Federal Court of Australia

Ross on behalf of the Cape York United #1 Claim Group v State of Queensland (No 23) [2024] FCA 533

ORDERS

THE COURT ORDERS THAT:

1.    The interlocutory application by Ms Deborah Symonds dated 8 April 2024 be dismissed.

2.    The interlocutory application dated 8 April 2024 by Olkola Aboriginal Corporation be allowed to the extent set out in order 3 below.

3.    Pursuant to s 84(5) of the Native Title Act 1993 (Cth), Olkola Aboriginal Corporation be joined as a respondent to this proceeding for the sole purpose of seeking to include the proposed draft other interest clauses set out in Annexure A to these orders as ‘Other Interests’ (within the meaning of s 225(c) of the Native Title Act 1993 (Cth)) in any s 87A agreements that relate to those parts of the claim area in which Olkola Aboriginal Corporation holds interests, being the areas associated with the Olkola People, the Kunjen Olkol People and the area jointly held by the Olkola People and Kunjen Olkol People.

4.    Each party, and the interlocutory applicants, bear their own costs.

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

Annexure A

(a)    The rights and interests of Olkola Aboriginal Corporation as trustee in fee simple of Lot 20 on SP241432, Lot 21 on SP241432, Lot 7 on SP241432, Lot 16 on SP262570, Lot 6 on SP262570, Lot 10 on SP261207, and Lot 36 on SP215745 pursuant to deeds of grant under the Aboriginal Land Act 1991 (Qld), to the extent those parcels fall within the External Boundary; and

(b)    The rights and interests of the Olkola Aboriginal Corporation under the Land Act 1994 (Qld) as the holder of rolling term lease (PH 34/3875) for pastoral purposes (also known as Glen Garland) over Lot 3875 on SP141968.

(a)    The rights and interests of Olkola Aboriginal Corporation as trustee in fee simple over that part of Lot 21 on SP241432 that falls within the External Boundary pursuant to deeds of grant under the Aboriginal Land Act 1991 (Qld).

(a)    The rights and interests of Olkola Aboriginal Corporation as trustee in fee simple over that part of Lot 21 on SP241432 that falls within the External Boundary pursuant to deeds of grant under the Aboriginal Land Act 1991 (Qld).

REASONS FOR JUDGMENT

MORTIMER CJ:

1    The two interlocutory applications before the Court have been brought on for hearing and determination as a matter of urgency, because of the scheduled steps to be taken by all active parties towards proposed consent determinations in Cairns in the second week of July 2024. Presently there are a total of nine consent determinations listed to take place on 10 and 11 July 2024 in Cairns. Up to three of these are affected by these interlocutory applications.

Background

2    I have previously outlined the background to the Cape York United #1 claim (CYU#1 claim) in my reasons for consent determinations in this proceeding: see, eg, Ross on behalf of the Cape York United #1 Claim Group v State of Queensland (No 2) (Kuuku Ya’u determination) [2021] FCA 1464; Ross on behalf of the Cape York United #1 Claim Group v State of Queensland (No 3) (Uutaalnganu (Night Island) determination) [2021] FCA 1465. Given the structure now in place for resolving who holds native title for the country covered by the CYU#1 claim, the contested issues which are arising tend to be more locally and regionally focused. As these interlocutory applications illustrate, contested issues can involve differences between claim group members which might manifest themselves during the authorisation and other processes required for consent determinations.

3    In the case of these interlocutory applications, the determination in question relates to the country of the Olkola People, as well as country that is proposed to be the subject of a native title determination in favour of the Olkola and other groups, namely Kunjen Olkol and Kowanyama.

4    In a circumstance which presents not only irony but also some potential legal and professional quandaries, the member of the CYU#1 claim applicant whose name appears in the title of this entire proceeding, Mr Michael Ross, is an Olkola man and one of the Olkola People supporting the interlocutory applications.

5    Ms Deborah Symonds, one of the interlocutory applicants, is an Olkola woman. Together with Mr Michael Miller, an Olkola man, Ms Symonds was joined as a respondent to the proceeding on 1 August 2019 by way of orders which limit her participation in the proceeding to matters affecting the interests of the Olkola People.

6    The Olkola Aboriginal Corporation was first registered on 23 February 1993, under the name Edmulpa Aboriginal Corporation. OAC owns large tracts of Aboriginal freehold land within the proposed Olkola native title determination. It runs a pastoral station, Glen Garland Station, through a pastoral lease, and Mr Ross’ evidence suggests OAC has interests in other pastoral stations. OAC has a number of other proprietary and program-based interests in the proposed Olkola determination area, as well as in the proposed Kunjen Olkol determination area. These include programs such as ranger activities which are, in their essence, activities carried out on country, and for the benefit of country and the life it supports.

7    Mr Ross is a director and chairperson of OAC.

8    These interlocutory applications relate to the authorisation of a prescribed body corporate (PBC) for the proposed Olkola People native title determination. It is not disputed that for a considerable time leading up to the preparation for the Olkola consent determination, OAC was intending to present itself as the appropriate body to become the PBC. It is not disputed that it acted on this intention by retaining a solicitor, Mr Thomas Cameron, and taking steps involving considerable time and resources, such as negotiating alterations to its rule book with Cape York Land Council and proposing those amendments to place it in a suitable position to act as a PBC.

9    A pre-authorisation meeting of the Olkola People took place on 15 February 2024. It is common ground that the issue of the PBC for the Olkola People was discussed at this meeting. However, the content of the discussion, and the understandings that claim group members had, is part of the contested facts.

10    This was followed by an authorisation meeting of the Olkola People on 29 February 2024. It is common ground that, following a secret ballot, those Olkola People present resolved that the PBC to be nominated would be a new corporation and not OAC.

11    At a case management hearing in the proceeding on 1 March 2024, the day after the authorisation meeting had occurred, Mr Cameron, who is also the solicitor on the record in this proceeding for Ms Symonds and Mr Michael Miller, foreshadowed as a “matter of professional courtesy” that his clients had “serious concerns about whether the decisions made at that meeting were properly authorised”, and were considering their options.

12    Ms Symonds then filed an interlocutory application on 8 April 2024, seeking the following orders:

1.     A declaration that resolutions at a meeting of the Olkola People on 29 February 2024 purporting pursuant to section 251B of the Native Title Act 1993 (Cth) to authorise the Applicant, the Cape York Land Council or any other person to nominate a corporation to be the prescribed body corporate for the purposes of sections 56 and 57 of the Native Title Act 1993 (Cth) for the area of the proposed Olkola People determination, and all related resolutions, were invalid and of no effect.

2.     A declaration that the Olkola People have not authorised pursuant to section 251B of the Native Title Act 1993 (Cth) the Applicant, the Cape York Land Council or any other person to nominate a corporation to be the prescribed body corporate for the purposes of sections 56 and 57 of the Native Title Act 1993 (Cth) for the area of the proposed Olkola People determination.

3.     On or before 1 June 2024 the Cape York Land Council organise and hold a meeting of the Olkola People for the purpose of the Olkola People authorising pursuant to section 251B of the Native Title Act 1993 (Cth) the Applicant, the Cape York Land Council or another representative to nominate a corporation to be the prescribed body corporate for the purposes of sections 56 and 57 of the Native Title Act 1993 (Cth) for the area of the proposed Olkola People determination.

4.     Such further or other orders as the Court deems fit.

13    On the same day, OAC filed an interlocutory application seeking the following orders:

1.     That Olkola Aboriginal Corporation be joined as a respondent to the proceeding.

2.     Such further or other orders as the Court deems fit.

14    On 18 April 2024, I listed a case management hearing for the active parties to these applications, being the interlocutory applicants, the CYU#1 claim applicant, and the State. Orders were made programming the two interlocutory applications for hearing on 16 May 2024.

15    As has been the case with each of the 18 consent determinations in this proceeding to this point, the steps in the complex and carefully constructed timetables for consent determinations include significant steps, such as the requirement for the State to circulate the proposed s 87A agreement to the parties on 17 May 2024, and for the s 87A agreement to be signed by 29 May 2024. There is only so long these steps can be paused while retaining the July consent determination dates. Again, the Court recognises a huge amount of work and resources are applied to the organisation and conduct of consent determinations in this proceeding, and the July consent determination preparation is no different.

Material before the Court

16    Ms Symonds’ interlocutory application is supported by four affidavits, which were read at the hearing:

(a)    an affidavit affirmed by Ms Symonds on 8 April 2024;

(b)    and an affidavit of Ms Karrell Ross affirmed on 12 April 2024;

(c)    a subsequent affidavit affirmed by Ms Symonds on 10 May 2024; and

(d)    a subsequent affidavit of Ms Karrell Ross affirmed on 15 May 2024.

17    In each of their first affidavits, Ms Symonds and Ms Karrell Ross depose to their narratives of what occurred at the pre-authorisation meeting and authorisation meeting. Each of the subsequent affidavits of Ms Symonds and Ms Karrell Ross seek to clarify matters affirmed in their earlier affidavits.

18    OAC’s interlocutory application is supported by two affidavits which were read at the hearing: an affidavit of Mr Ross affirmed on 2 April 2024, in which he deposes to the history, interests and activities of OAC as well as his narrative as to the events at the pre-authorisation meeting and authorisation meeting; and an affidavit of Mr Brendan Ross affirmed on 24 April 2024, in which he also deposes to his narrative of the events at the pre-authorisation meeting and authorisation meeting.

19    The CYU applicant read the following affidavits:

(a)    An affidavit of Ms Kirstin Malyon (the Principal Legal Officer of CYLC) affirmed on 3 May 2024;

(b)    An affidavit of Ms Kate Waters affirmed on 14 May 2024;

(c)    An affidavit of Mr Leon Bowyer sworn on 2 May 2024;

(d)    An affidavit of Ms Rhonda Gilbo affirmed on 30 April 2024;

(e)    An affidavit of Ms Rosemary Bulmer sworn on 30 April 2024;

(f)    An affidavit of Mr Michael Yam affirmed on 3 May 2024;

(g)    An affidavit of Ms Morva Coleman sworn on 7 May 2024; and

(h)    An affidavit of Ms Malyon affirmed on 22 October 2021, but only so far as it outlines the authority of the CYU#1 claim applicant.

20    In her 3 May 2024 affidavit, Ms Malyon deposes to the lead up to, events of, and aftermath of the Olkola pre-authorisation and authorisation meetings. Ms Waters’ affidavit relates to her attendance at the pre-authorisation and authorisation meetings for the purposes of presenting on native title group descriptions and facilitating a verification process.

21    In the affidavits listed in subparagraphs (c) through (g) above, the deponents, all Olkola People, depose as to their narrative of the events at the pre-authorisation meeting and authorisation meeting, and give evidence about the secret ballot from their perspective.

22    The State read an affidavit of Ms Kate Marchesi affirmed on 8 May 2024, in which Ms Marchesi deposes to interests held by OAC in the CYU#1 claim application area.

23    Each active party filed written submissions in chief prior to the hearing, with the interlocutory applicants also filing reply submissions. Each party then made oral submissions at the hearing on 16 May 2024.

24    The hearing proceeded by way of affidavit evidence, with no witnesses required for cross-examination. There were no objections to any of the evidence in the affidavits, although as I explain, there are part of the evidence to which I give less weight than others.

Resolution

25    Section 251B of the Native Title Act 1993 (Cth) 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.

26    Section 56 relevantly provides:

56 Determination whether native title to be held in trust

Trust determination

(1)     One of the determinations that the Federal Court must make is whether the native title is to be held in trust, and, if so, by whom.

Steps in making determination

(2)     The Federal Court is to take the following steps in making the determination:

(a)     first, it must request a representative of the persons it proposes to include in the determination of native title as the native title holders (the common law holders) to indicate whether the common law holders intend to have the native title held in trust by:

(i)     nominating, in writing given to the Federal Court within a specified period, a prescribed body corporate to be trustee of the native title; and

(ii)     including with the nomination the written consent of the body corporate; and

(b)     secondly, if the common law holders give the nomination within the period, the Federal Court must determine that the prescribed body corporate is to hold the rights and interests from time to time comprising the native title in trust for the common law holders; and

(c)     thirdly, if the common law holders do not give the nomination within the period, the Federal Court must determine that the rights and interests are to be held by the common law holders.

Native title held in trust

(3)     On the making of a determination under paragraph (2)(b), the prescribed body corporate holds, in accordance with the regulations, the rights and interests from time to time comprising the native title in trust for the common law holders.

27    As I explain below, the course of events in issue in these applications demonstrates some lack of clarity about the role of the CYLC as a native title representative body, and the role of lawyers employed by CYLC but on the Court’s record as the legal representatives for the CYU#1 claim applicant. The same is true of counsel who have always appeared instructed by the CYU#1 claim applicant, of which Mr Ross is the lead named applicant. Counsel have not, and indeed could not, appear on behalf of the CYLC as a native title representative body. To state the obvious, the functions of lawyers employed by a native title representative body but representing a native title applicant, and the functions of a native title representative body, including statutory functions, are distinct, and that distinction needs to be maintained, challenging as that sometimes might be. At times in the present circumstances, that distinction was difficult for the Court to perceive.

28    The Court suggested it might be necessary to join the CYLC as a party. To avoid this, and with no objection from the State or the interlocutory applicants, prior to the hearing of these interlocutory applications, the CYLC gave an undertaking that it would abide by any order that the Court might make in connection with the interlocutory applications. That appeared to include any order relating to actions the CYLC might need to perform, even though it was not a party. Since no active party, and especially the State, objected to this course, this was the course the Court took. As it turns out, there is no order to be made requiring the CYLC to perform any function or take any step.

29    Under the following factual headings, I set out my findings based on the evidence adduced. I then turn to the arguments made on behalf of the interlocutory applicants (whose submissions were made jointly in the applications). In other words, OAC and Mr Ross supported Ms Symonds’ application. Since the joinder application by OAC eventually resolved by agreement, it is only Ms Symonds’ interlocutory application that needs to be determined.

Key dates

30    Some of the key dates to note in the course of events the Court must consider are:

(a)    OAC was established in 2009. Mr Ross has been a chairperson of OAC, and its predecessor Olkola corporation Edmulpa, “for most of the time since 1994 or 1995”.

(b)    OAC has run a carbon project on the claim area since 2014, a ranger program since 2018 and has operated the Glen Garland station since 1993 or 1994.

(c)    Ms Symonds has been the Chief Executive Officer of OAC since 2017.

(d)    Through Mr Cameron, communications with the CYLC and Ms Malyon about OAC amending its rule book in anticipation of becoming the PBC for the Olkola native title commenced around May 2023. Correspondence on this issue continued through until about October 2023, and started again in around February 2024.

(e)    On 19 January 2024, a notice for the Olkola pre-authorisation meeting was sent to members of the Olkola Native Title Group for whom the CYLC holds details on its contact database. The notice was published in other ways (eg Facebook and the CYLC website) shortly after this date.

(f)    On 1 February 2024, Mr Cameron emailed Ms Malyon a draft OAC special general meeting notice, explanatory memorandum and draft proposed amended OAC rule book and requested comment, saying “the amendments to the rule book reflect those previously suggested by CYLC, together with further minor amendments made by me to ensure that the rule book continues to operate as intended”. Further discussion occurred, including with junior counsel for the CYU#1 claim applicant, Mr Yarrow, and by 21 February 2024 Ms Malyon had confirmed to Mr Cameron that CYLC would print copies of the OAC rule book with track and explanatory memorandum, as well as printing the CYLC template rule book.

(g)    The template rule book was never provided to Mr Cameron, Ms Symonds or Mr Ross ahead of the authorisation meeting.

(h)    On 6 February 2024, the notice for the Olkola authorisation meeting was sent to members of the Olkola Native Title Group for whom the CYLC holds details on its contact database. The notice was published in other ways (eg Facebook and CYLC website) shortly after this date.

(i)    On 7 February 2024, Ms Malyon emailed Mr Cameron advising that there was “an item on the agenda for the pre-authorisation meeting next week for a discussion about PBCs”, suggesting that it “may be beneficial if you and/or Deb [Symonds] provided an overview of the Olkola Corporation, including your client’s commitment to amending the rule book”.

(j)    The pre-authorisation meeting for Olkola was held on 15 February 2024. By this stage the authorisation meeting notice had not been published on the CYLC website or its Facebook page.

(k)    The authorisation meeting for Olkola was held on 29 February 2024.

(l)    The Ut-Alkar Aboriginal Corporation was registered with the Office of the Registrar of Indigenous Corporations on 18 April 2024.

The pre-authorisation meeting

31    I accept Ms Malyon’s evidence that 68 Olkola People attended the pre-authorisation meeting.

32    The primary purpose of the pre-authorisation meeting was to give people information about what was likely to be discussed at the authorisation meeting. The meeting notice described the meeting as being “to discuss the proposed authorisation process for the Olkola Native Title Group”.

33    The meeting notice also indicated, perhaps not as prominently as it might have, that there was to be a decision taken at the pre-authorisation meeting about whether the ancestor Kitty Starlight should be included as an apical ancestor in the group description for Olkola People to be included in the s 87A agreement.

34    The meeting notice for the authorisation meeting was sent out by CYLC prior to the pre-authorisation meeting. It was also made available in hard copy at the pre-authorisation meeting. However, by the time of the pre-authorisation meeting, the authorisation meeting notice had not been published on the CYLC website or its Facebook page. I find it is more likely than not that many of the 68 Olkola People who attended the pre-authorisation meeting might not have seen the meeting notice for the authorisation meeting. That finding does not affect my comfortable persuasion that most of those who attended the pre-authorisation meeting understood they were only discussing which PBC should be chosen for Olkola People.

35    While each Olkola person was given a set of materials about the s 87A agreement, no materials were distributed about the PBC. I infer from the evidence, especially Ms Malyon’s evidence, that nothing was said about the PBC until Mr Ross gave his speech. I accept Ms Malyon’s evidence at [32] of her affidavit that she:

spoke to the pre-authorisation meeting about the legislative requirements under the NTA to nominate a PBC and advised that Olkola Traditional Owners would have a choice at the authorisation meeting between the OAC and a newly incorporated Aboriginal corporation. I also advised that decisions on the nomination of a PBC for the proposed Olkola determination area, and for “jointly held” areas, would be made at the Olkola Authorisation Meeting on 29 February 2024.

36    Whether or not Ms Malyon’s advice occurred before or after Mr Ross spoke (there was a debate about the chronology on this point), the main finding I make is that the need for a choice of PBC at the subsequent authorisation meeting was raised at the pre-authorisation meeting, and there was a sustained speech by Mr Ross in support of OAC becoming the PBC.

37    While there were some initial contentions, in evidence from Ms Symonds, that a decision was made at the pre-authorisation meeting about which PBC would be nominated, by the time of the hearing of the interlocutory applications it was clear the contention went no higher than Ms Symonds, and some of the Olkola People who support her position, believed OAC would be nominated as the PBC, because there had been no real discussion about the alternative PBC at the pre-authorisation meeting. I accept that evidence. I find there was little or no discussion of the alternative PBC at the pre-authorisation meeting, and I accept what was submitted on behalf of Ms Symonds in this respect. I also accept that copies of the CYLC template corporation rule book were not provided.

38    In that sense, there was no real information provided about the “new PBC”. In some contexts that fact might be critical to a decision about whether there was sufficient information presented so that people went to the authorisation meeting understanding what needed to be decided, or so that people could decide whether to attend at all.

39    Counsel for Ms Symonds relied on the following passage from Rares J in Weribone on behalf of the Mandandanji People v State of Queensland [2013] FCA 255 at [40], in which his Honour found a meeting notice invalid:

Ordinarily, it would not serve any purpose to require such notices to set out at great length and detail material of the nature that is sometimes sent to members of a corporation who are asked to consider amending or voting on resolutions put forward by directors. Nonetheless, the basic test that the common law has developed for notices calling meetings is suitable and adaptable to meetings such as those called under s 251B of the Act. The notice must be sufficient to enable the persons to whom it is addressed, namely members or potential members of the native title claim group, to judge for themselves whether to attend the meeting and vote for or against a proposal or whether to leave the matter to be determined by the majority who do attend and vote at the meeting. That test conforms to the substance of what the Full Court of this Court synthesised as the test for a valid notice of meeting identified in a well-known line of authority in corporations cases: Fraser v NRMA Holdings Limited (1995) 55 FCR 452 at 466B-C per Black CJ, von Doussa and Cooper JJ.

(Emphasis added.)

40    However, all this is highly context-dependent. In this particular context, I find the choice people were focused on, including those associated with OAC, was whether OAC should be the PBC. There was not, in that sense, a competing alternative faction of Olkola People on any specific campaign for a different PBC. The focus was on OAC, and what I find the evidence discloses about some level of dissatisfaction with how it had conducted its activities in the past, whether it was sufficiently inclusive, or whether it was focused on only particular family groups, or sub-groups of Olkola People. That is why, I find, Mr Ross’ speech was so important, and he understood this. The persuasive job to be done was to convince Olkola People, or a majority of them, that OAC was the right body to hold the Olkola native title. In that sense, the focus was not on what any alternative PBC might look like, or who might be its directors. It was a more general proposition that the alternative was not OAC.

41    I accept the fact that there was a decision taken about a matter going to the proposed consent determination (the inclusion or non-inclusion of the ancestor Kitty Starlight) might have led to some confusion at the pre-authorisation meeting about whether a choice about a PBC was also being made then or not. However, the weight of the evidence, and the subsequent clarification by Ms Symonds, persuades me that on the balance of probabilities most of those attending the pre-authorisation meeting were likely to have understood that the choice of PBC was something they would have to make at the authorisation meeting itself.

42    That explains, I find, why Mr Ross spoke at such length about OAC, for 30 minutes to an hour. I find he understood that there was an alternative proposal being made, for a new PBC to administer the native title of the Olkola People. I find he understood there was a real possibility OAC might not be chosen; that is why he spent a considerable amount of time describing the achievements of OAC, and its aspirations for Olkola People. The possibility of Olkola People making a different choice at the authorisation meeting explains, I find, why it was Mr Ross and not Mr Cameron or Ms Symonds who spoke.

43    There was only a gap of about two weeks between the pre-authorisation meeting and the authorisation meeting. There was much at stake, and I find that Mr Ross, as a senior and respected Olkola man, sought to make the most persuasive case he could for OAC, knowing that those attending the pre-authorisation meeting were likely to go away and speak to each other and their families about the choice they had to make a couple of weeks later.

44    I find it is likely that those who supported OAC were confident after the pre-authorisation meeting. Even some of the witnesses who provided affidavit evidence to support the CYU#1 claim applicant described Mr Ross as having made a “good speech”. Mr Ross is, I find, a highly respected senior Olkola man. The absence of anyone speaking in favour of an alternative PBC at the pre-authorisation meeting was likely to have further encouraged that belief. The affidavit evidence of people such as Mr Brendan Ross indicates in my opinion this kind of confidence. Not because any formal resolution had been made, but rather because Mr Ross had delivered a good speech, he was highly respected, and no one had spoken in opposition or talked about what any alternative PBC might be. To that extent I find Mr Ross is likely to have also had a sense of confidence, and that is why he did not take any further steps ahead of the authorisation meeting, such as seeking the injunction he refers to in his evidence.

45    I also find that this sense of confidence may well have led some Olkola People not to attend the authorisation meeting, or not to bring all their family members. Ms Karrell Ross deposes that she has two adult children who would have come to the authorisation meeting to vote for OAC, and that she agreed with her mother Shirley that they need not trouble her aunt Elizabeth, who attended the pre-authorisation meeting, to go to the authorisation meeting.

46    The vote at the authorisation meeting was tight, as Ms Symonds submitted. It was 35 votes in favour of a new PBC, against 29 votes in favour of OAC. In that sense, I accept that decisions by Olkola People not to attend the authorisation meeting could have mattered, and could have affected the outcome of the vote. This is a serious reminder of the importance of people attending meetings, and not making assumptions. As I explain below, where people do attend, it is also vital that they make their views known, especially if they have objections. I have made similar observations in previous decisions: see Ross on behalf of the Cape York United #1 Claim Group v State of Queensland (No 1) [2021] FCA 1463 at [23].

The authorisation meeting and the resolutions made at it

47    There was no direct challenge to the meeting record of the authorisation meeting; however, counsel for Ms Symonds made a submission about the length of the meeting record (which he referred to as “minutes”), which I infer was an indirect criticism:

These are the meeting minutes from the six to seven hour meeting that occur on that date. There’s only two pages and this is in – and I note in that regard that there’s no meeting minutes from the pre-authorisation meeting. So these are the only meeting minutes from the authorisation meeting.

48    This submission has some force. However, the outcome of this interlocutory application does not turn on any detailed examination of who said what at the authorisation meeting. Rather it turns on what should be drawn from events at the authorisation meeting which were substantively agreed to have occurred.

49    I accept the meeting record in evidence is an accurate record of the sequence of decisions made, and a brief summary of those decisions. It can be relied upon by the Court for that purpose. I accept the evidence of Ms Malyon that 73 Olkola People attended the authorisation meeting. I also accept Ms Malyon’s evidence at [39] of her affidavit that:

Each Olkola person in attendance received a set of materials, including a copy of the meeting PowerPoint presentations, maps of the proposed determination area and jointly held areas, a number of draft s.87A agreements reflecting three proposed determinations of native title (for each of the area where Olkola alone would be recognised as native title holders, and two “jointly held country” areas with Olkola and Kunjen Olkol being recognised for one and another with all of Olkola, Kunjen Olkol and Kowanyama People being recognised), a copy of the OAC rule book with proposed amendments (and an explanatory statement for the amendments), CYLC’s draft template rulebook used for newly registered PBCs, a draft PBC rule book for the “jointly held” areas and the proposed draft resolutions.

50    I find that was a complete set of materials for the purposes of what needed to be decided at the authorisation meeting.

51    It is of some significance that the undisputed evidence was that the resolutions concerning the s 87A agreements (resolutions 1 to 4) were passed unanimously. The Olkola group as a whole wanted this agreement with the State and the other parties, and wanted their native title recognised in the way proposed in the agreement.

52    Agenda item 12 concerned the choice of PBC to hold the Olkola native title. The PowerPoint slide stated:

Agenda Item 12: Prescribed Body Corporate

•    The Native Title Act requires the native title group to nominate a prescribed body corporate (PBC)

•    The PBC holds native title rights either as a trustee or agent for all members of the native title group (Traditional Owners).

•    The PBC must hold, protect and manage native title in line with the objectives of Traditional Owners

•    Must be incorporated under the Corporations (Aboriginal and Torres Strait Islander) Act (CATSI Act)

•    Must comply with the Native Title Act (NTA) and Native Title (Prescribed Bodies Corporate) Regulations

53    The next slide described what a PBC did. There was no challenge to the accuracy of this slide, nor any suggestion that some or all of the Olkola People attending the authorisation meeting did not understand the function of a PBC at least at the general level.

54    Slide 48 dealt with the identification of PBCs for both Olkola-only country and shared country. It conveyed the basic and accurate message of the NT Act structure that “Traditional owners speak for country”. I find that it is more likely than not that most of those who attended the authorisation meeting would understand this message. It is a straightforward and often repeated message. I find, and the affidavit evidence on both sides in this matter supports, that Olkola People attending the authorisation meeting understood that when they chose the PBC, they were choosing who would assist them, and be their voice, about the management of their country under their native title rights.

55    The slide was short on detail about the PBC for Olkola country. It simply stated:

Olkol People only areas:

1.     Olkola Aboriginal Corporation

2.     New Corporation

56    However, as I have found, all attendees had copies of both the proposed amended rule book for OAC and the proposed rule book for the template corporation, so there was more detail available about what rules each corporation would operate by, should anyone have wished to have it.

57    I find it is not likely that any details about the rule book governed peoples’ choices about the PBC. There is no evidence to that effect. I find, as I have above, that what is likely to have governed peoples’ choices, and what the outbursts after the vote also confirmed, was that there was a basic division within Olkola common law holders about the likely role of OAC as the PBC for their native title. A substantial number of people were concerned about that outcome. The affidavit evidence adduced by the CYU#1 claim applicant is consistent with this finding. So too the evidence about OAC members turning up to the pre-authorisation meeting in their OAC branded shirts; a visual signal of support, but also a visual signal of the fact of some division within the wider group. The outcome of the secret ballot is also consistent with this finding. So too is the effort Mr Ross put into to his persuasive speech at the pre-authorisation meeting.

58    The slide then also stated:

DISCUSSION ABOUT OPTIONS BEFORE RESOLUTIONS TO NOMINATE A PBC ARE PROPOSED

59    Ms Malyon’s evidence about what was explained by her and Mr Yarrow is set out at [42]-[44] of her affidavit:

The authorisation meeting then considered the nomination of PBCs for the proposed determinations of native title. Agenda item 12 in relation to the PBCs was presented by Mr Yarrow and I, in accordance with slides 47 to 49. Together, we explained the role of PBCs, the legislative requirement to nominate a PBC for the proposed Olkola determination area, the need for a joint PBC with other native title groups for “jointly held” areas, and the decisions that Olkola Traditional Owners would need to make at the authorisation meeting. For the proposed Olkola determination area, two options were presented to the meeting, one being to nominate the existing OAC and the other being to nominate a newly incorporated PBC that would be established as part of the decision making at the present meeting. Noone present at the authorisation meeting objected to any aspect of this presentation, nor did anyone request any additional information be presented to the meeting, including anything about the OAC.

Mr Yarrow explained to the meeting that OAC holds the Aboriginal freehold under the Aboriginal Land Act 1991 (Qld) in the proposed Olkola determination area and OAC manages a number of projects and activities on country. He said that if a new corporation was nominated to be the PBC this would potentially require OAC to seek native title consent from the new PBC, should OAC wish to continue its management of such projects and activities.

As part of our presentation on a PBC for the Olkola determination area, Mr Yarrow and I also went through each of the rule books, being the OAC rule book with proposed amendments and the new PBC template rule book. This part of our presentation took approximately twenty minutes. The rule book reviews focussed on the more salient features of each rule book, including but not limited to board composition, eligibility for membership, native title and cultural heritage decision making and procedures for general and directors’ meetings. We also covered the amendments required in the OAC rule book to ensure its eligibility for nomination as the PBC, referring meeting attendees to the table of changes and the draft OAC rule book contained in the materials pack which every participant at the meeting was provided with.

60    Ms Symonds alleges that aspects of this did not occur. Specifically, she alleges that there was no discussion of the proposed rule book for the new PBC. I do not accept her evidence on this point. While neither Ms Malyon nor Ms Symonds were cross-examined, I find it is more probable that Ms Malyon had a reliable recollection of what occurred, including because of the preparation she is likely to have engaged in ahead of time. As the Principal Legal Officer, Ms Malyon is, I find, aware of her obligations and aware of what needs to be presented. I make the same finding about Mr Yarrow. Both are very experienced at presenting at meetings such as this. Their focus was, I find, on ensuring the information required for informed decisions by the Olkola People was presented.

61    I find that Ms Symonds may well have had many different points of focus during the authorisation meeting: her family; other Olkola People; other people from OAC; the way the mood of the meeting was shifting – whether towards or against OAC; the dynamics likely to have been on display in the room. While I am confident she was generally attentive to what Ms Malyon and Mr Yarrow were saying during the meeting, it would be understandable that over a meeting which took approximately five and a half hours, she may not recollect every word, or even the details of every topic presented orally. That would be an understandable human position in the circumstances.

The secret ballot concerning the PBC for Olkola common law holders

62    It is curious there is no evidence from Ms Malyon about why she proposed a secret ballot for the decision about the PBC, when all other voting had been done by a show of hands, and this was the method agreed to at the start of the meeting.

63    The only clue arises in Ms Symonds’ evidence where she states Ms Malyon told her someone had requested it. The CYU#1 claim applicant relied on this evidence. It is curious Ms Malyon did not give this evidence herself. Other affidavit evidence relied on by the CYU#1 claim applicant suggests that there was some disquiet about an open show of hands vote on this choice, and that at least some people did not feel comfortable. Although this affidavit evidence is given after the fact and in the context of a contest about what occurred at the authorisation meeting, the evidence was unchallenged, and I find it is sufficiently reliable to establish at least some level of disquiet existed at the time Ms Malyon proposed a secret ballot.

64    I accept Ms Symonds’ submission that there had been some planning ahead of time for this eventuality, since ballot cards had been printed and brought to the meeting. There is insufficient evidence to draw any adverse inferences about an inappropriate motivation on behalf of Ms Malyon for the secret ballot proposal, or preparation ahead of time for it. Rather I infer the ballots were printed out of an abundance of caution by or on the instructions of Ms Malyon, on the basis of what she had observed at the pre-authorisation meeting and her knowledge in the intervening period about the vote for a PBC being a significant vote.

65    I find Ms Malyon is sufficiently familiar with the Olkola claim group, and the personalities within it, to be aware (as Mr Ross and Ms Symonds also plainly were) that not all Olkola People might be enthusiastic supporters of OAC. The strength of position OAC sought to present had been reinforced by OAC members turning up to the pre-authorisation meeting in OAC shirts. That may have set something of a confrontational tone. I consider I can take judicial notice of the fact, evident in all the native title work that Judges of this Court experience, that shirts with the branding of organisations or corporations or native title holding groups are a popular and pervasive form of identification for First Nations People, and a signal of pride and belonging. I infer Ms Malyon was aware of the visual division this choice by OAC members had created at the pre-authorisation meeting.

66    I find that the secret voting process appears on the evidence to have broken down somewhat for the small number of Olkola People who voted remotely. However, it was the secrecy of the vote that broke down somewhat, and there is no evidence they would have voted any differently.

67    After the secret ballot, the evidence clearly establishes there was quite a volatile situation, with some people being upset at the outcome. Ms Malyon’s evidence tends to downplay this aspect of the meeting. The evidence of Ms Symonds discloses, I accept, a reliable picture of what occurred. She deposes that the meeting “broke down” and that she and “numerous other Olkola people” became “very upset” and “felt betrayed”. The material put on behalf of the CYU#1 claim applicant varies: Ms Rosemary Bulmer similarly deposed that “everything went haywire”. Mr Leon Bowyer deposes that “most people seemed happy” apart from Ms Symonds and Ms Karrell Ross; Ms Rhonda Gilbo deposes that Ms Symonds and Ms Karrell Ross had an “angry” tone of voice and that Mr Ross made her and her daughter “feel bad”, and that all three of their behaviour was “not very nice”. Mr Michael Yam deposes that there was “conflict” and that he “[didn’t] know why people were fighting”, and that he said to Olkola People at the meeting that “it is big enough country for everyone”.

68    I accept, and find, that OAC supporters, and especially Ms Symonds, Ms Karrell Ross and Mr Ross, were “shocked”. I find that in part the likely explanation was because they had a level of confidence after the pre-authorisation meeting, which turned out to be misplaced. I find and accept that they, and OAC, had been preparing to be the PBC for almost a year, and had in all likelihood at a personal level thought this would be the outcome for a long time before that. I have no doubt they have a genuine belief that OAC was the best corporation to lead the Olkola People as their PBC. This outcome was in that sense genuinely a real shock.

69    Like any other situation in any community, Indigenous or non-Indigenous, where there may be contentious issues that have to be decided (whether by vote, or consensus, or otherwise), who comes to such meetings, and how organised proponents have been beforehand, in terms of gathering support, could be critical. At this authorisation meeting, the voting was very close, but not in OAC’s favour. As I have observed, this situation underscores why it is important that people who want a say in outcomes attend meetings. This message cannot be overstated in the context of authorisation meetings.

70    It then appears that resolution 5, which concerned the details of the new PBC, was voted by a show of hands. Resolution 5 reads as follows:

RESOLUTION 5. New Aboriginal Corporation to be the prescribed body corporate

5.1     A new corporation under the Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth) (the “corporation”) should be established to be the prescribed body corporate in the draft s.87A agreement for the Olkola Native Title Area (being the draft s.87A agreement in Resolution [4.1(a)]).

5.2     The name of the proposed corporation will be the Ut-Alkar Aboriginal Corporation.

5.3     A copy of the rules for the proposed corporation has been tabled at this meeting (the “draft PBC rules”).

5.4     This meeting approves the draft PBC rules as the rules for the proposed corporation.

5.5     The directors to be named on the application for incorporation will be:

(a)     Leon Bowyer (Fish Hawke/Kun-Kun)

(b)     Rosie Sellars (Fish Hawke/Kun-Kun)

(c)     Kelvin Coleman (Dingo)

(d)     [vacant for Dingo]

(e)     Sharelle Spratt (Hot Water)

(f)     Robert Spratt (Hot Water)

(g)     [vacant for Kurrumbilla]

(h)     [vacant for Kurrumbilla]

5.6     Once it is registered, the corporation must be nominated under s.56(2) of the Native Title Act 1993 (Cth) as the trustee of the proposed native title holders, and will not be an agent prescribed body corporate.

5.7     This meeting authorises the Principal Legal Officer of Cape York Land Council, as the agent for the proposed native title holders, to:

(a)     be the representative of the proposed native title holders to receive any request from the Federal Court under s.56(2)(a) of the Native Title Act 1993 (Cth); and

(b)     nominate the proposed corporation, once registered, under s.56(2)(a)(i) of the Native Title Act 1993 (Cth).

5.8     Once the corporation is registered, the proposed native law holders require the corporation, within 5 days of a request from the Principal Legal Officer of Cape York Land Council, to give to the Cape York Land Council a written consent that satisfies the requirements of s.56(2)(a)(ii) of the Native Title Act 1993 (Cth).

71    Ms Malyon’s evidence is that three people abstained from the vote on resolutions 5 to 8. Thus, in an open rather than secret situation, and despite the outcry and upset after the secret ballot, there was no larger absence of support for this detailed PBC resolution than three people. Mr Ross proposed the name of the new corporation.

72    I find that, by and large, the outcome of the secret ballot was accepted, and a clear majority of people at the authorisation meeting then accepted that the new corporation was going to be the PBC.

The arguments against the nomination under s 56 of the Ut-Alkar Aboriginal Corporation

73    The Ut-Alkar Aboriginal Corporation is what is referred to in some of the evidence and submissions as the “template corporation”, the subject of resolution numbers 4 and 5 at the authorisation meeting.

74    I have reached the following conclusions on the four strands of argument presented on Ms Symonds’ interlocutory application, taking into account the factual findings I have made above.

Meeting notice

75    The meeting notice for the authorisation meeting was adequate. I make that finding largely because of the context of the pre-authorisation meeting. I find it was as clear as it needed to be that there was a choice to be made about the PBC.

76    I accept the choice could have been better spelled out in the meeting notice, but I do not find any support in the evidence for the proposition that even a significant number of Olkola People did not understand this choice was to be made at the authorisation meeting. As I have explained, I accept that after the pre-authorisation meeting, OAC supporters might have felt confident. But that was because of what was not said at the pre-authorisation meeting by those who obviously did not in fact support OAC. There was no legal or other kind of obligation on those who did not support OAC to speak up at the pre-authorisation meeting.

77    Unlike some of the authorities on which Ms Symonds relied, such as Weribone at [34], [40]-[43] (Rares J) and TJ v Western Australia [2015] FCA 818; 242 FCR 283 at [87], [91] (Rares J), the principal source of information for claim group members was the pre-authorisation meeting. While it is true that not every Olkola person attended the pre-authorisation meeting, the numbers at that meeting and at the authorisation meeting were broadly similar – 68 to 73. I infer many of those who attended the pre-authorisation meeting are likely to have spoken to their families, and that the choice of PBC was a well-known issue amongst Olkola People as a whole.

78    In that particular context, the omission in the meeting notice of an express reference to a decision to choose whether OAC or another corporation should be the Olkola PBC may not have been best practice, but not invalidating.

Pre-authorisation meeting process

79    The factual findings I have made above answer this aspect of Ms Symonds’ contentions. There was nothing in the process before or during this meeting which infected or invalidated the conduct of the authorisation meeting itself.

OAC interests

80    On the basis of Ms Malyon’s evidence, which I have extracted at [59] above and accept, I find that Mr Yarrow did explain at the authorisation meeting some of the extent of OAC interests in the proposed determination area. I find he did explain how the holding of those interests by OAC might interact with the role of a new PBC, if OAC were not chosen as the PBC. I accept there may not have been the kind of detailed exposition that Mr Ross now gives in his affidavit.

81    Nevertheless, Mr Ross had spoken for 30 minutes to an hour at the pre-authorisation meeting. I find given his status as a respected senior Olkola man, people are likely to have listened carefully to him. The active Olkola group at both meetings is not numerically large – numbering in the sixties or seventies. I find many of those Olkola People are likely to have already had some understanding of the activities of OAC. A little like the rule book content, I find on the evidence that it was not information at this level of detail which was animating the choices Olkola People were making – the choices were more about their views about the conduct of OAC to this point in time, and their support or lack of support for those such as Ms Symonds who were actively running OAC.

Secret ballot

82    The first resolution at the authorisation meeting was:

RESOLUTION 1. The relevant decision-making process

1.1.     Three draft s.87A agreements under the Native Title Act 1993 (Cth) have been tabled at this meeting (the “draft s.87A agreements”).

1.2     There is no process of decision-making that, under traditional laws and customs, must be complied with in relation to agreeing to things such as a draft s.87A agreement under the Native Title Act 1993 (Cth).

1.3     Because of [1.2], this meeting agrees to and adopts the following process of decision-making:

A resolution will be considered to have been passed by this meeting when a majority of those persons present who meet the following conditions agree to the resolution by a show of hands:

   (a)     those voting on the resolution are 18 years of age or older; and

(b)     those voting on the resolution are members of the group of persons described in the draft s.87A agreements as the Olkola People (the “proposed native title holders”).

83    Given my factual findings above, the only remaining issue to be determined is whether a departure from resolution 1 when the people at the meeting came to choose the PBC to be nominated under the NT Act invalidated the vote taken by secret ballot.

84    The State contended the NT Act did not require the choice and nomination of a PBC to conform to the requirements of s 251B. Section 56 did not, the State submitted, engage the definition in s 251B because there was no “authorisation” occurring.

85    Rather, s 56 required a nomination that reflected the intention of the common law holders, and the NT Act did not prescribe any process by which this intention was to be ascertained or expressed, contrary to the process required where the NT Act requires a group to “authorise” a decision or a step taken by a native title or compensation applicant.

86    I have previously explained my opinion about s 251B: see McGlade v Native Title Registrar [2017] FCAFC 10; 251 FCR 172 at [423]-[425]; Melville on behalf of Pitta Pitta People v State of Queensland [2022] FCA 387 at [23]-[24]; Dhu v Karlka Nyiyaparli Aboriginal Corp RNTBC (No 2) [2021] FCA 1496 at [205]; Nona on behalf of Badu People (Warral & Ului) v State of Queensland [2020] FCA 983 at [80]; Tommy on behalf of Yinhawangka Gobawarrah v State of Western Australia (No 2) [2019] FCA 1551 at [58]. I accept that the provision is definitional, and connected to the use in the NT Act of the term “authorise”. It is in that context that compliance with the requirement of s 251B must be demonstrated.

87    Nevertheless, satisfying this Court under s 56(2)(a) that the common law holders “intend” to have their native title held in trust by a PBC might readily be achieved by evidence of a process that mirrors the process in s 251B. That is a process now well understood by native title claim groups and representative bodies, such as CYLC, with guidance from this Court about the content of the requirements in s 251B. There is nothing impermissible about looking to s 251B and its requirement for a decision-making process to be agreed and adopted, for the purposes of satisfying the Court about the intention of the common law holders under s 56(2). However, s 56 does not mandate such a process, unlike s 251B.

88    The Court must be satisfied that a representative of the common law holders (which here was said to be the principal legal officer of a representative body) is able to indicate to the Court the intention of the common law holders. In my opinion, the Court must be satisfied on the balance of probabilities of the objective existence of the intention of the common law holders, otherwise the purpose of vesting this decision in the common law holders could be readily undermined. In other words, the “representative” must be in a position to provide sufficient evidence to the Court of that intention.

89    In the present case, Ms Malyon, as the person appointed by Olkola as their representative pursuant to s 56(2)(a) of the NT Act, has indicated the intention of the Olkola common law holders through evidence about a secret ballot. Or at least that is what I infer she would have gone on to do, but for these interlocutory applications. In other words, Ms Malyon would, I infer, have relied on the process leading up to the secret ballot, including the pre-authorisation meeting, to inform the Court of the intention of the Olkola common law holders to have their native title held in trust by a new corporation, the Ut-Alkar Aboriginal Corporation.

90    Section 56 having a different purpose and function from the definitional provision in s 251B, I find there is no reason to exclude the conduct of a secret ballot from the potential methods available under s 56, at a meeting which has otherwise been notified in accordance with the principles developed for application to s 251B. That is not to suggest that s 251B must be followed slavishly in order to satisfy this Court of the intention of the common law holders for the purposes of s 56. On the other hand, in many circumstances, the guidance provided by authorities of this Court on s 251B might well prove helpful in persuading the Court that the objective intention of the common law holders, as a group, is what their nominated “representative” indicates to the Court it is.

91    It is sufficient for the purposes of this interlocutory application for me to find that the conduct of a secret ballot in a situation where all of the s 87A processes at the same meeting had been conducted by a different voting method in accordance with the process in s 251B is not an invalidating feature for the purposes of s 56 of the NT Act. In the present case, the Court can be objectively satisfied under s 56 that the outcome of the secret ballot, even though it was close, means that the common law holders as a collective group intend to have the Ut-Alkar Aboriginal Corporation hold their native title in trust. That conclusion is reinforced by the overwhelming majority vote on resolution 5, which indicates in my opinion an acceptance (even if an unhappy one for some) of the outcome of the secret ballot.

Conclusion

92    I conclude that the contentions made on behalf of Ms Symonds seeking to invalidate the conduct of the authorisation meeting, and/or the conduct of the secret ballot for the purposes of compliance with s 56 of the NT Act, should not be accepted. Ms Symonds’ interlocutory application must be dismissed.

The joinder application

93    There is no need for the Court to make findings on the joinder application. On Saturday 18 May 2024, the State sent a set of proposed orders to the Court, indicating the active parties and the interlocutory applicants had reached an agreement on joinder of OAC. Those orders are appropriate and are made today. The proposed orders were accompanied by the following “Notes”:

1.    Olkola Aboriginal Corporation (Interlocutory Applicant) filed an Interlocutory Application on 8 April 2024 seeking to be joined as a respondent to this proceeding pursuant to s 84(5) of the Native Title Act 1993 (Cth).

2.    The active parties to that Interlocutory Application, being the Applicant, the Interlocutory Applicant and the First Respondent, have reached agreement on a set of proposed other interest clauses (set out in Annexure A to these orders) to be included in any s 87A agreements that relate to areas in which the Interlocutory Applicant holds interests, subject to the agreement of the other parties to those draft s 87A agreements.

3.    On that basis, the active parties agree that the Interlocutory Application be resolved in the terms set out in the [proposed orders].

94    This sensible resolution avoids the need for the Court to make any findings on the somewhat surprising submission by the State that the Court itself should assess the adequacy or otherwise of a proposed “other interests” clause in relation to a third party as part of a consent determination process.

Conclusion

95    The course of events leading to these interlocutory applications, and the evidence adduced, illustrates a number of unsatisfactory aspects that can occur in the decision-making process leading towards consent determinations. I do not suggest they are unique to the CYU#1 claim, but they might be exacerbated in the context of this claim because of the large number of matters being prepared on a rolling timetable.

96    First, disputes about what was said or not said at authorisation or pre-authorisation meetings require the court to engage in fact finding in less than desirable circumstances, generally only with evidence from a minority of those who attended. Sometimes the disputes about what was said, or done, might be critical. People do their best to give reliable evidence, but the task is challenging for witnesses. Claim group members are pitted against each other.

97    Similarly, there is a need for care to be taken in identifying what functions are functions of the native title representative body and what are the functions of the lawyers of a native title representative body where those lawyers are on the record for a party in a proceeding. In these circumstances, some difficulties may be allayed by an independent facilitator at meetings such as those contemplated in this interlocutory application. The engagement of a facilitator would, to a degree, separate the running of the meeting (such as giving meeting attendees an opportunity to participate, announcing voting outcomes, assisting in dispute management) and the provision of legal advice.

98    It seems to me consideration might be given to an official video recording of what occurs at pre-authorisation and authorisation meetings. Those recordings could be securely kept by the representative body with some instructions about the circumstances in which they are to be used, and how long they are to be kept. For example, it is probable that in most cases, the recordings could be destroyed after a determination of native title has been made. While I do understand that those attending might find such a process objectionable or intimidating, the simple act of video recording or audio recording would remove a lot of subsequent debates about what occurred. Pitting claim group members against each other in subsequent evidence is also corrosive and undesirable.

99    Further, while the Court has concluded that the conduct of a secret ballot for the PBC did not occur in a way which invalidated the choice made by those at the authorisation meeting between OAC and the alternative PBC, the way the secret ballot process was approached and undertaken was less than ideal.

100    I do not accept the submission that in the context of a native title claim group, a secret ballot is necessarily the “gold standard”, as submitted by counsel for the CYU#1 claim applicant. While democratic political decision-making often employs this method, the cultural and social context of a native title group is quite different, as are the decisions they are making. A secret ballot may isolate individuals in a way that is not conducive to good decision-making. Secrecy may impose its own pressure, distinct from a show of hands process which I accept can in some circumstances also cause individuals to feel pressured. Traditionally however, some might wish to take their lead from how they see others voting, and culturally that might be completely appropriate. These matters may benefit from further consideration and analysis by those better qualified to do so than the Court. The point to make here is that there is no necessary transposition from the voting one sees in Australian parliamentary elections to the kind of situation with which the Court is concerned, and it could be a mistake to assume so.

101    Best practice might suggest there should have been an adequate discussion about whether a secret ballot was appropriate, when all other decisions were being taken by a show of hands. Just as the other decision-making processes are chosen by the group, so too should a secret ballot. Silence, or absence of protest, may signify any number of matters, and not necessarily agreement. Acquiescence in the face of non-Aboriginal people who are lawyers informing a group that this process is what will occur does not seem to me to be a far-fetched proposition. None of this was explored in argument in a way that requires findings beyond those made above, but it is appropriate that the Court’s decision not be taken as a wholesale endorsement of what occurred so that some kind of model for the future might be created.

102    Finally, the Court understands that whatever decision it made on Ms Symonds’ interlocutory application, some Olkola People would be disappointed and frustrated. The Court must make a decision on the evidence before it, and on what Australian law says about the situation. What has happened here underscores again the importance of all interested people attending important meetings, whether for discussion or for decision, and making their views known at those meetings.

Associate:

Dated:    21 May 2024

SCHEDULE OF PARTIES