr Hardie and Mr Besley of Just Us Lawyers attended the Callover in matters immediately preceding and immediately after the Gamilaraay Claim.

27    Ms Henderson referred to affidavits of:

(1)    Raechel Louise Missen dated 12 August 2022;

(2)    Regina Munn dated 12 August 2022;

(3)    Clara Munn dated 4 August 2022;

(4)    Colin Stanley Hardie dated 12 August 2022; and

(5)    Leah Mann dated 12 August 2022.

28    Lastly, Ms Henderson deposed that on 14 November 2022 she became aware that the Bigambul #2 Claim had failed the registration test under the Native Title Act.

Affidavit of Timothy John Wishart filed 10 January 2023

29    Mr Wishart is the Principal Lawyer of QSNTS.

30    Mr Wishart gave detailed evidence in relation to a regional research project undertaken by QSNTS known as the St George Regional Research Project (St George Project). Relevantly, the St George Project commenced in 2013 and was intended to assist QSNTS in developing a strategy to resolve native title interests in the research area by adducing anthropological evidence and identifying traditional countries and peoples. Mr Wishart deposed that, as part of the St George Project, QSNTS held information sessions to discuss it, and that relevant evidence supported proposed new native title determination applications (including Gamilaraay). He relevantly deposed:

10.    In my experience, people attending meetings of the kind at [9] are often able to associate with more than one native title claim group through cognatic descent and are in fact active in more than one native title claim. It is also my experience that people attending meetings of this sort are quick to point out what they perceive to be errors in the identification of potential boundaries for a native title determination application or proposed claim group descriptions.

11.    Prior to the information sessions referred to above at [9], on 17 December 2015, I wrote to 130 people to inform them of the upcoming information sessions. Annexed to the affidavit and marked TJW-01 is a true and correct copy of the letter the annexed copy being that sent to Ms Jackie Bennett, (see [8(e)] above and [11 (a)] below). A letter in identical terms was sent to the individuals listed at [11(b)]-[11(n)]. This letter was sent to the following people who, based on information contained in the QSNTS database, fall within the description of the Bigambul native title holding group as determined in Doctor on behalf of the Bigambul People v State of Queensland [2016] FCA 1447:

(a) Jackie Bennett;

(b) John Saunders;

(c) John Raymond Saunders;

(d) Cheryl Keen;

(e) Mandy Hicks;

(f) Jacqueline Close;

(g) Katherine Hippi;

(h) Vanessa Hippi;

(i) Henry Noble;

(j) Tanya Kirkegaard;

(k) Lindsay Noble;

(l) Leonard Saunders;

(m) Gloria Morton; and

(n) Max Webster.

12.    On 2 March 2016, among others, I wrote to the following people, who based on our database fall within the description of the now Bigambul native title holding group, inviting them to discuss the St George Regional Research Project findings on 18 March 2016. Annexed to this affidavit, marked TJW-02 is a true and correct copy of the letter sent to Henry Noble, listed at [12(a)]. A letter in identical terms was sent to individuals listed at [12(b)]-[12(c)]:

(a) Henry Noble;

(b) Lindsay Noble; and

(c) Gloria Morton.

13.     On 4 March 2016, among others, I wrote to Jackie Bennett, who based on information in the QSNTS database, falls within the description of the Bigambul native title holding group (and who asserts a Bigambul identity), inviting her to discuss the St George Regional Research Project findings on 19 March 2016. Annexed to this affidavit, marked TJW-03 is a true and correct copy of the letter sent to Jackie Bennett.

14.     On 4 March 2016, among others, I wrote to the following people, who based on our database, fall within the description of the Bigambul native title holding group, inviting them to discuss the St George Regional Research Project findings on 20 March 2016. Annexed to this affidavit, marked TJW-04 is a true and correct copy of the letter sent to Vanessa Hippi, listed at [14(a)]. A letter in identical terms was sent to individuals listed at [14(b)]-[14(e)]:

(a) Vanessa Hippi;

(b) Kathy Hippi;

(c) Max Webster;

(d) Leonard Saunders; and

(e) John Raymond Saunders.

15.     …

16.    A review of the outcomes notes from the meetings at [9] above was conducted. The notes appear to be comprehensive and record comments from attendees about various specific issues. I am satisfied that no attendees at the meetings are recorded as complaining about the Talwood area being included in the recommended NTDA area that is now claimed by the Gamilaraay claimants, or complaining that Talwood was within traditional Bigambul country.

17.     From a review of the attendance registers for the information sessions referred to at [9], the following people attended one or more of the meetings and, based on information in the QSNTS database, fall within the description of the determined Bigambul native title holding group:

(a) Henry Noble;

(b) Veronica Jarrett;

(c) Jackie Bennett;

(d) Leonard Saunders;

(e) Ray Saunders;

(f) Gloria Morton;

(g) Alex Gillon;

(h) Fay Twidale;

(i) Janet Graham;

(j) Sharon Robertson;

(k) Geraldine Binge;

(l) John Saunders;

(m) Larry Hippi;

(n) Max Webster; and

(o) Vanessa Hippi.

18.     The purpose of inviting those people on different dates to different venues was to afford them an opportunity to attend an information session at a location that was, according to their addresses on the QSNTS database, likely to be the most convenient for them to attend. I recall that I was present at the information sessions referred to at [9(a, b, d, e, and f)] above and, from my review of the file, I am aware that at each of the 2016 information sessions a map of suggested claim areas supported by the anthropological opinion of Mr Kumarage was presented. That map depicted the area which Mr Kumarage opined was and is Gamilaraay country and is the area which was ultimately authorised and claimed by the Gamilaraay People. This area includes the portion removed by the Bigambul People in April 2015, which I explain in further detail at [31]-[44] below.

19.     In addition to the consultation and participation from the Bigambul People referred to above at [7)-(17), on 13 October 2016 I wrote to Mr Colin Hardie, who was then the solicitor for the Bigambul native title claimants, inviting Bigambul people's input into the, then proposed, Gamilaraay NTDA. The proposed Gamilaraay NTDA was one of the native title determination applications that were a result of the work carried out by QSNTS under the St George Regional Research Project. Annexed to this affidavit and marked TJW-05 is a copy of my letter dated 13 October 2016.

31    Mr Wishart’s letter of 13 October 2016 provided as follows:

Dear Mr Hardie

Bigambul People

You will recall that at the authorisation meeting held by the Bigambul People on 17 April 2015 I made a commitment to your client to consult before any claim was authorised over the land and waters in the south-west of the claim area (proximate to Talwood) from which your clients later resolved to withdraw its claim.

I have received a request to proceed with an authorisation meeting for a claim that, if authorised, is likely to include the area near Talwood that was removed from your client's claim.

In the course of undertaking research in the area a significant number of people who identify as Bigambul have been interviewed and there has not been any significant disagreement with the boundary as amended by your client at the April 2015 meeting.

QSNTS recently held information meetings in relation to the outcomes of its St George Regional Research Project, which included the presently unclaimed areas to the west of your client's claim area. The meetings were essentially to report back the research conclusions for those people who have assisted with the research project. This included identifying the discrete areas of land and waters that QSNTS is prepared to recommend as claim areas.

People who identify as Bigambul were at those meetings and there was no significant disagreement with the Bigambul boundary as amended by your client at the April 2015 meeting.

None of the people present, including people who identify as Bigambul, asserted that the area previously excised from the Bigambul claim is properly Bigambul country or that the relevant country should not be included in the proposed claim.

The claim that QSNTS has suggested be authorised will include the area near Talwood that the Bigambul People excised from their claim area in April 2015. The claim group will be described by reference to a set of apical ancestors who can be proved to be associated with the relevant area (or in the area of northern New South Wales immediately adjacent to it) at, or close to, effective sovereignty. Most of those apical ancestors are also descriptors of the New South Wales Gomeroi claim. The tentative list is:

•    Beeswing;

•    Kitty Dennison;

•    Kitty Dunn;

•    Walter/ William Marley;

•    Eliza Kirk;

•    Mary McGrady;

•    Mary Ann and Murray (parents of Ada Murray);

•    Whalen Johnny;

•    Reuben Bartman;

•    George Bennett & Mary Moodie:

•    Charles Cubby and Lucy Ann;

•    Harry Denham;

•    Billy Edwards;

•    Jonathon Flick and Mary Ann;

•    Mary Ann (mother of William Arnold);

•    Phoebe Munday;

•    Sarah Witon (aka Sarah Wilson and Sarah Murphy);

•    James McGowan (father of Annie Katie and Aggie McGowan);

•    Maude Dixon/ Hill;

•    Lennie Jane Smith/ Rodwell;

•    William Troutman/ Trapman;

•    Eliza Weatherall;

•    William (Billy) Wightman;

•    Charlie Hippi; and

•    William Hilbert Saunders.

While I consider that consultation with Bigambul people has occurred, I invite your client's input or comment.

Information and authorisation meetings are likely to be held over two days early in 2017. The meetings will be advertised in the usual way.

32    Mr Wishart gave further evidence concerning the authorisation and notification of the Gamilaraay Claim, including in relation to an information session held where expert information was provided by anthropologist Mr Kumarage. Mr Wishart deposed that on 2 February 2017 he sent a letter inviting those who fell within the proposed Gamilaraay native title holding group to the information session and the authorisation meeting, and further that the Gamilaraay authorisation meeting was publicly advertised in:

    Brisbane Courier Mail on Saturday, 4 February 2017;

    Toowoomba Chronicle on Saturday, 4 February 2017;

    Moree Border News (now the Moree Champion) on Monday, 6 February 2017; and

    Koori Mail on Wednesday, 8 February 2017.

33    Mr Wishart deposed that a number of people invited to the Gamilaraay information session and authorisation meeting also fell within the Bigambul native title holding group, namely

    Jackie Bennett;

    Vanessa Hippi;

    Veronica Jarrett;

    Greg Saunders;

    John Saunders;

    John Raymond Saunders;

    Leonard Saunders;

    Connie Twidale; and

    Max Webster.

34    Mr Wishart deposed that the Native Title Registrar accepted the Gamilaraay Claim for registration under s 190A of the Native Title Act, that details of the Gamilaraay Claim were entered on the Register of Native Title Claims on 20 November 2017, and that until the Bigambul Joinder Application was made on 12 August 2022 no Indigenous Respondents had sought to be joined.

35    Mr Wishart deposed:

30.    Mr Paul Davies, QSNTS Chief Financial Officer, informs me that in the holding of the 2017 Authorisation meeting, and all subsequent steps required to comply with the Timetable, QSNTS has expended $335,903.00 in public money, on the Gamilaraay NTDA. This figure does not include the significant costs associated with the St George Regional Research Project nor the costs associated with the usual various steps in progressing matters to the point at which connection is accepted by connection parties such as preparation for and attendance at directions hearings and other Court proceedings and day to day file management.

36    Mr Wishart also gave evidence of the involvement of QSNTS in Bigambul native title determination applications, which were made on 1 December 2016 and 23 June 2017. He deposed that he had attended an authorisation meeting of the Bigambul claim group on 17 April 2015 where, inter alia, there were discussions concerning the removal of Talwood from the Bigambul native title determination application based on anthropological reports. His evidence continued:

33.    During the discussion about the potential removal of the Talwood area, I gave an undertaking that Bigambul People would be consulted if a claim over the Talwood area was to be authorised by any group assisted by QSNTS upon the completion of the research which was presented at the information sessions referred to at [9] above.

34.    At the time of determination, the Applicant for the Bigambul NTDA, both for Part A and Part B was Russell Doctor, Elaine Georgetown, Cyril Logan and Rhonda Sandow.

35.     Bigambul Native Title Aboriginal Corporation RNTBC ICN 8479 (BNTAC) was registered on 20 September 2016. Annexed to my affidavit and marked TJW-11 is a copy of certificate of registration.

36.     At 13 October 2016, being the date on which I sent the letter referred to at [19] inviting comment from Bigambul people in relation to a proposed NTDA, over the area removed from the Bigambul NTDA in April 2015, the Applicant to the Bigambul NTDA was represented by Mr Colin Hardie of Just Us Lawyers. Both parts of the Bigambul NTDA were on fact (not determined) as of that date.

37.     On 5 August 2022, at the case management hearing for the Gamilaraay NTDA, at T9.29-35 of the transcript of the hearing annexed to my affidavit and marked TJW-12, Mr Hardie indicated that he is retained by BNTAC.

38.    On 31 October 2016, in reply to Mr Hardie's response to my correspondence of 13 October 2016, I sent Mr Hardie an email confirming that the proposed Gamilaraay NTDA would include the area around Talwood removed from the Bigambul NTDA in April 2015. My 31 October 2016, correspondence is annexed to this affidavit and marked TJW-13. The invitation for consultation in the letter dated 13 October 2016 was not taken up by Mr Hardie or his client before or following the 31 October 2016 correspondence.

39.     I note that both my 13 October 2016 and 31 October 2016 correspondence are annexed to the Affidavit of Ms Regina Munn dated 12 August 2022, chair of BNTAC.

40.     On 22 July 2022, Mr Kevin Smith, QSNTS Chief Executive Officer, informed me that he received a letter from BNTAC. Annexed to my affidavit and marked TJW-14 is a copy of this correspondence.

41.    On 25 July 2022, Mr Smith responded to that letter and enclosed my letter dated 13 October 2016. Annexed to my affidavit and marked TJW-15 is a copy of Mr Smith's correspondence and enclosure.

42.     On 29 July 2022, BNTAC responded explaining that it will oppose the Gamilaraay NTDA and file an overlapping claim. Annexed to my affidavit and marked TJW-16 is a copy of this letter.

Affidavit of Sheree Sharma filed 4 November 2022

37    Ms Sharma is a solicitor in the employ of QSNTS since 2011, and is a solicitor on the record for the Gamilaraay Applicant in the Gamilaraay Claim.

38    Ms Sharma gave evidence at [7] of her affidavit of receiving copies of a meeting notice in relation to the Bigambul Authorisation Meeting:

… that appeared on the Buy Search Sell Website published on 1 April 2022 and the Courier Mail on 30 March 2022. Ms Anderson also arranged for a copy of the meeting notice to be posted to BNTAC members. Melita Henderson of QSNTS, is a solicitor under my direction. I am informed by Ms Henderson, and verily believe that she obtained from the Courier Mail a tear sheet of the advertisement which in fact appeared in the Courier mail on Saturday 2 April 2022.

39    Ms Sharma deposed as to steps usually undertaken to advertise an authorisation meeting, namely:

8.     … As part of my role I have been responsible for, or have observed, the steps commonly take to advertise an authorisation meeting with a view to informing as many as possible of the persons entitled to participate in the decision-making process or processes involved in any proposed authorisation. These steps include:

(a)    Advertising the notice in the Koori Mail being a national newspaper targeted to Aboriginal and Torres Strait Islander people;

(b)    Advertising the notice in publications that circulate in or in the vicinity of the area affected by the decisions being made at the notified meeting, and/or in a publication circulated in the area in which many of the people effected by the decision, reside. In this instance, based on my own experience organising meetings for my client and other claim groups neighbouring the area claimed in the Bigambul #2 NTDA an appropriate publication for advertising the Bigambul Notice would have included the Toowoomba Chronicle and Moree Champion;

(c)    Providing written notice to such persons who are known to be or may be native title holders. OSNTS maintains a database of those who have attended particular claim group meetings, authorisation meetings, information sessions and PBC meetings who have provided their contact details to QSNTS and/or details of any particular groups or ancestral descent line or lines through which they claim to hold rights in any particular area (QSNTS Database);

(d)    A “call around” to all relevant people contained in the QSNTS Database, who have provided phone numbers, to verbally notify them of the meeting; and

(e)    A “bulk text messages” to all relevant people contained in the QSNTS Database, who have provided phone numbers, to notify them of them of the meeting by SMS.

40    Ms Sharma then deposed that she was previously unaware that the “Buy Search Sell” website utilised for the Bigambul Authorisation Meeting notification contained such notices. In addition, Ms Sharma deposed at [9] that, based on her review of a call log kept by QSNTS, QSNTS never received a call requesting the contact details of Bigambul People from the QSNTS database. Her evidence continued:

10.    For the purposes of this affidavit, I accessed the "Buy, Search, Sell" website. Upon entering the term "buy search sell" one is directed to the search result "Buy Search Sell / Australia's classified marketplace" which then records the website address as "https://buysearchsell.com.au". There is then contained the statement that "Buy Search Sell is Australia's most trusted and exciting marketplace, both in print and online. Find garage sales, trades & services, jobs and morel Place an ad. Trades & Services. All Trades &...".

11.     Under that entry there is the heading "Place an Ad" which contains the statement, "Buy Search Sell is Australia's most trusted and exciting marketplace, both in print and online...".

12.     Upon clicking on the search result "Buy Search Sell / Australia's classified marketplace" one is directed to the home page of "Buy Search Sell" which contains a menu of the following headings: Trades and Services, Pets, Notices, Jobs, Garage Sales, Adult Services, Buy and Sell, Motoring, Real Estate, Businesses for Sale, Health and Beauty and Travel and Entertainment. It is at that point that the term "Notices" first appears in the process of searching the term "buy search sell" online. The drop down menu under "Notices" contains the following items: Births, Legal Notices, Proposed Development Notices, Public Notices and Tenders (Notices). The matters included under the heading Legal Notices include such things as claims to deceased estates, testamentary notices, missing persons and proposed terminations of strata titles and the like. There are, included under the heading Public Notices such things as meetings authorising native title claims and the like.

13.     I was previously unaware that the website "Buy Search Sell" contained public notices of the kind described in paragraph 11 above.

41    Ms Sharma then referred to the definition of “Bigambul People”, including by reference to a recent Bigambul Native Title Determination in Doctor on behalf of the Bigambul People v State of Queensland [2017] FCA 716 and the Rule Book of the Bigambul Native Title Aboriginal Corporation ICN No. 8479, being the prescribed body corporate for the Bigambul People (BNTAC), and deposed :

21.    I am instructed by the Applicant in this proceeding that that many members of the native title claim group in this proceeding are native title holders under the Bigambul determination and that, under the traditional laws and customs of both the Bigambul and Gamilaraay people, those people hold rights in the area claimed in the Gamilaraay NTDA. I am instructed that, those traditional laws and customs recognise that persons descended from both Gamilaraay and Bigambul ancestors hold rights and interests in relation to the respective countries of those ancestors.

42    Lastly, at the hearing, Mr Hardie took objection to exhibits 4, 5 and 6 Ms Sharma’s affidavit. Relevantly, those exhibits included correspondence between Mr Ted Besley (previous Special Counsel at Just Us Lawyers) and Ms Sharma during the course of the Court ordered mediation.

43    Mr Preston for the the Gamilaraay Applicant submitted that those annexures were open letters, and in particular that annexure 4 (being a letter from Just Us Lawyers) stated:

We are happy for you to provide this letter to the Court and parties to QUD290/2017 so they are made aware of our client’s position.

44    It was the Gamilaraay Applicant’s position that the Bigambul #2 Applicant could not now change its mind and exclude the evidence, particularly in circumstances where the Bigambul #2 Applicant’s own written submissions included the words, “[t]he Bigambul applicant relies on full exchange of correspondence”. In reply, the Bigambul #2 Applicant submitted that, first it had intended to object to the admission of the annexures, however, second, it had addressed the addition in its own submissions to ensure that, if the Court was not minded to exclude the evidence, it would be considered in the context in which it was sent, and third, that it breached the principles of mediation.

45    At the hearing, after having heard the parties, I ruled the annexures admissible.

Affidavit of Leonard Charles Saunders filed 11 January 2023

46    Mr Saunders gave evidence that he identified as both Bigambul and Gamilaraay.

47    Mr Saunders deposed that he had applied for membership of the BNTAC on various occasions, but was rejected due to his refusal to, effectively, renounce his Gamilaraay heritage and identify primarily as a Bigambul Person. Mr Saunders deposed that he is a Bigambul Elder, and further stated:

8.    … We are elders because we are the eldest of the mob and know about the country. As I said at paragraph 4, I am both Bigambul and Gamilaraay. I do not agree with the Bigambul PBC requirement of primary identification as Bigambul, the Bigambul PBC wants me to ignore half of my family, my Gamilaraay family, before I can become a member of the Bigambul PBC.

48    Mr Saunders deposed that he usually received correspondence for native title meetings, or he would hear about authorisation meetings and the like from his family. Despite this, and his heritage, Mr Saunders deposed that he was not aware of the Bigambul Authorisation Meeting and received no correspondence relating to Bigambul business.

Affidavit of Ralph Edwin Rigby filed 11 January 2023

49    Mr Rigby gave evidence that he identified as both Bigambul and Bundjalung, and had never been told that he could not be both.

50    Mr Rigby deposed that he filed two applications (19 October 2016 and 11 March 2018) to join the BNTAC. As at the date of his affidavit, he had not received a response about the outcome of his membership application.

51    Mr Rigby deposed further that he and his family did not receive notification of the Bigambul Authorisation Meeting, and that he only became aware of it when notified by QSNTS.

Affidavit of Gregory Bruce Saunders filed 11 January 2023

52    Mr Saunders gave evidence that he was related to just about everyone in St George, and that he identified as both Bigambul and Gamilaraay. He deposed that he attended meetings for the Gamilaraay claim in St George and for the broader regional research in Dirranbandi, and that in or about 2016 he had attended two meetings in Toowoomba which were authorisation meetings for the Bigambul claim.

53    Mr Saunders deposed that he attended an information meeting in November 2017 or 2018 of the BNTAC, and that the meeting was chaired by Mr Justin Saunders who “shut down” Mr Saunders when Mr Saunders raised questions from the floor. Mr Saunders continued:

15.    … Mr [Justin] Saunders stated there were to be further events and youth programs starting up in the new year in Millmerran. I was never notified of these events. At this meeting, I filled out a membership application form and handed the completed form to Mr Saunders. I also took a number of blank forms for my family to complete. I asked Mr Saunders to email me a copy of the powerpoints and documents so that I could explain the process to my father. Mr Saunders did not send me an email with the powerpoints and documents.

16.     I also later emailed Justin Saunders to obtain a copy of the minutes from the meeting referred to at [14] for my Dad as he was not in attendance. These minutes were never provided.

17.     I sent Mr Saunders at least two (2) further emails attaching membership application forms for myself, my father and my sister. I sent one of these in November 2018 and the other in early 2019. Mr Saunders did not respond to any of these emails.

18.     I have not got copies of these emails because my laptop has since crashed.

19.     I also posted a completed membership application form for myself and my father to the post box address in Millmerran and received no acknowledgment.

20.     I would not tick that I identify primarily as Bigambul on the application form. As far as I am concerned, both of my family sides (my Bigambul and Gamilaraay sides) are equal. I find it offensive that they require us to choose. I am not going to pick one side over the other. I have never been taught that I have to choose one or the other.

21.     As far as I know, my membership application forms submitted on October 2016, and again on November 2017 or in November 2018 and early in 2019 have never been processed. I did not receive a response from Just Us Lawyers, or from the Bigambul PBC, advising me that my membership form had been processed or that my membership had either been approved or rejected.

54    Mr Saunders deposed that he only learned of the Bigambul Authorisation Meeting where the Bigambul #2 Claim was apparently authorised when QSNTS told him. He deposed that he had received no information in the mail concerning Bigambul, and would have voted against authorisation of the Bigambul #2 Claim.

Affidavit of Danielle Nicole Saunders filed 11 January 2023

55    Ms Saunders deposed that she identified as both Bigambul and Gamilaraay, and that she was never taught by anyone in her family that she could not identify as both. Ms Saunders deposed, in summary:

    Ms Saunders, her son, and her daughter had all applied for membership of the BNTAC, however her application was rejected;

    Ms Saunders was not aware that the Bigambul Authorisation Meeting was held on 24 April 2022 as she did not receive a notice or see it advertised, and only heard about the Bigambul #2 Claim weeks after it had been filed;

    Ms Saunders would have voted against authorisation of the Bigambul #2 Claim;

    The Bigambul Applicant and BNTAC were not talking to all Bigambul People.

    The BNTAC and those people who attended the Bigambul Authorisation meeting did not speak for all of Bigambul. Ms Saunders’ family did not go to the Bigambul Authorisation Meeting and were not consulted.

Affidavit of Kristina Gay Saunders filed 11 January 2023

56    Ms Saunders deposed that she was both Gamilaraay and Bigambul, and had been so told by older family members. Ms Saunders deposed that she had previously applied for membership of the BNTAC but had not been accepted.

57    Ms Saunders submits she first submitted a completed membership application on 31 October 2016 with the assistance of her cousin. She then submitted another to her lawyer to submit on her behalf. The BNTAC responded on 27 July 2020 asking Ms Saunders to confirm she still wished to proceed and that the information contained in her application was correct. The BNTAC advised Ms Saunders that, “an organisational review highlighted that the previous Board and management had failed to keep proper corporate records… The minimal records that were handed over to the new Board did not include any outstanding membership applications”. Ms Saunders confirmed the currency of her application on 30 July 2020.

58    Ms Saunders submitted a further application on 9 September 2020.

59    On 25 March 2021 Ms Saunders was notified that her membership application was unsuccessful as the Directors of BNTAC were unable to personally verify that she primarily identified as a Bigambul person. The BNTAC invited Ms Saunders to reapply before 7 April 2021 to be considered by the Elders at the inaugural Elders Advisory Council meeting if required. The BNTAC stated that it would assist the Board if Ms Saunders provided evidence, for example:

1.    Genealogical details that show how you are descended from one of the six apical ancestors identified in the determinations;

2.     Details of what you do that demonstrates that you primarily identify as a Bigambul Person; and/or

3.     Written, signed and dated statements from other Bigambul Persons (preferably Elders) confirming that you are known by them to primarily identify as a Bigambul Person (together with contact details for the persons making those statements).

60    In her affidavit, Ms Saunders deposed that she was unaware that the Bigambul Authorisation Meeting was held to authorise the Bigambul #2 Claim and that she did not receive communication from the BNTAC about meetings or business. She stated that, had she known about the Bigambul Authorisation Meeting, she would have made her best effort to attend and would have voted against the bringing of the Bigambul #2 Claim which overlapped the Gamilaraay Claim Area.

61    Ms Saunders first heard about the Bigambul #2 Claim on 14 September 2022 when she was told by a Gamilarray and Yuwaalaraay man, Tim Knox, that the Gamilaraay had filed a claim overlapping the Bigambul #2 Claim Area.

Affidavit of Stephen Henry Saunders filed 11 January 2023

62    Mr Saunders deposed that he was both a Kamilaroi (his preferred spelling for Gamilaraay) and a Bigambul person.

63    Mr Saunders deposed that he learned that he was a Bigambul person later in his life when told by his father. He was never taught that he had to choose between his Kamilaroi and Bigambul ancestry.

64    In his affidavit, Mr Saunders stated that he attended a Bigambul claim meeting in Carseldine in about 2014 run by QSNTS. He recalled that around sixty people attended this meeting and that he was notified of the meeting through his father.

65    Mr Saunders deposed that he also went to the Bigambul Determination in 2016 in Milmerran with his father. He was told about the determination by his father and by his second cousin, Jackie Bennett.

66    Mr Saunders deposed that he attended a meeting of the BNTAC held in July 2020 in Zillmere. He deposed that at the meeting, which was facilitated by Justin Saunders and three other BNTAC directors, the BNTAC gave a presentation about the work they were doing. The meeting facilitators also explained that the BNTAC were not accepting membership applications at the meeting, but that it expected to be in a position to accept them by January 2021. He was notified of this meeting through his brother, Greg Saunders. Mr Saunders also deposed that he would sometimes also receive emails from Jackie Bennett about Bigambul meetings.

67    At the July 2020 meeting, Mr Saunders deposed that he applied for membership of BNTAC by filling out the application form and leaving it with the Directors present. Mr Saunders deposed that Just Us Lawyers advised Mr Saunders they would get back to him regarding his membership application, but never did. Mr Saunders did not have a copy of this email.

68    Mr Saunders deposed in his affidavit that he did not receive notice of the Bigambul Authorisation Meeting.

69    Mr Saunders stated in his affidavit that the first time he heard about the Bigambul #2 Claim was in November 2022 when QSNTS advised it was facilitating a Gamilaraay claim group meeting on 27 November to update the Gamilaraay Applicants on the Bigambul #2 Claim.

70    Mr Saunders deposed that, had he been notified, he would have attended the Bigambul Authorisation Meeting and would not have supported the authorisation of the Bigambul #2 Claim overlapping the Gamilaraay Claim Area.

Affidavit of Deidre Flick filed on 20 January 2023

71    Ms Flick deposed that she identified as both Gamilaraay and Bigambul.

72    Ms Flick gave evidence that she had not applied for membership of BNTAC because she heard they did not accept people who identified as both Gamilaraay and Bigambul.

73    Ms Flick gave evidence that she organised an event for descendants of her Bigambul ancestor. Karen Flick advised Deidre Flick that she had sent an invitation to BNTAC but that they did not respond.

74    Ms Flick deposed that she was not aware of the Bigambul Authorisation Meeting. She deposed that, had she been aware, she would have attended and stated that the Bigambul cannot claim Gamilaraay country and would have voted against the authorisation of the Bigambul #2 Claim. She stated in her affidavit that she first heard about the meeting from the QSNTS on 18 August 2022.

75    In her affidavit, Ms Flick also deposed that there was a family Facebook group for her Bigambul ancestor called “Queen Suzie of Welltown” which had 112 members. Ms Flick stated in her affidavit that whenever she met anyone who was a descendant of Queen Susan, she invited them to the Facebook group.

76    Ms Flick deposed in her affidavit that she did not read the Courier Mail and only sometimes read the Toowoomba Chronical or the Koori Mail. She stated that she saw the previous Gamilaraay authorisation meeting held in July 2022 advertised in the Toowoomba Chronical.

77    Ms Flick gave evidence that, in her view, the Bigambul Authorisation Meeting should not have gone ahead because it was not representative of all Bigambul people.

Affidavit of Amanda Lang filed 23 January 2023

78    Ms Lang deposed in her affidavit that she identified as both Gamilaraay and Bigambul and that she know family members who identify as both Gamilaraay and Bigambul and has told her children, “they can go both Gamilaraay and Bigambul ways”.

79    Ms Lang deposed that she was not aware of the Bigambul Authorisation Meeting, and as a result neither she nor any of her family attended the meeting.

80    Ms Lang stated in her affidavit that had she known about the Bigambul Autorisation Meeting she would not have vote to authorise the Bigambul #2 Claim that overlaps the Gamilaraay Claim.

Bigambul #2 Applicant

81    The Bigambul #2 Applicant relied on the following affidavit evidence:

(1)    Affidavits of Justin Saunders filed 22 December 2022 and 27 January 2023;

(2)    Affidavit of Katherine Hippi filed 22 December 2022;

(3)    Affidavit of Leah Mann filed 22 December 2022;

(4)    Affidavit of Lynn Trindall filed 22 December 2022; and

(5)    Affidavit of Colin Stanley Hardie filed 25 January 2023.

Affidavit of Justin Saunders filed 22 December 2022

82    Mr Saunders is a Bigambul #2 Applicant and Chief Executive Officer and director of BNTAC.

83    In his affidavit dated 22 December 2022, Mr Saunders deposed that on 24 April 2022 he attended the Bigambul Authorisation Meeting held in Goondiwindi.

84    Mr Saunders deposed that at the Bigambul Authorisation Meeting he was authorised, along with Kathryn Armstrong and Lyn Trindall, to bring the Bigambul #2 Claim.

85    Mr Saunders states in his affidavit that at the Bigambul Authorisation Meeting there were no conditions placed on the authority of Ms Armstrong, Mr Saunders and Ms Trindall to bring the Bigambul #2 Claim.

86    Mr Saunders stated that he made his affidavit to address the requirement of section 62(1A)(f) of the Native Title Act in stating that the Bigambul Authorisation Meeting did not place any conditions in relation to the making of the application on the Bigambul #2 Applicant.

Affidavit of Justin Saunders filed 27 January 2023

87    In his affidavit dated 27 January 2023, Mr Saunders deposed as follows:

1.    I am one of the persons who is authorised as the Native title Applicant for the Bigambul People in these proceedings.

2.     I am also the Chief Executive Officer and director of BNTAC (the prescribed body corporate for the Bigambul People).

3.     I am a Bigambul person through my descent from my ancestor Nellie Yumbeina.

4.    Although I can also claim to be a Gunggarl person though my father, I follow my maternal grandmother Josephine Turnbull who identified as a Bigambul person. For this reason I principally identify with her heritage and country over that of my fathers.

5.     The question of which lineage we follow has caused a lot of problems tor our mob. It has resulted in BNTAC being sued by potential members in the Supreme Court of Queensland because they say we have refused as the Board of the PBC to process their applications for membership. These people identify mostly as Gamilaraay people.

6.     However, the eligibility criteria for membership of BNTAC is based upon Bigambul traditional law and custom which tells us that it is not sufficient to simply be a descendant of one of the named apical ancestors set out in our native title determinations but to be a Bigambul person you have to identify as belonging to our traditional country and with our mob over any family link that allows you to belong to somewhere else. This was what I was taught to believe when I was growing up and what I strongly believe today.

7.     I have read a number of affidavits filed by QSNTS in support of the Gamilaraay strike out application by people who claim to be Bigambul People who assert that they were not given an opportunity to vote against the authorisation of the Bigambul Native Title Claim because they did not receive a letter from BNTAC inviting them to attend.

8.     Those affidavits are from the very people who took the action in the Supreme Court against BNTAC. They did not receive a notice from BNTAC because they are not members.

9.     As a result of that action in the Supreme Court we gave an undertaking as the Board of BNTAC to consider their membership applications in accordance with the rules of BNTAC within a set period.

10.     The Board did so in accordance with that undertaking given in Court. For some, the membership applications were not in order (for example I recall that some applications appeared to be signed by the one person) and those candidates were asked to resubmit. But for the others, the Board resolved to hold their applications in abeyance and write to them to ask them to provide evidence that they primarily identified as Bigambul People in preference to any other traditional owner group. They did this because the Board did not know most of the candidates. My recollection is that we only received two replies; Jacqui Bennett forwarded a genealogy for both herself and her father Leonard Saunders. From my perspective, this was a curious response, as the genealogies of both her and her father have never been questioned by members of the BNT AC Board, what is the issue is whether they both identify first and foremost as Bigambul People or instead as Gamilaraay People.

11.    As a result of this issue, the rules of BNT AC have been amended to provide for the formation of an Elders Council. In considering membership applications, the Board will be able to take into account the consideration of our elders as to whether or not candidates for membership are Bigambul People or belong somewhere else. From my position as a director of BNTAC I am aware that the applications of Jacqui Bennett and Leonard Saunders will be considered by the Elders Council which is due to meet in the next few weeks.

12.     I know from conversations I have had with Kevin Smith (CEO of QSNTS), that the position he takes is different. He has told me that OSNTS are of the view that a Bigambul Native title holder is anybody who is a descendant from the Bigambul apical ancestors whether or not they claim to be a Bigambul person. If this were the case, people would be entitled to become members of BNT AC even though they may also belong to two, three or more other traditional owner groups and have never previously identified as belonging to Bigambul country, our community or followed our traditional laws and customs (and may never have set foot on Bigambul Country).

13.     I am aware that in the submissions supporting strike out, the Gamilaraay applicant asserts that we did not advertise the authorisation meeting held on Sunday 24 April 2022 in the best way we could. In particular they complain that we did not ask for help from QSNTS with a mail out to people from their data base. I have asked Kevin Smith before for a copy of their data base and I was informed that I couldn't have it due to privacy reasons. On the occasion that I asked, Kevin Smith did offer to do the mail out to persons directly on their list. However, for an authorisation meeting I am reluctant to seek the assistance of QSNTS for a mail out. This is because I don't not know who is on their list and I am concerned that people who receive a notice from QSNTS of a Bigambul authorisation meeting, may take it as an endorsement that they are Bigambul People. My concern, as discussed above, is based on the fact that QSNTS have a view that descent alone from a named apical ancestor is sufficient to qualify as a Bigambul person. I am also aware that previously, people such as Rex McGrady (and his family) have attended Bigambul meetings on the basis of descent from Susan of Welltown (a Bigambul apical ancestor), when it is well known within our community that they are Gamilaraay people and identify as such. Other people such as the Connors family, the descendants of Sally Nerang and others have attended Bigambul meetings on the basis that their ancestors were Bigambul People but were subsequently determined not to be Bigambul ancestors. I am concerned that such people may have found their way onto the QSNTS data base because of such past attendances and to invite them to Bigambul meetings would cause confusion and have the potential for disputation. Because of this, we decided to just do a mail out to PBC members and to publicly notify to all descendants of Bigambul ancestors (so they could come along if they wanted to) and leave it to the attendees of the meeting to determine whether they would be entitled to attend.

14.    I am also aware that the Gamilaraay applicant has criticised us for not advertising the notice of the meeting in the Koori Mail. Unfortunately at the time the Koori Mail was not publishing because it was wiped out in the floods. In fact we had to postpone the meeting several times due to two flooding events and waves of COVID 19. This resulted in having to advertise the postponed meetings and their cancellation.

15.     I am also aware that the Gamilaraay Applicant asserts that we authorised the Bigambul Claim as a spoiler to their consent determination. Nothing could be further from the truth. At the time of the authorisation meeting I was not aware of the Gamilaraay claim nor were any of the other Bigambul People I have spoken to (that includes the Board of the PBC and members of my family and many PBC members). It was my intention to include all the traditional lands of the Bigambul People (not included in our existing determination) including country claimed by the Gomeroi/Gamilaraay people in NSW in a new claim. I was aware of the NSW application because I received regular reports of proceedings from our lawyer who attended proceedings on behalf of the Bigambul respondents to that claim. Prior to advertising the authorisation meeting in April 2022, I made contact with some of the applicants of the NSW claim to advise of our intention to authorise a claim. I received a commitment from them that they were willing to sit down and talk to us about our interests and on that basis, we did not advertise a claim over that area. At no time during my discussion with them was the Gamilaraay claim on the Queensland side of the border even raised with me which I now find to be curious as the same families are involved.

16.     Had I known about the Gamilaraay claim in Queensland, I would have preferred to sit down and talk with the Applicants prior to filing our claim. However, when I found out about the claim through Ted Besley our Lawyer, I was also told that it was set down for a consent determination and that there was no time to waste. I was later contacted by Colin Hardie and advised that as an interim measure, until the new Bigambul claim could be filed, that some Bigambul People should make an application for joinder to the Gamilaraay claim. He said in this way the Court could be informed about the opposition of the Bigambul People to a consent determination in favour of the Gamilaraay People. As a result we decided to provide instructions to him to proceed down this track.

17.     I have been informed by Mr Hardie that our native title claim has failed the registration test because in the opinion of the decision maker we were only able to show a connection to part of the country claimed and evidence showing connection to the whole of the claim area was required. Mr Hardie said that in preparing the Bigambul Peoples' claim he used the evidence filed the Bigambul determination proceedings and that much of this evidence did not specifically address the areas in the current Bigambul claim. As a result, we have given instructions to Mr Hardie to obtain an expert report from anthropologist Dr Philip A Clarke which will focus specifically on the areas now claimed by the Bigambul People. We also instructed Mr Hardie to seek a review by the Court of the decision of the Registrar to not to approve registration of the current Bigambul claim.

Affidavit of Katherine Hippi filed 22 December 2022

88    Ms Hippi is a Bigambul #2 Applicant.

89    In her affidavit filed 22 December 2022, Ms Hippi deposed that she attended the Bigambul Authorisation Meeting.

90    Ms Hippi deposed that at the Bigambul Authorisation Meeting she was authorised, along with Kathryn Armstrong, Justin Saunders and Lyn Trindall, to bring the Bigambul #2 Claim.

91    Ms Hippi stated in her affidavit that at the Bigambul Authorisation Meeting there were no conditions placed on the authority of Ms Hippi, Ms Armstrong, Mr Saunders and Ms Trindall to bring the Bigambul #2 Claim.

92    Ms Hippi stated that she made her affidavit to address the requirement of section 62(1A)(f) of the Native Title Act in stating that the Bigambul Authorisation Meeting did not place any conditions in relation to the making of the application on the Bigambul #2 Applicant.

Affidavit of Leah Mann filed 22 December 2022

93    Ms Mann is a Bigambul #2 Applicant.

94    In her affidavit filed 22 December 2022, Ms Mann deposed that she attended the Bigambul Authorisation Meeting.

95    Ms Mann deposed that at the Bigambul Authorisation Meeting she was authorised, along with Kathryn Armstrong, Justin Saunders and Lyn Trindall to bring the Bigambul #2 Claim.

96    Ms Mann stated in her affidavit that at the Bigambul Authorisation Meeting there were no conditions placed on the authority of Ms Mann, Ms Armstrong, Mr Saunders and Ms Trindall to bring the Bigambul #2 Claim.

97    Mr Mann stated that she made her affidavit to address the requirement of section 62(1A)(f) of the Native Title Act in stating that the Bigambul Authorisation Meeting did not place any conditions in relation to the making of the application on the Bigambul #2 Applicant.

Affidavit of Lynn Trindall filed 22 December 2022

98    Ms Trindall is a Bigambul #2 Applicant.

99    In her affidavit filed 22 December 2022, Ms Trindall deposed that she attended the Bigambul Authorisation Meeting.

100    Ms Trindall deposed that at the Bigambul Authorisation Meeting she was authorised, along with Kathryn Armstrong and Justin Saunders to bring the Bigambul #2 Claim.

101    Ms Trindall stated in her affidavit that at the Bigambul Authorisation Meeting there were no conditions placed on the authority of Ms Armstrong, Mr Saunders and Ms Trindall to bring the Bigambul #2 Claim.

102    Ms Trindall stated that she made her affidavit to address the requirement of section 62(1A)(f) of the Native Title Act in stating that the Bigambul Authorisation Meeting did not place any conditions in relation to the making of the application on the Bigambul #2 Applicant.

Affidavit of Colin Stanley Hardie filed 25 January 2023

103    Mr Hardie is the solicitor with carriage of the Bigambul #2 Claim on behalf of the Bigambul #2 Applicant. Mr Hardie’s affidavit annexed extensive material, being as deposed at [2] of his affidavit:

•    Annexure CSH 1 Form 1 for QUO 281 of 2022 Bigambul #2 Native Title claim.

•    Annexure CSH 2 Orders and decision of Reeves J dated 1 December 2016 for Bigambul NTDA (QUD 101 of 2009) Part A

•    Annexure CSH 3 Orders and decision of Reeves J dated 23 June 2017 for Bigambul NTDA (QUD 101 of 2009) Part B.

•    Annexure CSH 4 Anthropological Report of Dr Anna Kenny dated 16 January 2015.

•    Annexure CSH 5 Affidavit of Colin Stanley Hardie dated 3 November 2016 attaching rules and certificate of incorporation of BNTAC.

•    Annexure CSH 6 copy of the minutes of Bigambul Authorisation Meeting of 9 September 2016.

•    Annexure CSH 7 letter from Kevin Smith to the Board of BNTAC dated 12 July 2018 and a letter to Kevin Smith from Elvie Sandow Chairperson BNTAC dated 3 September 2018.

•    Annexure CSH 8 Press releases of Koori Mail dated 2 March, 28 March, 29 March 2022 and 4 April 2022, emails to and from Koori Mail and Just Us lawyers dated 29 March 2002, email exchange Remy Foster of JUL to Justin Saunders of BNTAC regarding notices in Courier Mail and Buy Search and Sell public notices on 30 March 2022.

•    Annexure CSH 9 copy of notice of Bigambul Authorisation Meeting of 9 September 2016 held in Drayton published in the Courier Mail dated 26 August 2016.

•    Annexure CSH 10 Anthropological Assessment of the Expert and Lay Evidence filed for the Bigambul Native Title Claim (QUD101/2009) Daniel Leo dated February 2015.

•    Annexure CSH 11 Extract of Anthropological Report of Dr Kenny dated 27 June 2011.

•    Annexure CSH 12 Registration Decision in Bigambul People #2 dated 4 November 2022.

•    Annexure CSH 13 Originating Application for Review not to accept claim for registration dated 11 January 2023.

•    Annexure CSH 14 Affidavits of Colin Hardie, Leah Mann and Regina Munn dated 12 August 2022.

•    Annexure CSH 15 letters of Ted Besley dated 25 and 30 August 2022, QSNTS letter dated 9 September 2022, email of Ted Besley dated 9 September 2022 attaching. letter dated 25 August 2022 (letter was incorrectly dated, should have been dated 9 September 2022), QSNTS letter dated 15 September 2022, email of Ted Besley dated 15 September 2022.

•    Annexure CSH 16 Affidavit of Justin Saunders dated 11 August 2022.

104    Mr Hardie’s affidavit included evidence of his recollection over approximately 17 years of events.

105    He deposed that in 2006 and early 2007 he attended a land summit organised by QSNTS as the then principal legal officer of QSNTS. Mr Hardie recalled that Bigambul representatives attended the central summit and asserted interests over a wide area including the Gamilaraay Claim Area. Mr Hardie deposed that the Bigambul People had discussions with representatives of the Mandandanji People and the Barunggam People about avoiding conflicts on boundaries. Mr Hardie also recalled that members of the Ualarai People were present and asserted interests over a small section of land near the Queensland border west of the Moonie River and St George. He recalled that the Ualarai People’s claim to this area were not contested by the representatives of the Bigambul People. Mr Hardie deposed that, from his recollection, there were no members of the Gamilaraay People or the Kamilaroi People at the central summit. Mr Hardie gave evidence that he was not surprised by this because, as far as he was aware, neither the Gamilaraay People nor the Kamilaroi People were asserting interests north of the Queensland border, and it was only the Bigambul People who were claiming interests on the Queensland side.

106    Mr Hardie gave evidence that, had he been aware of the potential overlap at the time, he would have recommended QSNTS take steps to bring the parties together through an internal mediation and consultation process. Mr Hardie deposed that he did not expect QSNTS to simply send a letter about the Gamilaraay Claim (referring to the letter from QSNTS to Just Us Lawyers dated 13 October 2016) and then support the Gamilaraay People.

107    Mr Hardie deposed that he was responsible for drafting the notice of a Bigambul authorisation meeting held in Drayton on 9 September 2016 (2016 Drayton Bigambul Authorisation Meeting) which was published in the Courier Mail dated 26 August 2016. He recalled being told by the Bigambul #2 Applicant at that time that the group did not have funds to expend a lot of advertising costs as the several authorisation meetings held over the immediately preceding years had depleted finances.

108    Mr Hardie attended the 2016 Drayton Bigambul Authorisation Meeting and gave evidence that the minutes of the meeting accurately summarised it. He gave evidence that he did not recall every question or point of discussion between the attendees. Specifically, he recalled the rules of BNTAC being discussed, and explaining to the attendees the significance of the eligibility rule requiring members to primarily or principally identify as Bigambul People. He recalled one attendee voicing an objection to this requirement.

109    In his Affidavit, Mr Hardie recalled that the Bigambul Authorisation Meeting was originally set for 5 December 2021 but was rescheduled to 16 January 2022 due to flooding in Goondiwindi. The 16 January 2022 date was in turn postponed due to a COVID-19 wave. Mr Hardie further recalled that throughout February and March 2022 South East Queensland was affected by widespread flooding events. These flooding events were the main reason the Bigambul Authorisation Meeting did not take place until 24 April 2022.

110    Mr Hardie was involved in advertising the Bigambul Authorisation Meeting through the supervision of Remy Foster. Mr Hardie recalled asking Ms Foster if she could advertise the Bigambul Authorisation Meeting in the Koori Mail. Ms Foster advised Mr Hardie that she could not because the Koori Mail office (which was located in Lismore) had stopped publication due to flooding, and the Koori Mail intended to resume publication on 20 April 2022. Mr Hardie advised Ms Foster that 20 April 2022 was too close to the date of the Bigambul Authorisation Meeting to be of any effective use in providing notice.

111    Relevantly, the notice of the Bigambul Authorisation Meeting (Bigambul Authorisation Meeting Notice) was annexed to the Affidavit of Kerrin Joan Anderson which was attachment “R” in the Form 1 of the Bigambul #2 Claim. The Form 1, in addition to being filed in QUD 281 of 2022, was annexed and marked “CSH1” to Colin Stanley’s affidavit. The Bigambul Authorisation Meeting Notice, which as deposed in Ms Anderson’s affidavit, “appeared on Buy Search Sell, and the Courier Mail and was mailed and emailed to BNTAC members”, provided:

NOTICE OF MEETINGS FOR BIGAMBUL NATIVE TITLE HOLDERS

The Bigambul Native Title Aboriginal Corporation as the Registered Native Title Body Corporate ("the PBC") for the Native Title Holders notifies the Bigambul People that an authorisation meeting will be held to consider issues affecting their Native Title. Details of the meeting are:

Date:             Sunday 24th April 2022

Time:             9:00 am to sign in, meeting starts at 9:30 am and doors close         at 10:00 am.

Venue of Meeting:     Goondiwindi Waggamba Cultural Centre 26 Russell Street,         Goondiwindi QLD

The Bigambul People are the descendants of Nellie Yumbeina, Queen Susan of Welltown, Jack Noble and Sally Murray, Susan mother of Duncan Daniels, Jack Armstrong, and James Armstrong.

The purposes of the meeting will be to:

1- Authorisation of New Native Title Determination Applications

At the meeting two new native title claims will be authorised and applicants for the claims will be appointed.

…

The second claim is intended to cover the traditional country of the Bigambul People beyond the determination area. Although authorisation of the Bigambul People is sought for the lodgement of claims for the whole hatched area in the map, it is not necessarily intended to cover all of this area in the one claim.

[map]

…

112    Mr Hardie described having a conversation with his colleague, Mr Ted Besley, after Mr Besley had received instructions from the Bigambul People to prepare and file a new native title determination application. Mr Besley advised Mr Hardie that originally it was his intention to file one application encompassing all of the territory that the Bigambul People claimed in Queensland, but he was informed by a contact in the mapping section of the National Native Title Tribunal that part of the proposed claim area would overlap the Gamilaraay Claim Area. Mr Besley asked if Mr Hardie knew anything about the Gamilaraay Application. Mr Hardie advised Mr Besley that he had heard something about it from QSNTS a few years earlier, but had heard nothing since, and told Mr Besley that he was unaware that the Gamilaraay People had made a claim over the area.

113    Mr Hardie deposed that, in their conversation, Mr Hardie and Mr Besley discussed how to proceed, and decided that Mr Besley would seek instructions to lodge two separate claims: one that overlapped the Gamilaraay Claim Area and one that did not. Mr Hardie then searched the Court’s website and discovered the orders setting the Gamilaraay Claim down for consent determination. Mr Hardie contacted the chair of BNTAC and advised that she write to QSNTS making it clear that BNTAC opposed the consent determination and that the Bigambul People had authorised the Bigambul #2 Claim, being an overlapping claim.

114    Shortly thereafter Mr Hardie received instructions from the Bigambul #2 Applicant to write to the State of Queensland asking that the Court be informed of the Bigambul People’s opposition to the consent determination in the Gamilaraay Claim.

115    Mr Hardie discussed timing with Mr Besley, who advised he was still a few weeks away from filing the Bigambul #2 Claim because mapping still needed to be completed and affidavits executed.

116    Mr Hardie deposed that, upon receiving Mr Besley’s advice, he sought and was given instructions by the Bigambul #2 Applicant to file an application in the Gamilaraay Claim for some Bigambul People to join as Indigenous Respondents to the Gamilaraay Claim.

SUBMISSIONS OF THE PARTIES

Gamilaraay Applicant

117    The Gamilaraay Applicant submitted, in summary:

    The Bigambul #2 Claim was not appropriately authorised by the Bigambul People, was defective and should be struck out pursuant to s 84C of the Native Title Act, for the following reasons:

•    The Bigambul #2 Claim had been made only on behalf of a subset of Bigambul People. The evidence before the Court was that only 20 Bigambul People attended the Bigambul Authorisation Meeting when in fact there are others who claimed membership of the Bigambul People and were not present.

•    There was insufficient notification and opportunity for participation in the authorisation process, such that the process fell short of the requirements prescribed in s 251B(b) of the Native Title Act.

•    The BNTAC did not approach the representative body, QSNTS, to assist in any capacity with the authorisation process.

•    In previous Bigambul determinations, notifications for authorisation meetings were published in the Koori Mail, in addition to other forms of advertising. In this case, the BNTAC had only provided personal written notice or via the website www.buysearchsell.com.au and the Courier Mail newspaper.

•    BNTAC denied membership to those who did not give primacy to their Bigambul identity. It followed that a number of Bigambul People who had links to other claim group ancestors were treated differently in the authorisation process.

•    Overall, the purported authorisation process for the Bigambul #2 Claim was flawed and selective.

    The Bigambul #2 Claim was an abuse of process pursuant to r 26.01 of the Federal Court Rules 2011 (Cth) (Federal Court Rules) and s 31A of the Federal Court of Australia Act 1976 (Cth) (Federal Court Act), for the following reasons:

•    There was a substantial unexplained delay on the part of the Bigambul #2 Applicant in bringing this proceeding.

•    That there was no limitation period for filing a native title claim was immaterial.

•    The Bigambul People knew or ought to have known of the Gamilaraay Claim, including by virtue of the St George Project and the undertaking of Mr Wishart. In particular, the Bigambul People were able to attend and were publicly informed of the (then, proposed) Gamilaraay Claim Area and were familiar with native title litigation and relevant formal requirements for making native title claims.

•    The Bigambul #2 Claim was oppressive to the Gamilaraay people, and served to delay and frustrate the Gamilaraay Applicant’s consent determination, which was previously undisputed.

•    Correspondence between the Gamilaraay Applicant’s solicitors and the Bigambul #2 Applicant’s solicitors indicated that there was an underlying goal to the bringing of the Bigambul #2 Claim, namely the addition of three Bigambul descent lines into the Gamilaraay Claim, rather than a genuine overlapping claim.

•    The Bigambul #2 Applicant would not be able to succeed in obtaining the relief it sought as matters currently stood.

    The Bigambul #2 Claim lacked the factual basis upon which it asserted that the native title rights and interests were claimed, and the Court should exercise its power under s 190F(6) of the Native Title Act to dismiss the application.

    The Bigambul #2 Applicant should pay the costs of the Gamilaraay Applicant in this proceeding pursuant to s 85A of the Native Title Act because the Bigambul #2 Claim was an abuse of process, lacked the basic information to support its overlapping nature, and was unreasonable conduct in the circumstances which caused the Gamilaraay Applicant to incur costs to meet the application.

Bigambul #2 Applicant

118    The Bigambul #2 Applicant submitted, in summary:

    The Court should only dismiss an application in circumstances where the claim was untenable, when considering the evidence in a favourable light to the applicant;

    The question of authorisation should not be scrutinised pedantically, but rather in a robust manner appreciating the difficulties in organising a claim group meeting and whether there has been reasonable opportunity to participate, including:

•    Contrary to the Gamilaraay Applicant’s submissions, the Bigambul #2 Applicant did not give notice to only a subset of the Bigambul people, but rather published the notice to the world in the Courier Mail;

•    The Bigambul #2 Applicant conceded that it only posted notice of the Bigambul Authorisation Meeting to BNTAC members, however the rules did not restrict eligibility to a subset of the Bigambul #2 People. It was sufficient for members of the claim group to be given every reasonable opportunity to participate;

•    Anthropological evidence in previous Bigambul determinations established traditional association with the Bigambul Claim Area;

•    Descent from a named apical ancestor was not sufficient to determine the members of the Bigambul land holding group. Rather, this was determined (in addition to being a descendant of a named ancestor) in accordance with the traditional laws and customs of the Bigambul People;

•    The traditional laws and customs of the Bigambul People were identified in the rules of the BNTAC which required a person to:

(i)    be descended from a named apical ancestor; and

(ii)    primarily identify as a Bigambul Person.

•    In the event that the Court determined that the Bigambul #2 Claim was not properly authorised, the Court should proceed to hear and determine the application despite the defect in authorisation pursuant to s 84D(4)(a);

•    If the notice of the Bigambul Authorisation Meeting was published to persons not eligible for BNTAC membership, but who claimed to be Bigambul People, this should be a question left for trial, rather than determined summarily. Nonetheless, it was the Bigambul #2 Applicant’s submission that it had met its obligation to publish appropriate notification of the meeting;

•    In relation to the Gamilaraay Applicant’s submission that the Bigambul #2 Applicant did not contact QSNTS, the Bigambul #2 Applicant submitted that BNTAC’s chairperson contacted a member of QSNTS to obtain a common law holder’s mailing list, in order for it to be able to contact a wider number of Bigambul People, however QSNTS advised that they were unable to provide various contact details for privacy reasons;

•    Having regard to the evidence of Mr Justin Saunders, it was not viable for the authorisation notification to be published in the Koori Mail, due to flooding in Lismore, Queensland, where it is published, and the COVID-19 pandemic. In these circumstances, BNTAC took reasonable steps to notify the Bigambul People. In addition, not all advertising has been published in the Koori Mail; and

    The Court’s power to dismiss the proceedings for an abuse of process should only be exercised in exceptional circumstances.

State of Queensland

119    The State of Queensland, being the substantive respondent in the Bigambul #2 Claim, has taken no position in relation to this interlocutory application, but has provided submissions to assist the Court in this matter.

120    In summary, the State submitted:

    For the purposes of s 84C of the Native Title Act, an essential pre-condition for summary dismissal is that a failure to comply with ss 61, 61A or 62 of the Native Title Act has been established.

    Summary dismissal under s 84C should only be ordered where the claim as expressed is untenable and upon the version of the evidence favourable to the respondents to the strike out.

    It will ordinarily not be appropriate to summarily dismiss a claim where there is a relevant question of fact in issue. The power to summarily dismiss is discretionary, must be exercised with caution and will generally be exercisable only where the non-compliance is incurable.

    A claim must be untenable and there must be sufficient certainty so as to justify the denying a party the right to a hearing: McKenzie v South Australia (2005) 214 ALR 214; [2005] FCA 22.

    It is appropriate to consider a strike out application under s 84C by applying the test prescribed by s 31A of the Federal Court Act, namely it is not necessary to establish that a claim was doomed or futile but rather that it lacked reasonable prospects of success: Walker v South Australia [2014] FCA 962, [18]-[21].

    Whether s 31A of the Federal Court Act or s 84C of the Native Title Act is considered, the Court must be satisfied that the alleged defects are established, incurable and render the claim untenable or without reasonable prospect. A claim that is ‘fanciful’ will be without reasonable prospect: Spencer v the Commonwealth (2010) 241 CLR 118, [34].

    Where there is contested evidence or contested questions of fact that are in issue, the moving party will not have discharged their onus to warrant summary dismissal.

    Delay of itself may, but will not necessarily, establish the existence of an abuse of process, or that summary dismissal is an appropriate remedy in the circumstances. Much will depend upon what the delaying party knew, the explanation for any delay, the prejudice to be suffered if the delay is allowed and where the interests of justice lies overall.

CONSIDERATION

Strike out under the Native Title Act

Relevant legislation

121    Section 84C of the Native Title Act relevantly provides :

Striking out applications for failure to comply with requirements of this Act

Strike-out application

(1)     If an application (the main application) does not comply with section 61 (which deals with the basic requirements for applications), 61A (which provides that certain applications must not be made) or 62 (which requires applications to be accompanied by affidavits and to contain certain details), a party to the proceedings may at any time apply to the Federal Court to strike out the application.

Note:     The main application may still be amended even after a strike-out application is filed.

Court must consider strike-out application before other proceedings

(2)     The Court must, before any further proceedings take place in relation to the main application, consider the application made under subsection (1).

Federal Court Chief Executive Officer to advise Native Title Registrar of application etc.

(3)     The Federal Court Chief Executive Officer must advise the Native Title Registrar of the making of any application under subsection (1) and of the outcome of the application.

Other strike-out applications unaffected

(4)     This section does not prevent the making of any other application to strike out the main application.

122    Section 61(1) relevantly provides that a native title determination application must be made by the following persons:

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

Note 1:    The person or persons will be the applicant: see subsection (2) of this section.

Note 2:    Section 251B states what it means for a person or persons to be authorised by all the persons in the native title claim group.

…

123    Further s 61(3)-(5) provide:

Applicant's name and address

(3)     An application must state the name and address for service of the person who is, or persons who are, the applicant.

Applications authorised by persons

(4)     A native title determination application, or a compensation application, that persons in a native title claim group or a compensation claim group authorise the applicant to make must:

(a)     name the persons; or

(b)     otherwise describe the persons sufficiently clearly so that it can be ascertained whether any particular person is one of those persons.

Form etc.

(5)     An application must:

(a)     be in the prescribed form; and

(b)     be filed in the Federal Court; and

(c)     contain such information in relation to the matters sought to be determined as is prescribed; and

(d)     be accompanied by any prescribed documents and any prescribed fee.

124    Materially, s 62(1) and (1A) provide:

Claimant applications

(1)     A claimant application (see section 253):

(a)     must be accompanied by an affidavit sworn by the applicant stating the matters mentioned in subsection (1A); and

…

(1A) For the purposes of paragraph (1)(a), the matters are:

…

(d)     that the applicant is authorised by all the persons in the native title claim group to make the application and to deal with matters arising in relation to it; and

(e)     the details of the process of decision-making complied with in authorising the applicant to make the application and to deal with matters arising in relation to it; and

…

Note:    Section 251B states what it means for the applicant to be authorised by all the persons in the native title claim group.

125    Section 251B of the Native Title Act in turn provides:

251B Authorising the making of applications

For the purposes of this Act, all the persons in a native title claim group or compensation claim group authorise a person or persons to make a native title determination application or a compensation application, and to deal with matters arising in relation to it, if:

(a)     where there is a process of decision-making that, under the traditional laws and customs of the persons in the native title claim group or compensation claim group, must be complied with in relation to authorising things of that kind—the persons in the native title claim group or compensation claim group authorise the person or persons to make the application and to deal with the matters in accordance with that process; or

(b)     where there is no such process—the persons in the native title claim group or compensation claim group authorise the other person or persons to make the application and to deal with the matters in accordance with a process of decision-making agreed to and adopted, by the persons in the native title claim group or compensation claim group, in relation to authorising the making of the application and dealing with the matters, or in relation to doing things of that kind.

126    Before turning to the issues before the Court it is useful to have regard to relevant authorities.

Relevant authorities

127    The Full Court gave detailed consideration to the terms of s 84C in Bodney v Bropho (2004) 140 FCR 77; [2004] FCAFC 226. In particular Stone J said:

[51]    It follows that, as with any strike -out application, an application under s 84C should be approached with caution and should be allowed only where a clear case for summary dismissal has been made; Williams v Grant [2004] FCAFC 178 (‘Williams v Grant’) at [48]-[49]. However, as Barwick CJ observed in General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125 at 130, while a litigant must not be deprived improperly of the opportunity for trial, summary dismissal is not reserved for cases where argument is not necessary to establish the futility of the case:

Argument, perhaps even of an extensive kind, may be necessary to demonstrate that the case of the plaintiff is so clearly untenable that it cannot possibly succeed

128    In particular in that case the Full Court considered that the native title application in question should not have been struck out, and there was no reason why issues with the description of the claim group could not have been cured by amendment (at [90]). As Branson J observed in that case:

[33]    …Section 84C is concerned with matters of form and authority, not with the merit of any native title determination application. His Honour concluded at [46] that Mr Bodney’s position could not be cured by further evidence. However, his Honour does not appear to have given consideration to whether Mr Bodney should have been allowed an opportunity to gain, from those on whose behalf he purported to make the Hartfield Park application and the Main application, the necessary authorisations to make the applications. As that native title group is confined to his immediate family he may well be able to gain the necessary authorisations within a relatively short timeframe. Order 13 r 2(6) recognises that a document may be amended to alter the capacity in which a party sues. It is not necessary to decide whether the authorisation requirements of s 61 (1) technically affect capacity to sue; they are requirements of an analogous kind. It is no longer the law that a claim for relief cannot be founded on facts or matters that have arisen since the commencement of the proceeding (see O 13 r 2(7) and (8) of the Rules).

(emphasis added)

129    In Walker Mansfield J considered a motion of the State of South Australia to strike out a native title determination application brought by the Ramindjeri native title claim group, which application overlapped with significant parts of two other native title claims. The Ramindjeri claim was not accepted for registration by the Native Title Registrar. The two other claims (the Ngarrindjeri People and the Kaurna People) were registered on the Native Title Registry of the National Native Title Tribunal. The State contended that the Ramindjeri claim be struck out because it could not succeed on the bases that the Ramindjeri claim group was a subgroup of the Ngarrindjeri claim group, and the applicant was not properly authorised under s 251B of the NT Act to bring the claim on behalf of the identified Ramindjeri claim group.

130    Justice Mansfield observed:

[16]    The principal source of strike out power relied on by the State and by the Ngarrindjeri is s 84C of the NT Act. If a native title application fails to comply with s 61 of the NT Act, a party to proceedings may apply at any time to strike it out.

[17]    It is clear that the power should only be exercised where a clear case for summary dismissal has been made out, although it is not necessary to establish that the case is futile: Bodney v Bropho [2004] FCAFC 226; (2004) 140 FCR 77 at [51] per Stone J with whom Spender and Branson JJ agreed. It may require extensive argument and reliance on evidence to be satisfied that there are defects in the case which should lead to its summary dismissal: McKenzie v State of South Australia [2005] FCA 22 at [26] per Finn J; Bodney v Bropho [2004] FCAFC 226; (2004) 140 FCR 77 at [52] per Stone J with whom Spender and Branson JJ agreed.

131    In considering the requirements of s 84C, Mansfield J said:

19.    Section 31A prescribes the test whether Mr Walker is shown to have no reasonable prospect of successfully prosecuting the Ramindjeri claim as it is expressed. That test is a somewhat less onerous test to satisfy that was previously the case: see eg Spencer v Commonwealth of Australia [2010] HCA 28; (2010) 241 CLR 118 at [53]-[56]. Section 84C of the NT Act provides for the entitlement of a party to an application under s 61 of the NT Act to apply to strike it out. It does not prescribe the test to be applied in deciding whether to accede to such an application.

20.    In my view, it is appropriate in the present circumstances to apply the test prescribed by s 31A of the Federal Court of Australia Act 1976 (Cth), although I do so with the caution appropriate having regard to the nature of the Ramindjeri application and to the consequences of making my order.

132    His Honour then turned to s 61 of the Native Title Act, and observed that the proper definition of the native title claim group goes to the heart of a Native Title Determination Application. His Honour noted at [26] that failure to comply with the requirement for authorisation is generally fatal to the success of an application, and that s 84D does not assist where there is alleged to be a fundamental failure to secure authorisation under s 251B. Importantly his Honour continued:

[27]    Obviously, evidence about the process of authorisation that was adopted and how it complies with the NT Act requirements is necessary: Dieri People v State of South Australia [2003] FCA 187 (Dieri) at [57] per Mansfield J. That will commonly require evidence about the notice of the meeting and about the persons present and how they identified as members of the claim group: Brown v State of South Australia [2009] FCA 206 (Brown) at [24] per Besanko J; Bolton on behalf of the Southern Noongar Families v State of Western Australia [2004] FCA 760 at [45] per French J as he then was.

[28]    Where the means of authorisation are not traditional, compliance with s 251B of the NT Act will require the decision making process to give all members of the claim group a reasonable opportunity to participate: Lawson v Minister for Land and Water Conservation [2002] FCA 1517 at [25] per Stone J.

133    Justice Mansfield observed at [29] that where the described native title claim group was in fact more accurately a sub-group of a larger community of persons who hold the common or group rights and interests comprising the particular native title claim, that sub-group cannot qualify as a claimant group under the NT Act: Kite v State of South Australia [2007] FCA 1662 at [22]; Dieri People v State of South Australia [2003] FCA 187 at [56]; Risk v National Native Title Tribunal [2000] FCA 1589 at [60].

134    His Honour considered the evidence before the Court, and found that the conduct of the authorisation meeting was critical. His Honour said:

[64]    The Ramindjeri claim group does not now specify any apical ancestors. That was removed by the amendment. It specifies a list of 152 names (and presumably includes the descendants of those persons). Even if the apical ancestors were to be re-inserted, by the identification of King Condoy or Princess (his daughter Sally Walker), the Box Factory Meeting, in its terms, means that the Ramindjeri claim group on whose behalf Mr Walker was then authorised to bring a claim does not represent all the people who are or would be descendants of that or those apical ancestors.

[65]    The Ramindjeri claim group, as resolved upon at the Box Factory Meeting, is those persons who signed the declaration as attendees and members of their immediate families. Even assuming the only apical ancestors are King Condoy and Sally Walker, that formulation excludes the descendants of those apical ancestors who did not attend the meeting. They may not have seen the notice. They may have been unable to attend. It is possible (but for this purpose I do not assume it) that they may have attended but not been allowed to participate in the meeting because they would not sign the declaration.

[66]    Because, on that resolution, the Ramindjeri claim group was so confined, it is not shown to constitute all the apical ancestors of those two persons, and so it does not constitute all the Ramindjeri People. That is a requirement of the NT Act.

[67]    For that reason, the Ramindjeri claim should be struck out.

135    His Honour then turned to whether the claim had been properly authorised, and concluded that it was not. His Honour noted at [69] that the meeting was conducted by allowing votes only to those who made declarations, and then by casting votes by a show of cards, which was a contemporary process rather than a traditional process. Among other reasons, his Honour also observed that the notice of the meeting was not adequate to provide all potential claim group members to participate in the decision making process, and continued:

[80]    … It is not explained why other means of publicity (through newspapers or newsletters published by Indigenous bodies or published in the particular areas of or parts of areas of the proposed Ramindjeri land claim) were not adopted. It is not clear why the Ramindjeri families referred to by Mr Walker were not notified by letter. It is not clear that there was any attempt made through anthropological sources to identify those who may have constituted the Ramindjeri group, or indeed to confirm that the only focus should be on the apical ancestors King Condoy and Sally Walker: cf Bollison on behalf of Southern Noongan Families v State of Western Australia [2004] FCA 760 per French J at [45].

136    His Honour ordered that the Ramindjeri application be dismissed.

137    An application for strike out pursuant to s 84C of the Native Title Act was also considered by Besanko J in Brown v State of South Australia [2009] FCA 206. In particular his Honour observed:

[19]    A native title determination application does not comply with s 61 of the NTA if it is clearly established that it is not made by a native title claim group. A native title claim group is a group consisting of all the persons who, according to their traditional laws and customs, had the common or group rights or interests comprising the particular native title claimed. These propositions follow from the provisions of ss 61(1) and (4), 251B and 253 of the NTA and have been stated in the cases...

(emphasis added)

138    His Honour continued:

[20]    The propositions have been applied most commonly in circumstances where it is clear that the claimant group is a sub-group or sub-set or part of a native title claim group. Cases such as Tilmouth, Landers, Dieri People, McKenzie and Reid are all cases in which it was clear that the claim group was not a native title claim group. The cases also make it clear that caution needs to be exercised before concluding on a strike-out application that a claim group is a sub-group, sub-set or part of a native title claim group: Colbung v The State of Western Australia [2003] FCA 774 at [23]- [26] per Finn J; McKenzie at 223 [41] per Finn J; Hillig at [60] per Bennett J; Reid at [28] per Finn J; and Kite at [22] per Finn J. For example, it may be that a sub-group of a community sharing traditional laws and customs alone possesses rights and interests in a particular area and that sub-group may itself constitute a native title claim group: Hillig at [60] per Bennett J (see also the obiter observations of Wilcox J in Bodney v State of Western Australia [2003] FCA 890 at [41]; Perry M and Lloyd S, Australian Native Title Law (Lawbook Co, 2003) [3.130].

[21]    It is clear from the terms of s 61(1) of the NTA that the applicant to a native title determination application must be authorised by all the persons comprising the native title claim group. Section 251B of the NTA provides for the manner in which such an authorisation is to be given…

(emphasis added)

139    Justice Besanko further observed:

[23]    The effect of s 251B of the NTA is that where there is a traditional process of decision-making (that is, the process identified in para (a)) then that process must be complied with. Where there is no traditional process of decision-making, s 251B(b) comes into play. Two points about s 251B(b) have been noted in the authorities. First, the paragraph envisages two steps, namely, the native title claim group agrees to the process whereby a decision authorising a person to make an application is made, and then the making of the decision itself: Wharton on behalf of the Kooma People v State of Queensland [2003] FCA 790 at [42] per Emmett J. Secondly, the paragraph does not include the word “all”. There will clearly be cases where it will not be possible to secure the agreement of each and every member of the native title claim group. For example, members of a native title claim group may include infants, those who are mentally defective and those whose whereabouts are unknown. In recognition of this practical reality, it has been said that there will be no defect in the authorisation where all members of the native title claim group are given a reasonable opportunity to take part in the decision-making process: Lawson on behalf of the ‘Pooncarie’ Barkandji (Paakantyi) People v Minister for Land and Water Conservation for the State of New South Wales [2002] FCA 1517; Moran v Minister for Land and Water Conservation for the State of New South Wales (2000) 5(2) AILR 61 at 69 [40].

[24]    In cases where an applicant claims that he or she was authorised at a meeting of members of a native title claim group, it will often be necessary to consider the notice given of the meeting in order to determine if all members of the claim group were given a reasonable opportunity to participate in the decision-making process…

(emphasis added)

140    In Brown, Besanko J concluded that the evidence before the Court meant that the applicant in that case was a sub-group or sub-set of a native title claim group because, in summary:

    The members of the claim group consisted of 22 persons, some of whom were deceased, and a number of whom were listed as claimants or antecedents in another native title claim group;

    The evidence from the applicant in that case suggested that membership of the claim group depended on whether or not the relevant person agreed to be a member;

    The applicant was dissatisfied with the manner in which the other native title claim was proceeding; and

    The applicant stated that the claim group knew there were other families with native title interests in the claim area.

141    His Honour concluded that the amended application before the Court in Brown did not comply with s 61 of the Native Title Act.

142    In respect of the authorisation in Brown, his Honour found that:

    Although the applicant claimed she was authorised by the elder men and women, it was far from clear that the statement by the elder men and women constituted an authorisation to make the native title determination application and deal with matters arising in relation to it, and even if it did it was not established that the elder men and women had the power to grant the relevant authorisation;

    The events at the alleged authorisation meeting did not give rise to a valid and effective authorisation in circumstances where:

•    individuals who appeared to be part of the claim group were not given notice of the meeting, which was fatal to the applicant’s claim that she had been authorised to make the application and deal with matters arising in relation to it;

•    there was no evidence of any advertisement or notice given in respect of the alleged authorisation meeting;

•    the connection between those who attended the meeting and the native title claim group was not established in respect of attendance;

•    a subsequent advertisement did not sufficiently identify the alleged native title claim group such that a person reading the advertisement could not determine if he or she was, or may be, a member of the claim group.

143     In Bates on behalf of the Malyangapa Part B Claim Group v Attorney General of New South Wales [2021] FCA 1198 an application was made by two members of the applicant in the Wongkumara native title determination application (Wongkumara applicants), for an order to strike out the Malyangapa Part B application. In short – there was significant overlap of the two claims. The strike out application was made pursuant to s 84C(1) of the Native Title Act on the basis of defects in the authorisation of the application, and/or that the Malyangapa Part B application be summarily dismissed on the basis that it had no reasonable prospect of success for similar reasons, under s 31A of the Federal Court of Australia Act and r 26.01(1)(a) of the Federal Court Rules. The Wongkumara applicants also sought summary dismissal of the Malyangapa Part B application under r 26.01(1)(d) of the Federal Court Rules on the basis of the significant delay by the Malyangapa People in bringing the claim and the substantial prejudice it will cause to the Wongkumara People.

144    In considering the s 84C application, Murphy J referred to the following comments of Mansfield J in Hazelbane v Northern Territory of Australia [2008] FCA 291:

[14]    It is, therefore, hard to resist the temptation of determining such a fundamental issue as authorisation before a full trial of the native title determination application with the very substantial resources which are then involved. To do so has the attraction of expedition and economy. Certain recent decisions of the Court have illustrated that proper authorisation is a matter which should not be overlooked, and the possibility of a challenge, at an early point in the proceeding: see e.g. Risk v Northern Territory [2006] FCA 404; Harrington-Smith v Western Australia (No 9) (2007) 238 ALR 1. 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: General Steel Industries Inc v Commissioner for Railways (NSW) 112 CLR at 130 per Barwick CJ.

[15]    Section 84C(2) requires the Court to consider an application under s 84C(1) before any further proceedings take place in relation to the main application. But that does not require the Court to hear and determine the question as to whether the application has, in fact, been authorised as required by s 251B in all cases. It is only where the application is obviously without merit, that is, where there is no realistic prospect on the material before the Court of the authorisation being shown to have existed at the time it was purportedly granted, that an order will be made summarily dismissing or striking out the main application under s 84C. Sometimes an applicant faced with an application under s 84C may seek to amend the application to cure an identified deficiency (as discussed by Lander J in Williams v Grant at [57]). Where the application is not clearly without merit, so that it is not dismissed summarily or struck out, the Court may consider directing that an application under s 84C be heard and determined at the same time as the main application. That is a course of action which Wilcox J in Bodney v State of Western Australia [2003] FCA 890 at [45] suggested. The Court may also consider directing that the question of authorisation be heard and determined as a separate question, and be heard and determined prior to the hearing of the main application, under O 29 of the Federal Court Rules. That is a matter for each particular case and its particular circumstances. Whether such an order were appropriate would depend upon the extent to which there would be an overlap in the evidence likely to be called relating to authorisation and on the main application and a range of factors. The apparent attraction of expedition and economy may be misleading. Very often, the proposed evidence of authorisation is to be given by persons who also will give "connection" evidence and evidence of traditional laws and customs. There are often sound reasons in such circumstances why the separate trial of issues should not be ordered: Rocklea Spinning Mills Pty Ltd v Anti-Dumping Authority [1995] FCA 1188; (1995) 56 FCR 406; Energy Australia v Australian Energy Ltd [2001] FCA 1049 at [8] per Stone J. There are also countervailing considerations of potential delay through splitting of issues and the separate processes which follow that course: Tallglen Pty Ltd v Pay TV Holdings Pty Ltd (1996) 22 ACSR 130. So, not uncommonly, as occurred in both Risk and Harrington-Smith (referred to above) the issue of authorisation was heard and determined as part of the principal hearing of the main application.

[16]    Consequently, despite the obvious advantages to the first applicants of having the issue of the authorisation of the Town of Batchelor No 2 application generally heard and determined on its strike out motion, it can only succeed if upon the whole of the evidence on the motion it satisfies the Court that there is no real prospect of the second applicants in the Town of Batchelor No 2 application establishing that they are authorised in terms of s 61(1) of the Act and in accordance with s 251B of the Act to have brought the Town of Batchelor No 2 application, and that they have complied with s 62.

(emphasis added)

145    Justice Murphy relevantly continued in Bates:

[74]    The essence of the Wongkumara respondents’ contention that the Malyangapa Part B application is not properly authorised is that the Malyangapa claim group are not distinct from the Wongkumara claim group, and is instead a sub-group of those with native title rights and interests in the overlapping claim area. On that basis it is asserted that the Malyangapa applicant cannot therefore bring a separate, overlapping claim. However, as I have said, the issue of whether the Malyangapa application was properly authorised turns, to a large extent, on the question of who the right people are for the overlapping claim area. That question is factually complex and contentious. The position may have been different if the evidence was clear, but it is not. This is not a case where the Malyangapa Part B application is plainly or self-evidently brought by a sub-group of those persons claiming to have native title rights and interests in the overlapping claim area: see e.g. Fourmile at [117]; Risk v National Native Title Tribunal [2000] FCA 1589 at [61] (O’Loughlin). The Wongkumara respondents themselves accepted that the claims of the two groups cannot properly be analysed on a binary basis, and they went as far as to say that “it is not possible to establish whether the descendants of the [asserted Malyangapa apical ancestors] are simply a sub-group”. Nor is it the case that the authorisation of the Malyangapa Part B application was clearly defective.

[75]    In my opinion it is not appropriate to determine whether the starting point of the Wongkumara argument – that the two claim groups are not separate – is correct without reaching a concluded view on the lay and expert evidence which cannot occur in a one-day hearing based on incomplete and disputed lay and expert evidence, not tested by cross-examination. The complex and contentious questions involved in the case are not suitable to be disposed of in an application of this type.

(emphasis added)

146    Accordingly, his Honour concluded that question of authorisation was best decided at trial, not in the s 84C application.

147    Strike out pursuant to s 84C of the Native Title Act is available where defects in authorisation are evident. As Mortimer J recently observed in Melville on behalf of the Pitta Pitta People v State of Queensland [2022] FCA 387:

[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)…

[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.

148    In Melville the substantive proceeding concerned an application for compensation in relation to extinguishment or impairment of native title filed on behalf of the Pitta Pitta People. The two principal respondents to the compensation application, the State of Queensland, and the Pitta Pitta Aboriginal Corporation RNTBC, filed interlocutory applications seeking summary dismissal of the compensation application, or alternatively the striking out of the compensation application in whole or in part, pursuant to s 84C(1) of the Native Title Act. Materially, the State submitted that taken at its highest, the evidence before the Court was not capable of demonstrating that there existed, 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.

149    Ultimately, her Honour observed:

[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.

Findings

150    Relevant principles referable to applications pursuant to s 84C of the Native Title Act are well settled. The Court should only exercise powers of strike out under s 84C 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.

151    Plainly, whether the claim is untenable within the context of that section is a question which can only be resolved by careful consideration of the material before the Court in each particular case. The onus of demonstrating that the claim is untenable is on the applicant for strike out.

152    The case of the Gamilaraay in the present case is fundamentally that the Bigambul #2 Claim is untenable because it was not properly authorised. As Mansfield J explained in Walker at [26], failure of the authorisation process to comply with the requirements of the Native Title Act is fatal to the success of the application.

153    Specifically, the relevant non-compliance in respect of the authorisation process in respect of the Bigambul #2 Claim, as identified by the Gamillaraay People, concerned:

    Whether those who purported to authorise the Bigambul #2 Claim at the Bigambul Authorisation Meeting were merely a subset of the Bigambul People’s native title claim group for the purposes of ss 61 and 251B of the Native Title Act; and

    Whether the notification of the Bigambul Authorisation Meeting was invalid for the purposes of ss 61 and 251B of the Native Title Act because of the manner in which it was advertised, such that not all Bigambul People were given a reasonable opportunity to decide whether to attend.

154    The Bigambul People as identified in Schedule A of the Form 1 in the Bigambul #2 Claim are i as follows:

The claim group are the biological descendants of

(i)     Nellie Yumbeina;

(ii)     Queen Susan of Welltown;

(iii)     Jack Noble;

(iv)     Sally Murray;

(v)     Susan, Mother of Duncan Daniels; or

(vi)    Jack and James Armstrong.

who identify and are recognised as Bigambul People in accordance with the traditional laws and customs acknowledged observed by them.

155    This description accords with the description of the Bigambul People in Doctor on behalf of the Bigambul People v State of Queensland [2016] FCA 1447 and Doctor on behalf of the Bigambul People v State of Queensland [2017] FCA 716 (the Bigambul Determinations). It is not in dispute.

156    This description can, of course be compared with that entitling membership of BNTAC. The Rule Book of BNTAC was annexed to the affidavit of Sheree Sharma filed 4 November 2022. Materially the Rule Book provided:

5.2.1    Who can apply to become a member (eligibility requirements for membership)

A person who is eligible to apply for membership must be an individual who is:

(a)    at least 18 years old; and

(b)    a Bigambul person, described in Schedule 2.

(c)    The person primarily identifies as a Bigambul person.

157    Schedule 2 of the Rule Book provides that the “Bigambul Descent Groups”:

Are the descendants of the following deceased Aboriginal people:

1.     Nellie Yumbeina;

2.     Queen Susan of Welltown ;

3.    Jack Noble and Sally Murray;

4.     Susan mother of Duncan Daniels;

5.    Jack Armstrong; and;

6.     James Armstrong

158    The expression, “primarily identify as [a] Bigambul person” is defined in Schedule 1 of the BNTAC Rules:

means an Aboriginal person who:(a) identifies as a member of the Bigambul People in preference to any right or entitlement they may have as a member any other Aboriginal or Torres Strait Islander Group by virtue of being entitled to exercise native title rights and interests outside Bigambul Country;(b) is accepted by at least one descendant from a majority of Bigambul descent groups; and (c) provides evidence sufficient to satisfy the Board of Directors that they meet the criteria set out in (a) and (b) above.

159    In Schedule 3 of the BNTAC Rule Book, an application for membership form has the option for the applicant to tick that they, “principally identify as a Bigambul person even though [they] may be also be eligible to be a member of another aboriginal native title group”.

160    Was the notification of the Bigambul Authorisation Meeting limited to persons who principally identified as Bigambul People and either were members of or satisfied the membership criteria of BNTAC (and were thus a subset of the Bigambul People), as distinct from all members of the Bigambul People? And if so – were all members of the Bigambul People given a reasonable opportunity to participate in the authorisation meeting?

161    There is authority that the Native Title Act does not require decisions of native title groups to be scrutinized in an overly technical and pedantic way, but rather in a practical manner: Lawson on behalf of the “Pooncarie” Barkandji (Paakantyi) People v Minister for Land and Water Conservation (NSW) [2002] FCA 1517 at [28]; Gomeroi People v Attorney General of NSW [2017] FCA 1464 at [54]; Champion on behalf of the Marlinyu Ghoorlie Claim Group v State of Western Australia (No 2) [2022] FCA 65 at [24]. As Rangiah J explained in Gomeroi at [118], it may be practically impossible for every member of the claim group to be notified of an authorisation meeting. There is also no requirement that there be sufficient persons in attendance at an authorisation meeting who are representative of all the apicals in a claim: Doctor on behalf of the Bigambul People v State of Queensland [2010] FCA 1406 at [66].

162    It is sufficient if a decision is made once members of the claim group are given every reasonable opportunity to participate in the decision making process: Stone J in Lawson at [25].

163    Turning now to the material before the Court, and noting that that evidence should be scrutinized in a practical manner, the position appears to be as follows.

164    The Bigambul #2 Applicant concedes that the notice of the authorisation meeting was only posted to the members of BNTAC, being Bigambul People who primarily identified as Bigambul.

165    The Bigambul #2 Applicant disputed that the BNTAC Rules restricted eligibility to a subset of Bigambul People. In submissions to the Court in this case, the Bigambul #2 Applicant contended that the traditional laws acknowledged and traditional customs observed by the Bigambul People restricted recognition to those persons who primarily identified as Bigambul. In particular, reliance was placed on an anthropological report of Dr Anna Kenny dated 16 January 2015 (the Anthropology Report).

166    However the evidence is overwhelming that the limitation on membership of BNTAC in its Rules does not reflect the description of Bigambul People, and that in fact, that membership description represents a subset of the Bigambul People. To the extent that the notification of the meeting was limited to members of BNTAC, it did not give all Bigambul People every reasonable opportunity to participate in the decision making process.

167    I am satisfied that the evidence is clear, such that it does not require a trial for resolution. I am satisfied that, relying on the evidence which I have carefully considered, there are defects in the case which cannot be remedied: Walker at [17].

168    First, the evidence of the Mr Leonard Saunders, Mr Ralph Rigby, Mr Gregory Saunders, Ms Danielle Saunders, Ms Kristina Saunders, Mr Stephen Saunders, Ms Deidre Flick and Ms Amanda Lang was that they all identified as Bigambul, being descended from Bigambul apical ancestors, and that they were told by older family members that notwithstanding their membership of another native title group, they were also Bigambul.

169    In contrast, of the four members of the Bigambul People who gave evidence for the Bigambul #2 Applicant in this proceeding, only the Chief Executive Officer of BNTAC, Mr Justin Saunders, gave evidence that he was taught that identification as a Bigambul Person required primary identification as a Bigambul Person.

170    Second, that identification as a Bigambul Person is primarily referable to biological descent from Bigambul apical ancestors, and recognition and identification as a Bigambul person, is consistent not only with Schedule A to the Form 1 of the Bigambul #2 Applicant in this proceeding, but earlier Bigambul Determinations by this Court.

171    Third, the Bigambul #2 Applicant relied on the Anthropology Report as evidence that the traditional laws and customs of the Bigambul People required primary identification as a Bigambul person. In particular the Bigambul #2 Applicant submitted:

19.     Chapter 4 of the Kenny Report is relevant to the issue of who are the Bigambul Native Title holders. At paragraph 316 of the Kenny Report she concludes:

“Group membership usually derives not only from descent but also from participation in group activities, appropriate behaviour and political acumen of individuals. It appears that those individuals who participate in the networks of relatedness and group politics are the members of the Bigambul land holding group. A person who, for example, discovers on the basis of recent genealogical research, from written sources, that they have a distant ancestor cannot on that basis alone claim membership of the group without meeting resistance. See, for instance, Sutton (1998:62-4)”.

20.    And at paragraph 318, Dr Kenny summarises her findings of the factors that determine membership of the Bigambul land holding group.

“In sum, Bigambul people are the descendants of acknowledged apical ancestors Nellie Yumbeina, James and Jack Armstrong, Jack Noble and Sally Murray, Susan of Welltown and Duncan Daniells. Under their laws and customs, all Bigambul people hold rights and interests in all of their traditional lands. The exercise of rights and interests are influenced by the following factors that together with descent ideology limit the size of the group: a) active participation in the networks of relatedness and group affairs of the land holding group; b) individual choice of group affiliation and identity; c) knowledge; d) long-term residence near or on Bigambul country; and e) birthplace. Without a descent based claim, these other relevant criteria are not sufficient to claim group membership” (emphasis added).

21.    It is therefore incorrect to assert that descent from a named apical ancestor (while necessary) is sufficient to determine the members of the Bigambul land holding group.

22.     In paragraphs 286 to 289 of Chapter 4 under the heading Singularity of Identity?, Dr Kenny also refers to the circumstance where some, but not all, Bigambul People claim membership of neighbouring group such as the Gamilaraay or Kamilaroi/Gomeroi people. The relevant paragraphs of the Kenny Report are reproduced below:

“Singularity of identity?

286.     Under a system of cognatic descent it is possible for a person to be a member of more than one group at a time. In parts of southern Queensland it appears that there is a tendency for people to identify with or emphasise links to one group only. I have found this to be the case among Kooma people (Kenny 2011) and Kwok has made similar observations among the Gunggari (Kwok 2010: 99). This development may be seen as an adaptation to the contemporary situation in which particular groups compete for resources perceived to be available through native title involvement and cultural heritage work.